Gov. Murphy Defends NJ Dining Veto Amid Lawsuit Over COVID Powers

NEW JERSEY –Gov. Phil Murphy is defending his decision to veto a bill giving restaurants and bars more freedom amid the COVID-19 crisis just as New Jersey businesses are going to court to limit his power.

Lawmakers, meanwhile, are working on new legislation that they believe will get Murphy's support and give owners and operators of restaurants and bars, distilleries more freedom to operate outdoors amid the pandemic.

Murphy, speaking during his Wednesday news conference, said the legislation he vetoed would "take away authority" from local towns and cities, as well as the Division of Alcoholic Beverage Control, as they try to manage businesses amid the coronavirus outbreak.

"Some folks would like to say that that that bill that we vetoed didn't do that," he said. "Well, it did."

The bill would have permitted owners and operators of restaurants, bars, distilleries and breweries to continue to utilize outdoor spaces or public sidewalks as extensions of their business premises, Murphy said.

The governor, however, said towns would be prohibited from restricting the hours of outdoor dining beyond the timeframes established in the bill.

The exception would be if the municipality had previously delineated more restrictive hours for indoor dining via ordinance prior to March 1, 2020. The public health emergency was declared two weeks later. Read more: NJ Bill To Give Bars More 'Outdoor' Freedom Amid COVID Is Vetoed

"The headlines around this (are) we vetoed outdoor dining. That's the last thing from the truth," Murphy said. "I think if you look at our dining reality, both indoors and outdoors, we have been as consistent as any state in America.

"And that's not to make restaurant owners feel good, because this has been an awful avalanche of misery. I get that. But when we opened up indoors on September 4th, 2020 at 25 percent, we have not wavered for one minute since then, up or down," he added. "I wish we could go up but as you can see with the numbers, that's not in the cards right now."

Murphy said his administration encouraged outdoor dining when it restarted June 15th "as aggressively as any American state working with municipalities, working with the ABC."

"So with all due respect to the way the press has reported this, we have been on the right side of this one," he said.

Murphy spoke just as the New Jersey Business & Industry Association has filed an amicus brief in the US Court of Appeals for the Third Circuit in support of a recent lower court decision addressing the constitutionality of key aspects of COVID-19 emergency orders. Read more: Gov. Wolf's Coronavirus Restrictions Unconstitutional: Judge

In its filing, NJBIA argues that, while a state’s chief executive should have broad powers to act to protect public health during an emergency, those powers are not unlimited and must be subject to constitutional limitations.

The organization acknowledged to Patch that it's hoping to limit the powers of Murphy and other governors over the decisions they make amid the pandemic.

NJBIA also contends that, while deference is rightfully given to the government to act in the early stages of a public health emergency, those government actions should be more closely scrutinized as temporary measures give way to longer-term mandates that impact people’s lives.

“We are not challenging any specific actions taken by governors during the pandemic,” NJBIA President and CEO Michele Siekerka said. “But we do believe good governance requires a series of checks and balances with more than one individual engaged in the decision-making process during a protracted emergency.”

“As long-term restrictions with untold impacts on people’s livelihoods continue, it is imperative that there is a transparent process, supported by established scientific facts, behind critical decisions. That is what we are seeking with this action,” he added.

In September, the US District Court for the Western District of Pennsylvania ruled that certain conditions of the Pennsylvania governor’s COVID-19 emergency orders are unconstitutional, including aspects of the orders that mandated the closure of certain businesses. That decision is currently being appealed by the state.

Following Murphy's veto, the Senate also approved a new bill sponsored by Sens. Paul Sarlo, Nellie Pou and Vin Gopal to expand opportunities for restaurants, bars, distilleries, and breweries to operate outdoors until at least November 30, 2022, regardless of when full capacity indoor dining is permitted to resume.

The new bill, S-3340, expedited for the vote by the full Senate, is the product of discussions among the governor's office, Assembly sponsors and Senate President Steve Sweeney, who authorized the request to move swiftly on the measure, Sarlo said.

The new bill would give local towns more authority over the decisions made by local businesses, lawmakers said.

“This is important and it is timely,” said Senator Sarlo, D-Bergen/Passaic, who chairs the Senate Budget Committee. “Restaurants, bars, distilleries and breweries have experienced significant business losses because of the coronavirus crisis, the resulting shutdowns and reduced capacities. The months ahead will be pivotal for their survival.

"They need to know that they are permitted to operate outdoors for the next two years so that they can invest in purchasing fixtures such as tents and umbrellas necessary for outdoor dining.”

The new bill would:

• Update regulations to allow restaurants, bars, distilleries, and breweries to utilize covered and uncovered patios and decks, yards, walkways, parking lots and public sidewalks for both food and alcohol consumption.
• Require business operators to file an application with the municipal zoning officer which cannot be rejected if the business is compliant with the provisions of the bill as well as local ordinances related to health, safety, fire, and zoning.

Pou stressed the importance of alleviating any ambiguity by establishing a standardized application process and operating standards for restaurants to utilize outdoor spaces.

“This is a responsible way to help restaurants, bars, distilleries, and breweries that have experienced significant losses so they can generate enough economic activity to survive this crisis,” said Senator Pou, D-Passaic. “It is important that we establish consistent standards that provide predictability. We have to try to do right by local businesses so they can maintain their place in their home communities.”

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