Fayetteville-area nightclubs claiming that Arkansas health regulators have illegally imposed an anti-covid curfew that does more to ruin their business than it does to curtail the pandemic, are heading to a showdown this week with state lawyers.
The group of about two dozen bars and restaurants say the 9-week-old public-health directive that requires them to close by 11 p.m. as opposed to 2 a.m. is unconstitutional and should be struck down. Without an extension, the curfew order expires Feb. 3.
Club operators say being forced to close as much as three hours early is hitting them at their busiest times and hurting their revenue. They maintain the curfew is unnecessary because of existing safety precautions they have undertaken to fight the spread of the infection.
"The businesses we operate or work in can continue to operate safely in a way that does not destroy my ability to earn a living, pay my bills and provide for my family," Mike Rohrbach with the Kingfish bar and John Hudec with Boar's Nest BBQ said in sworn statements to the court.
Further, regulators have not done anything similar to other businesses where people congregate, such as hotels and casinos, according to the lawsuit by attorneys Gary Barrett of Little Rock and B.C. Pickett of Springdale.
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The litigation is the second legal challenge to the way Gov. Asa Hutchinson has used his executive authority to manage the state's response to the coronavirus.
The first suit, led by a coalition of Republican lawmakers, was rebuffed in October by Pulaski County Circuit Judge Wendell Griffen and is on appeal at the Arkansas Supreme Court. The lawmakers had complained that "unelected bureaucrats" had illegally bypassed legislative authority to impose directives that subject Arkansas residents to criminal penalties for violations.
Griffen threw out that lawsuit in a ruling that found the Republican governor had been acting within the powers granted to him by the Legislature in the 1973 Arkansas Emergency Services Act.
Furthermore, the General Assembly had endorsed the government's authority to combat a pandemic when the Legislative Council approved state health-department rules for dealing with pandemic diseases almost three years ago, the judge ruled.
Now, at a hearing scheduled for 9 a.m. Tuesday, Griffen is preparing to consider arguments that the nearly 3-week-old club-curfew lawsuit is baseless and should be dismissed.
Lawyers for Hutchinson contend the governor and his co-defendants, Dr. Jose Romero, the state health secretary, and Doralee Chandler, director of the Alcoholic Beverage Control Commission, have acted appropriately within their authority to protect public health during an ongoing emergency. The purpose of the curfew is to reduce the number of people "congregating in small indoor settings that could lead to [virus] transmission," according to the directive.
To begin with, Hutchison and his appointees, Romero and Chandler, are acting under a 115-year-old U.S. Supreme Court precedent that established governmental authority on questions of public health, the defendants say in their response to the suit.
"[The] emergency created by COVID-19 justifies summary action by the Governor and Secretary to protect the public health and welfare of the State's residents," the filing states. "Moreover, the Directive at issue, the Governor's Executive Order 20-53, and any enforcement of the same by [Beverage Control], are within the State's police powers to protect the public health and welfare."
The state lawyers, Brittany Edwards and Michael Moseley with the attorney general's office, urge Griffen to look back at his October ruling recognizing the extent of the governor's power under the Emergency Services Act.
They argue that the curfew imposed Nov. 19 falls also under state law, Arkansas Code 3-3-218, that requires bars to operate in a manner that does not endanger the public health and welfare.
The curfew is also based on evidence that closing bars by 11 p.m. would curb the spread of the virus, the filing states, citing reports to the health department about Arkansas bars and clubs allowing risky activities by patrons around Halloween.
Those activities included admitting so many customers to congregate that patrons could not maintain appropriate social distancing, allowing patrons to move about their establishments without wearing masks, while promoting -- or just allowing -- close contact between customers, the filing states, referencing a sworn statement by Dr. Michael Cima, the state's chief epidemiologist.
Other evidence that formed the basis for the curfew order was a study linking nightclubs to a September 2020 covid outbreak at the University of Wisconsin.
All of that goes to show that Arkansas health authorities had a good reason -- the legal term is rational basis -- to impose the curfew, the state lawyers argue, telling the judge that none of the plaintiffs' constitutional rights have been violated.
Even the club operators' own words, saying that they're being affected at their busiest times, show that authorities have a good reason to believe a curfew will be effective, the state attorneys argue.
"Respondents have identified multiple rational bases for the Directive, and in fact, Petitioners implicitly concede the Directive is rationally related to curbing the spread of COVID-19 by admitting the regulation closes them during their peak hours," court filings state.
The plaintiffs are 23 nightclubs and restaurants.
Two are from Rogers, S. DrewTurner LLC d.b.a. On The Mark Sports Bar And Grille and CT124 d.b.a. CrossRoads Tavern. Twenty-one are from Fayetteville: Stir of Fayetteville Inc. d.b.a. BIG; OKP LLC, d.b.a. The Piano Bar; WWDD LLC d.b.a. Cannibal & Craft Fayetteville Arkansas; Sideways Inc. d.b.a. Sideways Bar; Block 23 LLC d.b.a. Pinpoint Fayetteville; MPT Inc. d.b.a. Buster Bellys Bar; CT124 d.b.a. Crossroads Tavern; Gitwith Bubbly LLC d.b.a. Maxine's Taproom; Ryleighs Inc., d.b.a. Ryleigh's Bar; Shotz Inc.; Yee-Hawg Inc.; Van And Company LLC d.b.a. Z330; Arkansas Black LLC d.b.a. Smoke & Barrel; Bugsy's Inc.; Los Bobos LLC; West End Bar LLC; 1947 LLC d.b.a. The Amendment and Roger's Rec; Speakeasy Inc. d.b.a. C4 Night Club; Bugsy's Inc.; Kingfish of Fayetteville Inc.; and WPGL Inc. d.b.a. Boar's Nest BBQ, Bar And Grill.