Senate-Passed Bill Would Prescribe Restaurant Lockdown Metrics In Law

Legislation to tie occupancy limits in Michigan restaurants and event facilities to specific levels of coronavirus infections and hospitalizations has been approved by the state Senate.

The effort is the latest in a string of attempts by Republican lawmakers to place checks on the authority of Gov. Gretchen Whitmer’s administration to unilaterally impose pandemic restrictions.

Backers of SB 250 said it is needed to give hard-hit restaurant owners clarity about the specific circumstances under which capacity limits can be imposed, after a year in which indoor dining was shut down twice and only partially reopened.

Lead sponsor, Sen. Jon Bumstead, R-Newaygo, testified in a committee hearing that after a year of coping with the coronavirus and government lockdowns, many businesses are struggling to survive. They deserve better, he said, than a regimen of “restrictions not tied to any clear metrics.”

John McNamara, vice president of the Michigan Restaurant and Lodging Association, said virtually every state outside of Michigan has less capricious capacity standards for restaurants and events when it comes to COVID-19.

Under the proposed law, state and local public health officials would not have the authority to limit indoor dining when the state’s positivity rate for COVID-19 tests falls below 3% or if less than 3% of hospital beds were occupied by COVID-19 patients.

When either of those metrics exceeds 3%, indoor capacity limits would be imposed at either 50% or 25%, depending on how high they rise. Indoor dining could be banned altogether if positivity or hospitalization rates rose above 15%.

Democratic lawmakers who opposed the legislation in committee said they were skeptical about limiting the executive branch’s flexibility to respond to a public health emergency. They also criticized the bill for making disease contact tracing of restaurant patrons optional rather than mandatory.

The legislation would also end public health authorities’ ability to set COVID-19 curfews on restaurant and event center operations, Bumstead said.

A spokeswoman for the state Department of Health and Human Services, the principal state agency involved in coronavirus restaurant regulation, declined to comment on SB 250.

Michael Van Beek, director of research at the Mackinac Center for Public Policy, said setting limits on the government’s authority to enact arbitrary restrictions on economic activity is laudable.

But enacting statutory standards like those in SB 250 also poses the risk of legitimizing ongoing and open-ended government interference in the marketplace, he said.

“We still have no idea whether shutting down restaurants is effective (in disease prevention),” Van Beek said. “It’s totally up in the air.”