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Coronavirus restrictions pit businesses against city officials

A clash between the mayor of Washington, D.C., and a restaurant group over the city's ban on large gatherings is highlighting the tensions between government officials and businesses as the coronavirus outbreak disrupts life across the country.

When D.C. Mayor Muriel Bowser (D) on Sunday announced restrictions on restaurants and bars, many applauded the move as a prudent step to slow the spread of coronavirus. But one major restaurateur balked. 

The Hill Restaurant Group, which owns seven eateries around D.C. including some popular Capitol Hill locations, vowed to defy the public health measure. Business would “continue to operate as normal,” the group said.

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“We will not bow down to pressure from the Mayor’s Office or any group for that matter who covertly is attempting to shut us down,” read a statement that appears to have been shared on Facebook and was highlighted by a Washingtonian food editor.

Bowser, though, delivered a sharp warning to the group, saying it "must comply with the DC Health notice" and vowing to bring the "full force" of the city's agencies to ensure that.

Within 24 hours of the mayor’s announcement, the restaurant group backtracked, saying on Monday that it would comply. Tom Johnson, the managing partner of the group, told The Washington Post they would be shutting down several restaurants and laying off staff.

In the shadow of the Capitol, where lawmakers are scrambling to address the outbreak, the short-lived fight over D.C.’s restrictions offered a glimpse at the fraught tensions playing out between public health authorities and businesses as the coronavirus upends the economy.

In the absence of binding federal restrictions, a patchwork of regulations has emerged across states and local jurisdictions, with every governor having now declared a state of emergency.

As restrictions have set in, similar vows of defiance by business owners have been reported in Illinois, in Nashville, Tenn., and outside Philadelphia.

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Those standoffs are likely to increase as governments flex their regulatory muscle to force temporary closures and social distancing to combat the global pandemic. But experts say it’s a losing fight for businesses, and one that could cost them customers or, in the case of a particularly obstinate business owners, their freedom.

The United States has seen some 4,200 cases across virtually every state and 73 deaths since tracking began in late January. So far, the federal government’s response within the U.S. has been to recommend that large gatherings be stopped, while state and local governments have taken the lead in implementing mandatory health orders.

Peter Susser, a partner in the global employment and labor law firm Littler Mendelson, said most of the clients he’s heard about are trying to comply with the new restrictions. 

In the food and beverage industry, some restaurants have chosen to stop in-house service, banning people from eating within their restaurant while continuing with carry-out or delivery services.

“That’s been a common approach, at least with big restaurants,” he said.

As the industry suffers from a drop-off in customers, with a nearly 50 percent reduction since last year, according to data from Open Table, the big players are much better positioned to absorb the financial blow than their smaller counterparts.

“Mom-and-pop operations may not have an easy time,” Susser said.

But industry and legal experts say there is little businesses can do to push back against the restrictions. Companies that defy public closure orders not only risk reprimands from public health authorities, but they could also alienate their customer base as public anxieties over the outbreak continue to rise.

“It’s going to be hard to resist those guidelines,” Susser said, “from a public image and branding standpoint.” 

Michelle Mello, a professor of law and medicine at Stanford University, said "naming and shaming" noncompliant businesses could be a powerful tool in times of public health crises.

“Our cultural response to COVID-19 is evolving with incredible rapidity,” she said, “and this may well be enough to snap someone to attention who has not kept up with the increasingly dire news.”

That appears to be the playbook Bowser employed in response to the Hill Restaurant Group’s defiance. In her tweets, warning the group to comply, the mayor addressed them by name.

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“Hill Restaurant Group — While I recognize that all of us have been stressed beyond our immediate understanding of how coronavirus has so quickly upended our daily lives and personal and business existence — you must comply with the DC Health notice,” her March 16 tweet read.

When the restaurant group decided to comply, they also provided an apology on their website.

“Due to the restrictions set forth by the Mayor’s Office, it has made it impossible for us to continue to stay open for business so we will be closing all of our restaurants to reevaluate our situation,” the message read. “We apologize for the post on district industry- it was not meant to be selfish. We just felt it was unfair for the Mayor's office to mandate such harsh restrictions without any notice or consultation with business owners.” 

Legal experts also said that businesses that try to remain open despite public health orders are unlikely to get relief in the courts. 

Almost every jurisdiction across the country has the power to regulate what the law considers to be a "public nuisance" that poses a danger to the public's health, said Lawrence Gostin, a law professor at Georgetown University and public health expert.

“Imagine if a food establishment had a poor hygiene record or food contamination or animal droppings,” Gostin said. “It is clear the health department could shut them down. This is exactly the same.”

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Public health authorities have a variety of sanctions to ensure compliance, Gostin said. That includes stiff fines, forced closure by police — and even jail time.

“Business owners and business associations must obey the law and must safeguard the health of their patrons,” he said.

“This is an easy call for the health department or mayor.”