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Judge tosses Arkansas bar owners lawsuit over 11 p.m. curfew

Arkansas

ARKANSAS (KNWA/KFTA) — Pulaski County Circuit Court Judge Wendell Griffen ruled against a Fayetteville bar and restaurant owners lawsuit regarding a curfew related to COVID-19, on Tuesday, January 26.

Nearly two-dozen bar owners filed the lawsuit against the state citing an 11 p.m. curfew is hurting business.

Three defendants are listed in the lawsuit: Arkansas Governor Asa Hutchinson, Alcohol Beverage Control (ABC) Director Doralee Chandler, and Arkansas Department of Health Secretary Dr. José Romero.

The restriction was put into place through an Executive Order on November 19, 2020, through January 3, 2021, and was extended through February, 3.

“In an effort to reduce the spread of the virus as a result of prolonged social interaction in group settings, I am accepting the recommendation of the Winter COVID Task Force to require bars, restaurants, and clubs that sell alcohol for consumption in their establishment to close at 11 p.m. This is a balanced approach that is limited and targeted as we work to reduce new COVID cases in our state.”

Governor Hutchinson

In response to the lawsuit, the defendants asked for the lawsuit to be dismissed, “the State’s actions are rationally related to preventing the spread of a deadly virus, and valid exercises of the police power do not constitute a taking under Arkansas law.”

BARS/RESTAURANTS PART OF THE LAWSUIT

  • Ryleighs Inc., DBA Ryleighs Bar
  • WPGL, Inc. DBA Boars’ Nest BBQ
  • S. Drewturner, LLC, DBA On the Mark Sports Bar & Grill
  • Van & Company, LLC, DBA Z330
  • Arkansas Black, DBA Smoke & Barrel
  • CT124, DBA Crossroads Tavern
  • Bugsy’s Inc, DBA Bugsy’s
  • West End Bar, LLC., DBA West End
  • Los Bobos, LLC., DBA Los Bobos (same owner as West End)
  • 1947, LLC., DBA The Amendment & Roger’s Rec
  • Stir of Fayetteville, Inc., DBA Big
  • Shotz, Inc., DBA Shotz
  • Kingfish of Fayetteville, Inc., DBA Kingfish
  • Yee-Hawg, Inc., DBA Yee-Hawg
  • OKP, LLC, DBA The Piano Bar
  • WWDD, LLC, DBA Cannibal & Craft
  • Arkansas; Sideways, Inc., DBA Sideways Bar
  • Block 23 LLC, DBA Pinpoint Fayetteville
  • MPT, Inc., DBA Buster Bellys Bar
  • Speakeasy, Inc. DBA C4 Night Club and Lounge
  • Gitwith Bubbly, LLC, DBA Maxines Taproom

JUDGE’S NOTE

Court held that Respondents’ Motion to Dismiss must be treated as one for summary judgment pursuant to ARCP 12(b)6 and ARCP 56 because “matters outside the pleading are presented to and not excluded by the court…” Because witness testimony is not permissible in a hearing for summary judgment, Respondents’ Motion to Exclude/Limit Witness testimony is GRANTED. Based on the pleadings and exhibits presented by the parties, the Court finds that there are no genuine issues of material fact related to Petitioners procedural due process, substantive due process, equal protection, and taking allegations and that Respondents are entitled to judgment as a matter of law on those allegations. Specifically, the Court finds that Petitioners have not suffered a procedural due process deprivation because their restaurant and bar establishments are operated based on licenses issued as a privilege, not based on a fundamental right. As such, Petitioners are not entitled to the procedural due process requirements of notice and an opportunity to be heard before Respondents could restrict the hours of their business operations to not later than 11 p.m. The Court finds that Petitioners substantive due process also fails. As to that claim, Plaintiffs do not assert a fundamental right so as to require proof of a compelling governmental interest before the challenged Executive Order and Directive could be valid. The Court finds that public health and safety is a legitimate governmental interest that the existing coronavirus pandemic threatens, and is a rational basis for the challenged Executive Order and Directive. The Court finds that Petitioners’ Equal Protection claim fails, also, because the challenged state action is based on a rational basis. Finally, the Court finds that Petitioners’ takings claim fails. Petitioners have not sustained a taking of their property. Rather, they concede that their establishments have not been taken, but their business revenue has been threatened and decreased. That does not meet the constitutional standard for a takings claim. Respondents’ Motion for Summary Judgment is GRANTED, and the Complaint for Declaratory Judgment is dismissed, with prejudice. Petitioners’ Motion for injunctive relief is denied because petitioners have not sustained an irreparable injury and are not likely to succeed on the merits of their complaint for declaratory judgment based on their procedural and substantive due process, equal protection, and takings allegations. The court will issue Memorandum Order within 24 hours.

The ABC did not have a comment regarding the decision because it is active litigation.

ABC enforcement agents have completed more than 5,600 compliance checks to ensure restaurants, bars and clubs continue to follow all COVID 19-related directives from June 2020 to now. “ABC is committed to enforcing directives as established by the Governor and Department of Health,” said ABC Spokesperson Scott Hardin.

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