Fifth Circuit Hears Louisiana Bar Owners’ Case Against Virus Restrictions

A man stands and looks around on a nearly empty Bourbon Street in March. (AP Photo/Gerald Herbert, File)

NEW ORLEANS (CN) — Louisiana Governor John Bel Edwards’ decision to prohibit in-house drinking at bars to prevent the spread of Covid-19 came before a Fifth Circuit panel Tuesday afternoon.

Jimmy Faircloth, an attorney representing the 10 bar plaintiffs, told the three-judge panel of circuit judges that the “fundamental problem” with the Democratic governor’s bar closure order — issued in mid-March and updated incrementally — is that Edwards did not properly define what a bar is versus, for instance, a restaurant.

Faircloth argued that Edwards’ “sloppy” distinctions between bars serving food and those not serving food “fundamentally distort” the purpose of Edwards’ orders.

At different stages of the order, restaurants in Louisiana have been given more opportunity to operate than bars. Most recently, for instance, during “Phase 3 of reopening”, bars that do not serve food are open at 25% capacity, while bars that do serve food — and are therefore considered restaurants — are able to operate at 75%. 

Within that framework, Faircloth said, is an unfair 50-point disparity between the two classifications.

If Edwards had taken the time to define what a bar is — as opposed to a restaurant — Faircloth said, there would have been much less distortion within the rule.

Attorney Jack Weiss who argued on behalf of Governor Edwards and Fire Marshall H. “Butch” Browning, who enforces the regulation, told the judges he doesn’t think the plaintiffs’ arguments have merit.

“I believe this case is as dead as a doornail,” Weiss said.

“All bars were expected to stop acting as bars,” he added. “It isn’t complicated. It’s very straightforward.”

Weiss said that a weekend “deep dive” he recently took into contract tracing statistics has shown him very conclusively that bars have had a big impact on the spread of coronavirus.

“The differentiation here is really between bars and restaurants,” Wiess said.

He ticked off a list of 11 key factors he said the governor and the fire marshal considered when distinguishing between allowing restaurants to operate at partial capacity while shuttering bars.

Among the factors are that bars are for socializing, while restaurants are for eating, Weiss said. At bars, patrons tend to free float around or hop from venue to venue, possibly infecting many people along the way, while at restaurants, patrons tend to sit and eat and then leave to go home. Weiss also cited the relaxing effect of alcohol, which he speculated could cause patrons to become more laid back about adhering to safety precautions that would prevent the spread of coronavirus. Bars frequently have music or other entertainment that require patrons to raise their voices or lean together, thereby increasing the chances of spreading a virus, he also said.

The biggest percentage of outbreaks were traced to bars, Weiss said, adding that shortly after Edwards issued the bar closure order on March 22, the White House also recommended that bars in Louisiana should close to help gain control of the spread of coronavirus.

At the time, national data showed that Louisiana had the fastest rate of confirmed Covid-19 cases in the world, according to court documents in the case.

“The rationality of the distinction that the governor made has been born out of the bar closure order,” Weiss said. After Edwards’ order, there was a dramatic decline in cases in the 18-29 year old age group, he said. 

In his Aug. 17 order, U.S. District Judge Martin Feldman of the Eastern District of Louisiana, an appointee of Ronald Reagan, denied the plaintiffs’ claims.

“The case turns on a classic who-decides question: As between democratically accountable state officials and a federal court, who decides what measures best protect Louisianans during a global pandemic? The answer is state officials,” Feldman said.

The hearing Tuesday was before U.S. Circuit Judge James L. Dennis, an appointee of Bill Clinton, Judge Stephen A. Higginson, a Barack Obama appointee, and Judge Don R. Willett, a Donald Trump appointee. The judges did not indicate how or when they will decide.

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