A Barron County judge reinstated Gov. Tony Evers’ mandate that restricted capacity at bars, restaurants and other public venues to 25 percent Monday after an initial court ruling struck the order down.
The Tavern League of Wisconsin, a lobbying group that represents the state’s 5,000 bars, restaurants and taverns, filed a lawsuit against the Evers administration following the passage of the order Oct. 6 by Department of Health Services Secretary Andrea Palm. A Sawyer county judge blocked the mandate on Oct. 14, as the number of new cases of COVID-19 skyrocketed across Wisconsin.
DHS reported 174,000 people had tested positive for COVID-19 in the state as of Monday, including 1,600 deaths.
However, Judge James Babler ruled that the plaintiffs in the case, the Tavern League and two other bars, could not prove that compliance with the order detracted from their business. Babler also said the state Supreme Court’s decision that knocked down Evers’ stay-at-home order in May jeopardizes the administration’s ability to implement the capacity limit, the Milwaukee Journal Sentinel reported.
“I beg the Supreme Court for clarity because should this issue be decided by them, trial judges need to know how they need to rule,” Babler said. “There’s no showing of irreparable harm… I merely have the theoretical issue that if [the plaintiffs] were to comply, they would suffer harm.”
Evers applauded Monday’s decision and called on individuals to exercise responsibility and adherence to social distancing protocols.
“This critically important ruling will help us prevent the spread of this virus by restoring limits on public gatherings,” Evers said in a statement. “This crisis is urgent. Wisconsinites, stay home. Limit travel and going to gatherings, and please wear a face covering whenever you have to go out.”
Those contesting the order claim that it will decimate the restaurant and bar industry in Wisconsin, which is already struggling amid the COVID-19 pandemic.
The Flambeau Forest Inn, one of the plaintiffs, played a central role in that case, suggesting the establishment would have been harmed by the order because it does not maintain official capacity limits. Under the mandate, the inn would only be afforded a 10-person capacity. When factoring its five-person staff, a maximum of five customers, equaling five percent of the establishment’s overall capacity, would be available for seating.
Tavern League lobbyist Scott Stenger said operating at 25 percent capacity would result in bar and restaurant owners losing money. Wisconsin Restaurant Association President and CEO Kristine Hellmer added the order could result in half of the state’s restaurants closing.
“Before this order, 37 percent of restaurants were indicating they would be going out of business without any further federal dollars — and those restaurants were, for the most part at 50 percent or more capacity,” Hellmer said. “Dropping their capacity to 25 percent is devastating, and they cannot hold on much longer.”
Stenger also said no sufficient evidence exists that bars contributed to the outbreak of COVID-19 cases in Wisconsin and alleged college campuses led to the increase in confirmed cases.
“We are a backseat to the health emergency that’s here, we understand that… but for god’s sake do something,” Stenger said. “There are things you can do that at least say, ‘Hey, we hear you. We are going to do what we can to help.’ Instead, we’ve been made out to be the bad guys.”
Some bars and restaurants were eligible for relief grants from the Wisconsin Economic Development Corporation, which was financed by the federal CARES act earlier in the year. However, state and national lawmakers have not passed new relief legislation for businesses losing revenue since May.
Stenger said the group would not appeal the decision and noted the group wants to work with Evers on developing a “role” that bars and restaurants can play in the pandemic response, according to the Journal Sentinel.
“I don’t think [appealing is] a viable solution.” Stenger said. “Instead we’ll continue to work. Maybe somebody now will listen to the fact that this isn’t a joke anymore. We’re going out of business. We need help. We shouldn’t be the enemy in this.”
The Mix Up Bar, which joined the plaintiffs after the lawsuit was submitted, said it would likely appeal the decision, according to attorney Misha Tseytlin.
The capacity order will expire Nov. 6. However, it could be renewed.
