I cannot and will not give specific legal advice. Nor will I say in advance what action I may take when confronted with a particular police report dealing with a specific fact pattern. Therefore I cannot say what will happen to you if you open your restaurant. On this website I can only offer guidance based on my interpretation of the laws I am being forced to deal with because the Attorney General (AG) has abdicated that responsibility to local prosecutors.
Currently, EEO 2020-69 is relevant to your question. EEO 2020-69 provides:
1. Effective immediately and continuing until May 28, 2020 at 11:59 pm, the following places of public accommodation are closed to ingress, egress, use, and occupancy by members of the public:
(a) Restaurants, food courts, cafes, coffeehouses, and other places of public accommodation offering food or beverage for on-premises consumption;
EEO 2020-69 further provides an exception:
Places of public accommodation subject to this section are encouraged to offer food and beverage using delivery service, window service, walk-up service, drive-through service, or drive-up service, and must use precautions in doing so to mitigate the potential transmission of COVID-19, including social distancing. In offering food or beverage, a place of public accommodation subject to this section may permit up to five members of the public at one time in the place of public accommodation for the purpose of picking up their food or beverage orders, so long as those individuals are at least six feet apart from one another while on premises.
Thus, any restaurant may offer food to go, as long as proper sanitizing and social distancing techniques are followed. With regard to on premises consumption, that is flatly prohibited by the language of EEO 2020-69. Whether that language can be enforced is an entirely different question.
The 1945 Emergency Powers of the Governor Act (EPGA) gives the Governor power to issue orders which carry the force of law in time of emergency. The 1976 Emergency Management Act (EMA) also gives the Governor broad power to issue such orders. The EMA, however, puts a time restriction of 28 days on any such orders and any extension of time must be authorized by a resolution approved by both houses of the Michigan Legislature. Last week the legislature refused to extend the EEOs and many are claiming that the EEOs are no longer effective. The Governor is claiming her EEOs are still effective, basing her position on the fact that the EEOs were issued under both the EMA and the EPGA (which has no such time limitation).
That issue is headed for court, but regardless of who wins, in order to enforce any of the EEOs I must prove to a jury beyond a reasonable doubt that the violation is “willful”. I am frankly at a loss as to how I can do that when two of the branches of Michigan’s government cannot even agree on the law’s validity.
Once again, common sense needs to prevail. Anyone who thinks COVID 19 is not a real threat only needs to speak to the families of the thousands who have died as a result of contracting this deadly disease. Therefore, even though I may not be able to prove the “willful” element necessary to prosecute an EEO violation, based on the specific fact situation action may still be taken if an individual’s actions endanger the health and safety of others.
FOR EXAMPLE: Assume a restaurant owner opens up in the face of EEO 2020-69 and takes no action to protect his or her employees or customers, such as disinfecting all surfaces or maintaining social distancing requirements. In my opinion, this constitutes a nuisance which could be brought to court and enjoined, thereby closing the business down. Monetary damages may also be awarded against the business owner if someone actually contracts the virus because of this reckless behavior. Indeed, based upon the specific facts, criminal charges could be brought for intentional acts which spread the disease.
Accordingly, before choosing to open up in the face of EEO 2020-69, any business owner must carefully weigh the potential costs and benefits of doing so regardless of what I may think.