Restaurant association takes legal action to block state’s two-week freeze

 Gov. Kate Brown announces new state restrictions in a news conference in Portland on Thursday, March 12. (Jonathan House/Pamplin Media)

The politically powerful association representing Oregon’s bars and restaurants took Gov. Kate Brown to federal court on Friday, seeking to halt her orders that are keeping patrons out and costing jobs.

The Oregon Restaurant and Lodging Association on Friday, Nov. 20, filed a complaint in Portland U.S. District Court arguing that Brown’s new limits, effective on Wednesday across Oregon, violate the constitutional rights of the businesses.

Brown’s two-week order is her second edict shutting down restaurants and other sectors of the economy to contain surging Covid transmissions. Those that violate her order risk fines of up to $500 a day. Those that willingly violate it could face a misdemeanor charge punishable by up 30 days in jail and a fine of up to $1,250.

The complaint said Brown’s order “imposes a series of unevenly applied and irrational restrictions upon ‘food and drink’ establishments that are not imposed on similarly situated businesses and there is no rational basis for such differential treatment.”

The association also sought a temporary restraining order to immediately stop enforcement of the new restrictions. The filing said that the order will cause restaurants to lose hundreds of thousands in revenue during the busy Thanksgiving week. A scheduling conference will be held this afternoon, according to court filings.

“The longer (the order) remains in place the harder it will be to reopen at all,” the filing said. “This creates the very real possibility, even likelihood that businesses will close.”

The association complained that Brown’s order allows many other businesses and facilities to stay open as long as they follow public health guidelines. Those include everything from barber shops to homeless shelters. It said that workplaces, health care facilities and childcare are allowed to operate cafeterias.

Pointing to how restaurants and bars have installed safety dividers, outdoor seating and adopted other precautions, they should similarly be allowed to operate with public health guidelines in place, the complaint argues. The governor’s order also “unreasonably and unfairly” lumps all eating and drinking establishments together even though they vary in amount of open space, ventilation, air filtration and other factors that allow them to prevent the spread of the virus, the complaint said.

The complaint said Brown’s actions violate the U.S. Constitution, infringing Oregon restaurants and bars’ liberty and property without due process.

The complaint also said that by constitution, Congress, not state government, regulates interstate commerce. The order causes customers to travel to other states where bars and restaurants remain open while disrupting food industry supply chains Oregon, the complaint contended.

The state’s dining and drinking sectors has been particularly hard hit by pandemic restrictions and some in the industry have predicted a wave of closures as a result of Brown’s latest actions.

The Oregon Restaurant and Lodging Association has complained that state data doesn’t trace Covid cases in any volume to bars or restaurants.

“We hope to engage in communication with Governor Kate Brown and her professional staff as soon as possible to work towards a resolution that has not been available to us at this stage,” according to a statement from Jason Brandt, president and CEO of the Oregon Restaurant and Lodging Association. “In the meantime, Oregon’s restaurant operators must continue to follow all orders executed by the governor until a federal court addresses the serious legal concerns brought forth by the industry.”

Brown’s office declined to comment on the complaint and instead referred to a press release issued earlier this week announcing $55 million in financial assistance to the restaurant industry.  

The complaint asks the court to find Brown’s order unconstitutional and enjoin her from carrying it out.

The complaint was filed by attorneys Edward Trompke, Joseph Rohner and Christopher Dolan of the Lake Oswego-based law firm Jordan Ramis PC. The Restaurant Law Center, a Washington D.C.-based national advocacy group, is seeking to join the lawsuit.

Contact reporter Jake Thomas at 503-575-1251 or [email protected] or @jakethomas2009.

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