CLAYTON — Nearly 40 St. Louis-area restaurants and the Missouri Restaurant Association filed suit Wednesday challenging St. Louis County officials’ authority to suspend indoor dining in an effort to slow the ongoing surge in COVID-19 cases.
The lawsuit filed in St. Louis County Circuit Court claims County Executive Sam Page and Acting Health Co-director Emily Doucette overreached by issuing a public health order, which took effect Tuesday, halting indoor dining at bars and restaurants and restricting them to patio service, takeout and delivery.
The suit claims the officials “view COVID-19 as conferring an unfettered power upon them to regulate private conduct in whatever manner they deem necessary without any procedural, substantive or temporal constraints on their authority.”
Page defended the order in his Wednesday morning news briefing as necessary to control the ongoing pandemic and said the county would pursue “all of our legal options” to address restaurants not following restrictions.
The legal battle comes as the St. Louis metropolitan area, as well as Missouri and Illinois, all continued on Wednesday to report record-breaking COVID-19 hospitalization totals.
The St. Louis area’s major hospitals were treating a record 841 confirmed COVID-19 patients as of Monday, according to the St. Louis Metropolitan Pandemic Task Force. That’s a 174% increase over the last month, and, according to hospital officials, has put the hospitals at or near capacity.
Note from St. Louis Metropolitan Pandemic Task Force regarding the numbers for July 20: There was a delay in reporting some test results leading to the increase in reported hospital admissions.
Editor's note: This chart has been adjusted to reflect suspected and confirmed cases in hospitalized patients in early June. Previous updates only had confirmed case numbers.
Illinois reported a record 5,953 hospitalized COVID-19 patients. The virus, said Gov. J.B. Pritzker, is now the third-leading cause of death in Illinois, behind heart disease and cancer. Between March and October the governor said more people died from the virus than the next two highest causes — strokes and accidents — combined.
“Every day that we take action to stop the spread is another day that we give to scientists and doctors to figure out new and better treatments, new technologies and new vaccines,” Pritzker said Wednesday.
‘Another fine dinner’
The Missouri Restaurant Association, which represents more than 1,000 establishments statewide, joined the list of family-owned restaurant groups that filed suit against St. Louis County.
Other plaintiffs included owners of Circle 7 Ranch, Syberg’s Family Restaurants, The Shack Restaurant Group, Tucker’s, Mike Duffy’s Pub & Grill, Mia Sorella, 3 Kings, Corner Pub & Grill, Harpo’s, Fitz’s South County, Massa’s, Satchmo’s Bar & Grill and Bartolino’s South.
The suit claims that Page’s “unilateral” executive order usurped the County Council’s authority, avoided procedural safeguards such as a public notice and comment periods, and will ultimately force restaurants to lay off staff or close down.
The plaintiffs believe in social distancing, wearing masks, sanitizing surfaces, and limiting capacity, the suit says, “but they also believe that they must operate with indoor dining to economically survive.”
At least one of the restaurants bringing the suit, Bartolino’s South, defied the county order and remained open, serving a packed dining room Tuesday night — and winning support from one of the area’s top cops, Jefferson County Sheriff Dave Marshak, who tweeted a photo of Bartolino’s exterior sign Tuesday night and posted: “Another fine dinner at Bartolinos.”
Bartolino’s co-owner Mike Saracino declined to comment.
Chris King, a spokesman for St. Louis County Prosecutor Wesley Bell, said Wednesday morning the office had not yet received complaints of anyone violating the order. Violations would be reviewed case-by-case, he said.
Page was confident that the county’s health order would stand.
“We have been through this before over the past eight months and we know how all of these legal actions will work out for those who are defying the public health orders,” he said.
Earlier this year, the county sent cease-and-desist letters to dozens of businesses that remained open during a stay-at-home order, and successfully sued to shut down two fitness centers that openly defied the order.
In St. Louis, Mayor Lyda Krewson has not shut down indoor dining, arguing there has not been enough evidence of cases linked to restaurants to justify the restriction.
Republican-led St. Charles and Jefferson counties have followed Missouri Gov. Mike Parson’s lead, and declined to issue mask mandates. Both have also allowed indoor dining to continue.
The uneven regional approach is among the biggest complaints of St. Louis County restaurant owners frustrated with Page, said Bill Kunz, owner of Highway 61 Roadhouse and Kitchen, a cajun spot in Webster Groves.
“There’s a randomness to it,” Kunz said. “You look at restaurants near the county line and if they were two blocks east, they could stay open.”
Kunz cut his regular staff of 30 to eight when the pandemic hit this spring, but now worries he may have to cut more jobs.
His business has made about 35% the revenue it sees in a normal year, with the vast majority coming from dine-in customers, he estimated.
Federal, state and local grants have helped the restaurant stay open, but Kunz worries they will dry up.
The president of the St. Louis Economic Development Partnership said Tuesday the organization plans to work with St. Louis County to roll out aid to restaurants by the end of the year. Kunz hopes the funds get to restaurant owners fast. But he isn’t hopeful.
Kye Pietoso, co-owner of Café Napoli in Clayton and Napoli 2 in Town and Country, is set to open a third location next month in St. Charles County. And they’re relying on it to keep the restaurant group running, he said.
Pietoso said he worries the order won’t actually expire in four weeks, as scheduled, and has joined a group of restaurateurs to offer Page ways indoor dining could safely reopen.
“I’ve already had to cut so many staff members who do this as their lifelong career,” he said. “I’m worried about how they’re going to pay their bills.”
Annika Merrilees of the Post-Dispatch contributed to this report.
Editor's note: A previous version of this story had incorrect spellings for the names of Bill Kunz and Emily Doucette. This report has been updated to reflect the correct spellings.
Associate Circuit Judge John R. Lasater said Friday that the county order was necessary "to protect the public" as COVID-19 cases mount in the region.