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An Allegheny County judge ruled on Wednesday that a restaurant in Brentwood must comply with state and county Covid-19 restrictions or close immediately.
A Crack’d Egg lawyer said he would seek a stay of the order while the decision is appealed in Commonwealth state court. If no stay is granted, “we are not going to violate court orders,” said lawyer Sy Lampl.
Judge John McVay allowed an injunction from the Allegheny County Department of Health, finding it necessary to “prevent immediate and irreparable harm which cannot be adequately compensated for by damages. “.
Failure to comply with the county’s request would cause greater harm, he said.
In his view, McVay said the orders requiring masking and social distancing are constitutional because they are “rationally linked to the government’s legitimate interest in protecting the citizens of Allegheny County from the spread of covid-19.”
“If I did not grant the injunction, restaurants that play by the rules will become less likely to do so, thus increasing the public health risks for everyone involved and possibly increasing the overall spread of the community,” a he wrote.
McVay said he found owner Kimberly Waigand’s testimony to be credible and sympathetic to the losses his restaurant suffered during the pandemic.
If she presents an acceptable plan to the health department to track mitigation measures, McVay wrote, the Crack’d Egg can remain open.
“I am asking him to reconsider and work with the health department to develop a covid-19 mitigation plan,” the judge wrote.
The Department of Health issued a shutdown order for the Crack’d Egg in August, but Waigand gave it a thumbs up.
Instead, she argued that the governor did not have the power to issue mitigation orders to slow the spread of covid-19.
On Wednesday, on the taped message line for the restaurant, Waigand said, “Here at Crack’d Egg, we are not following any decrees of the tyrannical government. We walk as free people and masks are not necessary. You’ll love the side of freedom that comes with every meal. “
A message left at the restaurant was not returned.
Lampl said they were disappointed with the judge’s opinion.
In a Facebook Live video posted Wednesday evening, Waigand said the restaurant would temporarily close but continue to fight.
“Since the injunction is based on law, we at Crack’d Egg are forced to give the justice system its due. It doesn’t mean we’re giving up, ”she said.
Waigand told viewers, “At first I was angry, then I cried about it. Then I got mad again.
She called the decision “completely unconstitutional” and said she expects a different outcome on appeal.
“That’s why we have to go to a higher court and get out of Allegheny County.”
She has said repeatedly that McVay’s decision was not unexpected “because he is a judge in Allegheny County”.
In response to a comment from a viewer, she said, “I wonder if the judge is voted on? I do not know.”
Common Pleas Court judges are elected for a ten-year term.
Last week, McVay held a three-day hearing on the health department’s request for an injunction to force the restaurant to comply or close.
During that hearing, Ms Waigand said she would “never” require people at her Brownsville Road establishment to wear masks, saying she believed it was a violation of their freedom.
In connection with the Crack’d Egg case, they called two expert witnesses – one who said there was no evidence that the masks effectively stop the virus, although they “can.”
The other testified that he believed the current test regiment for covid-19 was producing a large number of false positives and that shutting down the company will cause long-term damage.
In his view, Justice McVay wrote that he recognizes a person’s constitutional right to earn a living.
“The covid-19 pandemic threatens the health and safety of every citizen and person in the Commonwealth while overloading our health care systems and destroying the businesses and livelihoods of many Americans,” he wrote. “Restaurants, bars and other entertainment and leisure industries are particularly affected by the need to assemble large numbers of people in confined indoor spaces.”
But, he continued, he felt the April ruling in the Pennsylvania Supreme Court case involving friends of Danny DeVito was a precedent. In that case, the court ruled that “the governor has the primary responsibility to protect the public safety and well-being of the people of Pennsylvania in the event of a real or imminent disaster where public safety and well-being are threatened” .
McVay said the restaurant’s argument that a law was needed to allow mitigation orders was “flawed.”
Instead, the governor’s disaster emergency proclamation, McVay wrote, supersedes any procedural regulatory law.
Requiring the state or health department to follow “time-consuming rulemaking procedures” during a pandemic, he continued, “would cause greater harm to the general public” .
McVay added that the county and state health departments have independent authority under public health laws to issue their own administrative orders to combat the control and spread of all communicable diseases.
“Obviously, I have recognized throughout this case that we are dealing with covid-19, a disease unknown to the world just over a year ago, and we are studying it and learning from it. as it happens and as evidenced by the changing recommendations from the WHO and CDC, ”McVay wrote.
He said neither the Covid outbreaks at the Crack’d Egg nor the 100% effectiveness of the mask are necessary to prove immediate or irreparable harm to public health.
McVay wrote that he found Waigand’s testimony about the impact of the pandemic on her business to be credible – she said the restaurant’s revenues had fallen from $ 50,000 a month to less than $ 14,000 – and that “j ‘hopes our legislative leaders will do more to help small businesses that are clearly suffering. . “
The judge continued, “As I found Ms Waigand credible, I also believed her when she said that she would never need masks and therefore the return to the closure order in light of its subsequent reopening at full capacity with masking will restore the status quo. “
Paula Reed Ward is a writer for Tribune-Review. You can contact Paula by email at [email protected] or via Twitter .
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