state of new mexico county of eddy fifth judicial … · 3 drive, in ruidoso, new mexico. see....
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STATE OF NEW MEXICO COUNTY OF EDDY FIFTH JUDICIAL DISTRICT COURT 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. 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.
FILED 5th JUDICIAL DISTRICT COURT
Eddy County7/14/2020 12:08 PM
KAREN CHRISTESSONCLERK OF THE COURT
Emilee Gonzalez
D-503-CV-2020-00506
Case assigned to Romero, Raymond L.
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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
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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
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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,
3.
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
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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
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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.
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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.
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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/
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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
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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.
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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.”).
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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
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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.
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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:
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(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:
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(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
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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
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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.
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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
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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.
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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]
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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 1
Exhibit 2
Exhibit 3
Exhibit 4
Exhibit 5
Exhibit 6
MICHELLE LUJAN GRISHAM
GOVERNOR
NEW MEXICO l•J=Hh1;iiW:ial•J@
H�ALTH KATHYLEEN M. KUNKEL
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 Corona virus 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-related absenteeism 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 12-1 0A-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
OFFICE OF THE SECRETARY .,,,,,,0 ""'"'0•���,,
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
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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:
MAGGIE TOULOUSE OLIVER SECRETARY OF STATE
DONE AT THE EXECUTIVE OFFICE THIS 16TH DAY OF MARCH 2020
WITNESS MY HAND AND THE GREAT SEAL OF THE ST A TE OF NEW M XICO
Y F THE ST A TE OF NEW MEXICO T OF HEALTH
4
MICHELLE LUJAN GRISHAM
GOVERNOR
NEW MEXICO i•):i:MmM=i�il•)ii
H�AlTH KATHYLEEN M. KUNKEL
CABINET SECRETARY
AMENDED PUBLIC HEALTH ORDER
NEW MEXICO DEPARTMENT OF HEAL TH
CABINET SECRET ARY KA THYLEEN 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-ed to 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, 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 instmctions 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 ce1iain public gatherings, and on March 16,
\-\Ulr11Q
OFFICE OF THE SECRETARY .:-_,❖'0
•;.•,..,_
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 � .,,. , ¥
i'-,s, :. . . :;· �,,? ½, Iii '1C(Rt:.0\\,._,
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Exhibit 8
Exhibit 9
Exhibit 10
1
COVID-19 UPDATE
July 9, 2020
GOVERNOR MICHELLE LUJAN GRISHAM
Excerpt regarding restaurants
REPORTED BY: Mary Abernathy Seal, RDR, CRR, NM CCR 69 Bean & Associates, Inc. Professional Court Reporting Service 201 Third Street, Northwest, Suite 1630 Albuquerque, New Mexico 87102
(1234N) MAS
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Exhibit 11
2
GOVERNOR LUJAN GRISHAM: I'm amending the
public health order effective Monday, July 13.
I'm going to go off-script for a second.
I'm going to talk about all the things that we're
going to do, and they're painful decisions, and I
need everyone, to the highest degree possible, to be
on the same page.
This is not an invitation to start these
new efforts and behaviors on Monday. This is to
give everybody, particularly businesses, time to
make the adjustments that they need to make. But
I'm asking everyone immediately: Wear your mask.
Restrict where you're going. If you can work from
home, work from home. Do not engage in unnecessary
activities or where you're coming into contact even
with family members, because it's contributing to
the transmission in this state.
So we're going to go back to the
restrictions that we had for indoor seating at
restaurants and breweries. The capacity limits, 50
percent, will -- are still in effect for outdoor
dining. I know that some jurisdictions, localities,
worked at increasing your outdoor spaces. I think
these are good concepts to accommodating people as
safely as possible.
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You saw Dr. Scrase's slide that that's
indoor space, not having adequate ventilation,
knowing that these droplets can travel 18 feet,
they're airborne, they stay. The virus is airborne.
This is a risk setting we cannot tolerate while
we're trying to get back to flattening the curve.
So they can still do patio, I said that; outdoor
seating, I said that. 50 percent, I said that, of
maximum occupancy.
They still have to adhere to COVID safe
practices, and so do you. And so while when you are
eating, of course you won't have a mask on. But you
must show up to your favorite restaurant with a mask
on. Otherwise, you should not be served, and I -- I
really want to make that point. If you don't do
that, you're putting these businesses at further
risk.
You know, businesses in and of themselves
aren't 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're working to save, the risk without
doing it. So I totally want to point that out.
Restaurants did not do this to New Mexico. New
Mexicans did this to restaurants.
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You can continue to provide carryout and
delivery services. Breweries can continue to
provide curbside pickup services.
Next slide.
(End of excerpt.)
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STATE OF NEW MEXICO ss
COUNTY OF BERNALILLO
REPORTER'S CERTIFICATE
I, MARY ABERNATHY SEAL, New Mexico
Certified Shorthand Reporter, DO HEREBY CERTIFY that
I did report in stenographic shorthand the
audiotaped COVID-19 update excerpt set forth herein,
and the foregoing is a true and correct
transcription of that audiotaped update, to the best
of my ability.
_______________________________ Mary Abernathy Seal BEAN & ASSOCIATES, INC. NM Certified Court Reporter #69 License expires: 12/31/20
(1234N) MAS Date taken: July 9, 2011
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Exhibit 12
OFFICEOFTHESECRETARY1190 St. Francis Dr., Suite N4100 • P.O. Box 26110 • Santa Fe, New Mexico • 87502
(505) 827-2613 • FAX: (505) 827-2530 • www.nmhealth.org
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 ofHealth remain in effect.
2. The following Public Health Emergency Orders remain in effect through thecurrent 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;
Exhibit 13
(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.
(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 pennitted and food courts must remain closed.
(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.
(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 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 otherwisepennitted under their applicable licenses.
( 12) "Places of lodging" shall not operate at more than 50% percent of maximumoccupancy. Health care workers who are engaged in the provision of care to NewMexico residents or individuals utilizing lodging facilities for extended stays, astemporary housing, or for purposes of a quarantine or isolation period shall not becounted for purposes of determining maximum occupancy. All places of lodgingshould comply with the "COVID-Safe Practices (CSPs) for Hotels, 'Resorts, &Lodging" section of the "All Together New Mexico: COVID-Safe Practices for
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