By Reese Oxner, Texas Tribune
Several Texas bar owners filed a $10 million federal lawsuit Tuesday afternoon against Gov. Greg Abbott, in an attempt to void his executive order shutting down bars for a second time since the beginning of the coronavirus pandemic.
All of the plaintiffs are members of the Texas Bar and Nightclub Alliance. This is the second lawsuit filed against Abbott this week after more than 30 Texas bars filed a lawsuit in Travis County over his recent shutdown order on Monday.
In addition to the damages, the lawsuit asks the court to stop Abbott from enforcing his executive order which closes bars and to prevent him from issuing similar orders in the future without proper notice. The suit said Abbott should give businesses more than 24 hours notice before shutting them down, “unless in the case of imminent threat of harm.” The lawsuit also asks that future shutdown orders have a clear end date and lay out conditions that would have to be met for the order be extended.
On Friday morning, Abbott ordered bars to close by noon and reduced restaurant capacity back down to 50% from 75% to combat the spread of COVID-19.
The lawsuit noted that the Texas Alcoholic Beverage Commission recently posted a notice on its website saying it observed a “high level of compliance” by permit holders. The lawsuit claims that Abbott is abusing his emergency powers “without proper legal notice.”
“With the erratic legal situation fueled (if not created) by the Governor and given that Plaintiffs have largely complied with the spirit & letter of the Governor’s voluntary guidelines, it came as an unfortunate surprise,” the lawsuit states.
The bar owners say in the suit that Abbott’s order violates their constitutional rights for due process, equal protection, and their patrons right to assembly, and “may very well leave long-term scarring on the republican form of government if left unchecked.”
“It wasn’t like he even reduced the bars and nightclubs to 25% — we’re closed to 100%,” said Michael Klein, one of the plaintiffs and Texas Bar and Nightclub Alliance president, drawing a distinction between bars and other businesses which are allowed to operate at limited occupancies. “You better have some pretty good scientific evidence if you’re going to take one group of alcoholic beverage licenses over another, or one group of businesses.”
The bar industry employs over 800,000 Texans, and they’ve been hurting for months, he said.
“These are business owners who call us in tears,” he said. “They care about feeding their families, they care about the debt they have. I mean there’s real consequences to these actions.”
Abbott did not respond to The Texas Tribune by publication. But in an interview with KOSA in Midland, he said that he sympathizes with the bar owners’ plight.
“Listen, I can understand their frustration, I could understand them being angry, because this is their living, this is their livelihood, and so because for some, no fault of their own, they’re being shut down,” he said to KOSA. “There are others who are being shut down because fault of their own, and so we need to be clear about that, but we also need to be clear that if we’re not strategic about making sure we slow the spread of the coronavirus in Texas, it will lead to a larger shutdown of the economy across the entire board.”
“We do not want that to happen, so we do need everybody to do their part to make sure they use these best practices to slow the spread,” he added.
On Saturday, Abbott approved a waiver that allows restaurants and bars that have permanent kitchens to sell mixed drinks to go, in addition to beer and wine that he had already allowed. This doesn’t apply to the “vast majority” of Texas bars, Klein said. For the ones that it does help, it isn’t enough to sustain the business.
“It’s literally like having your house burned down, and someone saying, here’s a cup of water to throw on it,” he said.