Same COVID, Different Rules for Restaurants

Travel around Maryland and adjacent jurisdictions, and you will encounter vastly different COVID restrictions.  It is the same disease, subject to the same “science” and the same CDC recommendations.  And yet local authorities are responding with very different rules.[i]

Maryland Gov. Larry Hogan reduced capacity at bars and restaurants to 50% in November and ordered them to close by 10 p.m. The state also imposed restrictions on travel. [ii]

Comrade Marc Elrich and his County Council Politburo imposed stricter limits in December, prohibiting all indoor dining and setting more stringent capacity limits on businesses. These were proposed by County Executive Marc Elrich and unanimously approved by the Council.

Among businesses, MoCo picks winners and losers without reference to an establishment’s ability to comply with social distancing or other health measures.  For retail, a required 200 square foot standard per shopper implies not the recommended six-foot separation, but an over 14 feet by 14 feet area per person distancing.

Try as you might, nowhere in the CDC guidance for businesses can a 14 feet by 14 feet per customer standard be found.  MoCo’s zero in-person dining rule is also inconsistent with the best experts’ suggestions.  [iii] For restaurants, the CDC recommendation is: “Change layouts, such as spacing out tables and chairs, to make sure customer parties remain at least 6 feet apart.” [iv]  While painful, Maryland’s state standard of 50% of restaurant capacity does roughly equates with the CDC standard, assuming the commonly used restaurant metric of 20 sq. feet per diner.[v]  

An Anne Arundel judge blocked last week a county executive’s similar order banning indoor dining. In his ruling, Judge William Mulford wrote: “The County Executive appears to have relied on a selective interpretation of the data relating to COVID 19 matters that ignores or minimizes other sources of COVID-19 contact.  The restriction on Plaintiff’s businesses was applied inconsistently from other businesses that contribute significantly to COVID contact sources.”[vi]

The Restaurant Association of Maryland has moved for similar injunctions and temporary restraining orders in Montgomery and Prince George’s counties and Baltimore City for their bans on indoor dining. Baltimore City has also banned outdoor dining. Over 100 plaintiffs have joined in the three lawsuits.  [vii]

A Montgomery County court heard from dozens of restauranteurs on December 23 trying to overturn the restrictions.  The lawsuit against the county rules argues that these new prohibitions increase, not reduce the public’s risk.  It says the ban “will increase the spread of COVID-19 and destroy the lives of those dependent on the foodservice industry.”

If people who cannot go to restaurants instead hold gatherings in their homes and offices, the fear is that “these homes and offices, though perhaps clean, are not licensed and inspected by health department officials.”[viii]

Comrade Elrich’s initial response to the lawsuit was hardly a sign of confidence in his legal position.  He told Bethesda Beat he had “no way of knowing” how a judge would rule. Regarding complaints about a lack of supporting data, he said that county officials frequently talk about the data and their reasoning for their actions, such as shutting down indoor dining. “That’s a pretty flimsy approach.” [ix]   Days later – perhaps after county lawyers successfully muzzled him from further verbal missteps – he told a COVID briefing that he would not be commenting on the lawsuit.[x]

Montgomery County Circuit Court Judge James Bonifant is expected to issue a ruling soon.

Update: After this was posted, later on Wednesday night, Montgomery County Judge Bonifant upheld the county’s ban on indoor dining during the COVID-19 pandemic.  However, he will schedule another preliminary injunction hearing just after the holidays because he thinks there is “more to review.”

Judges in Baltimore City and Prince George’s County have allowed dining bans in those jurisdictions to stand on Wednesday.  In Baltimore, both sides will have another chance to present their cases on January 7.


[i] Need a score card to track restaurant restrictions around the country? see https://blog.opentable.com/2020/states-provinces-restaurants-reopen-guide-coronavirus/

[ii] https://governor.maryland.gov/2020/11/17/to-fight-covid-19-surge-governor-hogan-announces-hospital-surge-measures-statewide-capacity-restrictions/ and for other local restrictions, see https://dcist.com/story/20/12/10/dc-maryland-virginia-new-covid19-restrictions/  

[iii] https://www.cdc.gov/coronavirus/2019-ncov/community/workplaces-businesses/index.html

[iv] https://www.cdc.gov/coronavirus/2019-ncov/downloads/community/COVID-Restaurant-Bar-manager-checklist.pdf

[v] https://totalfood.com/how-to-create-a-restaurant-floor-plan/

[vi] https://baltimore.cbslocal.com/2020/12/16/covid-19-latest-judge-blocks-revised-executive-order-pittman-indoor-dining-latest/

[vii] https://bethesdamagazine.com/bethesda-beat/courts/local-restaurants-joining-suit-to-force-montgomery-county-to-re-instate-indoor-dining/

[viii] https://bethesdamagazine.com/bethesda-beat/courts/hearing-underway-for-restaurants-attempt-to-overturn-montgomery-county-ban-on-indoor-dining/

[ix] https://bethesdamagazine.com/bethesda-beat/government/elrich-says-restaurants-are-taking-flimsy-approach-in-legal-fight-against-county/

[x] https://wtop.com/coronavirus/2020/12/montgomery-county-coronavirus-update-december-22/orm