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Law360 (June 12, 2020, 4:58 PM EDT ) New Jersey Gov. Phil Murphy on Friday secured a court order blocking Asbury Park from defying the COVID-19 ban on indoor dining, making good on a threat he'd made earlier to sue the town over its plans to allow the activity despite not having a green light from the state.
Superior Court Judge Robert Lougy agreed to enjoin the Monmouth County town from moving forward with its plan because "immediate and irreparable damage" could result if the plan advanced before the parties meet for a July 10 hearing, according to his order.
In an online statement about the court order, Asbury Park officials noted that Murphy had authorized indoor gatherings to resume beginning June 15, and so the municipality passed a resolution allowing restaurants to join in if they abide by capacity limits and other safety requirements.
"We hope our position will encourage the state of New Jersey to outline guidelines for indoor dining in the upcoming weeks. We invite Governor Murphy to our city next week to meet with the local restaurant community and discuss alternate opportunities to support these businesses who rely heavily on the summer months," the statement said.
The litigation comes the day after the town rolled out a reopening plan that includes, among other things, indoor food and beverage service subject to capacity limits and other safety precautions.
While the governor has been lifting restrictions in recent weeks amid the decreasing coronavirus cases and deaths in New Jersey, the second-hardest-hit state behind New York, he has yet to set a date for resuming indoor dining.
The city unveiled its "ReOPEN Asbury Park: Business & Community Recovery Strategy" plan on its website Thursday, saying it had been announced at the previous night's city council meeting. It details measures to expand restaurant and retail operation and highlights public parks and open spaces as destinations for socially distant fun.
As of June 15, the city council "will allow businesses to operate indoor food and beverage service with a capacity limit of whichever number is lower — 25% capacity of the dining room or 50 people as outlined in Governor Murphy's Executive Order No. 152 regarding indoor gatherings," according to the announcement. Restaurants must comply with the coronavirus safety precautions outlined in the indoor gatherings order, such as wearing face masks, keeping a 6-foot distance and taking sanitation measures.
City officials appeared to anticipate the threat of litigation.
"While council has approved indoor food and beverage service with restrictions, businesses should be aware this could be overruled by the state of New Jersey. Since Governor Murphy has not yet allowed indoor dining, participating businesses could be considered in violation of executive orders and may be subject to fines by the state of New Jersey," the announcement said.
Murphy stated his intent to sue on social media on Friday.
"We've tried to work with the governing body of Asbury Park to resolve the issue of indoor dining. Because they haven't done so, @NewJerseyOAG will bring a lawsuit today against the city government of Asbury Park. Our rules are based on one principle — ensuring public health," Murphy said on Twitter.
As of Friday, New Jersey was home to a total of 166,164 positive coronavirus cases and 12,489 deaths. Murphy has continued to emphasize the importance of social distancing during his daily briefings, while also outlining plans to reopen the economy.
Restaurants, which have been relegated to take-out only since mid-March, may resume outdoor dining on June 15 while other nonessential business, such as hair and nail salons, can reopen on June 22.
It's not the first time Murphy has dealt with pushback over his pandemic orders. The state is currently battling a federal lawsuit by a Bellmawr, New Jersey, gym owner whose defiance of the shutdown gained national attention. Atilis Gym claimed the business restrictions are unconstitutional.
Churches and gun rights groups have also lodged constitutional challenges to the orders, which began in March as the federal government and health officials began sounding the alarm about the pandemic.
Murphy, a Democrat, has also taken heat from New Jersey Republican lawmakers, who have publicly criticized many of his mandates and also blasted him for attending a George Floyd protest that exceeded crowd limits.
Following news of Murphy's lawsuit, Sen. Declan O'Scanlon Jr., R-Monmouth, blasted Murphy for suing.
"I'm outraged that our tax dollars are being used against the very people that pay them … simply for fighting to survive," O'Scanlon said on Twitter.
Asbury Park is represented by Frederick C. Raffetto of Ansell Grimm & Aaron PC.
The state is represented by Deputy Attorney General Christopher Weber.
The case is Philip D. Murphy, in his official capacity as the governor of the state of New Jersey, v. John Moor, et al., case number C-56-20, in the Superior Court of New Jersey, Chancery Division in Mercer County.
--Additional reporting by Bill Wichert. Editing by Jack Karp.
Update: The story has been updated to include developments in the litigation.
For a reprint of this article, please contact reprints@law360.com.
