Bar owners suing the state cite Reynolds’ opposition to a mask mandate

By: - December 8, 2020 9:52 am

With COVID-19 cases continuing to climb in Iowa, Gov. Kim Reynolds still faces a court challenge questioning her right to impose limits on business activity during a pandemic.(Creative Commons photo via Pxhere)

A lawsuit challenging the governor’s pandemic-related restrictions on bars is being appealed to the Iowa Supreme Court.

As part of the litigation, the owners of eight central Iowa bars are using Gov. Kim Reynolds’ refusal to order Iowans to wear masks in public against her, arguing that it shows she failed to take less draconian measures before ordering the taverns to close or limit their service.

The lawsuit is one of two in which the owners of drinking establishments claim Reynolds overstepped her authority in restricting the hours and operations of bars and taverns to help slow the spread of COVID-19, which has so far killed more than 2,700 Iowans.

One of the lawsuits, filed in Dallas County District Court on behalf of Amy Culp, owner of Mudders tavern in Minburn, is seeking class-action status. The state has yet to file a response to Culp’s assertion that Reynolds’ proclamations violate provisions of the Iowa Constitution, including those that say all men and women have the right of “pursuing and obtaining safety and happiness.”

The other case, which the plaintiffs recently lost at the district court level, is now being appealed to the Iowa Supreme Court.

In that case, Scott Anderson, the owner of the Tonic Bar in West Des Moines and Saints Pub & Patio in Waukee, is suing the state and alleging he “will lose thousands of dollars in wasted food, beverages, and other supplies” as a result of the governor’s actions, and that at least one of his bars “will be put out of business and will not be able to reopen.”

In court filings, Anderson says that due to the governor’s March 17th proclamation closing bars throughout the state, his two establishments were shuttered for 59 days. As a result of a separate, subsequent proclamation requiring mitigation efforts in Iowa’s re-opened taverns, Anderson says, he was able to conduct business at 50% of the bars’ capacity for 28 days.

Anderson estimates he lost $600,000 in revenue.

Shortly after Anderson sued, Thomas Baldwin, the owner of several Des Moines and West Des Moines taverns, joined the lawsuit as co-plaintiff. Baldwin owns Annie’s Irish Pub in Des Moines; Shotgun Betty’s in West Des Moines; The Irish in West Des Moines; and Wellman’s Pub in West Des Moines.

In court filings, Baldwin estimated that he lost at $1.3 million in revenue due to the governor’s actions prior to August, and that he stood to lose even more as a result of restrictions imposed around Labor Day, which he said was normally “an extremely profitable week” for him.

Baldwin and Anderson have alleged in court that “there is no public health disaster” in Polk and Dallas counties, as defined by Iowa law. They also argue that the governor has had other tools at her disposal in attempting to slow the spread of COVID-19, but didn’t take advantage of them before ordering bars to close.

Specifically, they note that on Aug. 1, more than 300 physicians and advanced practice providers urged Reynolds to require individuals to wear masks in public places. “Notably,” their petition states, “the Aug. 27th proclamation does not contain any requirement for the wearing of masks.”

In responding to the lawsuit, the state filed an affidavit by Dr. Caitlin Pedati, the state epidemiologist and medical director. In her sworn statement, Pedati acknowledges that on Aug. 27, the governor ordered bars in six counties to close to the general public, while allowing carry-out, drive-through, and delivery service to continue.

“I had advised the governor to take this action,” Pedati says in the affidavit. “I advised that she tailor the closure at this time to bars, and not include restaurants, due to several factors which support temporarily closing bars to reduce transmission of COVID-19. Bars are higher risk environments for COVID-19 transmission as compared to restaurants due to challenges in implementing social distancing in establishments where people gather primarily to socialize. The loud environment in many bars can lead to people huddling more closely and talking more loudly, which can increase transmission of COVID-19. Alcohol also lowers inhibitions which can make patrons less likely to follow public health recommendations such as social distancing and wearing masks.”

Polk County District Court Judge William P. Kelly sided with state in agreeing to dismiss the lawsuit, ruling that while the bar owners felt the governor’s actions “demonstrated state authoritarianism,” the proclamations did not violate Iowa law or the Iowa Constitution.

“The express language of the proclamation and prior proclamations support a finding that a public health disaster exists in Iowa,” Kelly ruled. “Viewing the facts in the light most favorable to plaintiffs in their petition, they cannot legally claim that there are not sufficient facts to show that COVID-19 was not a public health disaster as defined under Iowa law on August 27th.”

In his decision, Kelly referenced recent federal court rulings that stemmed from Louisiana Gov. John Bel Edwards’ decision to ban the on-site consumption of alcohol in bars. In those cases, the court held that when faced with a society-threatening epidemic, a state may implement emergency measures that curtail constitutional rights so long as the measures have at least some “real or substantial relation” to the public health crisis.

The bar owners’ due process rights are not violated by the governor’s failure to provide more advance notice of mitigation measures because the pandemic is “an unprecedented emergency,” the court found.

In addition, the court upheld proclamations that targeted bars, but not restaurants, noting that the “primary purpose of going to bars is to socialize, (and) bars play loud music, forcing patron to congregate and speak loudly.” Bar patrons also tend to be a younger group that is more likely to include asymptomatic carriers of the virus, the court found.

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Clark Kauffman
Clark Kauffman

Deputy Editor Clark Kauffman has worked during the past 30 years as both an investigative reporter and editorial writer at two of Iowa’s largest newspapers, the Des Moines Register and the Quad-City Times. He has won numerous state and national awards for reporting and editorial writing. His 2004 series on prosecutorial misconduct in Iowa was named a finalist for the Pulitzer Prize for Investigative Reporting. From October 2018 through November 2019, Kauffman was an assistant ombudsman for the Iowa Office of Ombudsman, an agency that investigates citizens’ complaints of wrongdoing within state and local government agencies.