Michelle Lujan-Grisham, the Governor of New Mexico, has taken a stand
against coronavirus:
Restaurants cannot open for dine-in service. Although the governor has said that it is possible they can do so
beginning in "early June" she has not yet solidified or guaranteed that
date.
Yet an examination of the Public Health Orders ("PHO") published by the
Secretary of Health shows that, according to the PHO itself, restaurants
are able to open for dine-in service, contrary to the Governor's press
release.
The press release states, in relevant part:
"Locations and services where high-intensity contact is unavoidable –
such as gyms, salons, indoor malls, tattoo parlors and dine-in service
at restaurants and bars – remain temporarily closed. Limited in-person
operations for those types of businesses could be included in the next
modification of the public health order, as soon as early June,
depending on New Mexico’s rate of COVID-19 transmission, testing
capacity and other gating criteria."
"All retailers may operate according to COVID-Safe Practices (“CSPs”) at
25 percent fire code occupancy. (A “retailer” is any business that sells
goods directly to the ultimate consumer or end-users and does not include
wholesalers or suppliers, not does it include entertainment venues such as
movie theaters, concert halls, or amusement parks)"
"Non-essential businesses (other than retailers; such as office spaces,
call centers) generally may operate according to CSPs at up to 25 percent
of pre-crisis staffing levels. All employees should continue to work from
home wherever possible"
But that's not what the Public Health Order actually says.
On May 15, 2020, New Mexico Department of Public Health Secretary
Kathyleen Kunkle issued the
most recent PHO. She has issued
a number of these orders since a Public Health Emergency
was declared
by Governor Lujan-Grisham on March 11. This May 15 PHO, part of the
Governor's plan to 'reopen' the state, states in part that:
1. Except as provided elsewhere in this Order, all "mass gatherings"
are hereby prohibited under the powers set forth in the
New Mexico Public Health Act [link added].
3. "Close-contact businesses" and "recreational facilities" must remain
closed.
4. Any business that is not
as an "essential business", a "close-contact business", or a "recreational
facility" may open provided that the total number of persons situated
within the business does not exceed 25% of the maximum occupancy of any
enclosed space on the business's premises, as determined by the relevant
fire marshall or fire department. Businesses identified as a "retail
space" may operate provided that the total number of persons
situated within the business does not exceed 25% of the maximum
occupancy of any enclosed space on the business's premises, as
determined by the relevant fire marshal or fire department. Any
business opening pursuant to this provision must comply with the pertinent
CSP's [sic] set out in the "All Together New Mexico: COVID-Safe Practices for Individuals and
Employers" [link added].
So, under section 4, any business can open provided all of the following
requirements are met:
1. They are not an "'essential business,' 'close-contact business,' or a
'recreational facility'"
2. They do not exceed 25% of their maximum occupancy limit
The PHO sets out, among others, the following definitions:
"Essential business" means any business or for-profit entity falling
within one or more of the following categories: . . . Restaurants, but
only for delivery or carry out
"Close-contact business" includes barbershops, adult entertainment
venues, hair salons, tattoo parlors, nail salons, spas, massage parlors,
esthetician clinics, tanning salons, guided raft tours, guided balloon
tours, gyms, and personal training services.
"Recreational facilities" include movie theaters, swimming pools,
museums, bowling alleys, miniature golf, arcades, amusement parks, concert
venues, performance venues, go-kart courses, indoor shopping malls, and
other places of indoor recreations or indoor entertainment.
Where does a (standalone, not part of a
movie theater, amusement park, performance venue, or other "recreational
facility") dine-in restaurant fit into this Public Health Order?
Under the definition of "essential business" a restaurant is only
considered essential if it is operating only for delivery or carry out. Therefore, a dine-in
restaurant wouldn't meet this criteria, and would not be defined as an
"essential business". Dine-in restaurants also do not fall under the
definition of a "close-contact business" nor "recreational facilities."
Therefore, requirement 1 is satisfied.
Requirement 2 does not prohibit dine-in restaurants from opening, but
rather requires dine-in restaurants to limit their occupancy to 1/4 of their
normal limit. Therefore, requirement 2 is satisfied (provided a
dine-in restaurant is complying with this requirement during
operations).
COVID-Safe Practices for All New Mexicans (Pages 7-8)
COVID-Safe Practices for All Employers (Pages 9-10)
COVID-Safe Practices: Retail (Page 11)
COVID-Safe Practices: Restaurants (Pages 12-13)
The Restaurant section of this document provides, in relevant part:
"When permitted by the State's Public Health Order, restaurants will be
allowed to offer dine-in service under the following requirements. .
."
In other words, the All Together New Mexico document does not prohibit
dine-in restaurants from operating, unless a PHO provides for that
prohibition. Since there is no prohibition against dine-in restaurants from
operating in the latest PHO, the operation of dine-in restaurants does not
violate the All Together New Mexico document.
Therefore, requirement 3 is satisfied.
This means that dine-in restaurants can operate under the latest
Public Health Order in New Mexico.
We can't purport to know why there is such a stark difference between the
governor's press release, and the actual Public Health Order. However, it
stands to reason that the actual text of the order would take precedence
over a press release about the order.
So why is it that two New Mexico restaurants that re-opened for dine-in
service on May 15 were
shut down?
On May 22, the New Mexico Environment Department ("NMED") issued a press
release that states in part:
"The New Mexico Environment Department (NMED) suspended food permits from
two restaurants that opened for dine-in service in violation of the Food
Service and Sanitation Act.
Jalisco Cafe in Silver City and Anaheim Jacks in Ruidoso were served
notifications of the suspensions by NMED on Friday. Dine-in service is
prohibited under the state’s public health order. "
But, as shown earlier in the article, dine-in service is
not prohibited under the PHO. This is where it gets
interesting, as the actual notifices (served to
Jalisco Cafe
and
Anaheim Jacks) don't use the Public Health Order. Rather, the NMED uses an
entirely different law (section 9 of the Food Service Sanitation Act) to claim their
authority to shut down these dine-in restaurants. This law states,
in relevant part:
"The agency may suspend a permit immediately without prior notice to the
holder of the permit if it determines, after inspection, that conditions
within a food service establishment present a substantial danger of
illness, serious physical harm or death to consumers who might patronize
the food service establishment. A suspension action taken under this
section is effective when communicated to the food service establishment
operator or any employee or agent of the operator who is in charge of the
premises involved. If there is no designated employee or agent in charge
of the premises, communication to any employee physically present on the
premises is sufficient communication to make the suspension effective. No
suspension action taken under this section shall continue beyond the time
that the conditions causing the suspension cease to exist, as determined
by an inspection by the agency at the request of the food service
operator."
In other words, the NMED can, in the face of "conditions within a food
service establishment present a substantial danger of illness, serious
physical harm or death to consumers who might patronize the food service
establishment," revoke a food service permit (which a restaurant, dine-in or
not, cannot operate without
under section 7(A) of the Food Service Sanitation Act).
According to the notices of suspension:
"The Permittee is operating in a manner that presents a substantial
danger of illness, serious physical harm or death to consumers who
patronize the food service establishment for dine in service given the
public health emergency declared by the Governor of the State of New
Mexico (Executive Order 2020-030, May 15, 2020) [link added] and the
Public Health Order [link added] issued by the Secretary of the Department of Health
(May 15, 2020) related to the ongoing coronavirus pandemic.
This is a sly move on the part of the NMED. The notices of suspension claim
that the Executive Order and the PHO support the NMED's determination that
the dine-in operation of these restaurants is dangerous, but stop short of
saying that the PHO itself prohibits this operation (at least in the actual
notice of suspension, the NMED's press release claims the PHO prohibits this
operation. This is similar to the earlier discrepancy between a
press release and the actual document it talks about).
Are dine-in restaurants dangerous?
Finally, more than 1,500 words later, we come to the heart of the matter:
can the NMED rightfully determine that dine-in restaurants "present a substantial danger of illness, serious physical harm or
death"? That's it. That's the question. The Governor's executive orders, and
the secretary of health's PHOs don't have any direct bearing on this. In
fact, as shown in the first half of this story,
the PHO doesn't find dine-in restaurants dangerous. Does this mean
that the NMED cannot revoke the food service permit of a restaurant that
opens for dine-in service based on the NMED's sole determination that they
are dangerous? That remains to be seen.
That's Just My Thought.
Here's our sources, so you can decide for yourself:
