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Restaurant Owners Challenge Wolf's Order
Written by Bradley Schlegel, Staff Writer

            A Pottstown attorney wants to overturn a recent gubernatorial order prohibiting all in-person indoor dining for retail food service industries. Last week, Paul Bauer and a Jenkintown attorney filed with the Pennsylvania Commonwealth Court an emergency petition to delay a portion of Gov. Tom Wolf's Dec. 10 COVID-19 mitigation order. Both lawyers also seek a permanent and preliminary injunction from enforcing the order.

            According to Bauer, the court issued an order Monday granting an emergency hearing. The lawyer said he would be arguing the case at 3 p.m. Wednesday on behalf of 11 petitioners that operate bars and restaurants in eight counties.

            The civil suit lists Wolf and Dr. Rachel Levine, the state's health secretary, as the respondents. According to Bauer, the order they issued violated the equal protection clause included in the Pennsylvania and U.S. constitutions because it does not equally apply to all businesses in the Commonwealth.

            The lawyer said the ultimate goal of the Dec. 18 lawsuit is to have the section of the order related to eateries rescinded. In an interview Monday afternoon, Bauer claimed the governor and health secretary are treating bars and restaurants differently than department and grocery stores without evidence.

            "If the governor wants a statewide shutdown, we will comply," the lawyer said.

            Bauer owns three of the facilities listed as petitioners. They include Doc's Irish Pub in Douglass Township, IEZZIS ON 3RD in Boyertown Borough and the Barrel & Ale in Colebrookdale Township. Bauer and Michael Freedman, a Jenkintown attorney, are representing companies that own restaurants in Douglassville, Wyomissing, West Chester, Exton as well as Montgomery, Delaware, Dauphin and Luzerne counties.

            In the suit, the lawyers argue that the order – which took effect Dec. 12 and is set to expire Jan. 4, 20201 – is not predicated on any findings, research, or data that Pennsylvania restaurants and/or bars have higher rates of infection than other Pennsylvania businesses. They site evidence indicating that restaurants and bars have low rates of infection.

            The lawyers cite a comment from Dr. Valerie Arkoosh, chair of the Montgomery County board of commissioners stating that "there is 'almost no [COVID-19] transmission in restaurants' and Bucks County Health Department Director reports 'very limited spread in restaurants.'"

            Further, the suit references a comment from New York Gov. Andrew Cuomo in the Dec. 11, 2020 edition of Newsweek that "private gatherings account for the vast majority of new statewide cases, while less than 2 percent are coming from bars and restaurants."

            "There is no rational basis for treating Petitioners differently than other types of businesses (viz., retail establishments, professional offices, and industrial workplaces) where there is significant person-to-person contact and even blatant disregard for social distancing, which is happening constantly at large retail and grocery chains," according to the language of the suit.

            "Bars and restaurants, including those operated by Petitioners, are equally as capable as any other businesses in imposing social distancing measures, increasing sanitation and cleaning, and otherwise engaging in safe behavior such that in-person dining could continue dining through the holidays.

            According to the language of the emergency petition, petitioners have made significant capital investments in sanitizing materials, face masks, employee training, disposable silverware and cups, and/or Plexiglas barriers in order to create safe environments for employees and patrons.





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