Macomb County restaurants file lawsuit against Whitmer, other officials over closures

A newly formed Macomb County restaurant group has sued Michigan officials over state shutdown orders during the past year amid the coronavirus pandemic.

"They're killing us," Sam Backos, owner of Ernie's in Clinton Township told the Free Press Monday evening.

Backos is among the restaurants, bars, and banquet centers that filed the lawsuit against state officials seeking economic damages suffered because of state COVID-19 closures and restrictions.

"We've lost lots of money," Backos said. "We are asking to be made whole. "

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Albert Addis is the Macomb County attorney representing the recently formed Macomb County Restaurant, Bar and Banquet Association. Addis alleges that under the state’s constitution the restaurant business has been taken away without "just compensation."

“We filed this lawsuit on a simple legal premise that we think is strong, and one that has not been decided by any court yet,” Addis told the Macomb Daily. “That premise is the Michigan constitution does not allow the government by fiat to take away people’s property and businesses without just compensation."

The association is asking for a jury trial and damages in excess of $25,000.

The lawsuit called the recent reopening of restaurants under a  25% capacity restriction "suffocating regulations." When restaurants pivoted to outdoor dining using heaters, tents, outdoor sheds and other units, the lawsuit claims the defendants "unleased agents" of the Michigan Liquor Control Commission to issue fines along with threats to shut businesses down.

The lawsuit also cites the Michigan Supreme Court ruling in October striking down Gov. Gretchen Whitmer's use of emergency powers.

Formed about eight weeks ago, Backos said, the association has more than 123 restaurants and growing.

"We are getting positive response from restaurant and banquet owners, they are all wanting to jump on board and help support our cause," Backos said. "We wanted to form a united front to go against the state for what we feel has been disproportionate punishment that we've been subject to. "

Whitmer, Elizabeth Hertel, director of the Michigan Department of Health and Human Serves (MDHHS), and Patrick Gagliardi, chair of the Michigan Liquor Control Commission, are named as defendants.   

Whitmer's office emailed a response regarding the lawsuit: 

"While it is our practice not to comment on pending or ongoing litigation, we recognize small business owners have made incredible sacrifices during the pandemic to keep their communities safe and slow the spread of COVID-19. The unfortunate nature of this deadly virus is that it spreads quickly when people are gathered indoors without masks for an extended period of time. " 

 Said Backos: "You can't just seize property without paying ... and in effect, that's what they've done."

Backos said he is also afraid that new restrictions could happen if another flu or virus comes along. He says reopening at 25% or 50% capacity is unsatisfactory and only by opening at 100% can they stay in business.

"We don't understand that our neighboring states are at 100% and we can't even get close to that," he said. "We need to be open."

Indoor dining at restaurants was first shut down last March. The first shutdown lasted until June. In mid-November, Whitmer announced a "three-week pause" that included a ban on indoor dining.

The Michigan Restaurant and Lodging Association (MLRA) responded by seeking a temporary court injunction to stop the pause. The MRLA was not successful with the lawsuit or any of its appeals. The initial three-week pause in indoor dining was extended several times and remained in place. On Feb. 1,  indoor dining was allowed to resume with restrictions including a 25% capacity limit.

Backos insists the lawsuit is not a "money grab."

"We are not looking to enrich ourselves," he said. "We are looking to be made whole so we can continue our careers supporting our families and move on with our lives. "

Contact Detroit Free Press food writer Susan Selasky, Detroit Free Press and send food and restaurant news to: 313-222-6872 or sselasky@freepress.com. Follow @SusanMariecooks on Twitter. 

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