Restaurant owners and patrons got a bit of whiplash Monday as a rapid succession of court decisions brought back in-person dining, then suspended it again.
Shortly before 2 p.m., Monday, July 20, a district court judge in Carlsbad issued a temporary restraining order, blocking the governor’s ban on indoor dining.
Less than four hours later, the New Mexico Supreme Court overruled the lower court, upholding Gov. Michelle Lujan Grisham’s most recent public health order.
Lujan Grisham’s renewed public health order, which rescinded restaurant’s ability to offer in-person dining at 50 percent is in place through July 30.
When the order was issued on July 13, one local restaurant continued to offer in-person dining.
Owners of Greg’s BBQ told the News-Bulletin last week the decision was a matter of survival for not only their business but their employees as well.
The Belen barbecue place made it until last Friday, July 17, evening before being cited by New Mexico State Police, owner Greg Spragg said.
The citation was for mask and social distancing violations under the current public health order, and for having customers in the dining area, he said.
“There were people standing in the lobby and a line out the door waiting for to-go orders,” Spragg said. “We did have a couple sitting in the dining room with no food. They were waiting for an order.
“When people were coming in, we told them to go sit in their car and we would bring it out to them but we were slammed; we were so busy. Maybe we should have had someone monitoring.”
Spragg will have to appear in magistrate court for the citation some time before Aug. 5. The exact date is unknown, he said, due to a backlog of cases with the court.
“I called yesterday to try to set something set up,” he said. “It will be by video but I’m not sure when.”
Spragg said he wasn’t sure if he would be assessed a fine, and NMSP officers didn’t know either.
“I’m not sure what’s going to happen now,” he said. “I heard an inspector from DOH is coming down today (Tuesday) and, from what I’ve been told, will suspend my license. I don’t know how they can do that without being convicted.”
State police officers visited the restaurant three times, Spragg said. When he asked why, he said they indicated there were continued calls about the health order violation.
“So our good neighbors are turning us in,” he said.
After the announcement of the restraining order, the governor’s office said it would file an emergency motion asking the state Supreme Court to intervene, which it ultimately did.
Spragg said Greg’s would continue operating as they have been — seating customers on the patio until the 50 percent capacity is reached as well as under a recently erected tent.
“After those are full, then people are coming in. That’s all I can do,” he said. “I’ve already been cited so what the hell.”
He continued, saying the only thing restaurants could do was make sure people are wearing masks and staying the proper distances of 6 feet apart.
“All restaurants need to do that so she can’t come back and say this is what you’re not doing,” Spragg said.
One of the owners of Los Lunas restaurant Teofilo’s Restaurante said they were going to stay the course, following the orders to eliminate in-person dining, regardless of the court decision.
“We are just going to continue to do patio and take out,” Joell Himeur said on Monday. “We’ve been doing this for four months. We can hang in there for 10 more days.”
Himeur said she and her family already made the tough decision to cut stuff hours when in-person dining was restricted again last week and didn’t want to keep going back and forth for the sake of the staff.
“I feel bad for them. It’s not fair, this yo-yo situation,” she said. “If something changes in 10 days, we’ll see.”
On Monday, July 20, Third District Court Judge Raymond L. Romero in Carlsbad issued a restraining order temporarily barring Lujan Grisham and her administration from enforcing its ban on indoor dining at restaurants and breweries.
In his order, Romero noted the state failed to respond to the request for the order filed by several New Mexico restaurants.
The governor’s office filed for an emergency stay of the ruling within hours with the state Supreme Court, which the higher court granted.
“I am grateful for the court’s quick action,” said Lujan Grisham. “Businesses all across New Mexico have been battered by the effects of this pandemic; they are owed consistency and fairness, which my administration has endeavored to provide at every opportunity.
“We will continue to provide that while taking every single possible action to protect the health and well-being of New Mexicans — including workers and customers at our restaurants.
“I appreciate the high court’s recognition of the importance of consistent application and enforcement and the opportunity to bolster our case that high-contact indoor environments where face-coverings cannot be worn present an untenable risk given the incredible danger of COVID-19 at the moment.”
According to a COVID-19 risk index created by the Texas Medical Association, eating inside a restaurant is of “moderate-high” risk, the second highest risk category on the index.
Other activities in that same category include going to a hair salon or barbershop, traveling by plane or hugging or shaking hands.