An Allegheny County judge ruled on Wednesday that a Brentwood restaurant must either adhere to state and county covid-19 restrictions or close immediately.
A Crack’d Egg lawyer has said he will request suspension of the order while the decision is appealed to the state Commonwealth Court. If the suspension is not granted, “we will not violate court orders,” said lawyer Sy Lampl.
Common Claims Judge John McVay granted an injunction request by the Allegheny County Health Department, concluding that it is necessary to “prevent immediate and irreparable damage that cannot be adequately compensated for damage”.
Further damage would come from failing to comply with the county’s request, he said.
In his view, McVay said that orders that require masking and social detachment are constitutional, as they are “rationally related to the government’s legitimate interest in protecting citizens of Allegheny County from the spread of covid-19.”
“If I did not grant the injunction, restaurants that are following the rules will become less likely to do so, further increasing the public health risks of everyone involved and possibly increasing the general spread of the community,” he wrote.
McVay said he found Mrs. Kimberly Waigand’s testimony credible and sympathetic to the losses his restaurant suffered during the pandemic.
If she presents an acceptable plan to the health department to follow the mitigation measures, McVay wrote, the cracked egg may remain open.
“I ask her to reconsider and work with the health department to come up with a covid-19 mitigation plan,” wrote the judge.
The health department issued an order to close the broken egg in August, but Waigand wrinkled his nose at her.
Instead, she argued that the governor had no authority to issue mitigation orders to slow the spread of covid-19.
In the message line recorded for the restaurant on Wednesday, Waigand says: “Here at Crack’d Egg, we don’t follow the tyrannical government decrees. We walk like free people, and masks are not necessary. You will love the side of freedom that is served with every meal. “
A message left with the restaurant was not returned.
Lampl said they were disappointed by the judge’s opinion.
In a Facebook Live video posted on Wednesday night, Waigand said the restaurant would temporarily close, but will continue to struggle.
“As the injunction is legal, we at Crack’d Egg have an obligation to give the judiciary its due. This does not mean that we will give up ”, she said.
Waigand told viewers “At first I was angry, then I cried over it. So I got mad again. “
She called the decision “totally against the constitution” and said she expected a different outcome in the appeal.
“That’s why we have to go to a higher court and leave Allegheny County.”
She said repeatedly that McVay’s decision was not unexpected, “since he is a judge in Allegheny County”.
In response to a comment from a viewer, she said: “Has the judge been voted on? I do not know.”
Judges of the Common Pleas Court are elected for 10-year terms.
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, Waigand testified that she would “never” require people at her Brownsville Road establishment to wear masks, saying she believes this is a violation of her freedom.
As part of the Crack’d Egg case, they called two expert witnesses – one who said that there is no evidence that the masks actually stop the virus, although “they can”.
The other testified that he believes the current testing regime for covid-19 produces a large number of false positives and that closing society because of it will cause long-term damage.
In his view, Judge McVay wrote that he recognizes a person’s constitutional right to earn a living.
“The covid-19 pandemic threatens the health and safety of all citizens and people in the community, while overloading our health systems and destroying the business and livelihood of many Americans,” he wrote. “The most affected are the restaurants, bars and other entertainment and leisure industries that require the congregation of a large number of people in confined indoor spaces.”
But, he continued, he considered the decision in the Pennsylvania Supreme Court case involving Friends of Danny DeVito in April as precedent. In that case, the court found that “the governor has the primary responsibility to protect public safety and the well-being of the people of Pennsylvania in times of real or impending disaster, where public safety and well-being are threatened.”
McVay said the restaurant’s argument that legislation was necessary to authorize mitigation orders was “flawed”.
Instead, the governor’s disaster emergency proclamation, McVay wrote, replaces any regulatory procedural statute.
Requiring the state or health department to follow “lengthy rule-making procedures” during a pandemic, he continued, “would result in greater harm to the general public.”
McVay added that county and state health departments have independent authority under public health laws to issue their own administrative orders to deal with the control and spread of all communicable diseases.
“Clearly, I recognized throughout the case that we are dealing with covid-19, a disease that has been unknown in the world for just over a year, and we are studying and learning about it as we go along and as reflected in the WHO’s recommendations for change and CDC, ”wrote McVay.
He said in the opinion that neither greedy outbreaks in the Crack’d Egg nor 100% effectiveness of the mask are necessary to prove immediate or irreparable damage to public health.
McVay wrote that she considered Waigand’s testimony about the impact of the pandemic on his business to be reliable – she said the restaurant’s revenue fell from $ 50,000 a month to less than $ 14,000 – and that “hopefully our legislative leaders will do more to help small businesses that are clearly suffering. ”
The judge continued: “As I found Mrs. Waigand trustworthy, I also believed her when she said that she would never require masks and therefore would return to the closing order in light of her subsequent reopening at full capacity with masking to properly restore the status quo. . ”
Paula Reed Ward is a staff writer for the Tribune-Review. You can contact Paula at [email protected] or via Twitter .
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