LAFAYETTE, La. — A federal judge is expected to make a decision later this week on whether to issue an injunction against the state’s bar restrictions after several Acadiana bar owners filed a lawsuit against Gov. John Bel Edwards over his decision to restrict bars across the state after a Monday hearing in Lafayette.
Judge Robert Summerhays heard testimony in the U.S. District Court for the Western District of Louisiana from several of the bar owners along with the governor himself.
Several of the Acadiana bar owners, including Jason Romero who owns Pool Doos Sports Bar in Morgan City and Ty Boudoin who owns Quarter Tavern in New Iberia, testified about how they had been following mitigation measures on their own during Phase 2 before the governor's order made them close their businesses.
The attorney for the bar owners said that the governor's order was "legally defective" as it was not being enforced equally and made no distinction between a business operating solely as a bar and a business operating as a restaurant with a bar inside it.
Edwards took the stand to explain the reasoning behind his decision to restrict bars from having on-site consumption if they made more than half of their sales from alcohol.
Edwards said that a business that operates solely as a bar offers a social environment that is not conducive to social distancing as people tend to mix with one another rather than staying seated together as one group, consume alcohol throughout the night without wearing a mask, and often had loud music that makes people lean in closer to talk.
Edwards also pointed out that he had support from the White House Coronavirus Task Force for his decision to limit bar activity to help slow the spread of coronavirus.
Edwards released a statement Monday in response to Judge Martin L.C. Feldman in the U.S. District Court for the Eastern District of Louisiana, who upheld restrictions on bars in the state as part of its efforts to slow the spread of COVID-19 in Louisiana.
Summerhays said that he would consider Feldman's ruling in his own decision making for the case in the Western District.
The Advocate reports that the decision comes after Edwards won a separate legal challenge to his order in state court, and as he defends another in federal court in Lafayette. It also provides another legal boost to his order as Republican state lawmakers and Attorney General Jeff Landry take shots at his restrictions as overly burdensome.
The lawsuit was over Edwards' closure of bars from several bar owners in the New Orleans and Houma areas.
Gov. Edwards said:
“I am pleased that Judge Feldman upheld bar restrictions, which is one of the critical mitigation measures put in place to slow the spread of COVID-19 in Louisiana to protect and save lives. The evidence is clear that mask mandates and closing on-site consumption at bars work, and more than a month after implementing both measures in Louisiana the data shows they are working.”
"My orders are consistent with my authority and also with recommendations of public health experts and President Trump’s White House Coronavirus Task Force, which puts Louisiana in the “red zone” for new cases and "yellow zone" for testing positivity rates and recommends bar closures as part of the strategy to slow the spread of this illness. We have already lost more than 4,400 Louisianans to this illness, and we must take every action we can to fight for the health of our state. I know these orders are hard on business owners, and I did not undertake them lightly. However, they offer the best shot for us to be able to open as much of our economy as possible while still keeping the ability to provide life-saving health care in our hospitals.”
Gov Edwards testified today in a federal court in Lafayette on a similar issue. The Judge Robert Summerhays heard opening and closing arguments from both sides. No ruling on that case was given today.
Read more below from the case in Lafayette:
Gov. John Bel Edwards is scheduled to testify in federal court this afternoon as part of a lawsuit about his order closing bars and its effectiveness in slowing the spread of COVID-19 across Louisiana.
Several bar owners in Acadiana filed suit over the restriction on bars. They are represented by Jimmy Faircloth, who was former Gov. Bobby Jindal's executive counsel. They initially requested that they be allowed to operate until a trial could be held, but a judge rejected that request.
On Monday, a federal judge heard opening arguments from attorneys representing both sides.
At the end of the hearing, Judge Robert Summerhays will decide whether to issue an injunction against the state’s bar restrictions and allow bar owners to reopen until a trial can be held where the state restrictions could be overturned.
Faircloth said in his opening arguments that the restrictions would have been perfectly fine several months ago when the pandemic was still sweeping over the state, but that things were different now. He said that the state restrictions were initially meant to protect hospital capacity, but now seem to be a long term health policy seeking to fully eradicate a disease.
Faircloth said that this is essentially an equal protection case as the governor’s order creates classifications for bar owners with some being told that they can operate their business while others cannot.
Faircloth drew a distinction set by the order that limits bar activity by restricting traditional bars from operating beyond serving drinks to-go, and restaurants that have bars in them that are allowed to operate with less restrictions.
Faircloth also pointed to the governor’s order that references guidance from the State Fire Marshal’s Office, but did not include guidance from the ATF.
The defense, led by Executive Counsel Matthew Block, said in their opening statements that the governor was doing the best he could under the circumstances to limit bar activity in order to decrease the amount of outbreaks that the state saw after Phase 2 restrictions were eased to allow bars to reopen.
The defense said that bars are risky places that have the potential to spread the disease given that people tend to mix with one another, do not wear masks and lean in to each other to speak in contrast to a restaurant that might have a bar where groups tend to stick together and stay seated while they consume alcohol.
The defense also cited the recommendation from the White House for the state to restrict bar activity.
The defense also clarified that for a business to receive a permit to operate as a bar, then it must make more than 50.1% of its sales from alcohol, while a restaurant must receive 50.1% or more of sales in food.
Dr. Alex Billoux with the Louisiana Department of Health was the first witness to be called to testify during Monday’s hearing.
Faircloth asked Billioux, an internist who is Assistant Secretary of Health for the Louisiana Department of Health's Office of Public Health, about the contact tracing program that was used to justify the closure of bars in the governor’s order.
Billoux said that the contract tracing process only represents about 2% of cases in the state and that LDH is not always able to run down contacts to link to cases and that more 150 cases were reported from Tigerland in Baton Rouge earlier this summer that came from calls by parents and others saying that they had children or friends who were at Tigerland before testing positive.
Faircloth asked Billoux how many of the more than 400 positive cases were linked to Tigerland by tracers, but Billoux said that he did not know how many came from Tigerland.
The hearing will resume after a lunch break.
It is the state's position that data shows Louisiana’s case growth has slowed in the weeks since the Governor’s order that closed bars, mandated face masks and limited the size of social gatherings. Louisiana has more than 137,000 confirmed cases of COVID-19, with the largest growth in people ages 18 to 29. Nearly 20 percent of known outbreaks that have been traced by the Louisiana Department of Health have been linked to bars, despite the fact that these businesses were closed for many weeks. The White House Coronavirus Task Force recommends bar closures for states like Louisiana that are in the “red zone” for new cases and test positivity, the state alleges.
The White House Coronavirus Task Force also was adamant about the closure of bars during their visit to Louisiana, which occurred between the governor's order and the day it took effect.
Bars have come under scrutiny at a state and national level as public health experts identify them as hotspots for the virus. The Louisiana Department of Health says it has traced 464 confirmed coronavirus infections to 41 bars, among the largest number of cases tracked to a specific type of business.
The Acadiana bar owners argue in their lawsuit that the virus cases traced to bars represent less than half of 1% of the more than 100,000 confirmed cases across Louisiana. The lawsuit says bars do not pose a disproportionately high risk to the public that justifies restrictions targeted specifically to them. They say Edwards' actions violate federal and state constitutional protections.
In the lawsuit, Faircloth said Edwards' coronavirus restrictions "may have warranted the benefit of the doubt" in the early days of the outbreak of the COVID-19 disease caused by the virus. But he argues that more scientific data is available that undermines Edwards' decision.
