In the Supreme Court of the State of New Mexico

IN THE SUPREME COURT OF THE STATE OF NEW MEXICO

MICHELLE LUJAN GRISHAM, Governor of New Mexico; and KATHYLEEN KUNKEL, Secretary of the New Mexico Department of Health,

Petitioners, v. S. Ct. No. ______

THE HONORABLE RAYMOND L. ROMERO,

Respondent, and

OUTLAW MEATS, LLC, a New Mexico Limited Liability Company, F-2 ENTERPRISES, INC. d/b/a TEXAS CLUB GRILL & BAR, a New Mexico Corporation, K-BOBS OF RATON, INC., a New Mexico Corporation, K-BOBS OF LAS VEGAS, INC., a New Mexico Corporation, B.M.B. FINANCIAL, LLC, d/b/a TRINITY HOTEL, a New Mexico Limited Liability Company, RED RIVER BREWING COMPANY, LLC, a New Mexico Limited Liability Company, NEW MEXICO RESTAURANT ASSOCIATION,

Real Parties in Interest.

EMERGENCY VERIFIED PETITION FOR SUPERINTENDING CONTROL AND REQUEST FOR STAY OF TEMPORARY RESTRAINING ORDER AGAINST ENFORCEMENT OF DIRECTIVES CONTAINED WITHIN THE PUBLIC HEALTH ORDER

Matthew L. Garcia, Chief General Counsel to Governor Michelle Lujan Grisham 490 Old Santa Fe Trial, Suite 400 Santa Fe, New Mexico 87501 [email protected] 505-476-2210

Jonathan J. Guss Deputy General Counsel to Governor Michelle Lujan Grisham 490 Old Santa Fe Trial, Suite 400 Santa Fe, New Mexico 87501 [email protected] 505-476-2210

Petitioners Governor of New Mexico Michelle Lujan Grisham and New

Mexico Secretary of Health Kathyleen Kunkel, pursuant to Article VI, Sections 3

and 20 of the New Mexico Constitution and Rule 12-504 NMRA hereby petition this

Court to immediately exercise its power of superintending control to stay a temporary restraining order (“TRO”) issued by the district court today (July 20,

2020) that effectively invalidates portions of the existing Public Health Order

(“PHO”), which was issued by the Department of Health (“DOH”) in response to

the COVID-19 pandemic. Petitioners further ask this Court to resolve the

controlling legal issues in this case: (1) whether the Secretary of Health has statutory

authority to restrict or close businesses when necessary for the protection of public

health; and (2) whether the temporary closure of indoor dining at restaurants and

breweries was arbitrary and capricious.

INTRODUCTION

Petitioners ask this Court to grant an extraordinary writ and definitively

resolve issues of statewide legal importance that have the potential to significantly

affect how (and whether) the State can enforce public health restrictions during the

current public health emergency. There is urgency to this request as the District

Court in this matter, without affording Petitioners the opportunity for a hearing, has

issued a TRO invalidating portions of the existing statewide PHO that place

limitation on occupancy restrictions at restaurants. The Court’s immediate

1 intercession here is necessary to provide guidance as to the State’s ability to enact

and enforce emergency health measures. To this end, Petitioners respectfully ask this Court to exercise its power of superintending control and hold that: (1) the TRO

issued by the district court is stayed until this Court has ruled on the matters

addressed in this Petition; (2) the Secretary of Health is statutorily authorized to

restrict or close businesses to protect public health; and (3) DOH did not act

arbitrarily and capriciously in temporarily closing indoor dining in restaurants and

breweries.

BACKGROUND

A. The COVID-19 pandemic.

Since its emergence only a few months ago, the novel coronavirus disease

2019 (“COVID-19”) has spread exponentially across the globe, throughout the

United States, and here in New Mexico. The confirmed number of infections in the

United States provides a good illustration of this. As of February 11, 2020, the

United States Centers for Disease Control and Prevention (“CDC”) recorded 12

confirmed cases in the United States.1 Now, a little more than five months after those first 12 cases, the CDC counts more than 3.6 million confirmed cases and more

1 The confirmed cases and deaths reported by the CDC are updated daily on the CDC’s website at https://www.cdc.gov/coronavirus/2019-ncov/cases-updates/ cases-in-us.html.

2 than 138,000 deaths in the United States. Globally, as of July 19, 2020, the number of confirmed cases has risen to nearly 14 million, with almost 600,000 related deaths.2 Approximately four months since the first confirmed cases of COVID-19

in New Mexico, there are now 16,971 confirmed cases here and 571 related deaths.3

COVID-19’s rapid spread is attributable to certain characteristics of the virus that

causes it and the ease with which that virus is transmitted.

COVID-19 is a respiratory illness that causes severe complications in some

patients, including pneumonia in both lungs, organ failure, and death. Like most

respiratory illnesses, COVID-19 spreads easily through close person-to-person contact. Although it has not yet been measured precisely, a significant portion of

COVID-19 cases result in mild symptoms or no symptoms.4 Additionally, even in cases that are symptomatic, the average time from exposure to symptom onset is five to six days, with symptoms sometimes not appearing until as long as thirteen days

2 World Health Organization, “Coronavirus disease 2019 (COVID-19) Situation Report–181,” available at https://www.who.int/docs/default-source/coronaviruse/ situation-reports/20200719-covid-19-sitrep-181.pdf?sfvrsn=82352496_2.

3 These numbers are provided as of July 19, 2020 and are updated daily by the New Mexico Department of Health and available at https://cv.nmhealth.org/.

4 Nathan W. Furukawa et al., “Evidence Supporting Transmission of Severe Acute Respiratory Syndrome Coronavirus 2 While Presymptomatic or Asymptomatic,” Emerging Infections Diseases, Vol. 26, Num. 7 (July 2020), available at https://wwwnc.cdc.gov/eid/article/26/7/20-1595_article.

3 after infection.5 This means that individuals who have been infected and have the potential to infect others usually do not know they are infected for at least several days (and may never know, if they remain asymptomatic).

The ease and rapidity with which COVID-19 spreads and its severe and sometimes fatal symptoms in a certain percentage of the population create a potential for mass deaths and a severely overloaded health care system. Because many individuals who have COVID-19 do not know they have been infected, the only effective way to combat the spread of COVID-19 and to mitigate its impacts is to limit person-to-person contact and to large gatherings to the greatest extent possible.

Although social distancing guidelines generally advise people to stay six or more feet apart, even that degree of distancing does not guarantee that an individual will not contract COVID-19. This means that every foray by a person into a public space with other people carries some risk of transmission, particularly in indoor environments. Affidavit of Dr. David R. Scrase, attached as Exhibit 1, ¶ 8. For instance, a recent study has shown that the act of speaking can emit thousands of

potentially infectious droplets which can linger in an enclosed space for between 8

and 14 minutes and greatly increase the risk of transmission within that space. Id.

5 Harvard Medical School, “COVID-19 basics: Symptoms, spread and other essential information about the new coronavirus and COVID-19, available at https://www.health.harvard.edu/diseases-and-conditions/covid-19-basics.

4 While social distancing and avoiding crowded indoor spaces are important tools in combating COVID-19, the use of face coverings and/or masks by all individuals in public places has also emerged as an important element in slowing the virus’s spread. In a recent editorial, the CDC Director endorsed state and local policies requiring face coverings in public. Id., ¶ 13. The CDC’s editorial noted that infection rates among health care workers with direct and indirect contact with positive cases at the largest health care system in Massachusetts declined steadily after universal masking policies were put in place. Id. As another example, two infected hairstylists in Springfield, Missouri—where masks are required for workers and customers in salons—had close contact with more than a hundred customers and none of those customers subsequently reported symptoms or tested positive for

COVID-19. Id. As just one more example, a recent study published in Health

Affairs concluded that mask mandates in states led to a slowdown in growth rate of new cases: daily growth rates dropped by 0.9% compared to the five days prior to the mandate and dropped by 2% after three weeks. Id., ¶ 14.

B. New Mexico’s Emergency Public Health Orders.

Recognizing that COVID-19 may spread exponentially through close contacts and public spaces, the New Mexico Secretary of Health (“the Secretary”) has entered a series of PHOs encouraging New Mexicans to stay in their homes to the greatest extent possible and to practice all possible precautions when they are required to

5 enter public spaces. See Exhibits 2-5 (relevant PHOs). The PHOs prohibit most public and private gatherings of any significant size and curtail or even prohibit the operations of many businesses.

By way of example, the most recent PHO, issued on July 13 (“July 13 Order”)

contains the same core directive as other recent PHOs: “all New Mexicans should be staying in their homes for all but the most essential activities and services.”

Exhibit 5 at 1 (emphasis in original). To this end, the July 13 Order prohibits “mass gatherings,” which are defined as “any public gathering, private gathering, organized event, ceremony, parade, or other grouping that brings together five (5) or more individuals in a single room or connected space, confined outdoor space or an open outdoor space.” Id. at 5.

Numerous businesses and other facilities, including restaurants are exempt

from mass gathering restrictions but remain subject to a variety of other restrictions

in the July 13 Order. For instance, those businesses dubbed “essential” must operate

in accordance with pertinent COVID-Safe Practices contained in “All Together New

Mexico: COVID-Safe Practices for Individuals and Employers” (“CSPs”), as well

as complying with any identified occupancy restrictions. Id. at 6. Restaurants6 are one such “essential” business subject to occupancy restrictions. Id. at 5. Restaurants

6 The use of “restaurant” in this brief is intended to refer to both restaurants and to breweries licensed under NMSA 1978, § 60-6A-26.1 (2019), as those businesses are presently subject to identical restrictions.

6 may provide delivery or carryout service and outdoor dine-in service at up to 50% of their outdoor fire code occupancy. Id. Outdoor dine-in service may only be provided to seated patrons, no more than six people may be seated at a single table, there must be at least six feet between tables, and bar or counter service is not permitted. Id. The July 13 Order prohibits indoor dine-in services. Id.

Other facilities and businesses are also permitted to open subject to significant

occupancy and other restrictions under the July 13 Order. Most businesses that are

not identified as “essential” are permitted to open subject to a 25% occupancy

restriction. Id. at p. 7. Indoor shopping malls are also subject to a 25% occupancy restriction and may not operate a food court and must prevent loitering. Id. “Close contact businesses” such as gyms and salons are subject to a 25% occupancy restriction. Id. Gyms and similar exercise facilities are not permitted to conduct group fitness classes. Id. Houses of worship, such as churches, synagogues, and mosques, are limited to a 25% occupancy restriction for indoor services. Id. at 6.

The July 13 Order also closes a variety of businesses and facilities. Those

businesses and places defined as “recreational facilities” are required to remain

entirely closed. Id. at 6. That category includes, among other things, indoor movie

theaters, museums, bowling alleys, concert venues, event venues, “and other places

of indoor recreation or indoor entertainment.” Id. at 6. Bars are also required to remain closed, except to provide take-out or delivery services if they are licensed to

7 do so. Id. at 7. Casinos and horse racing facilities also remain closed to the general public. Id. at 8. Certain organized amateur sports are also temporary prohibited under the July 13 Order. Id.

The July 13 Order also requires all New Mexicans to wear “a mask or

multilayer cloth face covering in public settings except when eating, drinking, or

swimming,” unless a health care provider has instructed otherwise. Id. at 8.

Individuals are only exempted from wearing face coverings in public for eating, drinking, and swimming because those activities would be exceedingly difficult with a mask. Restaurants are unique among those facilities and entities regulated by the

July 13 Order (other than bars, which remain closed) in that eating and drinking are the primary activities of their customers. Because a person is likely to be eating or drinking for a significant time while in a restaurant, individuals dining at a restaurant are far less likely to be wearing masks at any given time than customers at any other business or venue, except for pools. Accordingly, restaurant customers are required to be outdoors and in size-limited groups with significant spacing between groups.

The July 13 Order also imposes significant regulations on public pools, which are facilities where individuals swim without wearing masks (although individuals who are not swimming are still required to wear masks in those facilities). Pools are limited to 50% of their maximum occupancy and may only be used for lane swimming and swimming lessons of up to 2 students. Id. at 7. Communal play and

8 splash areas remain completely closed. Id. Swimming activities at public pools have been limited such that unmasked individuals are not gathered together in close proximity to each other.

C. A rise in recent cases has coincided with New Mexico reimposing restrictions on indoor dining

The PHEOs gradually eased restrictions on restaurants in May and June and

then tightened them again in the July 13 Order. Between March 19 and May 27,

restaurants were limited to take out and delivery services only. Exhibit 2 at 3. The

May 27 Order permitted restaurants to provide dine-in services in outdoor seating

areas with a 50% occupancy restriction. Exhibit 3 at 5. The June 1 Order and

subsequent June PHOs permitted indoor dine-in services with a 50% occupancy

restriction and under the same conditions that apply to outdoor dining. See Exhibit

4 at 5. The July 13 Order essentially reverted to the restrictions on restaurants from the May 27 Order.

The July 13 Order also imposes more stringent masking or face covering

requirements. Prior PHOs that mandated masks or face coverings provided a blanket

exemption for “exercising.” See, e.g., Exhibit 4 at 7. The July 13 Order narrows this exemption to include only swimming. Exhibit 5 at 8. The July 13 Order also reduces occupancy restrictions on indoor gyms from 50% to 25% and temporarily prohibits amateur contact sports. Compare Exhibit 4 at 7 with Exhibit 5 at 6-7; see

Exhibit 5 at 8. Those measures all reduce the possibility that individuals will need

9 to remove their face coverings near others to aid breathing during exercise, including in indoor settings like gyms. Likewise, the July 13 Order’s restriction of dine-in services in restaurants eliminates a setting where groups of people are gathered indoors and need to remove their face coverings for extended periods of time. The re-imposed limitations on restaurants in New Mexico are consistent with a number

of other states that have also recently recognized the added risks of indoor dining

and have paused easing restrictions or re-imposed restrictions on that activity.7

The added restrictions in the July 13 Order coincide with troubling infection

trends statewide and nationwide and with increasing evidence linking indoor dining

at restaurants to a higher risk of infection. New Mexico’s 5-day moving average of

cases rose significantly in the middle of June, exceeded the state’s previous highest

point on July 2, 2020, and has continued upwards.8 Nationally, the number of new

7 Some examples include Texas and California. Texas: Executive Order GA 28 (June 26, 2020), available at https://gov.texas.gov/ uploads/files/press/EO-GA- 28_targeted_response_to_reopening_COVID-19.pdf (reducing dine-in services from 75% occupancy to 50% occupancy); California: Noah Higgins-Dunn, “California closes indoor restaurants, movie theaters and all bars statewide as coronavirus cases rise,” CNBC (July 13, 2020), available at https://www.cnbc.com/2020/07/13/california-to-close-indoor-restaurants-movie- theaters-and-bars-statewide-as-coronavirus-cases-rise.html (discussing recent statewide closure of indoor dining in California).

8 The Albuquerque Journal publishes a running chart showing New Mexico’s 5-day moving average, among other statistics, based on data from the New Mexico Department of Health. This information is available athttps://www.abqjournal.com/coronavirus.

10 cases per day also began to climb in the middle of June and has continued rising dramatically through July—for instance, there were 14,790 new cases in the United

State on June 1, 2020 compared with 74,710 on July 17, 2020.9 Here in New

Mexico, instances of COVID-19 cases among restaurant staff rose dramatically

beginning approximately two weeks after the resumption of indoor dining at

restaurants and has continued on an upward trend, as illustrated by the number of

rapid responses by the New Mexico Environment Department (“NMED”) to positive

cases among restaurant employees. Affidavit of Robert Genoway, attached as

Exhibit 6, ¶¶ 6-9. The Department of Health (“DOH”) provides daily reports to

NMED of positive cases where an employer has been identified so that NMED can

provide a rapid response to ensure that the employer takes protective measures and

warns potentially impacted staff. Id., ¶¶ 2-4. For the first two weeks of June, NMED had only 5 rapid responses to restaurants. Id., ¶ 7. For the next two weeks, the

NMED reported 16 rapid responses to restaurants. Id. The final two weeks of indoor dining in New Mexico required 49 rapid responses to restaurants. Id. This growth in cases was not solely attributable to rising cases statewide during that time because the percentage of rapid responses to restaurants has grown and stayed at a high rate since two weeks after indoor dining returned: during the first two weeks of

9 The CDC tracks the number of new cases per day in the United States and updates the numbers daily. These numbers are available at https://www.cdc.gov/ coronavirus/2019-ncov/cases-updates/cases-in-us.html.

11 June, 5 of 55 rapid responses (~9.1%) were to restaurants; during the second two weeks, 16 of 102 (~15.7%); during the final two weeks of indoor dining, 49 of 340

(~14.5%). Id., ¶ 9. There have also been significant compliance concerns with restaurants: approximately 20% of the reports of non-compliance to the New Mexico

Department of Safety have involved restaurants. Id., ¶¶ 10-11.

These data points are also supported by more recent guidance cautioning of

significant risks from indoor dining. For instance, the WHO has recently noted

“outbreak reports related to indoor crowded spaces,” which suggest the possibility

of aerosol transmission of the virus, including outbreaks in restaurants. Exhibit 1, ¶

9. Another study details how one infected and presymptomatic individual likely

transmitted the virus to nine other people at three different tables during an indoor

lunch at a restaurant in China. Id. The outbreak was apparently caused by the path of the air conditioning. Id. As another example, a restaurant and brewery in East

Lansing, Michigan accounted for 158 total confirmed cases (27 of which were people who did not visit the bar, but contacted someone who did) over a period of eight days in June despite being limited to 45% indoor capacity and placing tables six feet apart. Id., ¶ 10. Finally, a recent study conducted by JP Morgan, which found that the level of spending in restaurants was a strong predictor of increased

12 COVID-19 cases three weeks later.10 The analyst who performed the study noted

that in-person restaurant spending was “particularly predictive” of rising case

numbers. These case studies provide additional confirmation of the relatively higher

transmission risks associated with indoor dining as compared to more transitory

indoor interactions and settings.

D. The lawsuit filed by the Real Parties in Interest.

Against this factual backdrop, Real Parties in Interest in this matter seek to enjoin (and have been granted a TRO) the State of New Mexico from enforcing the

provisions of the July 13 Order that prohibit restaurants from providing indoor dine-

in services at 50% occupancy under the conditions set forth in prior PHOs. Verified

Application for Temporary Restraining Order and Preliminary and Permanent

Injunction in Case No. D-503-CV-2020-00506, attached as Exhibit 7, at 21. Real

Parties in Interest advance two legal theories to support their request to enjoin these

statewide emergency public health measures and effectively set emergency public

health policies for the State. First, they erroneously assert that the Secretary of

Health has exceeded her statutory authority by requiring restaurants to temporarily

close for the protection of public health. Id. at 13-18. They stake this claim on the

10 See Amelia Lucas, “This chart shows the link between restaurant spending and new cases of coronavirus,” CNBC (June 26, 2020), available at https://www.cnbc.com/2020/06/26/this-chart-shows-the-link-between-restaurant- spending-and-new-coronavirus-cases.html (detailing study and analyst’s claims regarding in-person dining).

13 inaccurate premise that DOH may only close businesses through an exercise of its quarantine powers (which relate only to the physical isolation of individuals, not business closures) rather than DOH’s explicit authority to close public places and forbid gatherings of people to protect public health. Id. Second, they incorrectly argue that distinctions between indoor dining and other activities are arbitrary and capricious. Id. at 11-13. In addition to turning on its head the typically wide latitude afforded to policymakers during a public health emergency, this contention relies on a single chart produced by the New Mexico Department of Health and conveniently elides data and commonsense explanations as to why risks are more difficult to mitigate in indoor dining settings versus other indoor settings. Id. Reasoning that

Petitioners (in this matter) failed to respond within five days and that irreparable injury would befall Real Parties in Interest, the district court enjoined the State from enforcing any public health restrictions against restaurants. Temporary Restraining

Order in Case No. D-503-CV-2020-00506, attached as Exhibit 8. It also scheduled a hearing for preliminary injunction, which is set for July 30, 2020. Id.

ARGUMENT

A. The Court should issue a writ of superintending control.

Article VI, Section 3 of the New Mexico Constitution grants this Court

“superintending control over all inferior courts” and the authority to issue “writs

necessary or proper for the complete exercise of its jurisdiction and to hear and

14 determine the same.” This Court has long recognized that the power of superintending control permits it “to control the course of ordinary litigation in inferior courts”. State ex rel. Torrez v. Whitaker, 2018-NMSC-005, ¶ 30, 410 P.3d

201 (quoting State v. Roy, 1936-NMSC-048, ¶ 89, 40 N.M. 397, 60 P.2d 646).

While the Court has recognized that its jurisdiction under this power is “bounded only by the exigencies which call for its exercise,” Roy, 1936-NMSC-048, ¶ 94, a writ of superintending control is most often issued where the public interest would be served through expeditious resolution of a legal question or where it is appropriate to provide guidance to lower courts on the application of the law. State ex rel.

Torrez, 2018-NMSC-005, ¶¶ 30-31; State ex rel. Schwartz v. Kennedy, 1995-

NMSC-069, ¶ 8, 120 N.M. 619, 904 P.2d 1044.

Consistent with these general principles, the Court has previously granted a

writ of superintending control to address a legal issue at the soonest possible moment

where a case presented a matter of first impression “with serious public safety

implications.” State ex. rel. Torrez, 2018-NMSC-005, ¶ 31. That is the case here as the Real Parties in Interest seek to invalidate the operative PHEO claiming that the directives stated therein are “ultra vires and not enforceable”. See App. at 13-14.

Further, Real Parties in Interest raise separation of powers issues and asserts that the

PHEO mandates “usurp the authority granted to the judicial branch . . . under the

Public Health Act” and violate the separation of powers between the legislative and

15 executive branches. Id. at 13. Perhaps most significantly, the district court has already granted a TRO, thereby invalidating existing public safety directives

attendant to operation of restaurants. Should this order be permitted to stand, the

State will be stripped of the ability to meaningfully respond to the pending health

emergency. For these reasons, expeditious review of the issues raised in Real Parties

in Interest’s request for injunctive relief is warranted.

B. The Public Health Act expressly grants DOH authority to close public spaces and prohibit mass gatherings.

The Public Health Act, NMSA 1978, §§ 24-1-1 to -40 (1973, as amended through 2019) (“the PHA” or “the Act”) is a comprehensive statutory framework that provides DOH with broad authority to address a myriad of public health issues.

To that end, the Act empowers DOH to “control and abate the causes of disease, especially epidemics[;]” to “respond to public health emergencies;” to “maintain and enforce rules for the control of conditions of public health importance;” and “do all other things necessary to carry out its duties”. § 24-1-3(C), (E), (F), (Q), (Z). DOH is further vested with express authority to regulate public spaces and public

gatherings when necessary to promote public health. Section 24-1-3(E) of the PHA

provides that DOH may “close any public place and forbid gatherings of people

when necessary for the protection of the public health”. NMSA 1978, § 24-1-

3(E) (emphasis added).

16 When interpreting and implementing the statutory directive set out in § 24-1-

3(E), DOH enjoys “a heightened degree of deference” given that the statute

“implicate[s] special agency expertise” and “the determination of fundamental

policies within the scope of the agency’s statutory function.” Morningstar Water

Users Ass’n v. N.M. PUC, 1995-NMSC-062, ¶ 11, 120 N.M. 579, 904 P.2d 28. See also N.M. Mining Ass’n v. N.M. Mining Comm’n, 1996-NMCA-98, ¶ 15, 122 N.M.

332, 924 P.2d 741 (“Rules adopted by an administrative agency will be upheld if they are in harmony with the agency’s express statutory authority or spring from those powers or may be fairly implied therefrom.”). And where the public health is at issue, the State’s regulatory authority is at its apex. Mitchell v. City of Roswell,

1941-NMSC-007, ¶ 13, 45 N.M. 92, 111 P.2d 41 (“It is the policy of the courts to

uphold regulations intended to protect the public health, unless it is plain that they

have no real relation to the object for which ostensibly they were enacted, and prima

facie they are reasonable.”).

This Court has previously endorsed DOH’s statutory authority to close or

restrict businesses by issuing a writ mandating compliance with those requirements

in State of New Mexico v. Hicks, Case No. S-1-SC-38279. There, the Court issued a writ prohibiting the Mayor from “(1) operating city facilities in a manner that violates public health emergency orders issued by the Secretary of the New Mexico

Department of Health and (2) issuing directives and orders that contradict the public

17 health emergency orders issued by the Secretary of the New Mexico Department of

Health.” Id.

Real Parties in Interest provide no discussion of § 24-1-3(E) or the Hicks decision and they make no attempt to address why these legal authorities are not controlling. They simply ignore the issue. Instead, Real Parties in Interest attempt to transmogrify a straightforward matter of statutory interpretation into a case about the quarantine procedures provided for in § 24-1-15 of the PHA. See generally, App. at 13-18. Those statutory provisions are inapposite. 11 They address the specific

instance where the Secretary “has knowledge that a person is infected with or

reasonably believes that a person is infected with or exposed to a threatening

communicable disease and the person has refused voluntary treatment, testing,

evaluation, detention or observation”. § 24-1-15(A). In those circumstances, the

Secretary may seek a court order isolating or quarantining the person “until the

person is no longer a threat to the public health or until the person voluntarily

complies with treatment and contagion precautions.” Id. While Section 24-1-15

11 Further illustrating this point are those sections of § 24-1-15 that address workplace protections, prohibit the forced administration of medication, and ensure humane conditions for those who are quarantined. See e.g., § 24-1-15(J) (limiting “confinement to the affected person’s private home, if practicable, or if not practicable, to a private or public premises”); § 24-1-15(H) (prohibiting the forced administration of medication); § 24-1-15(N) (“During the period of isolation or quarantine, an employer shall not discharge from employment a person who is placed in isolation or quarantine pursuant to this section.”).

18 addresses the process for quarantining individuals, it does not circumscribe or otherwise limit DOH’s authority to close public places or regulate mass gatherings in Section 24-1-3(E). Real Parties in Interest’s attempt to link these two separate provisions is erroneous.

C. The July 13 Order’s restrictions on indoor dining are not arbitrary and capricious.

Taken together, New Mexico statutes and this Court’s prior decisions give rise to several principles that serve as a guide for assessing the scope of DOH’s authority in regulating public spaces.

First, DOH is afforded wide latitude when exercising its statutory powers to

protect public health. As this Court has explained, “agencies and individuals with

important responsibilities must have considerable discretion in order to fulfill their

responsibilities effectively.” Rio Grande Chapter of the Sierra Club v. N.M. Mining

Comm’n, 2003-NMSC-005, ¶ 25, 133 N.M. 97, 61 P.3d 806 (citations omitted)

(rejecting the argument that the New Mexico Mining Commission acted outside the scope of the Mining Act and indicating that a heightened degree of deference attaches to legal questions that implicate agency expertise). Accordingly, “[i]t is the policy of the courts to uphold regulations intended to protect the public health, unless it is plain that they have no real relation to the object for which ostensibly they were enacted, and prima facie they are reasonable.” State ex rel. Hughes v. Cleveland,

1943-NMSC-029, ¶ 18, 47 N.M. 230, 141 P.2d 192. Only agency action that is

19 “willful and unreasoning” and done “without consideration and in disregard of facts and circumstances” can be deemed “arbitrary and capricious”. Old Abe Co. v. N.M.

Mining Comm’n, 1995-NMCA-134, ¶ 10, 121 N.M. 83, 908 P.2d 776 (internal quotation marks and citation omitted).

Second, courts should exercise restraint when asked to invalidate reasonable

agency actions addressing public health emergencies. More than a century ago, in

Jacobson v. Massachusetts, the United States Supreme Court established that

“[u]pon the principle of self-defense, of paramount necessity, a community has the

right to protect itself against an epidemic of disease which threatens the safety of its

members.” 197 U.S. 11, 27 (1905) (upholding the constitutionality of a compulsory

smallpox vaccination). This legal maxim reflects the commonsense notion that the

promotion of public health and safety may require temporary disruptions of business

activities; an assessment of governmental action during the pendency of a health

emergency must be viewed in the context of public safety. See e.g. Legacy Church,

Inc. v. Kunkel, No. CIV 20-0327 JB\SCY, 2020 U.S. Dist. LEXIS 68415 (D.N.M.

Apr. 17, 2020) (ruling that restrictions prohibiting mass gatherings at churches did not violate the free exercise clause or freedom of assembly in light of the public health concerns raised by the COVID-19 pandemic). See also Prince v.

Massachusetts, 321 U.S. 158, 166-67 (1944) (“The right to practice religion freely

20 does not include liberty to expose the community or the child to communicable disease or the latter to ill health or death.”).

The Jacobson holding endures and serves as a polestar for courts in addressing claims that state government has overstepped its authority during times of crisis. It is consistent with longstanding authority from this Court that health regulations will be upheld “unless it is plain that they have no real relation to the object for which ostensibly they were enacted, and prima facie they are reasonable.” Mitchell, 1941-

NMSC-007, ¶ 13. And, as explained above, this Court has already issued an opinion consistent with the legal principles articulated in Jacobson. State of New Mexico v.

Hicks, Case No. S-1-SC-38279.

Other courts have followed the Jacobson reasoning and upheld regulations and policies promulgated during the pendency of the COVID-19 pandemic. For example, in South Bay United Pentecostal Church v. Newsom, 140 S. Ct. 1613

(2020) (“South Bay”), a church sought an injunction against California claiming that

“numerical restrictions on public gatherings”, which were enacted “to address this extraordinary health emergency”. Id. at 1614. The church asserted that non-secular businesses were treated more favorably because they were not subject to the same

21 occupancy caps as other secular businesses.12 Id. In his concurring opinion, Justice

Roberts provided insight into the Court’s analysis of the claim.

The precise question of when restrictions on particular social activities should be lifted during the pandemic is a dynamic and fact-intensive matter subject to reasonable disagreement. Our Constitution principally entrusts the safety and the health of the people to the politically accountable officials of the States to guard and protect. When those officials undertake to act in areas fraught with medical and scientific uncertainties, their latitude must be especially broad. Where those broad limits are not exceeded, they should not be subject to second-guessing by an unelected federal judiciary, which lacks the background, competence, and expertise to assess public health and is not accountable to the people.

Id. at 1614 (internal quotations, citations, and brackets omitted). For these reasons, the Court denied the church’s request for injunctive relief and upheld California’s occupancy restrictions on houses of worship.

In accord with this Court’s decision in Hicks, and the United States Supreme

Court decision in South Bay, Judge James O. Browning recently denied a request for injunctive relief that sought invalidate the provisions of the PHEO limiting operations at houses of worship in Legacy Church v. Kunkel, 2020 U.S. Dist. LEXIS

122542, at *225-26 (D.N.M. July 13, 2020) (unpublished). Relying on the South

12 Secular businesses that were not subject to the same 25% occupancy cap imposed on churches included “factories, offices, supermarkets, restaurants, retail stores, pharmacies, shopping malls, pet grooming shops, bookstores, florists, hair salons, and cannabis dispensaries.” S. Bay United Pentecostal Church, 140 S. Ct. at 1614 (Kavanaugh, J., dissenting).

22 Bay decision, Judge Browning reiterated Justice Roberts’s observations that laws regarding health and safety are principally entrusted to state policymakers, whose actions are judged under a “broad strike zone.” Id., at *259-60. Because Judge

Browning could not conclude that “differential treatment of restaurants, gyms, and

religious gathering has no real or substantial relation to protecting public health”, he

found that “[t]he State may thus reasonably conclude that indoor mass gatherings,

regardless of their expressive content, endanger the public health in a greater degree

than certain secular conduct and so subject indoor mass gatherings to greater

restrictions.” Id. at *376-377. The court then dismissed Legacy Church’s claims because it could not sustain a claim that Secretary Kunkel has acted in an “arbitrary,

unreasonable manner.” Id. at *377 (internal quotation marks and citation omitted).

With those general principles in mind, the July 13 Order’s restrictions on indoor dining bear a direct relationship to the protection of public health and are reasonable on their face. The July 13 Order was intended to reduce instances of individuals coming into relatively close and prolonged contact without the use of face coverings, in recognition of an emerging consensus regarding the importance of face coverings to prevent the spread of COVID-19. Supra, at pp. 5, 8-9.

Preliminary data suggests that the reopening of indoor dining—even at a limited capacity—has generally correlated with a rise in cases among the general population and restaurant workers. Supra, at pp. 9-10. This data aligns with early scientific

23 consensus identifying indoor dining as a higher risk activity. Supra, at pp. 4-5, 12-

13. These facts provide ample basis to justify DOH’s efforts to protect public health during a global pandemic through the exercise of its statutory authority to close

public places and forbid gatherings as necessary to protect public health.

Real Parties in Interest’s refusal to DOH’s broad latitude in shaping public

health policy is telling. The truth of the matter is that they simply disagree with the

State’s response to the COVID-19 pandemic. That the New Mexico Restaurant

Association or their members would respond to the COVID-19 pandemic in a

different manner than health experts at DOH does not invalidate the State’s response

or call for judicial intervention. See In re Abbott, 954 F.3d 772, 792 (5th Cir. 2020)

(“[I]f the choice is between two reasonable responses to a public crisis, the judgment must be left to the governing state authorities. It is no part of the function of a court

. . . to determine which one of the two modes is likely to be the most effective for the protection of the public against disease.”) (internal brackets omitted) (citation

omitted).

D. The Court should stay the effect of the TRO issued in Case No. D-503- CV-2020-00506.

For the same reasons that an emergency exercise of superintending control is appropriate—to prevent confusion or conflicting decisions as to the legality of the

State’s emergency response measures prior to this Court’s definitive guidance—

Petitioners respectfully ask that the Court order all proceedings stayed in Case No.

24 D-503-CV-2020-00506 during the pendency of this Petition. See Rule 12-

504(D)(2)(a) NMRA (stay proper where “irreparable injury, loss, or damage will result to the petitioner before the respondent . . . can be heard in opposition.”).

Further, Petitioners ask that the Court stay the district court’s issuance of a TRO and continue DOH mandates regarding occupancy restrictions at restaurants until a decision in this matter is made. Petitioners will notify Respondent and Real Parties in Interest of this Petition at the time of filing and serve the Petition promptly.

CONCLUSION

The Court should take this opportunity to uphold DOH’s efforts to mitigate

the spread of COVID-19 in New Mexico and to conclusively resolve the scope of

the State’s authority to act during a once-in-a-lifetime health crisis. Petitioners

respectfully request that the Court grant this Petition and expeditiously resolve the

legal issues addressed herein. Petitioners also ask that the Court issue a stay of the

TRO and all other proceedings in Case No. D-503-CV-2020-00506 during the

pendency of this matter.

25 Respectfully submitted,

______Matthew L. Garcia Chief General Counsel to Governor Michelle Lujan Grisham 490 Old Santa Fe Trial, Suite 400 Santa Fe, New Mexico 87501 [email protected] 505-476-2210

Jonathan J. Guss Deputy General Counsel to Governor Michelle Lujan Grisham 490 Old Santa Fe Trial, Suite 400 Santa Fe, New Mexico 87501 [email protected] 505-476-2210

26 CERTIFICATE OF COMPLIANCE

I certify that this brief complies with type-volume, font size, and word

limitations of the New Mexico Rules of Appellate Procedure, specifically Rule 12-

504(G)(3) NMRA. The body of this brief employs 14-point Times New Roman

font and contains 5,996 words, counted using Microsoft Office Word.

Respectfully submitted,

______Matthew L. Garcia,

VERIFICATION

I, Matthew L. Garcia, counsel for Petitioners, being duly sworn upon my oath, state that I have read this Emergency Verified Petition for Superintending Control and Request for Stay, and that the factual statements it contains are true and correct to the best of my knowledge, information, and belief.

Date: July 20, 2020

Respectfully submitted,

______Matthew L. Garcia,

27 CERTIFICATE OF SERVICE

I hereby certify that on July 20, 2020, a true and correct copy of the foregoing

Emergency Verified Petition for Superintending Control and Request for Stay was served by email and U.S. Mail to Respondent and Real Parties in Interest:

Respondent: The Honorable Raymond L. Romero District Judge, Fifth Judicial District c/o Dannielle Marrs, Trial Court Administrative Assistant Eddy County Courthouse 102 North Canal Carlsbad, NM 88220 [email protected]

Real Parties in Interest: Per Rule 12-504(E) NMRA Angelo J. Artuso Joseph M. Dworak P.O. Box 51763 Director, Litigation Division Albuquerque, NM 87181-1763 Office of the Attorney General (505) 306-5063 408 Galisteo Street [email protected] Santa Fe, NM 87501 [email protected] Patrick J. Rogers 20 First Plaza Center, NW, Suite 725 Albuquerque, NM 87102 (505) 938-3335 [email protected]

Antonia Roybal-Mack 1121 Fourth Street, NW, #1D Albuquerque, NM 87102 (505) 288-3500 [email protected]

28 Respectfully submitted,

______Matthew L. Garcia

29 Exhibit 1 Exhibit 1 Exhibit 1 Exhibit 1 Exhibit 1 Exhibit 1 Exhibit 1 Exhibit 12 Exhibit 12 Exhibit 12 Exhibit 12 Exhibit 12 Exhibit 3 Exhibit 3 Exhibit 3 Exhibit 3 Exhibit 3 Exhibit 3 Exhibit 3 Exhibit 3 Exhibit 3 NEW MEXICO MICHELLE LUJAN GRISHAM KATHYLEEN M. KUNKEL GOVERNOR CABINET SECRETARY

PUBLIC HEALTH ORDER NEW MEXICO DEPARTMENT OF HEALTH CABINET SECRETARY KATHYLEEN M. KUNKEL

JUNE 1, 2020

Public Health Emergency Order Clarifying that Current Guidance Documents, Advisories, and Emergency Public Health Orders Remain in Effect; and Amending the March 23, 2020, April 6, 2020, April 11, April 30, 2020, May 5, 2020, and May 15, 2020, Public Health Emergency Orders Closing All Businesses and Non-Profit Entities Except for those Deemed Essential and Providing Additional Restrictions on Mass Gatherings Due to COVID-19

PREFACE

The purpose of this amended Public Health Emergency Order is to amend restiictions on mass gatherings and business operations, which were implemented in response to the spread of the Novel Coronav irus Disease 2019 ("COVID-19"). Continued social distancing and self isolation measures are necessary to protect public health given the potentially devasting effects that could result from a rapid increase in COVID-19 cases in New Mexico. While this Order loosens some restrictions on mass gatherings and business operations, the core directive underlying all prior public health initiatives remains intact; all New Mexicans should be staying in their homes for all but the most essential activities and services. When New Mexicans are not in their homes, they should sttictly adhere to social distancing protocols to minimize risks. These sacrifices are the best contribution that each of us can individually make to protect the health and wellbeing of our fellow citizens and the State as a whole. In accordance with these purposes, this Order and its exceptions should be nanowly construed to encourage New Mexicans to stay in their homes for all but the most essential activities.

It is hereby ORDERED that:

1. All cmTent guidance documents and advisories issued by the Department of Health remain in effect.

2. The following Public Health Emergency Orders remain in effect through the cmTent Public Health Emergency and any subsequent renewals of that Public Health Emergency or until they are amended of rescinded:

A. March 13, 2020 Public Health Emergency Order to Temporarily Limit Nursing Home Visitation Due to COVID-19;

B. April 30, 2020 Public Health Emergency Order Modifying Temporary Restrictions on Non-Essential Health Care Services, Procedures, and Surgeries;

O t\l ,H 1110 1 • , OFFICE OF THE SECRETARY ~_,,,, '" 0 1190 St. Francis Dr., Suite N4100 • P.O. Box 26110 • Santa Fe, New Mexico • 87502 ! • ~ (SOS) 827-2613 • FAX: (SOS) 827-2530 • www.nmhealth.org ~ ". , l ~(">~ ~...... - ~<:@ Exhibit 4 "C,, 111 AcCR.lO'',._,,o· C. March 24, 2020 Public Health Emergency Order Temporarily Regulating the Sale and Distribution of Personal Protective Equipment Due to Shortages Caused by COVID-19; and

D. April 30, 2020 Public Health Emergency Order Clarifying that Polling Places Shall be Open as Required in the Election Code and Imposing Certain Social Distancing Restrictions on Polling Places

3. The May 5, 2020 Public Health Emergency Order Amending the March 23, 2020, April 6, 2020, April 11, 2020, April 30, 2020, May 5, 2020, May 15, 2020, and May 27, 2020, Public Health Emergency Orders Closing All Businesses and Non-Profit Entities Except for those Deemed Essential and Providing Additional Restrictions on Mass Gatherings Due to COVID-19 is hereby amended as follows:

ORDER

WHEREAS, on March 11, 2020, because of the spread of the novel Coronavirus Disease 2019 ("COVID-19"), Michelle Lujan Grisham, the Governor of the State of New Mexico, declared that a Public Health Emergency exists in New Mexico under the Public Health Emergency Response Act, and invoked her authority under the All Hazards Emergency Management Act;

WHEREAS, Governor Michelle Lujan Grisham has renewed the declaration of a Public Health Emergency through May 31, 2020;

WHEREAS, COVID-19 continues to spread in New Mexico and nationally. Since, Executive Order 2020-004 was issued, confirmed COVID-19 infections in New Mexico have risen to more than 7,300 and confirmed cases in the United States have risen to more than 1.76 million;

WHEREAS, the further spread ofCOVID-19 in the State of New Mexico poses a threat to the health, safety, wellbeing and property of the residents in the State due to, among other things, illness from COVID-19, illness-related absenteeism from employment (particularly among public safety and law enforcement personnel and persons engaged in activities and businesses critical to the economy and infrastructure of the State), potential displacement of persons, and closures of schools or other places of public gathering;

WHEREAS, social distancing is the sole way New Mexicans can minimize the spread of COVID-19 and currently constitutes the most effective means of mitigating the potentially devastating impact of this pandemic in New Mexico; and

WHEREAS, the New Mexico Department of Health possesses legal authority pursuant to the Public Health Act, NMSA 1978, Sections 24-1-1 to -40, the Public Health Emergency Response Act, NMSA 1978, Sections 12-lOA-1 to -10, the Department of Health Act, NMSA 1978, Sections 9-7-1 to -18, and inherent constitutional police powers of the New Mexico state

2 Exhibit 4 government, to preserve and promote public health and safety, to adopt isolation and quarantine, and to close public places and forbid gatherings of people when deemed necessary by the Department for the protection of public health.

NOW, THEREFORE, I, Kathyleen M. Kunkel, Cabinet Secretary of the New Mexico Department of Health, in accordance with the authority vested in me by the Constitution and the Laws of the State of New Mexico, and as directed by the Governor pursuant to the full scope of her emergency powers under the All Hazard Emergency Management Act, do hereby declare the current outbreak of COVID-19 a condition of public health importance as defined in the New Mexico Public Health Act, NMSA 1978, Section 24-1-2(A) as an infection, a disease, a syndrome, a symptom, an injury or other threat that is identifiable on an individual or community level and can reasonably be expected to lead to adverse health effects in the community, and that poses an imminent threat of substantial harm to the population of New Mexico.

The following definitions are adopted for the purposes of this Order:

Definitions: As used in this Public Health Order, the following terms shall have the meaning given to them, except where the context clearly requires otherwise:

(1) "Essential business" means any business or non-profit entity falling within one or more of the following categories:

a. Health care operations including hospitals, walk-in-care health facilities, pharmacies, medical wholesale and distribution, home health care workers or aides for the elderly, emergency dental facilities, nursing homes, residential health care facilities, research facilities, congregate care facilities, intermediate care facilities for those with intellectual or developmental disabilities, supportive living homes, home health care providers, drug and alcohol recovery support services, and medical supplies and equipment manufacturers and providers;

b. Homeless shelters, food banks, and other services providing care to indigent or needy populations;

c. Childcare facilities necessary to provide services to those workers employed by essential businesses, essential non-profit entities, and other operating non-essential businesses;

d. Grocery stores, supermarkets, food banks, farmers' markets and vendors who sell food, convenience stores, and other businesses that generate the majority of their revenue from the sale of canned food, dry goods, fresh fruits and vegetables, pet food, feed, and other animal supply stores, fresh meats, fish, and poultry, and any other household consumer products;

e. Farms, ranches, and other food cultivation, processing, or packaging operations;

3 Exhibit 4 f. All facilities routinely used by law enforcement personnel, first responders, firefighters, emergency management personnel, and dispatch operators; g. Infrastructure operations including, but not limited to, public works construction, commercial and residential construction and maintenance, airport operations, public transportation, airlines, taxis, private transportation providers, transportation network companies, water, gas, electrical, oil drilling, oil refining, natural resources extraction or mining operations, nuclear material research and enrichment, those attendant to the repair and construction of roads and highways, gas stations, solid waste collection and removal, trash and recycling collection, processing and disposal, sewer, data and internet providers, data centers, technology support operations, and telecommunications systems; h. Manufacturing operations involved in food processing, manufacturing agents, chemicals, fertilizer, pharmaceuticals, sanitary products, household paper products, microelectronics/semi-conductor, primary metals manufacturers, electrical equipment, appliance, and component manufacturers, and transportation equipment manufacturers; i. Services necessary to maintain the safety and sanitation of residences or essential businesses including security services, towing services, custodial services, plumbers, electricians, and other skilled trades; j. Veterinary and livestock services, animal shelters, and facilities providing pet adoption, grooming, daycare, or boarding services; k. Media services including television, radio, and newspaper operations;

I. Automobile repair facilities, bike repair facilities, and retailers who generate the majority of their revenue from the sale of automobile or bike repair products. Contactless car washes, which are those that do not require person-to-person interaction between customers and employees, are permitted to operate; m. Hardware stores and self-storage facilities; n. Laundromats and dry cleaner services; o. Utilities, including their contractors, suppliers, and supportive operations, engaged in power generation, fuel supply and transmission, water and wastewater supply; p. Funeral homes, crematoriums and cemeteries;

4 Exhibit 4 q. Banks, credit unions, insurance providers, payroll services, brokerage services, and investment management firms;

r. Real estate services including brokers, title companies, and related services;

s. Businesses providing mailing and shipping services, including post office boxes;

t. Laboratories and defense and national security-related operations supporting the United States government, a contractor to fue United States government, or any federal entity;

u. Restaurants are those operations that generated at least 50% of their sales from dine-in services from the sale of food during the last calendar year. Sales made to customers for off-site consumption such as the sale of growlers, wholesale revenues, and to-go items are excluded from this calculation. Restaurants .may provide dine-in service, but they may not exceed more than 50% occupancy of the maximum occupancy of any enclosed space on the restaurant's premises, as determined by the relevant fire marshal or fire department. Restaurants choosing to open must ensure that there is at least six feet of distance between tables. No more than six patrons may be seated at any single table. No bar or counter seating is permitted. Dine-in services shall be provided only to patrons who are seated at tables, and patrons may not consume food or beverages while standing. Restaurants must operate in compliance wifu applicable occupancy restrictions and COVID-Safe Practices ( CSPs) for Restaurants" section of the "All Together New Mexico: COVID-Safe Practices for Individuals and Employers" .. Local breweries, wineries, or distillers may operate but only for carry out service.

v. Professional services, such as legal or accounting services, but only where necessary to assist in compliance with legally mandated activities; and

w. Logistics, and also businesses fuat store, transport, or deliver groceries, food, materials, goods or services directly to residences, retailers, government instih1tions, or essential businesses.

(2) "Individuals" means natural persons. (3) "Gathering" means any grouping together of individuals in a single connected location. ( 4) "Mass gafuering" means any public gathering, private gathering, organized event, ceremony, or other grouping that brings together five (5) or more individuals in a single room or connected space, confined outdoor space or an open outdoor space. "Mass gathering" does not include the presence of five ( 5) or more individuals where those individuals

5 Exhibit 4 regularly reside. "Mass gathering" does not include individuals who are public officials or public employees in the course and scope of their employment. (5) "Houses of worship" means any church, synagogue, mosque, or other gathering space where persons congregate to exercise their religious beliefs. ( 6) "Close-contact business" includes barbershops, hair salons, tattoo parlors, nail salons, spas, massage parlors, esthetician clinics, tanning salons, guided raft tours, guided balloon tours, gyms, and personal training services for up to two trainees. (7) "Recreational facilities" include indoor movie theaters, museums, bowling alleys, miniature golf, arcades, amusement parks, concert venues, event venues, performance venues, go-kart courses, adult entertainment venues, and other places of indoor recreation or indoor entertainment. (8) "Bars" are defined as food and beverage service establishments that derived more than 50% of their revenue in the prior calendar year from the sale of alcoholic beverages. Bars must remain closed during the pendency of this Public Health Order. (8) "COVID-Safe Practices" ("CSPs") are those directives, guidelines, and recommendations for businesses and other public operations that are set out and memorialized in the document titled "All Together New Mexico: COVID-Safe Practices for Individuals and Employers". That document may be obtained at the following link https://cv.nmhealth.org/covid safe-practices/. (9) "Places of lodging" means all hotels, motels, RV parks, co-located short- term condominium rentals with a central check-in desk, and short-term vacation rentals. (I 0) "Retail space" means any essential business that sells goods or services directly to consumers or end-users such as grocery stores or hardware stores and includes the essential businesses identified in the categories above: l(d), 1(1), l(m), l(p), and l(s).

I HEREBY DIRECT AS FOLLOWS:

(I) "Except as provided elsewhere in this Order, all "mass gatherings" are hereby prohibited under the powers and authority set forth in the Public Health Act.

(2) "Houses of worship" may hold services and other functions provided that they comply with the "COVID-Safe Practices (CSPs) for Houses of Worship" section of the "All Together New Mexico: COVID-Safe Practices for Individuals and Employers". Further, "houses of worship" may not exceed 25% of the maximum occupancy of any enclosed building, as detennined by the relevant fire marshal or fire department. Nothing in this order is intended to preclude these faith-based institutions from holding services through audiovisual means.

(3) Essential businesses" may open but must operate in accordance with the pertinent "COVID-Safe Practices (CSPs)" section(s) of the "All Together New Mexico: COVID-Safe Practices for Individuals and Employers and also any identified occupancy restrictions.

(4) "Recreational facilities" must remain closed.

6 Exhibit 4 ( 5) Any business that is not identified as an "essential business" or a "recreational facility" may open provided that the total number of persons situated within the business does not exceed 25% of the maximum occupancy of any enclosed space on the business's premises, as determined by the relevant fire marshal or fire department.

(7) Indoor shopping malls are permitted to operate provided that the total number of persons within the mall at any given time does not exceed 25% of the maximum occupancy of the premises, as determined by the relevant fire marshal or fire department. Further, loitering within the indoor shopping mall is not permitted and food courts must remain closed.

(8) Gyms and similar exercise facilities may operate at up to 50% of the maximum occupancy of any enclosed space on the business's premises, as determined by the relevant fire marshal or fire department, but may not conduct group fitness classes.

(9) Public swimming pools may open but such facilities are limited to lane-swimming and lessons with up to two students only. Play and splash areas shall be closed. Public swimming pools may not exceed 50% of their maximum occupancy.

(10) If customers are waiting outside of a business, the business must take reasonable measures to ensure that customers maintain a distance of at least six-feet from other individuals and avoid person-to-person contact.

(11) Bars are not permitted to operate other than for take-out and delivery if otherwise permitted under their applicable licenses.

(12) "Places of lodging" shall not operate at more than 50% percent of maximum occupancy. Health care workers who are engaged in the provision of care to New Mexico residents or individuals utilizing lodging facilities for extended stays, as temporary housing, or for purposes of a quarantine or isolation period shall not be counted for purposes of determining maximum occupancy. All places of lodging should comply with the "COVID-Safe Practices (CSPs) for Hotels, Resorts, & Lodging" section of the "All Together New Mexico: COVID-Safe Practices for Individuals and Employers". In the case of vacation rentals, occupancy shall be determined based upon the number properties managed by a property manager.

(13) Unless a healthcare provider instructs otherwise, all individuals shall wear a mask or multilayer cloth face covering in public settings except when eating, drinking, or exercising. Further, all individuals should comply with the "COVID-Safe Practices

7 Exhibit 4 (CSPs) for All New Mexicans" section of the "All Together New Mexico: COVID Safe Practices for Individuals and Employers".

(14) All casinos shall close during the pendency of this Order. This directive excludes those casinos operating on Tribal lands. Horse racing facilities may operate without spectators.

(15) This Order does not limit animal shelters, zoos, and other facilities with animal care operations from performing tasks that ensure the health and welfare of animals. Those tasks should be performed with the minimum number of employees necessary, for the minimum amount of time necessary, and with strict adherence to all social distancing protocols.

(16) Golf courses may open provided that they operate in accordance with the "COVID-Safe Practices (CSPs) for Golf Course" section of the "All Together New Mexico: COVID-Safe Practices for Individuals and Employers".". Restaurants and other golf course concessions must adhere to operative CSP's.

(17) Outdoor tennis facilities may open for outdoor use only and ,provided that they operate in accordance with the pertinent "All Together New Mexico: COVID-Safe Practices for Individuals and Businesses".

(18) State parks may open on a modified basis and subject to staff availability. They may only be open for day use. Camping areas, visitor centers, and any other large enclosed indoor spaces normally open to the public shall remain closed.

(19) Summer youth programs may operate on a limited basis that complies with the pertinent CSP's set out in the "All Together New Mexico: COVID-Safe Practices for Individuals and Employers".

(20) The New Mexico Department of Public Safety, the New Mexico Department of Homeland Security and Emergency Management, the Department of the Environment, and all other State departments and agencies are authorized to take all appropriate steps to ensure compliance with this Order.

(21) In order to minimize the shortage of health care supplies and other necessary goods, grocery stores and other retailers are hereby directed to limit the sale of medications, durable medical equipment, baby formula, diapers, sanitary care products, and hygiene products to three items per individual. NMSA 1978, § 12-IOA- 6 (2012).

I FURTHER DIRECT as follows:

(1) This Order shall be broadly disseminated in English, Spanish and other appropriate languages to the citizens of the State of New Mexico.

8 Exhibit 4 (2) This Order declaring restrictions based upon the existence of a condition of public health importance shall not abrogate any disease-reporting requirements set forth in the New Mexico Public Health Act.

(3) Nothing in this Order is intended to restrain or preempt local authorities from enacting more stringent restrictions than those required by the Order.

(4) This Order shall take effect immediately and remain in effect through June 30, 2020.

I FURTHER ADVISE the public to take the following preventive precautions:

- New Mexico citizens should stay at home and undertake only those outings absolutely necessary for their health, safety, or welfare. Retailers should take appropriate action consistent with this order to reduce hoarding and ensure that all New Mexicans can purchase necessary goods. - A void crowds. - Avoid all non-essential travel including plane trips and cruise ships. Self-quarantine or self-isolate for at least fourteen days after all out-of-state travel.

ATTEST: DONE AT THE EXECUTIVE OFFICE THIS I ST DAY OF JUNE 2020

WITNESS MY HAND AND THE GREAT MAGGIE TOULOUSE OLIVER SEAL OF THE STATE OF NEW MEXICO SECRETARY OF STATE ~l-:J&:de~~L SECRET Y OF THE STA TE OF NEW MEXICO DEPARTMENT OF HEALTH

9 Exhibit 4

PUBLIC HEALTH ORDER NEW MEXICO DEPARTMENT OF HEALTH CABINET SECRETARY KATHYLEEN M. KUNKEL

JULY 13, 2020

Public Health Emergency Order Clarifying that Current Guidance Documents, Advisories, and Emergency Public Health Orders Remain in Effect; and Amending the March 23, 2020, April 6, 2020, April 11, 2020, April 30, 2020, May 5, 2020, May 15, 2020, May 27, 2020, June 1, 2020, June 12, 2020, June 15, 2020, and June 30, 2020 Public Health Emergency Orders Closing All Businesses and Non-Profit Entities Except for those Deemed Essential and Providing Additional Restrictions on Mass Gatherings Due to COVID-19

PREFACE

The purpose of this amended Public Health Emergency Order is to amend restrictions on mass gatherings and business operations, which were implemented in response to the spread of the Novel Coronavirus Disease 2019 (“COVID-19”). Continued social distancing and self- isolation measures are necessary to protect public health given the potentially devastating effects that could result from a rapid increase in COVID-19 cases in New Mexico. While this Order continues some loosened restrictions on mass gatherings and business operations, the core directive underlying all prior public health initiatives remains intact; all New Mexicans should be staying in their homes for all but the most essential activities and services. When New Mexicans are not in their homes, they must strictly adhere to social distancing protocols and wear face coverings to minimize risks. These sacrifices are the best contribution that each of us can individually make to protect the health and wellbeing of our fellow citizens and the State as a whole. In accordance with these purposes, this Order and its exceptions should be narrowly construed to encourage New Mexicans to stay in their homes for all but the most essential activities.

It is hereby ORDERED that:

1. All current guidance documents and advisories issued by the Department of Health remain in effect.

2. The following Public Health Emergency Orders remain in effect through the current Public Health Emergency and any subsequent renewals of that Public Health Emergency or until they are amended of rescinded:

A. March 13, 2020 Public Health Emergency Order to Temporarily Limit Nursing Home Visitation Due to COVID-19;

OFFICE OF THE SECRETARY 1190 St. Francis Dr., Suite N4100 • P.O. Box 26110 • Santa Fe, New Mexico • 87502 (505) 827-2613 • FAX: (505) 827-2530 • www.nmhealth.org

Exhibit 5 Exhibit 5 Exhibit 5 Exhibit 5 Exhibit 5 Exhibit 5 (5) Any business that is not identified as an "essential business" or a "recreational facility" may open provided that the total number of persons situated within the business does not exceed 25% of the maximum occupancy of any enclosed space on the business's premises, as determined by the relevant fire marshal or fire department.

(6) Businesses identified as a "retail space" may operate provided that the total number of persons situated within the business does not exceed 25% of the maximum occupancy of any enclosed space on the business's premises, as determined by the relevant fire marshal or fire department. Any business opening pursuant to this provision must comply with the pertinent CSP's set out in the "All Together New Mexico: COVID-Safe Practices for Individuals and Employers". A "retail space" may not allow a person who is without a mask or multilayer cloth face covering to enter the premises except where that person is in possession of a written exemption from a healthcare provider.

(8) "Close contact businesses" may operate at up to 25% of the maximum occupancy of any enclosed space on the business's premises, as determined by the relevant fire marshal or fire department, but may not conduct group fitness classes. All individuals inside a "close contact business" must wear face-coverings.

(10) If customers are waiting outside of a business, the business must take reasonable r measures to ensure that customers maintain a distance of at least six-feet fom other individuals and avoid person-to-person contact.

(II) Bars are not permitted to operate other than for take-out and delivery if otherwise pennitted under their applicable licenses.

( 12) "Places of lodging" shall not operate at more than 50% percent of maximum occupancy. Health care workers who are engaged in the provision of care to New Mexico residents or individuals utilizing lodging facilities for extended stays, as temporary housing, or for purposes of a quarantine or isolation period shall not be counted for purposes of determining maximum occupancy. All places of lodging should comply with the "COVID-Safe Practices (CSPs) for Hotels, 'Resorts, & Lodging" section of the "All Together New Mexico: COVID-Safe Practices for

Exhibit 5 Exhibit 5 Exhibit 5 Exhibit 5

AFFIDAVIT OF ROBERT GENOWAY

STATE OF NEW MEXICO ) ) SS. COUNTY OF SANTA FE )

I, Robert Genoway, am an adult of sound mind competent to execute a sworn statement. I hereby swear and affirm the following:

1. I am the Bureau Chief of New Mexico’s Occupational Health and Safety

Bureau (“OHSB”), which falls under the New Mexico Environment

Department (“NMED”).

2. In my role as Bureau Chief of OHSB, I have headed up NMED’s rapid

response efforts during the COVID-19 pandemic. NMED’s rapid response

is designed to identify and warn the employers of individuals who have been

infected with COVID-19, so that they can take appropriate precautions as

quickly as possible.

3. Each day, the New Mexico Department of Health provides NMED with a

spreadsheet identifying establishments with workers who have tested

positive for COVID-19. NMED then assigns those identified cases to its

staff for rapid response to ensure employers quarantine and test known

contacts of the worker, close and disinfect workplaces, and implement

protective measures prior to resuming normal operations.

Exhibit 6

4. During the rapid response process, NMED staff documents industry

information, including industry classification. NMED posts rapid response

data daily on its COVID-19 webpage at https://www.env.nm.gov/nmed-

resources-for-covid-19/. NMED then sorts and reports out on collected

industry sector data each week. Weekly data is also posted on NMED’s

website at https://www.env.nm.gov/nmed-resources-for-covid-19/.

5. By virtue of my role, I am familiar with the weekly data reported by NMED.

6. The most recent set of publicly posted data, updated as of July 12, 2020,

show “Food Industries” as the individual sector with the highest percentage

of rapid responses (19%) and a higher percentage of rapid responses than the

healthcare industry (17%). The category of “Food Industries” includes food

manufacturing, food retail (grocery), and restaurants. Restaurants account

for 84% of “Food Industry” establishments and 78% of “Food Industry”

workers.

2 Exhibit 6

7. Restaurants alone account for 14% of the rapid responses to date. The chart

below accurately represents the number of rapid responses to restaurants per

week between May 25, 2020 and July 12, 2020:

8. The chart below accurately represents the total number of rapid responses to

all industries between May 25, 2020 and July 12, 2020:

3 Exhibit 6

9. The chart below accurately represents the total number of rapid responses to

all industries juxtaposed with the total number of rapid responses to

restaurants between May 25, 2020 and July 12, 2020:

10. Through my work, I am also familiar with and have access to data produced

by the New Mexico Department of Public Safety (“DPS”) that logs all

allegations of non-compliance with public health orders submitted to DPS

by the general public.

11. I reviewed the DPS database on July 16, 2020 and observed that at least

approximately 420 of the 2100 complaints received by DPS alleged that a

restaurant was failing to comply with public health orders.

Further Affiant sayeth not.

4 Exhibit 6 Exhibit 6 FILED 5th JUDICIAL DISTRICT COURT Eddy County STATE OF NEW MEXICO 7/14/2020 12:08 PM COUNTY OF EDDY KAREN CHRISTESSON FIFTH JUDICIAL DISTRICT COURT CLERK OF THE COURT Emilee Gonzalez

OUTLAW MEATS, LLC, a New Mexico Limited Liability Company, F-2 ENTERPRISES, INC. d/b/a TEXAS CLUB GRILL & BAR, a New Mexico Corporation, K-BOBS OF RATON, INC., a New Mexico Corporation, K-BOBS OF LAS VEGAS, INC., a New Mexico Corporation, B.M.B. FINANCIAL LLC, d/b/a TRINITY HOTEL, a New Mexico Limited Liability Company, RED RIVER BREWING COMPANY, LLC, a New Mexico Limited Liability Company, NEW MEXICO RESTAURANT ASSOCIATION,

Applicants. v. Case No. D-503-CV-2020-00506 Case assigned to Romero, Raymond L. MICHELLE LUJAN GRISHAM, in her official capacity as the Governor of the State of New Mexico KATHYLEEN KUNKEL, in her official capacity as the Secretary of the New Mexico Department of Health,

Respondents. VERIFIED APPLICATION FOR TEMPORARY RESTRAINING ORDER AND PRELIMINARY AND PERMANENT INJUNCTION

Applicants, Outlaw Meats, LLC, F-2 Enterprises, Inc. d/b/a Texas Club Bar & Grill, Inc.,

K-Bobs of Raton, Inc., K-Bobs of Las Vegas, Inc., B.M.B. Financial LLC d/b/a Trinity Hotel, Red

River Brewing Company, LLC, and the New Mexico Restaurant Association, by and through their counsel pursuant to Rule 1-066 NMRA, respectfully request that the Court enter a Temporary

Restraining Order, and preliminary and permanent injunction against Respondents, prohibiting

Respondents from enforcing their recently ordered quarantine of all indoor dine-in service spaces for all restaurants and brewery businesses in New Mexico.

Exhibit 7 As grounds for this Application, Applicants state that the verified facts set forth below

establish that: 1) the applicants will suffer irreparable injury unless the injunction is granted; 2)

the threatened injury outweighs any damage the injunction might cause the Respondents; 3) issuance of the injunction is not adverse to the public's interest; and 4) there is a substantial likelihood Applicants will prevail on the merits.

APPLICABLE FACTS, PARTIES, JURISDICTION AND VENUE

1. Venue is proper pursuant to NMSA 1978 § 38-3-1 (1978).

2. Applicant, Outlaw Meats, LLC, is a New Mexico limited liability company duly

registered with the New Mexico Secretary of State and in good standing. Outlaw

Meats opened for business on October 6, 2019. See Exhibit 1, Affidavit of Aaron

and Lindsey Cortese owner of Outlaw Meats, LLC, ¶3. Its principal place of

business is located at 731 N. 4th, Fort Sumner, New Mexico. Id., ¶2.

3. Outlaw Meats, LLC currently employs six (6) people. Id., ¶3. The owners make

their living from the restaurant and have invested their life savings in the business.

Id., ¶5.

4. The state’s prohibition of indoor dining will force Outlaw Meats, LLC to go out of

business. See, id., ¶6 (“We are unable to pay the incurred debt without indoor dining

as the manner of service.”); ¶7 (“The extremely high temperatures in the area and

business location make patio service unfeasible.”); ¶9 (“Outlaw does not have the

financial resources to stay open with the current Public Health Order restrictions.”).

5. To date, no COVID-19 cases have been found at Outlaw Meats. Id., ¶10.

6. Applicant F-2 Enterprises, Inc., d/b/a Texas Club Bar & Grill is a New Mexico

corporation (“Texas Club”) duly registered with the New Mexico Secretary of State

and in good standing. Texas Club has its principal place of business at 212 Metz

Exhibit 7 Drive, in Ruidoso, New Mexico. See Exhibit 2, Affidavit of Kyle Schueller, owner

of Texas Club Grill & Bar, Inc., ¶2.

7. Since the beginning of the state’s restrictions on restaurant operations, Texas Club

has lost revenue of approximately $5,500 per month and its employees have been

faced with reduced tip wages and employment hours due to decreased customer

visits. See Exhibit 2, Affidavit of Kyle Schueller, owner of Texas Club Grill & Bar,

Inc., ¶7.

8. To date, there has been no COVID-19 spread in the Texas Club. Id., ¶6.

9. Texas Club does not have an installed patio and has had to rent tents to provide

some outdoor dining space in its parking lot. Texas Club expects that with the loss

of indoor dining, the number of diners they will service will decrease significantly

due to high outdoor temperatures this summer and a decrease in the customer’s

expected service experience. Id., ¶8.

10. Closing indoor dining will continue to impact employees’ jobs, and will result in

the loss of significant revenue each day. Id., ¶¶9, 10.

11. Applicant K-Bobs of Raton, Inc. is a New Mexico corporation duly registered with

the New Mexico Secretary of State and in good standing. Its principal place of

business is located at 1228 S. Second Street, Raton, New Mexico.

12. Applicant K-Bobs of Las Vegas, Inc. is a New Mexico corporation duly registered

with the New Mexico Secretary of State and in good standing. Its principal place

of business is located at 1803 7th Street, Las Vegas, New Mexico.

13. Since the New Mexico Public Health Order regulations, limiting the number of

customers and the method of service, K-Bobs revenues have dropped significantly

Exhibit 7 and the business has been forced to lay off employees and remaining employees

have been faced with reduced tip wages and decreased employment hours due to

closures and a limited customer base. Id. at ¶ 5.

14. K-Bobs does not have an installed patio and the dining environment is not

appropriate for exclusive patio dining, and outdoor dining would create an unsafe

and undesirable environment for the dining experience. Id. at ¶ 6.

15. Closing indoor service at K-Bobs has been and will continue to be detrimental to

jobs and has and will continue to result in the loss of significant revenue each day,

and will continue to result in irreparable harm including loss of income and

employment loss. Id. at ¶ 7.

16. Applicant B.M.B. Financial, LLC d/b/a Trinity Hotel is a New Mexico limited

liability company (“Trinity Hotel”) duly registered with the New Mexico Secretary

of State and in good standing. Trinity Hotel is a state and national historic building

and has its principal place of business at 201 S. Canal Street in Carlsbad, New

Mexico. See Exhibit 4, Affidavit of Janie Balzano, co-owner of Trinity Hotel ¶¶ 2,

17. Since the New Mexico Public Health Order regulations, limiting the number of

customers and the method of service, Trinity Hotel revenues have decreased by at

least 80%, and while Trinity Hotel has kept their employees they have been faced

with reduced hours and potential job loss due to decreased customer base. Id. at ¶6.

18. Trinity Hotel does not have a patio and is not permitted to modify the building or

add a patio or other outdoor service area due to the historic building requirements

and restrictions, and outdoor dining is not reasonable as it is too hot for outdoor

Exhibit 7 dining experience by the customary clientele and the style of service and dining

experience. Id. at ¶¶ 7, 8.

19. Trinity Hotel anticipates if indoor dining is closed, all of the forty-one (41)

employees will be terminated due to the lost revenues, and it will suffer the loss of

significant revenue each day, lost income, and loss of the business. Id. at ¶¶ 9-11.

20. Applicant Red River Brewing Company, LLC is a New Mexico limited liability

company duly registered with the New Mexico Secretary of State and in good

standing, with a principal place of business located at 217 West Main Street in Red

River, New Mexico. See Exhibit 5, Affidavit of Sharon Calhoun, co-owner of Red

River Brewing Company LLC ¶¶ 2, 3.

21. Red River Brewing Company is unable to pay its incurred debt without indoor

dining as one of the manners of service to sustain the base and necessary levels of

revenue, and does not have the financial resources to stay open for more than about

sixty days with the current Public Health Order restrictions closing indoor service.

Id. at ¶¶ 6, 8.

22. Closing indoor service at the Red River Brewing Company has been and will

continue to be detrimental to jobs, will continue to result in significant revenue loss

and lost income, and will result in employment loss. Id. at ¶¶ 11-12.

23. Applicant New Mexico Restaurant Association (“the Association”) is an

association representing the food and beverage industry in the state of New Mexico.

The Association is organized to promote and protect the common values and

interests of its over 1,000 members and the broader food and beverage industry. See

Exhibit 7 Exhibit 6, Affidavit of Carol Wight, CEO New Mexico Restaurant Association ¶¶

2, 3.

24. The restaurant and brewery industry statistics in New Mexico show that restaurants

and breweries employ over 82,000 persons and represents over $3.2 billion in sales

annually. Currently, New Mexico has about 3,500 restaurants and drinking

establishments. Id. at ¶¶ 4, 5.

25. Based on currently available information, at least 210 restaurants in New Mexico

have permanently closed as a result of the state’s COVID-19 restrictions on their

operations, and a significant number of restaurants and breweries in the state have

either no outdoor seating capacity, or such limited capacity that they would have

great difficulty generating sufficient revenue to remain in business. Id. at ¶¶ 5a, 5b.

26. Before the state’s restrictions began on March 16, 2020, the restaurant and brewery

industry in New Mexico employed approximately 82,000 people, but as of now it

is understood the industry employs approximately 50,000 people in New Mexico

due in large part to the COVID-19 layoffs and unemployment, 52,000 restaurant

and brewery-related jobs were lost as a result of the State’s restrictions beginning

on March 16, 2020. Since Quarter 3 of Fiscal Year 2019, accommodation and food

services in the state have experienced a loss of $192,429,927 in lost matched

taxable gross receipts. Id. at ¶¶ 5c, 5d, 5f.

27. Since June 1, 2020, when indoor dine-in services were once again permitted, it is

estimated that the restaurant and brewery industry in New Mexico added 24,000

jobs. Id. at ¶ 5e.

Exhibit 7 28. The Association’s best estimate is that the industry will lose at least and

approximately twenty-five percent (25%) of current jobs should indoor dine-in

services again be prohibited by the state. Id. at ¶ 5h.

29. The low spread rate in restaurants and beverage service establishments that

implement COVID Safe Practices measures, used and required in the industry, have

been sufficient to protect the public, and the data does not support closing indoor

service at restaurants and beverage service establishments. Id. at ¶ 7.

30. Not all restaurants and beverage service establishments have drive-thru or outdoor

service available, thus rendering them unable to carry on any business under the

current Public Health Order, and serving the public outdoors in a record heat wave

is detrimental to the health of the patrons as well as the employees. Id. at ¶¶ 8, 9.

31. Closing indoor service at restaurants and brewery establishments is detrimental to

the food industry, destructive to the economy, will result in the loss of millions of

dollars in revenue to business owners and the state, and will result in irreparable

harm including loss of income and employment loss, loss of Association

membership, industry business closures and bankruptcies. Id. at ¶¶ 9-11.

32. On March 16, 2020, Respondent Kathyleen Kunkel, Secretary of Health for the

State of New Mexico (the “Secretary”) issued Amended Public Health Order 3-16-

2020 which provided, in relevant part, that:

All restaurants, bars, breweries, eateries, and other food establishments shall operate at no greater than fifty percent of maximum occupancy, and no greater than fifty percent of seating capacity. Individual tables and booths may not seat more than six people, and all occupied tables and booths must be separated by at least six feet. Patrons may not be seated at bars and standing patrons shall not be served.

Exhibit 7 ˆExhibit 7 hereto, excerpts from Public Health Order 3-16-2020.1

33. Three days later, on March 19, 2020, the Secretary issued Amended Public Health

Order 3-19-2020 which provided, in relevant part, that “[a]ll restaurants, bars,

breweries, eateries, and other food service establishments are limited to providing

take-out service and home delivery only.”

Exhibit 8 hereto, excerpts from Public Health Order 3-19-2020

34. The restriction, limiting restaurants and other food service establishments to take-

out and home delivery only, devastated many restaurants and food service

businesses throughout the state. See generally, Exhibit 6, Affid. of Carol Wight.

35. On May 27, 2020, the Secretary issued Amended Public Health Order 5-27-2020

permitting restaurants to provide delivery and carry out service, and to “offer dine-

in service in outdoor seating areas only at up to 50% of their outdoor area fire code

occupancy, if applicable.” Exhibit 9, excerpts from Public Health Order 5-27-2020

(emphasis added).

The Order further provided that

No dine-in service may be provided in indoor seating areas. Outdoor dine- in service may only be provided to patrons who are seated. Tables must be placed with at least six feet of distance between tables. No more than six patrons may be seated at any single table. No bar or counter seating is permitted. Id.

1 So as not to unduly burden the record, Applicants are attaching only those portions of the Public Health Orders referenced herein that are relevant to the Application. Complete copies of all Public Health Orders are available at https://cv.nmhealth.org/public-health-orders-and-executive- orders/

Exhibit 7 36. Four days later, on June 1, 2020, the Secretary issued Amended Public Health Order

6-01-2020. This Order provided for indoor dine-in service for the first time since

March 19, 2020, some 73 days earlier. The Order subjects indoor dine-in service to

the following restrictions:

Restaurants may provide dine-in service, but they may not exceed more than 50% occupancy of the maximum occupancy of any enclosed space on the restaurant’s premises, as determined by the relevant fire marshal or fire department. Restaurants choosing to open must ensure that there is at least six feet of distance between tables. No more than six patrons may be seated at any single table. No bar or counter seating is permitted. Dine-in services shall be provided only to patrons who are seated at tables and patrons may not consume food or beverages while standing. Restaurants must operate in compliance with applicable occupancy restrictions and COVID-Safe Practices (CSPs) for Restaurants section of the “All Together New Mexico: COVID-Safe Practices for Individuals and Employers.”

Exhibit 10, Public Health Order 6-1-2020.

37. On July 9, 2020, Respondent, Michelle Lujan Grisham, Governor of New Mexico

(the “Governor”) announced that the State would once again prohibit indoor dine-

in restaurant service.

38. During her announcement, the Governor specifically stated that

Businesses in of themselves are not creating the risk. People are. And as a result of those behaviors we have to restrict your access. Because I can’t manage for New Mexicans, whose lives we are working to save, the risk without doing it. Restaurants did not do this to New Mexico. New Mexicans did this to restaurants.

Exhibit 11, excerpt from transcript of Governor’s July 9, 2020 announcement.

39. On July 13, 2020, the Secretary issued Public Health Order 7-13-20 which provides,

in relevant part:

Restaurants may provide either delivery or carryout service. No dine-in service may be provided in indoor seating areas. Restaurants and local

Exhibit 7 breweries may provide dine-in service in outdoor seating areas only at up to 50% of their outdoor fire code occupancy. Outdoor dine-in service may only be provided to patrons who are seated. Tables must be placed with at least six feet of distance between tables. No more than six patrons may be seated a any single table. No bar or counter seating is permitted. Restaurants and local breweries must operate in compliance with applicable occupancy restrictions and COVID-Safe Practices (CSPs) for Restaurants section of the “All Together New Mexico: COVID-Safe Practices for Individuals and Employers.” Local wineries and distillers may operate but on for carry out service.

40. Exhibit 12 hereto is a chart showing “Coronavirus Risk Levels by Activity.” This

chart has been published by the New Mexico Department of Health. “Restaurant,

indoor seating,” is listed as number 6 on the chart, but there are numerous activities

with the same, or a higher level of risk which have not been shut down by the state

to include: hair salons/barbershops; buses and public transit; churches; and gyms.

All of these facilities remain open, with certain occupancy restrictions, while indoor

dine-in services at restaurants and food service facilities are prohibited.

41. Upon information and belief, according to the New Mexico Environment

Department (“NMED”), they have deployed and conducted investigations of 446

businesses since the start of the COVID-19 pandemic.

42. Upon information and belief, of the 446 businesses investigated by NMED, only 8

restaurants had more than 1 COVID-19 infection.

43. Based on the available data, there is minimal spread of COVID-19 amongst

restaurant employees, and the spread associated with restaurants is not impacting

the COVID-19 spread in a significant way. Exhibit 6, Affid. of Carol Wight, ¶6.

Exhibit 7 44. Not all restaurant and beverage service establishments have drive-thru or outdoor

service available. Id., ¶ 8. They will be unable, therefore, to carry on any business

under the current public health order. Id.

45. Closing indoor service at restaurants and beverage service establishments is

detrimental to the food industry, destructive of the New Mexico economy, and will

result in the loss of millions of dollars in revenue to business owners and the state.

Id., ¶10.

46. Closing indoor service at restaurants and beverage service establishments will

result in irreparable harm including loss of income and employment loss, loss of

NMRA membership, and industry business closures and bankruptcy. Id., ¶11.

47. The state has not rolled back any other industry re-opening orders, thus allowing

other industries to remain active and open per the state’s COVID Safe Practices

mandates. Id., ¶12.

ARGUMENT

I. The Respondents’ Decision to, Once Again, Prohibit Indoor Dine-In Service is Unreasonable, Arbitrary and Capricious.

“A ruling by an administrative agency is arbitrary and capricious if it is unreasonable or without a rational basis, when viewed in light of the whole record.” Sierra Club v. New Mexico

Mining Comm’n, 2003-NMSC-005, ¶17, 133 N.M. 97, 104.

Arbitrary and capricious determinations by state agencies are void. See, e.g., Atchison,

Topeka and Santa Fe Ry. Co. v. State Corporation Comm’n., 79 N.M. 703, 450 P.2d 431 (1969)

(“. . . we proceed to consider if the determination of the State Corporation Commission concerning intrastate class rates is supported by substantial evidence, or is arbitrary, capricious, and thereby void as asserted by the railroad petitioners.”).

Exhibit 7 Moreover, “[t]he constitutional right to equal protection of the law guarantees that the State must treat similarly situated persons in a similar manner. The State retains the power to classify and draw lines that treat different classes of persons differently. The State may not, however, exercise its power to classify arbitrarily.” Old Abe Co., v. New Mexico Mining Comm’n, 121 N.M.

83, 908 P.2d 776 (Ct. App. 1995), cert. denied, 120 N.M. 828, 907 P.2d 1009 (citations omitted).

A review of Public Health Order 7-13-2020 shows the arbitrary and capricious nature of

Secretary’s current prohibition of indoor dining. For example, churches, which according to the chart published by the New Mexico Department of Health (Exhibit 12), carry a higher risk of spreading COVID-19 than restaurants. Yet, churches (defined as “Houses of Worship” in the order) have had no additional restrictions placed on them. They may continue to conduct indoor services at 25% of rated occupancy, just as before.

Gyms, which are defined in the order as a “Close-contact business” and which according the Department of Health’s chart (Exhibit 12) carry an even higher risk than churches, remain open under the 7-13-2020 order, although they have been reduced from 50% occupancy to 25% occupancy.

There appears to be little or no logic or reason behind the state’s decision to single out indoor dining for prohibition, or restaurants and breweries for special treatment. The state has offered no data that suggests that indoor dining is significantly responsible for recent increases in

COVID-19 cases. Indeed, the Governor has specifically excused restaurants themselves for any increase in COVID-19 cases. “Restaurants did not do this to New Mexico.” Exhibit 11.

Nor does has the secretary offered any explanation as to why all restaurant customers must be “seated,” or why customers are not allowed to be seated at a bar or counter. Does the state have

Exhibit 7 any evidence that seated customers, or limiting restaurants to no more than six persons at a table,

will significantly reduce the potential transmission of COVID-19?

The state’s capriciousness is further highlighted by the fact that under the current order,

breweries are permitted to offer outdoor dining, but wineries are not. Public Health Order 7-13-

2020, at 5, definition of “Restaurants.”

Finally, it should be noted that although the restrictions on restaurants and breweries appear

in the definition section of the Order, restaurants and breweries are not mentioned in the decretal

section of the Order, i.e., the part that follows “I HEREBY DIRECT AS FOLLOWS” beginning

at p. 6. This begs the question of whether restaurants and breweries are even part of the Order.

In sum, the current prohibition is arbitrary and capricious and not supported by any factual

evidence.

II. The Public Health Order is Ultra Vires and Not Enforceable.

The separation of powers among the co-equal branches of government is fundamental to our constitutional system. The New Mexico Constitution mandates that "no person . . . charged with the exercise of powers properly belonging to one of those departments, shall exercise any powers properly belonging to either of the others." N.M. Const. art. III, § 1.

In this instance, the public health orders issued by the Secretary in response to the COVID-

19 pandemic, including the most recent order of July 13, 2020, go well beyond the powers granted

by the Legislature and violate the separation of powers between the legislative and the executive

branch. These same public health orders also usurp the authority granted to the judicial branch

which, under the Public Health Act (the “PHA”), NMSA 1978, §§24-1-1, et seq., has the primary

responsibility for ensuring that quarantine orders issued by the Secretary protect the right to due

process and guard other important constitutional rights of New Mexico residents.

Exhibit 7 In construing statutes, the New Mexico Supreme Court has consistently held that

[t]he first rule is that the ‘plain language of a statute is the primary indicator of legislative intent.’ Courts are to ‘give the words used in the statute their ordinary meaning unless the legislature indicates a different intent.’ The court ‘will not read into a statute or ordinance language which is not there, particularly if it makes sense as written.’ .... [and] where several sections of a statute are involved, they must be read together so that all parts are given effect. This includes amendments.

High Ridge Hinkle v. Albuquerque, 1998-NMSC-050, ¶5, 126 N.M. 413 (citations omitted).

Under Section 24-1-15(P)(5) of the PHA,

quarantine means the precautionary physical separation of a person who has or may have been exposed to a threatening communicable disease or a potentially threatening communicable disease who does not show a sign or symptom of a threatening communicable disease from persons who are not quarantined to protect against the transmission of the disease to persons who are not quarantined.

NMSA 1978, Section 24-1-15(P)(1) defines “area of isolation or quarantine” as “the physical environs that the department designates as the area within which to restrict access as required to prevent the transmission of a threatening communicable disease.”

Here, the Secretary has designated the indoor dine-in portions of restaurants as areas of restricted access, purportedly to prevent the transmission of COVID-19.

Significantly, Section 24-1-15 of the PHA provides a comprehensive set of procedures for instituting and maintaining a quarantine, none of which the Respondents have followed in this instance.

For example, §24-1-15(C) provides that a

. . . petition [from the Secretary] for a court order shall be made under oath or shall be accompanied by a sworn affidavit setting out specific facts showing the basis upon which isolation or quarantine is justified, including whether a person to be isolated or quarantined:

Exhibit 7 (1) is infected with, reasonably believed to be infected with or exposed to a threatening communicable disease; and

(2) poses a substantial likelihood of transmission of the threatening communicable disease to others because of inadequate separation from others.

Since the COVID-19 pandemic was first declared in March 2020, the Respondents have never filed a petition with any court in the state of New Mexico prior to issuing any of the public health orders.

Section 24-1-15(D) provides that

Upon the filing of a petition, the court shall:

(1) immediately grant ex parte a court order to isolate or quarantine the affected person if there is probable cause from the specific facts shown by the affidavit or by the petition to give the judge reason to believe that the affected person poses a substantial threat to the public health and safety;

(2) cause the court order, notice of hearing and an advisement of the terms of the court order, including the affected person's rights to representation and re-petition for termination of a court order that removes and detains the affected person, to be immediately served on the affected person; and

(3) within five days after the granting of the court order, hold an evidentiary hearing to determine if the court shall continue the order.

Section 24-1-15(G) provides:

At the evidentiary hearing, the court shall review the circumstances surrounding the court order and, if the petitioner [i.e., the Secretary] can show by clear and convincing evidence that the person being held has not voluntarily complied or will not voluntarily comply with appropriate treatment and contagion precautions, the court may continue the isolation or quarantine. The court shall order regular review of the order to isolate or quarantine by providing the person being held with a subsequent hearing within thirty days of the court order's issuance and every thirty days thereafter. The court order to isolate or quarantine shall be terminated and the affected person shall be released if:

Exhibit 7 (1) the person being held is certified by a public health official to pose no further risk to the public health;

(2) at a hearing, the petitioner [i.e., the Secretary], whose burden of proof continues under a clear and convincing standard, can no longer show that the person being held is infected with, reasonably believed to be infected with or exposed to a threatening communicable disease and that the affected person will not comply with appropriate treatment and contagion precautions voluntarily; or

(3) exceptional circumstances exist warranting the termination of the court order.

Because no petition has ever been filed by the Respondents prior to issuance of any of the public health orders, including but not limited to the most recent order of 7-13-2020, there has never been a finding of probable cause necessary to support the quarantine of New Mexico restaurants, and no determination that restaurants pose “a substantial threat to the public health and safety.”

Section 24-1-15(I) provides that a person who is quarantined pursuant to a court order may petition the court to contest the order or the conditions of quarantine at any time before the expiration of the order. “If a petition is filed, the court must hold a hearing within five days after the date of filing. At the hearing, the Secretary “shall offer clear and convincing evidence that:

(1) the isolation or quarantine is warranted; or

(2) the conditions of isolation or quarantine are compliant with the provisions of this section.”

Again, at no time have Respondents presented “clear and convincing” evidence to any court that would justify their quarantine of New Mexico restaurants or any other business.

Under Section 24-1-15(J), when ordering a quarantine, the Secretary must ensure that:

(1) isolation or quarantine is the least restrictive means necessary to protect against the spread to others of a communicable disease or a potentially threatening communicable disease and may include confinement to the

Exhibit 7 affected person's private home, if practicable, or if not practicable, to a private or public premises; . . . .

(7) an area of isolation or quarantine is maintained in a manner that minimizes the likelihood of further transmission of infection or other injury to other persons who are isolated or quarantined . . . .

“Administrative bodies, however well intentioned, must comply with the law; and it is necessary that they be required to do so, to prevent any possible abuse.” Continental Oil Co. v. Oil

Conservation Comm’n, 70 N.M. 310, 321, 373 P.2d, 809 (1962).

Here, because Respondents have repeatedly and deliberately circumvented both the unequivocal requirements of the PHA and the courts, Respondents have never had to explain how their absolute ban on indoor dine-in services is the “least restrictive means necessary to protect against the spread to others of a communicable disease . . . .” Nor have Respondents ever had to explain how their ban on indoor dine-in services “minimizes the likelihood of further transmission of infection,” as compared to outdoor dining.

A. The Secretary’s Public Health Order is Void.

It is well-settled in New Mexico that invalid orders by a State agency are not enforceable.

See Mountain States Telephone and Telegraph Co. v. State Corporation Comm’n, 65 N.M. 365,

370, 337, p.2d 943 (1959).

A review of the relevant portions of the PHA establishes that the legislature intended for the courts to play a prominent, if not the preeminent role, in limiting the scope and application of quarantine orders issued during a public health emergency.

When the Secretary orders that indoor dine-in services cannot be provided by a restaurant of other food service business, she is physically separating the owners and employees of such a business, most of whom does not show any signs or symptoms of COVID-19, or any other threatening communicable disease, from persons who are not quarantined, i.e., customers and the

Exhibit 7 general public; ostensibly, to protect against the transmission of the disease. This is the definition

of a “quarantine” under the PHA.

Moreover, the indoor dine-in sections of a restaurant or other food service business then

becomes an “area of quarantine” under the PHA since they consist of “the physical environs that

the department designates as the area within which to restrict access as required to prevent the

transmission of a threatening communicable disease.”

The bottom line is that the Secretary has no power or authority to quarantine any business

or any portion of a business premises, without following the stringent requirements of the PHA.

Doing so is an ultra vires act and any orders arising from such an abuse of authority are void ab initio. See, e.g., Swiney v. Deming Board of Educ., 117 N.M. 492, 873 P.2d 238 (1994) (a policy that violates the specific statutory provisions governing it is ultra vires and void).

By bypassing the courts entirely throughout this pandemic, the Secretary has failed to support the “laws of this state,” as required by her oath of office.

III. A TRO and Preliminary and Permanent Injunction Are Warranted.

To obtain a preliminary injunction, a plaintiff must show that (1) the plaintiff will suffer irreparable injury unless the injunction is granted; (2) the threatened injury outweighs any damage the injunction might cause the defendant; (3) issuance of an injunction will not be adverse to the public’s interest; and (4) there is a substantial likelihood plaintiff will prevail on the merits.

LaBalbo v. Hymes, 1993-NMCA-010, 115 N.M. 314, 850 P.2d 1017, cert. denied, 115

N.M. 359, 851 P.2d 481.

Here, Applicants meet all four of the requirements necessary to obtain an injunction.

A. Applicants will Suffer Irreparable Injury.

Exhibit 7 An irreparable injury is one for which “there is no adequate and complete remedy at law.”

Kennedy v. Bond, 80 N.M. 734, 738, 460 P.2d 809 (1969). An irreparable injury for which there is no adequate remedy at law has also been defined as one “which cannot be compensated or for which compensation cannot be measured by any certain pecuniary standard.” State ex rel. State

Highway & Transp. Dep’t v. City of Sunland Park, 2000-NMCA-044, ¶19, 129 N.M. 151.

Here, should the Secretary’s prohibition against indoor dine-in services be enforced,

Applicants and similarly situated restaurants are at substantial risk of simply going out of business.

And, although permitting indoor dine-in service at 50% of capacity is no guarantee that Applicants and other restaurants will be able to remain in business, it certainly improves the chances for their survival, particularly for those restaurants that, because of their location are unable to serve customers outdoors.

Should Applicants and other restaurants be forced out of business, it is unlikely that they would have the resources to seek monetary compensation or redress from the State. Even if they did have such resources, however, they would still face the very daunting prospect of trying to recover a monetary award; dauting, in part, because the New Mexico Supreme Court has previously held that an “[i]njury which results from the proper exercise of the police power is not compensable.” State v. 44 Gunny Sacks of Grain, 1972-NMSC-033, ¶10, 83 N.M. 755.

In sum, Applicants and similarly situated restaurants and dining facilities will suffer an irreparable injury should the requested injunction not be granted.

B. The Threatened Injury to Applicants Outweighs Any Damage the Injunction Might Cause the Respondents.

In this instance, the threatened injury to the Applicants includes: going out of business, losing their livelihoods, losing their substantial investments in money, labor, and time spent to build their businesses, and losing the ability to provide jobs to the residents of their communities

Exhibit 7 and towns. The damage is not limited to just the Applicants, however. Towns, cities, counties, and the State of New Mexico itself will be damaged in terms of lost tax revenues, loss of jobs, loss of visitors, and other intangible consequences that accompany abandoned store fronts and a lack of economic activity.

The Respondents will not suffer any direct, individual damages should an injunction issue.

Rather, they may argue that an injunction will compromise their ability to halt the spread of

COVID-19 and to protect the citizens of New Mexico. While this is certainly within the purview of their respective offices, there is no evidence upon which the Court can conclude that preventing indoor dine-in services is any more effective than the Applicants and other food service establishments following the currently mandated safety protocols.

In sum, the injury to Applicants outweighs the speculative (at best) damage that an injunction in this instance “might” cause the Respondents.

C. Issuance of an Injunction Will Not be Adverse to the Public’s Interest.

The public interest in having a functioning, and hopefully, vibrant economy cannot be underestimated. Such an economy provides jobs, livelihoods, tax revenues, and improved standards of living.

The draconian restrictions put in place by the Respondents have already devastated much of the restaurant and food service industry (see Applicable Facts, ¶¶ 23-25, 27, 29-30, 43-45). It is telling that, so far, no state, other than New Mexico, having relaxed earlier restrictions on restaurants and food service businesses, has sought to reimpose those restrictions. The state has failed to offer any reason, let alone clear and convincing evidence, that re-imposing a quarantine on indoor dine-in facilities will, in any way, have a net positive impact on the spread of COVID-

19.

Exhibit 7 The balance of harms weighs heavily in favor of a finding that the requested injunction is

not adverse to the public’s interest.

D. There is a Substantial Likelihood that Applicants Will Prevail on the Merits.

As described above, the arbitrary and capricious nature of the Secretary’s public health

orders, including the most recent 7-13-2020 order, is readily apparent. Arbitrary and capricious orders, especially ones that do not apply equally to all citizens are, on their face, unenforceable.

It is also indisputable that the Respondents have utterly failed to follow any of the legal requirements for placing the Applicants’ respective businesses, or a portion thereof, under quarantine. The Respondent’s failure to follow the law, establishes that their public health orders are ultra vires and void.

In sum, Applicants are substantially likely to prevail on the merits.

CONCLUSION

For all of the foregoing reasons, Applicants respectfully request that the Court enter a temporary restraining order and schedule a hearing on issuing a preliminary injunction to prohibit the Respondents from enforcing their 7-13-2020 Public Health Order to the extent that it prevents

Applicants and all other restaurants and dining facilities in New Mexico from providing indoor dine-in services in compliance with the previously issued safety protocols, i.e., fifty percent (50%) capacity, six (6) foot of distance between tables, no more than six (6) persons per table, etc.

Respectfully submitted,

LAW OFFICE OF ANGELO J. ARTUSO

/s/ Angelo J. Artuso Angelo J. Artuso P.O. Box 51763 Albuquerque, NM 87181-1763 (505) 306-5063 [email protected]

Exhibit 7 PATRICK J. ROGERS, LLC

By: /s/Pat Rogers Patrick J. Rogers 20 First Plaza Center, NW, Suite 725 Albuquerque, NM 87102 (505) 938-3335 [email protected]

Counsel for Applicants

and

Roybal-Mack & Cordova Law, P.C.

By: /s/ Antonia Roybal-Mack Antonia Roybal-Mack Amelia Nelson Darren Cordova 1121 Fourth Street, NW, #1D Albuquerque, NM 87102 (505) 288-3500 [email protected]

Counsel for New Mexico Restaurant Association

Exhibit 7 Exhibit 1 Exhibit 7 Exhibit 7 Exhibit 2 Exhibit 7 Exhibit 3 Exhibit 7 Exhibit 7 Exhibit 4

Exhibit 7 Exhibit 7 Exhibit 7 Exhibit 5 Exhibit 7 Exhibit 6 Exhibit 7 Exhibit 7 Exhibit 7 Exhibit 7 NEW MEXICO MICHELLE LUJAN GRISHAM l•J=Hh1;iiW:ial•J@ KATHYLEEN M. KUNKEL GOVERNOR H�ALTH CABINET SECRETARY

AMENDED PUBLIC HEAL TH ORDER NEW MEXICO DEPARTMENT OF HEAL TH CABINET SECRETARY KATHYLEEN M. KUNKEL

MARCH 16, 2020

Public Health Emergency Order Limiting Mass Gatherings and Implementing Other Restrictions Due to COVID-19

WHEREAS, on January 30, 2020, the World Health Organization (WHO) announced the emergence of a novel Coronavirus Disease 2019 (refeffed to as "COVID-19") that had not previously circulated in humans, but has been found to have adapted to humans such that it is contagious and easily spread from one person to another and one country to another;

WHEREAS, on January 31, 2020, the United States Department of Health and Human Services (HHS) Secretary declared a public health emergency as a precautionary tool to facilitate preparation and availability of resources to assure that the federal government had appropriate resources to combat the spread of the COVID-19 virus in our nation through its support of state and community-led preparedness and response efforts;

WHEREAS, as of March 15, 2020, the New Mexico Depaiiment of Health has confinned thirteen (13) cases of individuals infected with COVID-19 in New Mexico;

WHEREAS, on March 11, 2020, Michelle Lujan Grisham, the Governor of the State of New Mexico, declared in Executive Order 2020-004 ("EO 2020-004") that a Public Health Emergency exists in New Mexico under the Public Health Emergency Response Act, and invoked the All Hazards Emergency Management Act by directing all cabinets, departments and agencies to comply with the directives of the declaration and the further instructions of the Department of Health;

WHEREAS, as of March 12, 2020, I issued a Public Health Emergency Order to Limit Mass Gatherings Due to COVID-19, which limited certain public gatherings;

WHEREAS, the further spread of COVID-19 in the State of New Mexico poses a threat to the health, safety,wellbeing and property of the residents in the State due to, among other things, illness from COVID-19, illness-relatedabsenteeism from employment (particularly among public safety and law enforcement perso1mel and persons engaged in activities and businesses critical to the economy and infrastructure of the State), and potential closures of schools or other places of public gathering; and

WHEREAS, the New Mexico Department of Health possesses legal authority pursuant to the Public Health Act, NMSA 1978, Sections 24-1-1 to -40, the Public Health Emergency Response Act, NMSA 1978, Sections 12-10A-1 to -10, the Department of Health Act, NMSA 1978, Sections 9-7-1 to -18, the authority granted in EO 2020-004, and in any inherent

.,,,,,,0 ""'"'0•��,, OFFICE OF THE SECRETARY 1190 St. Francis Dr., Suite N4100• P.O. Box 26110• Santa Fe, New Mexico• 87502 ! • � (505) 827-2613• FAX: (505) 827-2530• www.nmhealth.org � .. . f ""'I, ..· cf".<>? Exhibit 7 ""=,,,-, J 4CCRi\"l\\l'-,, Exhibit 7 Exhibit 7 THIS ORDER amends the Public Health Emergency Order to Limit Mass Gathetings Due to COVID-19 issued on March 12, 2020, supersedes any other previous orders, proclamations, or directives in conflict. This Order shall take effect immediately and shall remain in effect until otherwise rescinded.

ATTEST: DONE AT THE EXECUTIVE OFFICE THIS 16TH DAY OF MARCH 2020

WITNESS MY HAND AND THE GREAT MAGGIE TOULOUSE OLIVER SEAL OF THE ST A TE OF NEW M XICO SECRETARY OF STATE

Y F THE ST A TE OF NEW MEXICO TOF HEALTH

4 Exhibit 7 NEW MEXICO Exhibit 8 MICHELLE LUJAN GRISHAM i•):i:MmM=i�il•)ii KATHYLEEN M. KUNKEL GOVERNOR H�AlTH CABINET SECRETARY

AMENDED PUBLIC HEALTH ORDER NEW MEXICO DEPARTMENT OF HEAL TH CABINET SECRETARY KATHYLEEN M. KUNKEL

MARCH 19, 2020

Public Health Emergency Order Limiting Mass Gatherings and Implementing Other Restrictions Due to COVID-19

PREFACE

The intent of this Order is to ensure that our State's citizens are self-isolating to the maximum extent possible in order to minimize the transmission of the novel Coronavims Disease 2019 (refen-edto as "COVID-19"). The core directive underlying this Order is that New Mexicans should not leave their homes unless absolutely necessary or to access essential services. This Order should be interpreted consistent with that purpose and exceptions should be nan-owly constmed. Failure to comply with the mandates set out herein constitutes a threat to our State's health, welfare,and economy.

ORDER

WHEREAS, on January 30, 2020, the World Health Organization (WHO) announced the emergence of COVID-19 that had not previously circulated in humans, but has been found to have adapted to humans such that it is contagious and easily spread from one person to another and one country to another;

WHEREAS, on January 31, 2020, the United States Department of Health and Human Services (HHS) Secretary declared a public health emergency as a precautionary tool to facilitate preparation and availability of resources to assure that the federal govenunent had appropriate resources to combat the spread of the COVID-19 vims in our nation through its support of state and community-led preparedness and response effotis;

WHEREAS, the COVID-19 vims continues to spread in New Mexico;

WHEREAS, as of March 12, 2020, I issued a Public Health Emergency Order to Limit Mass Gatherings Due to COVID-19, which limited ce1iain public gatherings, and on March 16,

0 \-\Ulr11Q OFFICE OF THE SECRETARY .:-_,❖' •;.•,. .,_ 1190 St. Francis Dr., Suite N4100• P.O. Box 26110• Santa Fe, New Mexico• 87502 ! • � (505) 827-2613 • FAX: (505) 827-2530• www.nmhealth.org � .,,. , ¥ ,s, i'- :.. .:;· .p�,,? Exhibit 7 ½, Iii '1C(Rt:.0\\,._, · Exhibit 7 Exhibit 7 Exhibit 7 Exhibit 7 Exhibit 9

Exhibit 7 Exhibit 7 Exhibit 7 Exhibit 7 Exhibit 7 Exhibit 7 Exhibit 7 Exhibit 7 Exhibit 7 Exhibit 10

Exhibit 7 Exhibit 7 Exhibit 7 Exhibit 7 Exhibit 7 Exhibit 7 Exhibit 7 Exhibit 7 Exhibit 7 1

9 COV ID-19 UPDATE

1 0 July 9, 2020

1 1 GOVERNOR MICHELLE LUJAN GRISHAM

1 2 Excerpt regarding restaurants

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2 1 REPORTED BY: Mary Abernathy Seal, RDR, CRR, NM CCR 69 Bean & Associates, Inc. 2 2 Professional Court Reporting Service 201 Third Street, Northwest, Suite 1630 2 3 Albuquerque, New Mexico 87102

2 4

2 5 (1234N) MAS

Exhibit 11 Exhibit 7 2

1 GOVERNOR LUJAN GRISHAM: I'm amending the

2 public health order effective Monday, July 13.

3 I'm going to go off-script for a second.

4 I'm going to talk about all the things that we're

5 going to do, and they're painful decisions, and I

6 need everyone, to the highest degree possible, to be

7 on the same page.

8 This is not an invitation to start these

9 new efforts and behaviors on Monday. This is to

1 0 give everybody, particularly businesses, time to

1 1 make the adjustments that they need to make. But

1 2 I'm asking everyone immediately: Wear your mask.

1 3 Restrict where you're going. If you can work from

1 4 home, work from home. Do not engage in unnecessary

1 5 activities or where you're coming into contact even

1 6 with family members, because it's contributing to

1 7 the transmission in this state.

1 8 So we're going to go back to the

1 9 restrictions that we had for indoor seating at

2 0 restaurants and breweries. The capacity limits, 50

2 1 percent, will -- are still in effect for outdoor

2 2 dining. I know that some jurisdictions, localities,

2 3 worked at increasing your outdoor spaces. I think

2 4 these are good concepts to accommodating people as

2 5 safely as possible.

Exhibit 7 3

1 You saw Dr. Scrase's slide that that's

2 indoor space, not having adequate ventilation,

3 knowing that these droplets can travel 18 feet,

4 they're airborne, they stay. The virus is airborne.

5 This is a risk setting we cannot tolerate while

6 we're trying to get back to flattening the curve.

7 So they can still do patio, I said that; outdoor

8 seating, I said that. 50 percent, I said that, of

9 maximum occupancy.

1 0 They still have to adhere to COVID safe

1 1 practices, and so do you. And so while when you are

1 2 eating, of course you won't have a mask on. But you

1 3 must show up to your favorite restaurant with a mask

1 4 on. Otherwise, you should not be served, and I -- I

1 5 really want to make that point. If you don't do

1 6 that, you're putting these businesses at further

1 7 r i s k .

1 8 You know, businesses in and of themselves

1 9 aren't creating the risk. People are. And as a

2 0 result of those behaviors, we have to restrict your

2 1 access because I can't manage for New Mexicans,

2 2 whose lives we're working to save, the risk without

2 3 doing it. So I totally want to point that out.

2 4 Restaurants did not do this to New Mexico. New

2 5 Mexicans did this to restaurants.

Exhibit 7 4

1 You can continue to provide carryout and

2 delivery services. Breweries can continue to

3 provide curbside pickup services.

4 Next slide.

5 (End of excerpt.)

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Exhibit 7 5

1 STATE OF NEW MEXICO ss 2 COUNTY OF BERNALILLO

4 REPORTER'S CERTIFICATE

5 I, MARY ABERNATHY SEAL, New Mexico

6 Certified Shorthand Reporter, DO HEREBY CERTIFY that

7 I did report in stenographic shorthand the

8 audiotaped COVID-19 update excerpt set forth herein,

9 and the foregoing is a true and correct

1 0 transcription of that audiotaped update, to the best

1 1 of my ability.

1 2 ______1 3 Mary Abernathy Seal BEAN & ASSOCIATES, INC. 1 4 NM Certified Court Reporter #69 License expires: 12/31/20 1 5 (1234N) MAS 1 6 Date taken: July 9, 2011

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Exhibit 7 Exhibit 7 Exhibit 12 Exhibit 13

PUBLIC HEALTH ORDER NEW MEXICO DEPARTMENT OF HEALTH CABINET SECRETARY KATHYLEEN M. KUNKEL

JULY 13, 2020

Public Health Emergency Order Clarifying that Current Guidance Documents, Advisories, and Emergency Public Health Orders Remain in Effect; and Amending the March 23, 2020, April 6, 2020, April 11, 2020, April 30, 2020, May 5, 2020, May 15, 2020, May 27, 2020, June 1, 2020, June 12, 2020, June 15, 2020, and June 30, 2020 Public Health Emergency Orders Closing All Businesses and Non-Profit Entities Except for those Deemed Essential and Providing Additional Restrictions on Mass Gatherings Due to COVID-19

PREFACE

It is hereby ORDERED that:

1. All current guidance documents and advisories issued by the Department of Health remain in effect.

A. March 13, 2020 Public Health Emergency Order to Temporarily Limit Nursing Home Visitation Due to COVID-19;

OFFICE OF THE SECRETARY 1190 St. Francis Dr., Suite N4100 • P.O. Box 26110 • Santa Fe, New Mexico • 87502 (505) 827-2613 • FAX: (505) 827-2530 • www.nmhealth.org Exhibit 7 Exhibit 7 Exhibit 7 Exhibit 7 Exhibit 7 Exhibit 7 (5) Any business that is not identified as an "essential business" or a "recreational facility" may open provided that the total number of persons situated within the business does not exceed 25% of the maximum occupancy of any enclosed space on the business's premises, as determined by the relevant fire marshal or fire department.

(II) Bars are not permitted to operate other than for take-out and delivery if otherwise pennitted under their applicable licenses.

( 12) "Places of lodging" shall not operate at more than 50% percent of maximum occupancy. Health care workers who are engaged in the provision of care to New Mexico residents or individuals utilizing lodging facilities for extended stays, as temporary housing, or for purposes of a quarantine or isolation period shall not be counted for purposes of determining maximum occupancy. All places of lodging should comply with the "COVID-Safe Practices (CSPs) for Hotels, 'Resorts, & Lodging" section of the "All Together New Mexico: COVID-Safe Practices for

Exhibit 7 Exhibit 7 Exhibit 7 Exhibit 7 FILED 5th JUDICIAL DISTRICT COURT Eddy County 7/20/2020 11:22 AM KAREN CHRISTESSON CLERK OF THE COURT Emilee Gonzalez

Exhibit 8 Exhibit 8 Exhibit 8 Exhibit 8 Exhibit 8 Exhibit 8 Exhibit 8 Exhibit 8 Exhibit 8 Exhibit 8 Exhibit 8 Exhibit 8 Exhibit 8 Exhibit 8 Exhibit 8 Exhibit 8 Exhibit 8 Exhibit 8 Exhibit 8 Exhibit 8 Exhibit 8