Bar Indy LLC v. City of Indianapolis

• Decision Date: 22 December 2020
• Docket Number: 1:20-cv-02482-JMS-DML
• Citation: 508 F.Supp.3d 334
• Parties: BAR INDY LLC, Revel Bar Indy LLC, Isentark Entertainment, LLC, Bembars, Inc., R&D Companies, Inc., Whistle Stop Inn Inc., Classic 46, Inc., New Journey, LLC, I2V, LLC, Kore Enterprises, Inc., Basey LLC, MILO Entertainment LLC, 5135 Holdings Inc., D&D Lugar Inc., and TAD Indy Inc., Plaintiffs, v. CITY OF INDIANAPOLIS, Joe Hogsett, in his official capacity as Mayor of Indianapolis, Marion County Public Health Department, and Dr. Virginia Caine, in her official capacity as Director and Chief Medical Officer of the Marion County Health Department, Defendants.
• Court: U.S. District Court — Southern District of Indiana

508 F.Supp.3d 334

BAR INDY LLC, Revel Bar Indy LLC, Isentark Entertainment, LLC, Bembars, Inc., R&D Companies, Inc., Whistle Stop Inn Inc., Classic 46, Inc., New Journey, LLC, I2V, LLC, Kore Enterprises, Inc., Basey LLC, MILO Entertainment LLC, 5135 Holdings Inc., D&D Lugar Inc., and TAD Indy Inc., Plaintiffs,

v.CITY OF INDIANAPOLIS, Joe Hogsett, in his official capacity as Mayor of Indianapolis, Marion County Public Health Department, and Dr. Virginia Caine, in her official capacity as Director and Chief Medical Officer of the Marion County Health Department, Defendants.

1:20-cv-02482-JMS-DML

United States District Court, S.D. Indiana, Indianapolis Division.

Signed December 22, 2020

John Douglas Norman, Richard Bucheri, Poynter & Bucheri LLC, Indianapolis, IN, for Plaintiffs.

Anne Kramer Ricchiuto, Anthony Scott Chinn, Jason Rauch, Faegre Drinker Biddle & Reath LLP, Indianapolis, IN, for Defendants.

ORDER

Jane Magnus-Stinson, Chief Judge

Pending before the Court is a Motion to Remand, [Filing No. 12 ], filed by Plaintiffs who are fifteen companies and corporations who own bars and nightclubs in Marion County, Indiana. Plaintiffs ask the Court to return this matter to the Marion Superior Court following its removal to this Court by Defendants the City of Indianapolis, Indianapolis Mayor Joe Hogsett, the Marion County Public Health Department (the "MCPHD"), and Dr. Virginia Caine, who is the director and chief medical officer of the MCPHD. Also pending before the Court is Plaintiffs' Motion for Preliminary Injunctive Relief. [Filing No. 17.] These motions are now ripe for the Court's decision.

I. BACKGROUND

A. The COVID-19 Pandemic

As the Seventh Circuit noted in a recent decision, "COVID-19 requires no introduction." Mays v. Dart , 974 F.3d 810, 814 (7th Cir. 2020). "[T]he novel coronavirus causing this disease has spread around the world, resulting in an unprecedented global pandemic that has disrupted every aspect of public life." Id. The virus transmits from person to person, "primarily through respiratory droplets" that can "remain in the air for several hours, and also through lingering particles on surfaces." Id. According to recent data from the Centers for Disease Control and Prevention (the "CDC"), as of December 21, 2020, more than 464,000 Hoosiers have been infected by the novel virus,¹ and more than 7,400 have died.² Marion County has seen more than 63,000 cases and more than 1,000 deaths.³ As demonstrated by the CDC chart below, Indiana has seen a precipitous increase in the number of COVID-19 cases in recent months.⁴

B. The Gubernatorial Orders

To mitigate the spread of the COVID-19 virus, Indiana Governor Eric Holcomb declared a public health emergency, [Filing No. 14-1 ], and issued Executive Order 20-04, which effectively ordered all bars, nightclubs, and restaurants in the state to be closed to in-house patrons beginning March 16, 2020, [Filing No. 14-2 at 3 ]. Governor Holcomb subsequently issued Executive Order 20-32, which, starting June 12, 2020, enabled bars and nightclubs to reopen under certain restrictions, including limiting occupancy to 50%. [Filing No. 16-2 at 7.] Restaurants were permitted to open at 75% occupancy, but bar areas within restaurants were limited to 50% occupancy. [Filing No. 16-2 at 7.] Governor Holcomb further eased restrictions starting on September 26, 2020, with Executive Order 20-43, which rescinded the occupancy limits previously imposed on bars and restaurants and replaced them with the requirement that "seating must be arranged and maintained so that individuals, households, or parties are spaced at least six feet apart." [Filing No. 16-1 at 8.] The Executive Orders made clear that local health departments maintained their authority to impose additional restrictions:

Nothing in this Executive Order shall, in any way, alter or modify any existing legal authority allowing the State, any local health department, or any other proper entity from ordering: (a) any quarantine or isolation that may require an individual to remain inside a particular residential property or medical facility for a limited period of time including the duration of this public health emergency; or (b) any closure of a specific location for a limited period of time, including the duration of this public health emergency.

[Filing No. 16-1 at 10; Filing No. 16-2 at 12.]

C. The MCPHD Orders

To mitigate the spread of the virus, the MCPHD, through Dr. Caine as its director and chief medical officer, has issued (and continues to issue) additional restrictions through Public Health Orders applicable to individuals and businesses in Marion County. [See, e.g. , Filing No. 14-3; Filing No. 14-4; Filing No. 14-5; Filing No. 14-6; Filing No. 14-7.] Each order relevant to this case cited Indiana Code § 16-20-1-24 and Chapter 7, Article 5 of the Code of the Health and Hospital Corporation of Marion County, Indiana (the "Health & Hospital Code") as providing the MCPHD the authority to issue the order. [See Filing No. 14-3 at 2; Filing No. 14-4 at 2; Filing No. 14-5 at 2; Filing No. 14-6 at 2; Filing No. 14-7 at 2.] Some of the Public Health Orders address the operations of bars, nightclubs, and restaurants in Marion County, including the orders described below.

1. Public Health Order 22-2020

Even though Executive Order 20-32 enabled bars and restaurants to open at 50% capacity starting in June 2020, the MCPHD issued Public Health Order 22-2020 ("Order 22-2020"), which, effective July 24, 2020, closed "bars and nightclubs" in Marion County. [Filing No. 14-3 at 7.] Order 22-2020 defined bars and nightclubs as "all indoor establishments that serve alcoholic beverages for consumption on the premises and/or that cater to dancing or social interactions among patrons, other than a restaurant or club." [Filing No. 14-3 at 7.] Restaurants, on the other hand, were permitted to remain open for indoor dining, but capacity was restricted to 50% and six feet of social distancing was required. [Filing No. 14-3 at 6.] Among other restrictions, restaurants were also required to close by midnight and "[a]ll bar seating within restaurants" was to "be closed at all times." [Filing No. 14-3 at 6.] In addition, all live entertainment at restaurants was prohibited. [Filing No. 14-3 at 6.]

2. Public Health Order 25-2020

The MCPHD subsequently issued Public Health Order 25-2020 ("Order 25-2020"). [Filing No. 14-4.] Order 25-2020 clarified the definition of bars and nightclubs, which Order 22-2020 had ordered closed. It clarified that "bars and nightclubs" included "any establishment that met the definition of a bar or nightclub as of March 1, 2020," and further clarified that "[b]ars and nightclubs are defined as all indoor establishments that serve alcoholic beverages for consumption on the premises, restrict the age of patrons to 21 years or older, and/or that cater to dancing or social interactions among patrons, other than a restaurant or club." [Filing No. 14-4 at 7.] Order 25-2020 reiterated that "[a]ll separate bar areas in full service restaurants must remain closed." [Filing No. 14-4 at 7.]

3. Public Health Order 29-2020

The MCPHD's Public Health Order 29-2020 ("Order 29-2020") became effective on September 8, 2020. [Filing No. 14-5.] Order 29-2020 permitted bars and nightclubs in Marion County, which had been closed since July 24, 2020, to reopen "at 25% capacity for indoor seating and 50% capacity for outdoor seating." [Filing No. 14-5 at 6-7.] Furthermore, "[a]ll bar-top seating" was to remain closed, "but tables within the bar area may be open for table service," live entertainment was still prohibited, and dance floors were to remain closed. [Filing No. 14-5 at 7.] Order 29-2020 further clarified that Gentlemen's and Ladies' Clubs would be considered "bars" for purposes of Order 29-2020, as would hookah and cigar bars. [Filing No. 14-5 at 7.]

Order 29-2020 also contained some new directives for restaurants. Restaurants that are "not age-restricted" could remain open for indoor dining at 50% capacity and outdoor dining at 75% capacity. [Filing No. 14-5 at 5-6.] Restaurants that "are restricted to 21 years of age and older" were limited to 25% capacity for indoor dining and 75% capacity for outdoor dining. [Filing No. 14-5 at 5-6.] As with bars and nightclubs, "[a]ll bar-top seating within all restaurants must be closed at all times, but tables within the bar area may remain open for table service." [Filing No. 14-5 at 6.] Likewise, live entertainment was prohibited. [Filing No. 14-5 at 6.]

4. Public Health Order 31-2020

Effective September 28, 2020, MCPHD Public Health Order 31-2020 ("Order 31-2020") further lifted some of the restrictions on bars, nightclubs, and restaurants. [Filing No. 14-6.] Order 31-2020 stated that bars, nightclubs, and restaurants were permitted to open at 50% indoor capacity and 100% outdoor capacity, subject to six-feet distancing between tables. [Filing No. 14-6 at 6.] Order 31-2020 continued the prohibition on bar service and bar-top seating, and required all bars, nightclubs, and restaurants to remain closed between the hours of midnight and 5:00 a.m. [Filing No. 14-6 at 6.] Restaurants, bars, and nightclubs were permitted to host live entertainment, so long as there was at least ten feet between performers and patrons and six feet between each performer. [Filing No. 14-6 at 7.]

5. Public Health Order 33-2020

The MCPHD then issued Public Health Order 33-2020 ("Order 33-2020"), which took effect on October 2, 2020. [Filing No. 14-7.] The limitations for bars, nightclubs, and restaurants in Order 33-2020 were identical to those contained in Order 31-2020, except that bar tops could now be used to serve carry-out "so long as there is a plexiglass partition between the server and the patron." [Filing No. 14-7 at 6.]

6. Public Health Orders 35-2020 and 38-2020

After the briefing on the pending motions addressed in this Order was complete, the MCPHD issued Public Health Order 35-2020 ("Order 35-2020"), which...