Local restaurateur sues Wolf, Levine over COVID restrictions
Bob McCafferty, owner of two Butler County businesses, has filed a lawsuit against Gov. Tom Wolf and Secretary of Health Dr. Rachel Levine, alleging their executive orders to close restaurants to help stop the spread of COVID-19 violated his constitutional rights to equal protection, due process and against the taking of property.
A central argument in the complaint, filed Dec. 24 in U.S. District Court for the Western District of Pennsylvania by attorney Rebecca Black of the Lutz Pawk and Black law firm of Butler, is that McCafferty's businesses are subject to mandatory closure orders and restrictions on operations, despite information from Wolf and Levine that links less than 10% of COVID-19 cases in the state to restaurants and bars.
McCafferty owns the North Country Brewing Co. in Slippery Rock and Harmony Inn in Harmony.
Since August, data from Levine has indicated that there is a 50% to 55% infection rate in people who visited restaurants, McCafferty said Tuesday in an interview with the Eagle.
However, his suit cites data contained in news releases from Wolf and Levine dating to mid-August that disputes those claims.
He pointed out a Nov. 30 news release reporting the results of contract tracing surveys completed by 3,038 of the 44,425 people who had confirmed cases of the coronavirus between Nov. 15 and Nov. 21.
The results, according to the suit, reveal that 8% of the respondents didn't visit any businesses in the 14 days before the onset of symptoms, but 200 had gone to a restaurant and 60 had visited a bar.
The 200 people equates to 6.6% of the respondents and 0.4% of the total positive cases, and the 60 people equates to 1.97% of the respondents and just 0.1% of the total positive cases.
The survey also indicated 94% of the respondents did not visit a restaurant 14 days before feeling symptoms and 98% did not visit a bar. The other news releases cited in the suit show similar survey results.
“How do you get 50 to 55% infection rate out of that?” McCafferty said Tuesday. “I get 3% possible based on their numbers.”
On Dec. 10, Wolf ordered all restaurants and bars to remain closed to indoor dining from Dec. 12 until Jan. 4. Wolf previously ordered restaurants to limit service to 25% of their capacities and alcohol could only be purchased with a food order.
Wolf issued the order in response to an increase in infections that began rising in late November. The suit argues that Wolf's orders, which were made under his emergency declaration, unfairly target the restaurant industry.
“I know numbers increased, but this is the only industry making sacrifices. We've been ... targets since the beginning of this and it's based on nothing,” McCafferty said.
He said Wolf would not commit to allowing restaurants to reopen Jan. 4 at a news conference Monday.
In January, McCafferty sold a cattle farm he and his wife opened in 2008 to raise money to keep his restaurants afloat.
His restaurants recently discarded $30,000 worth of food and the businesses can't survive for long relying only on take-out and outdoor dining, he said.
“We sit empty. They weaponized our licenses. They close us if we disagree,” McCafferty said.
The suit alleges that state orders violate McCafferty's 14th Amendment rights to equal protection and due process by arguing that restaurants have been treated differently than other businesses in the state, there is no way to challenge the orders due to the emergency proclamation and the orders were made without justification.
Another argument in the suit is that ordering his restaurants to close violates the Fifth Amendment taking clause by constituting a regulatory taking of his property without just compensation.
For relief, the suit seeks a judgment declaring the orders unconstitutional, a restraining order enjoining Wolf and Levine from enforcing the orders and unspecified damages.
