While New Mexico Supreme Court allows ban on indoor dining for now, it will consider challenge

SANTA FE, New Mexico — While the state Supreme Court has upheld Gov. Michelle Lujan Grisham's public health order prohibiting indoor service at restaurants and breweries for now, it has agreed to weigh a challenge from the restive restaurant industry.

Lujan Grisham this month reinstated a ban on indoor dining based on surging Covid-19 infections and concerns that gathering without face masks to eat can increase risks of transmitting the disease. Face masks are mandated by the state in all public settings, amid prohibitions on most public gatherings of more than four people.

The state Supreme Court had stepped into the fray earlier this week, just hours after a state district court judge in southern New Mexico suspended the indoor dining ban pending court hearings. Instead, the Supreme Court allowed the ban to continue - but it has ordered direct briefings from restaurants and the governor’s office on the issue.

Lujan Grisham spokesman Tripp Stelnicki said restaurants present distinct risks and urged people to abide by the ban on indoor service.

“Sustained indoor contact in an environment where face-coverings cannot be worn, such as at restaurants, is unsafe,” he said. “New Mexico business operators should continue to abide by the state’s guidelines and restrictions; anything less is to risk the health and safety of employees, customers, their communities and indeed our entire state.”

Carol Wight, CEO of the New Mexico Restaurant Association, said the dire warnings are not borne out by the state’s own rapid response investigations into coronavirus outbreaks — that indicate greater problems in other industries.

Wight says the association does not encourage its members to go against the state’s current public health order, but that “we understand their desperation.”

Court filings by a group of restaurant owners and the association allege that indoor dining restrictions are unwarranted and discriminatory because gyms, hair salons and churches continue to operate indoors.

Several restaurants have continued to provide indoor service in open defiance of state health orders. Food service permits were suspended last week at seven restaurants in Farmington, Hobbs and Carlsbad that declined to halt dine-in service that regulators describe as a “substantial danger” to customers.

Health orders from Lujan Grisham and the state Health Department are being challenged in court on at least two fronts as businesses fight for economic survival amidst the pandemic and business restrictions aimed at containing the spread of Covid-19.

In court filings, restaurant representatives have said the industry accounts for eight Covid-19 investigations out of more than 440 in the state. Employment in the state’s restaurant sector has plunged from about 82,000 to 50,000, the lawsuit said.

“The state has failed to offer any reason, let alone clear and convincing evidence, that re-imposing a quarantine on indoor dine-in facilities will, in any way, have a net positive impact on the spread of Covid-19,” the lawsuit added.

The state this week began offering unemployment benefits to workers who wanted to walk out on three Pizza Inn locations in Hobbs and Carlsbad that defied the indoor dining prohibition.

Pizza Inn owner Michael Moore, who is not a direct party to the lawsuit by the restaurants, said that his three restaurants in Hobbs and Carlsbad continued to offer indoor service a week after the suspension of food service permits by the state Environment Department.

Moore said his New Mexico restaurants employ 90 people who can’t survive financially on takeout service alone.

He said Pizza Inn has taken its own health precautions by removing tables to reduce crowding, implementing new cleaning procedures and ensuring that employees wear masks.

“I’m not forcing anybody to work if they want to step back for a while,” Moore said.