Sunday, May 24, 2020

Can New Mexico Restaurants Open for Dine-In Service?

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].

2. "Essential businesses" must operate in accordance with the pertinent "COVID-Safe Practices (CSPs)" section(s) of the "All Together New Mexico: COVID-Safe Practices for Individuals and Employers" [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
3. They follow the applicable guidelines provided in the All Together New Mexico: COVID-Safe Practices for Individuals and Employers document

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).

Requirement 3 provides that dine-in restaurants follow the applicable guidelines provided in the All Together New Mexico: COVID-Safe Practices for Individuals and Employers document. The following sections of that document apply to restaurants, and the individuals in them:
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:

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