County order prohibiting indoor dining upheld by Missouri Court of Appeals

At a time when courts are seeing increasing challenges to local shutdown orders, the Missouri Court of Appeals has upheld a St. Louis County order prohibiting indoor dining at restaurants. On November 12, 2020, St. Louis County Director of Public Health issued a public health order titled “Safer at Home,” which was aimed at curbing the spread of COVID-19. The order required residents to stay home unless they were engaging in one of several approved activities, such as going to the grocery store, attending medical appointments, or taking children to daycare. The order further limited businesses “that provide goods or service to the public” to “twenty-five percent (25%) or less” occupancy, but that restriction was not applicable to restaurants. Restaurants were specifically ordered to “cease all indoor service and are only allowed to provide outdoor service, carryout and delivery.” The order was indefinite, providing no time frame for when the restrictions may be lifted.


Thirty-nine Missouri restaurants banded together and sought an order from the court prohibiting enforcement of the Safer at Home Order. Petition for Temporary Restraining Order, Missouri Restaurant Assoc., Inc. v. St. Louis County, Case No. 20SL-CC05653 (St. Louis County Cir. Ct. Nov. 20, 2020) (Appeal No. ED109312). The restaurants raised numerous arguments, including that the Director of Public Health had no authority to issue the Safer at Home Order without approval of the County Council. The restaurants further alleged that the Order treated restaurants differently than other businesses, specifically allowing businesses like “entertainment and attraction venues, concert venues, commercial and professional sporting events, museums, and casinos” to submit a “plan” for approved operations, but not allowing restaurants to do the same. In response, St. Louis County argued that the Safer at Home Order was a lawful exercise of the Director of Public Health’s power to regulate public health in times of emergency pursuant to state law, County Charter, and County ordinances. As to the restaurants’ allegation of unequal treatment, the County argued that the “risk of spreading COVID-19 is significantly different at a retail establishment like a mall, in which people move around quickly and leave, than at a restaurant, bar, or similar closed space where individuals remain for an extended period of time, breathing and speaking in close proximity.” The County further stated, “[I]nevitably, lines must be drawn between entities that may permit members of the public indoors (such as grocery stores) and those that currently pose too great of a risk to the public (such as restaurants and bars). . . . But the task of drawing that line is for the local government, not [the restaurants] or the courts.” The trial court ultimately denied the restaurants’ request, allowing the Safer at Home Order to remain in effect.


On December 3, 2020, the restaurants requested that the Missouri Court of Appeals take action to prohibit enforcement of the Safer at Home Order. In their initial filing with the Court of Appeals, the restaurants indicated that while “most” of the restaurants “are complying with the current ‘Safer at Home Order,’” some restaurants believe the order is unlawful and “remain[] open for indoor dining.” Some of those that remained open have had their licenses suspended, while others have been threatened with the loss of their operating and liquor licenses. St. Louis County maintains that the restrictions in the Safer at Home Order are necessary to protect the public, and specifically notes that “[i]ndoor dining at restaurants is believed to have played a significant role in the spread of the [COVID-19] virus.” On December 10, 2020, the Court of Appeals agreed with the trial court and St. Louis County that the Safer at Home order was lawfully enacted and remains in effect, denying the restaurants’ request. While the St. Louis County Executive Director has now announced that indoor dining will resume in the County on January 4, this case remains instructive given the Court of Appeals' approval of the restrictions.

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