A federal judge denied a request from a Butler County businessman to stop the state's COVID-19 mitigation orders.

In December, North Country Brewing and Harmony Inn owner Robert McCafferty filed a lawsuit in the Western District of Pennsylvania against Gov. Tom Wolf and then-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.

U.S. District Judge Christy Criswell Wiegand denied McCafferty's request, known as a preliminary injunction, April 9. This does not put an end to the overall lawsuit. But McCafferty said for him this marks the end of the lawsuit because he filed the action with the hope that his injunction request would be accepted.

In McCafferty's injunction motion, he asked the court to prevent Wolf from declaring or enforcing the prohibition of indoor dining, or any other order that might pose greater restrictions on restaurants and other indoor dining businesses.

“We respect the judge's decision and her time. We expected a different outcome,” he said Wednesday during an interview. “I was hoping to shed light on how this administration was able to keep continuing a disaster declaration and hold full control over decisions. We tried to explain the situation restaurants were left in and we weren't being heard. And it's unfortunate we had to file a lawsuit to get that voice out there.”

Wolf first issued a Proclamation of Disaster Emergency March 6, 2020. And the proclamation was renewed at various points with the most recent one being made Feb. 19.

The mitigation orders varied under the different proclamations, but McCafferty's suit takes issue with a Nov. 23 mitigation order that originally limited indoor dining, among other restrictions, to 25% of an establishment's maximum occupancy set under the fire code. The order was amended April 4 to increase maximum occupancy to 50% and relax other restrictions.

McCafferty claims in his suit that in the past year of these closure orders, his businesses have been damaged by a loss of revenue.

According to testimony given during a previous hearing from state Department of Health policy director Peter Blank, the mitigation orders were guided by a collaborative process between policymakers and medical and scientific experts.

He said the orders were meant to “save lives and to prevent an overwhelming capacity issue within our hospitals.”

With COVID-19 spreading through respiratory droplets, experts found that dining-in puts people at a heightened risk compared to behaviors such as retail shopping, where people can keep their masks on for the duration of their stay at a business.

But McCafferty disagreed with these findings, leading to his lawsuit in which he argued that his business has been unfairly subjected to mandatory closure orders and restrictions that are not backed by evidence on how the virus spreads.

Wiegand noted that McCafferty never elected to enroll any of his businesses in the Open & Certified Pennsylvania program, which allows restaurants to increase their capacity to 75% under the current mitigation orders.

In denying McCafferty's motion, Wiegand addressed his various claims. The first count claims that McCafferty was discriminated against in violation of the equal protection clause of the 14th Amendment. Wiegand notes that since this claim is brought without any claims to the violation being made under someone's race, sex, religion or national origin, McCafferty would have to prove that his business was treated differently from other similar businesses. But Wiegand finds this was not shown in McCafferty's filings.

Wiegand writes that the evidence shows the mitigation orders applied equally to all bars and restaurants in Pennsylvania.

“The court concludes that bars and restaurants are not similarly situated to other types of businesses, at least with regard to indoor dining and COVID-19 restrictions,” Wiegand writes. “Eating and drinking necessarily require patrons to remove their masks, thereby creating a heightened risk of transmission that does not exist at other types of businesses where masks can be worn at all times.”

Wiegand then addresses McCafferty's claim that his 14th Amendment right to due process was violated.

For the judge to find this right was violated, it has to be shown that the rights to “protection of life, liberty, or property” were deprived.

Citing the U.S. Supreme Court, Wiegand notes that the business or activity of making a profit is not in itself property in the ordinary sense. He therefore denied the injunction motion on this count, too, because making a profit is not a “cognizable property interest protected by the (14th) Amendment.”

Wiegand also notes that things are likely to improve: “Higher permissible capacity for restaurants and bars, coupled with more widely available vaccination, will likely increase patronage of restaurants and bars.”