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City says state misunderstands its ‘indoor seating’ plans

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City manager responds to warning about restaurants

The Roswell city manager contends that the state has misunderstood what the local government intends by allowing “indoor seating” at food and drink service establishments, and he expressed disappointment at a state announcement Saturday morning warning of possible enforcement actions if indoor seating occurs.

On Saturday, the New Mexico Environment Department posted social media notices and sent out an email stating, “Restaurants in the city of Roswell — and throughout New Mexico — must follow COVID-Safe Practices, as well as current public health orders, or they will be faced with enforcement actions, which may include food permit suspension, fines or legal consequence.”

The Food Services Program of the Environment Department regulates restaurants in the state, except for those in Bernalillo County and the city of Albuquerque.

In response, Roswell City Manager Joe Neeb said the issue is more complicated than presented and that the city does not intend to allow seating inside closed buildings.

“While it is appreciated that they wish to keep our community safe, it is disappointing that the state did not reach out to us to discuss any concerns based upon their misunderstanding or even send us a copy of this news release,” Neeb wrote in an email. “In any emergency response situations, good communication between all entities involved are paramount to responding properly.”

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Dispute about city permit plans

The city of Roswell had announced Thursday that it would issue “temporary outdoor use area permits” on a case-by-case and no-fee basis.

“It will allow a portion of the indoor space to be deemed outdoor space if designated windows and doors remain open during operating hours,” the announcement said.

Community Development Manager Bill Morris said that the “intent is to try to expand (the) amount of space available for seating in a way that still provides for public safety.”

But in its Saturday announcement, the Environment Department stated, “opening a garage door or all windows does not constitute an outdoor dining area.”

Neeb said that isn’t what the city is intending.

He said the definitions of indoor and outdoor building space by International Building Code is not so clear-cut, and they certainly weren’t developed to deal with the circumstances surrounding a coronavirus pandemic. The city is left to “fill in the blanks” in trying to determine appropriate temporary uses that also meet the state requirements.

Neeb explained that what the city might consider “indoor space” after inspections would be such areas as open-air interior courtyards of office complexes; a seating area where large portions of the wall are retractable; or patio space with air circulating on all sides, but with walls surrounding it and perhaps even some type of roofing or building overhang.

What would not be allowed, Neeb said, would be seating in enclosed areas with open windows on all four sides.

City, state agree on outdoor serving

The city already has been issuing temporary permits for expanded outdoor uses in parking lots, sidewalks or other areas besides patios.

The Environment Department and the Alcohol Beverage Control Division of the New Mexico Regulation and Licensing Department, which oversees establishments with liquor licenses, encourages outdoor service, once local and state approval has been obtained.

Tents can be used, but also must be approved and must be open on at least three sides during service times.

The city’s expansion of “temporary outdoor use area permits”  to allow dining in areas that building codes might typically consider indoor spaces are a response to an industry hit hard by the pandemic, as well as to the renewal of the indoor seating ban in New Mexico.

Ban gives rise to lawsuits, protests

Initial public health orders closed all “non-essential” businesses, including indoor food and drink businesses. But the orders were relaxed on June 1, allowing indoor seating at 50% building occupancy for restaurants and 25% for bars and breweries. Take-out, delivery and outdoor service also was permitted.

Indoor seating was banned again on July 13 due to rising COVID-19 cases statewide. That ban and other public health orders have been extended until the end of August.

Gov. Michelle Lujan Grisham and state health officials have said that indoor seating is a high-risk situation for spread of the coronavirus because of close contact among customers, crowded areas and closed spaces. Also, risk is increased because customers cannot wear face coverings while eating or drinking.

In response to the renewed indoor service ban, the food and drink service industry in New Mexico held Let Us Serve protests statewide and filed several lawsuits, including one now before the New Mexico Supreme Court.

The New Mexico Restaurant Association is a party to the state Supreme Court case, but its leadership also has said that the organization does not condone actions contrary to state public health orders.

“While we empathize with the industry’s desperation, NMRA is not encouraging or condoning any action that is against the Public Health Order, including continuing with dine-in service,” a July 15 Facebook post said. “Instead we are pursuing as many avenues as we can to raise awareness and have the order changed and are continuing to advocate for the foodservice industry.”

A local industry member said that she doesn’t think the state data about the risk of restaurants is accurate. She said the data tracks only the COVID-19 outbreaks reported by businesses or employees to the Environment Department and concludes that restaurants represent the largest group. The data isn’t showing where all the COVID-19 cases in the state are occurring.

“We need to open back up our restaurants,” said Kerry Moore, co-owner of Chef Toddzilla’s, which has a site with only outdoor dining on East Twin Diamond Road and a food truck. “The continued shut down is going to cause them to fail.”

Senior Writer Lisa Dunlap can be reached at 575-622-7710, ext. 351, or at reporter02@rdrnews.com.