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Restaurant Trade Association, Hospitality Groups Sue Over DHHS Orders

November 24, 2020

A restaurant trade association is leading a federal lawsuit against the Michigan Department of Health and Human Services for its Sunday order shuttering indoor dining as part of a coordinated effort to stop coronavirus spread. 

The suit, filed Tuesday in U.S. District Court Western District on behalf of Michigan Restaurant & Lodging Association (MRLA), Heirloom Hospitality Group LLC, and H.I.H. Inc. dba Suburban Inns, says DHHS Director Robert Gordon’s order allows some private businesses, including gyms, retail establishments, and tattoo parlors, to continue indoor operations while shuttering restaurants for the second time since the pandemic began. 
“Plaintiffs’ businesses have already lost hundreds of millions of dollars in business opportunities as a result of the Governor’s invalid Executive Orders and now are singled out from other non-essential businesses and suffering additional devastating losses under the Nov. 15 order,” the complaint alleges. 
The lawsuit alleges a violation of the commerce and dormant commerce clauses of the U.S. Constitution and violation of the 14th Amendment’s due process clause. It also alleges a violation of the Michigan Constitution’s separation of powers and non-delegation clauses. 
In a statement, MRLA President and CEO Justin Winslow said they’ve taken the action “after careful deliberation and as the last available option to prevent the outright devastation” to the industry. 
“We want to be clear that we made several good faith efforts in advance of the public release of the order issued Nov. 15 to reach a compromise with the DHHS that would have supported the goal of minimizing risk while still allowing for the continued operation of dining rooms,” Winslow’s statement noted. 
According to the lawsuit, the restaurant industry has shown itself to be “highly capable of following the comprehensive protocols” in place and as a result, there is “no reason in-person dining should be entirely prohibited.” 
The lawsuit seeks a preliminary and permanent injunction allowing restaurants to continue indoor dining while complying with health and safety protocols amid the pandemic. 
Gordon’s orders followed a Michigan Supreme Court decision that held the 1945 Emergency Powers of Governor Act violates the Constitution because it purports to indefinitely delegate legislative power to the executive branch.  
The lawsuit is at least the fourth to challenge DHHS’ epidemic orders. Two suits – Libertas Classical Association v. Whitmer et al. and Resurrection School et al. v. Gordon et al. are pending in the Western District court while one, Semlow Peak Performance Chiropractic v. Whitmer, Gordon et al., continues in the Court of Claims. 

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