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Law360 (July 9, 2020, 8:21 PM EDT) -- Eight bar businesses suing Texas Gov. Greg Abbott in state court over his recent decision to shut down standalone bars during the COVID-19 pandemic have appealed a judge's ruling that denies their bid for a temporary restraining order, saying the governor's action is unconstitutional.
The bars lodged a notice of appeal Thursday that slams Dallas County Associate Judge Monica Purdy's order a day earlier that denied without explanation their TRO request. They now seek an expedited emergency hearing before Presiding Judge Martin Hoffman and ask that he vacate the associate judge's order.
"The governor's Executive Order GA-28 is unconstitutional," a lawyer for the bars, Jason H. Friedman of Friedman & Feiger LLP, told Law360 on Thursday. "The order closes standalone bars but allows other bars to stay open in hotels, restaurants, bowling alleys and amusement parks. How does closing standalone bars for the health and well-being of our citizens benefit the public when you leave all the other bars and gyms open?"
Friedman added that politics must be at play since Abbott's COVID-19 task force includes rich and powerful hospitality industry participants who own hotels, restaurants and gyms, yet no standalone bar owners hold a position on the task force. The bars' suit specifically names task force members Robert B. Rowling, whose investments include Omni Hotels and Gold's Gym; Tilman Fertitta, chairman, CEO and sole owner of restaurant giant Landry's Inc. and Golden Nugget Hotel and Casinos; and Bobby Cox, owner of a high-profile Texas restaurant company.
One of the standalone bar plaintiffs, Brandon Hays, said his three Dallas bars had to shut down when Abbott announced his June 26 executive order, which limits certain businesses and services as part of Texas' efforts to contain the spread of COVID-19 because hospitalizations in the state have risen and the virus "positivity rate" has climbed above 10%.
Hays said he also owns three Dallas-area restaurants and three gyms that remain open and asserted that those businesses' health and safety standards are similar to the ones he uses at his standalone bars.
"I'm not a counselor who practices law, but the governor's order seems shot through a narrow lens," Hays said. "I'm confused by the fact that I can go to the three restaurants I own and be considered safe, but when I walk into my bars, I suddenly become moronic and can't maintain safe distancing. It's wild speculation and arbitrary that the governor suddenly woke up and started to target standalone bars."
The bars say they actively encourage governmental action to fight the coronavirus, unlike other state-owned businesses that lost a constitutional challenge on May 5 when the Texas Supreme Court declined to review their case fighting what they called "unsupportable" edicts and executive orders that city and county officials made to limit businesses during the coronavirus pandemic, finding the issue should be addressed at the trial court level first.
Those businesses — which included vape shops, an ax-throwing business, hair salons and gyms — petitioned the state's high court April 28, arguing government restrictions during the pandemic violate their constitutional rights. Their emergency mandamus petition was aimed at county judges and the mayors of Dallas, San Antonio and four other cities who have issued executive orders "archetypical" of orders around the state.
But the bar businesses allege in their Wednesday petition that Executive Order GA-28 violates the U.S. and Texas constitutions and "is arbitrary, capricious and lacks any rational relationship to any legitimate state interest" because it unfairly targets standalone bars.
"This is not a case in which plaintiffs are claiming that the government cannot, and should not, act," the bars said. "Those actions, however, must ultimately serve the purpose of legitimately advancing the health and well-being of our citizens, within the constitutional and statutory constraints that have allowed our form of government to endure and prosper; and must not be undertaken for political expediency, political pandering and political gain."
Representatives for the governor did not immediately respond Thursday to a request for comment.
The bars are represented by Jason H. Friedman and Lawrence J. Friedman of Friedman & Feiger LLP.
Counsel information for the governor was not available.
The case is Stirr Dallas LLC v. Gregory Wayne Abbott, in his official capacity as governor of Texas, case number DC-20-09166, in the District Court of Dallas County, Texas
--Additional reporting by Katie Pohlman. Editing by Orlando Lorenzo.
For a reprint of this article, please contact reprints@law360.com.
