Federal Judge Rejects Oregon Restaurants’ Bid to Halt the “Freeze” on In-Person Dining

The Oregon Restaurant & Lodging Association says it must now turn its attention to the importance of convening a special session of the Oregon Legislature in December.

Tapping out in downtown Portland. (Wesley Lapointe)
By Andi Prewitt

A federal judge today rejected a challenge by the Oregon Restaurant & Lodging Association to Gov. Kate Brown's statewide restrictions on indoor and outdoor dining.

Last week, the industry lobbying group joined the Restaurant Law Center in asking the U.S. District Court for an injunction that would halt the two-week shutdown. ORLA said taking legal action was necessary in order to help save its members, which included some 10,000 food and beverage operators prior to the pandemic.

According to U.S. District Judge Karin Immergut's decision, the plaintiffs argued that the temporary ban discriminates against bars and restaurants because other "similarly situated businesses" are allowed to continue operations with limited-to-no restrictions.

While Immergut noted that ORLA and the Restaurant Law Center provided some evidence that bars and restaurants don't pose any greater risk during the pandemic than other businesses throughout the state, she also found research presented by Dr. Dean Sidelinger, Oregon's state health officer and epidemiologist, points to those establishments as "an important source of the spread of COVID-19."

Outdoor dining, though less risky than eating inside, was still problematic in Sidelinger's guidance, since people sit closer than the recommended 6 feet of separation while not wearing masks, often now in fortified shelters that do not have adequate airflow.

In the ruling, Immergut wrote that there are "plausible, arguable and conceivable reasons why restaurants, whether providing indoor or outdoor service, are rationally distinguishable from other types of businesses and from limited home gatherings." Those reasons include the fact that people from multiple households are in close proximity to one another, without face coverings, for extended periods of time. Additionally, bars and restaurants are venues where larger groups tend to congregate, increasing the likelihood that the virus will spread.

The plaintiffs also contended that the industry is likely to suffer irreparable harm unless the two-week ban were blocked. The court acknowledged that these businesses were experiencing a significant economic hardship, but that didn’t meet the burden of the injunction needing to serve the public interest. 

“The government is  facing a historic public health crisis that continues to rapidly evolve,” wrote Judge Immergut. “Over 800 people in Oregon  have died and over a thousand new cases are being reported per day. Hospitals have begun  preparing for an anticipated capacity crisis. An overloaded hospital system would impact not  only those who need treatment for COVID-19, but also those who suffer other forms of medical  emergencies and need immediate care. Given this dangerous situation and the information discussed above about how COVID-19 is transmitted, Governor Brown decided that a temporary  prohibition on on-site dining was necessary to mitigate the spiking infection rate.”

ORLA says it is disappointed in the decision not to issue a temporary restraining order against the freeze. The group has issued increasingly dire warnings throughout the fall that any additional restrictions on restaurant and bar operators would result in mass layoffs and closures. Following the ruling, ORLA has committed to working with the governor's office as well as the Oregon Health Authority in order to "find a path forward" during the global health crisis.

"We must now turn all of our attention to the importance of convening a special session of the Oregon Legislature in December, as well as the necessity of federal action," read a statement issued by ORLA. "We must bridge the gap for Oregon's small businesses and tens of thousands of workers who need relief until a widely available vaccine is available for our friends, our families, and our colleagues."

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