New lawsuit from restaurants and bars seeks damages but doesn't challenge COVID authority

Posted at 5:09 PM, Feb 18, 2021
and last updated 2021-02-18 17:28:22-05

(WXYZ) — A new lawsuit has been filed over Michigan's COVID-19 lockdowns. But this one is not challenging that authority by the state and Governor Gretchen Whitmer. It is seeking money damages for some 100 restaurant and bar owners under the Michigan Constitution Takings Clause.

The lawsuit has been filed in Macomb County.

The administration of Governor Gretchen Whitmer extended restrictions without fanfare on February 4th on restaurants and bars to March 29. They are limited to 25% capacity and must close at 10 pm. That extended order was buried in an order that allowed winter high school contact sports to resume.

Sam Backos has been the owner of Ernie’s in Clinton Township for more than 40 years.

He says restaurants can’t make it, that he’s had to layoff almost half of his 90 employees, and says, “Our business is really down 60 to 70%.”

He also says closing and liquidating is not an option saying, “We’re stuck in a place now where we’ve lost the value and the equity that we’ve built up for 35, 40 years. So, the damage goes above and beyond just these closures. We’re getting wiped out.”

This week the Michigan Restaurant and Lodging Association presented a plan that they say would allow them to operate at 50% capacity safely.

But one of the Attorneys in this news lawsuit Shawn Kelley says, “It’s a request, the governor and the state have no reason to honor that whatsoever.”

That association points to Ohio where the Governor there lifted a 10 PM curfew on bars and restaurants and expanded capacity including allowing salad bars and buffets with safety protocols.

Several lawsuits filed against the state have failed because they were in the Court of Claims and challenged the authority to restrict and close businesses during the pandemic.

This new lawsuit avoids that and is only seeking damages in Macomb County.

Attorney Kelley says, “What we’re looking for here is money damages. It’s a taking, it’s regulatory taking under the Michigan Constitution. We’re asking that these businesses be made whole.”

We want to know if you believe restaurants and bars could operate at 50% capacity. You can vote on our Facebook page here:

The Whitmer Administration issued this statement to 7 Action News:

MDHHS continues to make public health decisions based on science and data about how COVID-19 spreads, tracking progress in our key metrics of total cases, percent positivity, and hospitalizations.

The Feb. 4 order resuming high school sports was an amendment to the general masks and gatherings order that also covers the hospitality industry, which was made publicly available and widely distributed when the order was released. A study from the University of Michigan suggests these orders likely saved more than 100,000 Michiganders from contracting this deadly virus and prevented nearly 2,000 deaths.

We are continually reviewing our data and the precautions in the order and have amended orders prior to expiration. When MDHHS is confident that additional steps can be taken safely, the department will update the order. In the meantime, it is critical that the legislature passes the governor’s MI COVID Recovery Plan to provide billions of dollars in support for Michigan families and small businesses who have been hardest hit by this virus.

MDHHS has no comment on the pending litigation.

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