Many restaurants are offering takeout orders after a ban on dining in at eateries went into effect on Tuesday, March 17. (Saphara Harrell/Salem Reporter)

This story was updated Tuesday, Nov. 24.

UPDATE: Gov. Kate Brown’s executive order limiting service at restaurants and bars will stay in place after a federal judge on Tuesday turned down a request by the Oregon Restaurant and Lodging Association to block it while a broader legal challenge is settled.

U.S. District Judge Karin J. Immergut sided with the governor in concluding public health interests take precedence over the impact on restaurants and bars. The restaurant association had requested a temporary restraining order to immediately stop Brown's order. The judge said the industry's concerns about business losses and disruptions “are outweighed by the benefits to all Oregonians from restrictions designed to keep as many people alive and healthy as possible during this historic pandemic.”

DOCUMENT: Judge's ruling

Gov. Kate Brown is standing firm on her decision to shut down restaurants and bars to in-person dining, telling a federal court Monday that saving lives during a rapidly spreading pandemic takes priority.

“Oregon Governor Kate Brown is trying to keep as many Oregonians alive as possible, and to keep the cases in the state from overwhelming Oregon's hospitals,” said the governor's response, filed in U.S. District Court by the Oregon Department of Justice.

Brown made clear her motive.

“The limits placed on Oregonians’ activities are frustrating and painful, but they are necessary for the preservation of human life,” she said in her response.

She said she had little choice.

“Significantly slowing the exponential rise in cases now is critical to avoid a catastrophic surge in hospitalizations,” her filing said.

DOCUMENT: Gov. Kate Brown’s response

The filings were in response to a lawsuit brought Friday, Nov. 20, by the Oregon Restaurant and Lodging Association against the governor’s decision to limit bars and restaurants to take-out and drive-through service. The lawsuit argued the new restrictions aren’t supported by data from the Oregon Health Authority, would cripple the already strained restaurant industry, while violating the U.S. Constitution’s guarantees of equal protection and due process.

This is the second shutdown order issued by Brown since the pandemic began in March. The restaurants were asking for a temporary restraining order to limit Brown’s order until the lawsuit could be resolved. Brown responded to that effort on Monday.

Oregon has fared better than most U.S. states in containing the virus. But Covid transmissions have reached record highs in recent weeks and regularly exceed 1,000 new cases daily. Brown has warned that the state’s hospital system may become overwhelmed unless transmissions are reduced.

Marion County reported 183 new cases on Sunday - a new single-day record. Oregon has twice recorded daily totals of more than 1,500 new cases of Covid in the past week. Now more than 456 people are hospitalized with Covid, up from 347 one week ago.

The restaurant association has complained that eating and drinking establishments have followed public health guidelines and state data hasn’t linked them to the rise in transmissions. They also complained that the restrictions would push more people to private gatherings, which Brown and public health officials have attributed to the increase.

The governor said the pandemic’s effect would harm restaurants even without her order.

“Even if the state did nothing at all, this would not be a normal Thanksgiving: many Oregonians would avoid dining in restaurants or drinking in bars to protect their own health,” she said in her filing.

Brown conceded in her response that proof of cases coming out of restaurants isn’t there.

“Public health officials cannot definitively determine the number of infections that have occurred in restaurants in Oregon,” Brown said in her filing.

However, she said that restaurants and bars still bring together individuals from different households for a substantial length of time. They might be sitting in close proximity to each other and have to remove masks to eat and drink, increasing the risk of infection, she said. The filing pointed to several studies from across the U.S. establishing that restaurants are a significant source of community spread.

Dr. Dean Sidelinger, the state’s health officer, said in declaration filed with Brown’s response that while he told reporters in August that there is no clear evidence of significant transmissions in bars or restaurants that’s because local public health systems are too strained to produce conclusive data on community spread.

DOCUMENT: Dr. Dean Sidelinger’s declaration

Sidelinger clarified that county contact tracers - the public health workers who attempt to track sources of infection – haven’t identified restaurants and bars as a source of infection because they can’t adequately trace all new cases.

He said that the source of more than half the state’s infections couldn’t be traced to a source because of inadequate resources. He said that as cases have surged, contact tracers have had to scale back interviews with potentially infected people.

With limits on the number of contact tracers available, county health authorities are not specifically asking whether someone has visited a bar or restaurant and usually only identify staff members who’ve been exposed, he said. 

“The true spread of the outbreak is not known because it is difficult to ascertain if any patrons became ill after going to the bar or restaurant,” he said. “For that reason, it is unsurprising that contact tracing has not identified restaurants or bars as a known source of infection for patrons.”

In its lawsuit, the restaurant association complained that retailers, in addition to childcare centers and homeless shelters that serve food have been allowed to stay open.

Brown’s filing responded that shoppers wear masks the entire time they’re in the building. It also said that childcare centers and homeless shelters can’t offer drive-through or take-out.

Brown said in the filing that restaurants couldn’t prove their loss of business was because of the restrictions or customers staying home. For instance, the Old Spaghetti Factory already saw a 30% drop in year-over-year sales before the governor’s most recent order went into effect, according to the filing.

Filings from Brown also said that the restaurant association’s constitutional rights don’t include the “liberty to expose the community to a communicable disease.”

RELATED COVERAGE:

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

Local health officials say there is little evidence Salem restaurants and bars are helping spread Covid 

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