County exec defends his ban
Pittman in court 2 weeks after judge suspended new dining restrictions
Anne Arundel County officials went before a judge Tuesday lamenting the need to close restaurants while insisting projections, although less grave in recent days, show hospitals could become strained, caring for COVID- 19 patients andregular patients also suffering health problems.
Anne Arundel County Circuit Court Judge William Mulford II said he will make a decision on the county’s indoor dining banWednesday afternoon, telling the court he needs additional time to write his opinion, and he granted restaurants another day to operate inside.
A Wednesday ruling on the two- day hearing will push County Executive Steuart Pittman’s order two weeks past when it was set to begin on Dec. 16. Mulford’s ruling on the order will come at a time in the pandemic that differs from when the order was first announced on Dec. 10. Record case rates have dipped and estimates of how many COVID- 19 patientswould require hospital care have since fallen, prompting Pittman to reconsider keeping indoor dining open even ifMulford rules in his favor.
“Intwoweeks, the suspension isdone. The window is closing on when these actionswould help,” Pittman said.
By the end of Tuesday’s hearing, it remained unclear what legal basisMulford will center his decision. Attorney
Ed Hartman II, representing restaurant owners who sued Pittman over the order, argues his decision to close indoor dining is neither “reasonable or necessary.”
As the county executive, Pittman has the authority to issue executive orders. His most recent order intended to “save lives and prevent the spread ofCOVID- 19.”
Hartman said he wasn’t arguing that Pittman’s order is unconstitutional, but that it failed to meet a standard of being “imminently necessary” and “reasonable” to save lives.
“( Pittman) can’t have unbridled power to destroy the food industry,” Hartman said.
County attorneys Hamilton Tyler and Gregory Swain argued Mulford needs to consider whether Pittman followed orders granted to him as county executive rather than judging if the decision was right or wrong.
“The court should not substitute themselves for the county executive and make a decision on this,” Swain said.
Mulford, citingMarbury v. Madison, said it’s the courts job to rule on the decisions made by government, including orders that use constantly evolving scientific data to make decision that will put 65,000 county food service workers out of their jobs and result in lost income for more than 1,100 restaurant owners in Anne Arundel County.
“I’m trying tofigure out if this is a rational decision,” Mulford said. “For somewaitress … who is trying to scrape together minimumwage to make rent.”
Anne Arundel County’s case rate per 100,000 residents doubled from September to November, followed by a surge in hospitalizations and deaths. Around 20 to 25 people died from the disease or complications related to the virus inNovember. In December, 35 county residents died, Health Officer Dr. NileshKalyanaraman said.
Kalyanaraman and Klein said peak hospital predictions declined because of the county’s actions. In November, indoor dining was restricted to 25% capacity. Pittman’s most recent executive order further limited capacity at various businesses and locations.
Restaurants are the only place where residents can legally remove their masks for a period of time, said Dr. Eili Klein, an assistant professor at Johns Hopkins Bloomberg School of Public Health. Klein and Kalyanaraman said shoppers at retail stores visit those locations for a shorter amount of time and under the cover of a mask, making their individual risk of transmission lower than those who eat and talk inside restaurants with the presence of strangers sitting several feet away. Maryland and Anne Arundel County restricted indoor social gatherings to 10 people and outdoor gatherings to 25 people.
“There is a lot of correlated evidence showing transmission is more likely in bars and restaurants. It’s not the only place transmission occurs, but it’s the only place, under law, people can remove their mask,” Klein said.
Pittman made his order, in part, based on statewide hospital predictions that estimated Maryland hospitals would reach a peak of 9,000 COVID- 19 and regular patients in late January and early February. That estimate nowpredicts a peak of 4,000 patients as of Dec. 20. Currently, there are about 1,700 COVID- 19 patients receiving care in hospitals throughout the state. Maryland has the capacity to treat 8,000 patients with a projected 6,000 patients needing care unrelated to the respiratory disease.
“You’re dealing with projections, I’m dealing with the actual,” Mulford said. “Shutting down restaurants will result in real, not projected, 100% unemployment,” and during a time without aid from the federal government, he added.
Restaurant owners and plaintiffs in the lawsuit testified that they only serve a small fraction of guests inside, a restriction that lowers the likelihood of diners contracting the virus. Health experts say these measures are helpful, but the layout, ventilation and safety practices at restaurants vary, and not all are equipped to install needed practices.
There was lengthy debate over how infectious a person iswho has yet to develop symptoms or never develops symptoms at all. It can take people infected with coronavirus several days to present symptoms, and some don’t develop symptoms at all. This increases the chances for the virus to spread since people don’t knowthey’re sick.
Dr. Jay Bhattacharya, a professor of medicine and economics at Stanford University, testifiedMonday that asymptomatic and pre- symptomatic individuals are unlikely to significantly contribute to transmission. Bhattacharya authored a paper called “Great Barrington Declaration” that advocates for targeted protections for elderly and people to COVID- 19 while letting younger people, who are at lower risk of dying, resume activities with safety measures in place.
Mulford said Bhattacharya’s paper read like a “George Will column” rather than a scientific study.
Cases are so widespread that the state, in order to save time, decided to stop asking where peoplewhohave tested positivehave visited in the last two weeks. The most recent contact tracing data collected from July to Nov. 14 in Anne Arundel County show work outside the home, indoor retail shopping and indoor dining as the most common locations a personwithCOVID- 19 reported visiting, qualifying those places as high risk.
Thequestion ofwhere peoplewhotested positive have been in the past two weeks stopped just before the holiday season, typically marked by shopping and social gatherings that health experts fear will drive up cases. But restrictions on activities and locations have been in place since November, an action expected to lower case rates. Theeffect of the simultaneous actions won’t show up in the data for two or three moreweeks, Kalyanaraman said.
The drop in case rate could be attributed to less testing over the holiday. And while more people are getting tested, there’s also a higher percentage of people testing positive, indicating that the virus is more widespread, Kalyanaraman said.