By Dave Simpson

Law360 (April 12, 2021, 8:24 PM EDT ) A Pennsylvania federal judge declined to lift the state's COVID-19 indoor dining restrictions, finding that a brewpub's constitutionality challenge is unlikely to succeed because the Keystone State's orders are "rationally" related to its goal of limiting death and hospitalizations.

U.S. District Judge Christy Criswell Wiegand rejected a motion Friday to enjoin the enforcement of the state's restrictions, ruling that Robert McCafferty, owner of North Country Brewing Co., has failed to show that the restrictions are being applied unequally.

McCafferty had argued that Gov. Tom Wolf's mitigation orders violated the equal protection and due process clauses of the 14th Amendment, claiming, among other things, that the rules unfairly target bars and restaurants.

On Friday, Judge Wiegand said McCafferty did not introduce evidence to support the claim that other businesses facing different restrictions, like grocery stores, barbershops and gyms, are "similarly situated" to bars and restaurants in terms of COVID-19 risk.

Reviewing the evidence, the judge found that risk factors most associated with the spread of the virus are more likely to be present inside a restaurant or bar.

"On each of these factors — the ability of patrons to wear masks and maintain social distancing, as well as the typical length of time patrons spend in proximity with each other in the establishment — indoor dining and drinking present risks to public health and safety that other types of retail establishment simply do not," the judge said.

Given this fact, the judge said, the state's decision to treat bars and restaurants differently is "rationally and directly" related to its aim to keep deaths and hospitalizations down.

Judge Wiegand also found that North Country was unlikely to succeed on claims of procedural and substantive due process violations.

"While plaintiff claims that his asserted liberty and property interests are protected by the 14th Amendment, the court does not perceive a difference between the rights asserted by plaintiff and the 'general right to do business' rejected by the Supreme Court," the judge said.

The state's interest in preserving the life and health of its citizens "greatly outweighs" North Country's interest in conducting business free of restrictions, the judge said.

The judge also pointed out that the mitigation orders allowed bars and restaurants to get permission to operate at higher capacity limits. But McCafferty testified that he never applied for such permission and therefore remained at lower capacity limits.

"With all this in mind, the court is not persuaded that additional, individualized process would protect plaintiff — or any other bar or restaurant owner — from 'mistaken' deprivation under the circumstances," the judge said.

McCafferty filed his suit challenging the rule in December.

Last month, a Pennsylvania appellate court rejected a Pittsburgh-area restaurant's bid to reopen while it fights a state court's ruling that it must follow mask mandates and capacity limits to operate during the pandemic.

Commonwealth Court Judge Renée Cohn Jubelirer denied The Crack'd Egg's request for a stay of the lower court's order that it must close until it complies with state and county directives that employees and customers wear face coverings when they aren't eating or drinking, but the judge set an expedited schedule for the anti-mask restaurant's appeal.

McCafferty is represented by Rebecca L. Black of Lutz Pawk & Black Attorneys at Law.

The state is represented by the Pennsylvania Office of Attorney General.

The case is Robert McCafferty v. Tom Wolf et al., case number 2:20-cv-02008, in the U.S. District Court for the Western District of Pennsylvania.

--Additional reporting by Matthew Santoni. Editing by Rich Mills.

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