Big Tyme Invs., L.L.C. v. Edwards

• Decision Date: 13 January 2021
• Docket Number: No. 20-30526 consolidated with No. 20-30537,20-30526 consolidated with No. 20-30537
• Parties: BIG TYME INVESTMENTS, L.L.C., doing business as Big Daddy's Pub & Grub; CD Enterprises of Houma, L.L.C., doing business as Larussa's Lounge ; JOM, L.L.C., doing business as Just One More; Longshotz 1, L.L.C., doing business as Longshotz; Paradise Sports Bar & Daiquiris, L.L.C., doing business as Epic Lounge; R&J Lapeyrouse, L.L.C., doing business as Jeaux's New Horizon; R. Heasley, L.L.C., doing business as Ram Rod's Saloon; Tap Dat, L.L.C., doing business as The Brass Monkey; The Music Cove, L.L.C. ; The Outer Limits Bar, L.L.C., Plaintiffs—Appellants, v. John Bel EDWARDS, in his official capacity as Governor of the State of Louisiana; H. Browning, Jr., in his official capacity as Fire Marshal of the State of Louisiana, also known as Butch Browning, Defendants—Appellees, 910 E Main, L.L.C., doing business as Quarter Tavern; Doug McCarthy Enterprises, Incorporated, doing business as 501; My Place Bar & Grill, L.L.C.; Pool Dos Sports Bar, L.L.P.; SoCo Sports Bar, L.L.C.; Sandi's Anchor Lounge, L.L.C., doing business as Da Camp; Tipsy Cajun, L.L.C.; Wanous, L.L.C., doing business as AJ's 2nd St. Pub ; C K B C P B 5, L.L.C., doing business as Chatter Box; Big Dan's Bar, Incorporated; City Bar, Incorporated, Plaintiffs—Appellants, v. John Bel Edwards, in his official capacity as Governor of the State of Louisiana; H. Browning, Jr., in his official capacity as Fire Marshal of the State of Louisiana, also known as Butch Browning, Defendants—Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

985 F.3d 456

BIG TYME INVESTMENTS, L.L.C., doing business as Big Daddy's Pub & Grub; CD Enterprises of Houma, L.L.C., doing business as Larussa's Lounge ; JOM, L.L.C., doing business as Just One More; Longshotz 1, L.L.C., doing business as Longshotz; Paradise Sports Bar & Daiquiris, L.L.C., doing business as Epic Lounge; R&J Lapeyrouse, L.L.C., doing business as Jeaux's New Horizon; R. Heasley, L.L.C., doing business as Ram Rod's Saloon; Tap Dat, L.L.C., doing business as The Brass Monkey; The Music Cove, L.L.C. ; The Outer Limits Bar, L.L.C., Plaintiffs—Appellants,

v.John Bel EDWARDS, in his official capacity as Governor of the State of Louisiana; H. Browning, Jr., in his official capacity as Fire Marshal of the State of Louisiana, also known as Butch Browning, Defendants—Appellees,910 E Main, L.L.C., doing business as Quarter Tavern; Doug McCarthy Enterprises, Incorporated, doing business as 501; My Place Bar & Grill, L.L.C.; Pool Dos Sports Bar, L.L.P.; SoCo Sports Bar, L.L.C.; Sandi's Anchor Lounge, L.L.C., doing business as Da Camp; Tipsy Cajun, L.L.C.; Wanous, L.L.C., doing business as AJ's 2nd St. Pub ; C K B C P B 5, L.L.C., doing business as Chatter Box; Big Dan's Bar, Incorporated; City Bar, Incorporated, Plaintiffs—Appellants,

v.John Bel Edwards, in his official capacity as Governor of the State of Louisiana; H. Browning, Jr., in his official capacity as Fire Marshal of the State of Louisiana, also known as Butch Browning, Defendants—Appellees.

No. 20-30526 consolidated with No. 20-30537

United States Court of Appeals, Fifth Circuit.

FILED January 13, 2021

Jimmy Roy Faircloth, Jr., Attorney, Richard Frederick Norem, III, Mary Katherine Price, Faircloth Melton Sobel & Bash, L.L.C., Alexandria, LA, for Plaintiffs-Appellants.

Jack M. Weiss, Esq., Joshua Simon Force, Sher Garner Cahill Richter Klein & Hilbert, L.L.C., James M. Garner, Esq., Sher Garner Cahill Richter Klein & Hilbert, L.L.C., New Orleans, LA, Matthew F. Block, Office of the Governor for the State of Louisiana, Baton Rouge, LA, for Defendant-Appellee John Bel Edwards.

Jack M. Weiss, Esq., Joshua Simon Force, Sher Garner Cahill Richter Klein & Hilbert, L.L.C., James M. Garner, Esq., Sher Garner Cahill Richter Klein & Hilbert, L.L.C., New Orleans, LA, for Defendant-Appellee H. Browning, Jr.

Glenn L. Langley, Esq., Langley & Parks, L.L.C., Shreveport, LA, for Amici Curiae.

Before Dennis, Higginson, and Willett, Circuit Judges.

Stephen A. Higginson, Circuit Judge:

In this consolidated appeal, 21 bar owners in Louisiana challenge the Governor's restrictions to the operation of bars in response to COVID-19 (the "Bar Closure Order"). The Bar Closure Order prohibited on-site consumption of alcohol and food at "bars," but permitted on-site consumption of alcohol and food at "restaurants." Two district courts below denied the bar owners’ motions for preliminary injunctive relief. The bar owners timely appealed, arguing only that the Bar Closure Order's differential treatment of bars violates the Equal Protection Clause of the Fourteenth Amendment. We AFFIRM.

I. BACKGROUND

A. The Governor's emergency proclamations

As all are painfully aware, in early 2020 our nation was gripped with an unprecedented public health emergency caused by COVID-19. On March 11, 2020, the World Health Organization ("WHO") declared a global pandemic in response to the spread of COVID-19. Louisiana, like the rest of the United States, was no exception. By mid-March, the state reported the "fastest growth rate of confirmed [COVID-19] cases in the world," and ranked third in per capita cases within the United States.

Since March, cases have continued to increase. At the time this appeal was taken, the United States had recorded over 5 million confirmed cases and over 160,000 deaths from COVID-19, and Louisiana had recorded nearly 130,000 cases and over 4,000 deaths. To date, the United States has recorded over 22.5 million cases and over 375,000 deaths from COVID-19, and Louisiana has reported 352,939 cases and 7,971 deaths.¹

The same day as the WHO's declaration, Louisiana Governor John Bel Edwards declared the pandemic a statewide public health emergency.² In the months that followed, the Governor issued a series of proclamations to slow the spread of COVID-19. The earliest of these proclamations prohibited gatherings of ten or more people and shuttered most "nonessential businesses," including closing bars and restricting restaurants to take-out and delivery only. See La. Exec. Dep't, Proclamation No. 30 JBE 2020, §§ 2–3 (Mar. 16, 2020); Proclamation No. 33 JBE 2020, §§ 2, 4 (Mar. 22, 2020).

The Governor subsequently announced that businesses would reopen in phases. Consistent with guidelines from the White House Coronavirus Task Force, each phase was tied to gating criteria based on the state's total number of cases, positivity rates, and hospital capacity. In mid-May, as the state's COVID-19 cases and hospitalizations decreased, the Governor announced "Phase 1" of reopening Louisiana's businesses. See La. Exec. Dep't, Proclamation No. 58 JBE 2020 (May 14, 2020). Under Phase 1, businesses were permitted to reopen subject to distancing and capacity limitations as determined by the state's Fire Marshal. The proclamation included a link to the state's "Open Safely" website where the Fire Marshal's guidance was published. Under Phase 1, restaurants and bars with approved food-service permits could reopen at 25% capacity, though bars without a food license remained closed.

In June, the Governor moved Louisiana into "Phase 2," which allowed bars without food service permits to reopen at 25% capacity, and bars with food service permits to operate at 50% of capacity subject to additional guidance and restrictions from the Fire Marshal. La. Exec. Dep't, Proclamation No. 74 JBE 2020, § 2(G)(1) (June 4, 2020). These provisions initially expired on June 26, 2020, but were extended by the Governor's subsequent proclamation until July 24, 2020, "unless terminated sooner" based on changes in COVID-19 cases and healthcare capacity. That is precisely what happened.

B. The challenged Bar Closure Order

Beginning in July, "the COVID-19 situation in Louisiana had steadily worsened" and the state showed increased cases, positivity rates, and hospitalizations. Unlike the initial March and April surges which were limited to urban "hot spots," the new cases were increasing statewide, including in rural parishes and within younger age groups. These trends were consistent with data in states "across the Sun Belt" and reports from the White House Coronavirus Task Force.

As a result, on July 11, 2020, the Governor issued new "Phase 2 mitigation measures" which included the Bar Closure Order challenged here. La. Exec. Dep't, Proclamation No. 89 JBE 2020 (July 11, 2020). The Bar Closure Order prohibited on-premises consumption in bars:

No bar, with or without a food service permit from the Louisiana Department of Health, shall allow for on premises consumption of any food or drinks. However, any bar shall be allowed to provide for takeout through drive-thru or curbside delivery, including alcoholic beverages.

Id. § 2.³ By contrast, "restaurants" were permitted to continue dine-in service at 50% capacity, subject to "applicable guidance from the State Fire Marshal published at opensafely.la.gov." La. Exec. Dep't, Proclamation No. 96 JBE 2020, § 2(B)(2), (D)(1) (July 23, 2020). The revised Fire Marshal guidance restricted restaurants to "50% of the normal established capacity" and noted that "[b]ar areas of restaurants shall be used for seating/serving purposes only and shall not allow for social gatherings." Additionally, the guidance required that "[s]ervice in bar areas must include food items."

None of these proclamations defines "bar," nor does Louisiana law. Instead, the state regulates businesses through its Office of Alcohol and Tobacco Control ("ATC"), which provides liquor permits in primarily two categories: "Class A-General" ("AG") and "Class A-Restaurant" ("AR").⁴ AG permits are primarily for bars: the establishment can sell alcohol but is not required to sell food, and unlike AR establishments, minors under the age of 18 are not permitted on the premises. See La. Rev. Stat. § 26:71.1(1)(d). AR permits are primarily for restaurants and restaurant-bars: the business must meet the statutory criteria for "restaurant establishments," including that its "average monthly revenue from food and nonalcoholic beverages exceeds 50 percent of its total average monthly revenue." La. Rev. Stat. § 26:73(C)(1)(a).

The bar owners assert that the Bar Closure Order effectively defines "bars" as businesses with AG permits. While the Governor denies that he intended to distinguish between "stand-alone" bars and restaurant-bars, the revised Fire Marshal's guidance does just that. Specifically, it included a letter from the ATC Commissioner noting that "all bars or businesses holding a Class A-General permit, with or without a food service permit ... shall be required to close." A subsequent letter advised that bars could apply for "Restaurant Conditional Permits," or conditional AR permits, under which they could "operate under the guidelines issued to restaurants."

C. Procedural History

Appellants (the "bar owners") are 21 businesses that operate bars in the Eastern and Western Districts of Louisiana. At the time the Governor issued the Bar Closure Order, each bar operated with an AG permit; since the filing of this appeal at least five have obtained conditional AR permits.

The bar owners filed identical suits in the Eastern and Western Districts of Louisiana seeking to enjoin the Governor and Fire Marshal (the "appellees") from enforcing the Bar Closure Order.⁵ Following expedited evidentiary hearings, both Judge Feldman in the Eastern District and Judge Summerhays in the Western District denied the bar owners’ motions for preliminary injunctive relief because they were unlikely to succeed on the merits of their due process and...