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Law360 (July 13, 2020, 8:46 PM EDT ) A New Jersey judge granted Gov. Phil Murphy's bid to halt Asbury Park's plan to defy his COVID-19 ban on indoor restaurant dining while the state and the town continue to resolve the matter, according to a Friday court filing.
In a brief order with no memorandum opinion, Superior Court Judge Robert Lougy granted Murphy's motion for a preliminary injunction in his suit seeking to enjoin the Monmouth County town from pursuing its plan to allow restaurants to operate with indoor service, even as the governor continues to emphasize the need to continue social distancing.
New Jersey's June 12 action came the day after the town rolled out a reopening plan that included, among other things, indoor food and beverage service subject to capacity limits and other safety precautions. Judge Lougy that same day granted the state's temporary restraining order request to stop the indoor dining resumption until the parties convened for a July 10 hearing.
While the governor has been lifting restrictions in recent weeks amid the decreasing number of 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 town's "ReOpen Asbury Park: Business & Community Recovery Strategy" plan detailed measures to expand restaurant and retail operation and highlights public parks and open spaces as destinations for socially distant fun.
The city council planned to "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 city's announcement of the ReOpen plan. 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.
New Jersey is among the states that have reined in reopening plans as cases spiked in places like Arizona and Florida, although the Garden State's own case and death tallies have slowed.
As of Monday, New Jersey was home to a total of 175,522 coronavirus cases and 13,613 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, were able to resume outdoor dining on June 15, but Murphy has yet to set a date for restaurants to allow indoor dining.
The governor announced Monday on Twitter that the state is paused in the second stage of its restart.
"I want us to be able to reopen more businesses, and to get to Stage 3 and beyond," the tweet read. "We cannot do that unless we keep up with wearing face coverings, keeping a social distance, and getting tested."
It's not the first time Murphy has dealt with pushback over his pandemic orders. A Bellmawr, New Jersey, gym owner filed a now-withdrawn lawsuit after its 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.
A representative for the New Jersey Office of the Attorney General declined to comment. A message seeking comment from Asbury Park Mayor John Moor wasn't immediately returned.
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.
--Editing by Haylee Pearl.
For a reprint of this article, please contact reprints@law360.com.
