GAYLORD — A judge has ordered The Iron Pig Smokehouse’s food establishment license suspension to continue.
Michigan Administrative Law Judge Eric Feldman denied a petition from The Iron Pig Smokehouse to get its suspended food license back late Wednesday night, continuing the suspension until regulators decide to reinstate it.
The Iron Pig’s owner, Ian Murphy, kept the restaurant open to indoor service since November despite public health orders from the Michigan Department of Health and Human Services. State agencies have suspended both its food and liquor licenses since and fined the restaurant thousands of dollars.
Feldman decided The Iron Pig engaged in conduct that constitutes an ongoing imminent threat to public health, safety and welfare under the the laws regulating Michigan’s restaurants. That means he saw reason to a summary suspension order by the Michigan Department of Agriculture and Rural Development and allowed it to continue.
Unlike a prior ruling from the Michigan Liquor Control Commission, the judge did not specify how long the suspension would last, if any fines were necessary, or if there were any conditions where he’d reconsider the order. Michigan law allows regulators to suspend food licenses until they decide to reinstate, much like a driver’s license.
A spokesperson with MDARD issued a statement in support of the judge’s ruling.
“MDARD is pleased with the outcome of the administrative hearing and continues to believe that the summary suspension of the Iron Pig’s food license is necessary to address an imminent threat to the public health,” the statement read.
The Attorney General’s office didn’t have anything to add.
David Delaney, The Iron Pig’s attorney, argued in court last Thursday that MDARD’s suspension should not have occurred because the restaurant had not yet had a confirmed case of COVID-19 traced back to its premises.
A part of Michigan’s food code used to suspend the license required a “condition” at the restaurant, which Delaney said didn’t exist. The judge threw out his argument on all fronts.
Feldman said the part of the law used to suspend The Iron Pig’s license required there to be an “imminent threat to the public health,” which doesn’t include the word “condition.” Even if it was, because of the way “condition” is defined in law, Feldman said a “condition” wouldn’t have to mean there is evidence of a positive COVID-19 case, rather, evidence that the restaurant continues indoor dining.
“Although respondent’s counsel (The Iron Pig/Delaney) makes an intriguing argument, it is ultimately unpersuasive,” Feldman wrote in the 23-page ruling, a line Delaney appreciated.
He expects to file an appeal within the 60 day period to send the case to a circuit court. He isn’t satisfied on constitutionality issues with MDHHS’s health law, which Feldman couldn’t consider because his jurisdiction is constrained to Michigan’s laws themselves.
“I think the court’s splitting hairs to say the definition is for ‘imminent danger’ and there is no definition of ‘imminent danger,’” Delaney said. “What you’re looking at Iron Pig is ‘imminent, or substantial hazard,’ we’re looking at ‘imminent or substantial harm.’ That’s really cutting it close because it’s the same food law.”
The restaurant’s case with its liquor license suspension is also in the appellate process.
A week ago, a New York State Supreme Court Justice in Erie County ordered a preliminary injunction in favor of restaurant owners who sued the state because it didn’t have enough data to close their businesses to indoor service.
The case centered around study from December showing 1.43 percent of COVID-19 cases were traceable to restaurants in the state. That study was admitted as evidence in the MDARD hearing.
Delaney said the New York ruling begs the question: If a judge in New York determined 1.43 percent of cases traceable to restaurants to be too low, what makes Michigan different?
“We’re saying ‘data, data, data’ and finally the New York court said ‘we agree,’” Delaney said. “Michigan hasn’t, to my knowledge, committed to that. They’re citing CDC findings and national findings.”
Despite multiple questions in state press conferences, Michigan health officials have not disclosed the data points they use to determine whether to open sectors of the economy.
Murphy didn’t respond to interview requests.
The state is expected to announce the opening of bars and restaurants to indoor dining with capacity limits and a curfew Feb. 1.
The current MDHHS Emergency Order expires Jan. 31 at 11:59 p.m.
By the numbers
Cases of COVID-19 rose in the 17-county Traverse City area by 1,362 from Monday, Jan. 11 to Thursday. The Grand Traverse County Health Department reported an increase of 18 cases among residents, currently averaging about the same per day during the past week according to state data.
District Health Department No. 4, which covers Alpena, Montmorency, Cheboygan and Presque Isle Counties, began combining probable COVID-19 cases with confirmed cases. Several health departments in the region now report both together — though it remains separate at the state level.