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Harry’s sues to end governor’s bar shutdown

David Adlerstein
The Apalach Times
The Apalach Times

A landmark Carrabelle bar has gone to court, arguing that it should be closing time for Gov. DeSantis’ three-week-old order to shut down all the bars in the state.

On Tuesday, Tallahassee attorney Ethan Way filed a motion in circuit court on behalf of Carrabelle Beverage LLC, which does business as Harry’s Bar, seeking temporary injunction to end the governor’s June 26 order to close down bars as part of measures taken to fight the spread of the coronavirus.

Arguing on behalf of Harry’s, as well as “those who enjoy a good stiff drink at a friendly small town bar and those similarly situated,” Way’s motion, now before Circuit Judge Jonathan Sjostrom, seeks to have the governor’s order, and the actions of Halsey Beshears as secretary of the Florida Department of Business and Professional Regulation in enforcing it, declared unconstitutional.

DeSantis, it argues, “took extreme and draconian drastic action in shutting down small businesses and purveyors of joy and comradery - the local bar. He also shut down big bars. But the local small bars are the core of many small towns and coastal hamlets - institutions that have supported their communities in times of war, hurricane, economic turmoil and those occasions when a significant other may have tossed a poor soul out.”

Because the governor’s emergency order allowed restaurants that contained bars, and that receive less than half their gross revenue from alcohol sales, to remain open, he acted arbitrarily, the motion argues, with no consideration given as to whether the impacted bars had complied with mandated safety guidelines in the initial Phase One reopening.

“The reason given for the denial of (Harry’s) right to earn a living, provide income to its employees and provide tax revenue to (the state) is alluded to the fact that COVID-19 had increased significantly in the state,” the motion reads, and then goes on to cite specific language that said increases had been “especially among younger individuals, and some of these cases involving younger individuals are suspected to have originated from visits to bars, pubs, or nightclubs who have disregarded (safety guidelines).”

The motion argues Harry’s “does not cater to the younger individuals. They are welcome, of course, but that do not make up a large percentage of (Harry’s) business,” which the motion describes as a “locals-oriented landmark that first opened in 1942 and in addition to assisting the local seafood workers with aid and comfort, also provided respite to brave Americans who were stationed at Camp Gordon Johnston during World War II.

“Harry’s provides a bar, music and pool tables (eight-foot tables to appropriate social distancing) and tends to attract a crowd of bon vivants,” it reads.

The complaint argues that rather than enforcing compliance against bars that violated safety guidelines, the governor’s emergency order “threw out the proverbial ‘baby with the bathwater’" and capriciously ordered all bars in the state closed for consumption of alcohol on the premise.

“To be clear, (Harry’s) does not support throwing a baby out of any window or door,” it reads. “That's just cruel. Like this order.”

The motion argues Harry’s rights under the Florida Constitution, as well as those bars across the state, are being “inequitably trampled upon by the (state), while millions of individuals have lost their jobs and thousands of businesses are on the brink of bankruptcy.”

The argument the motion makes is that the governor’s order fails to set forth why the restaurants with bars have been spared from closing down.

“No rational basis exists for these businesses being allowed to operate while (Harry’s) business remains shuddered,” it reads. “The order's speculation that young people may have attended noncompliant bars does not pass constitutional muster for the closure of ALL bars, unless those bars are fortunate enough to sit in a restaurant.”

It contends the state “can provide no data or evidence that establishments serving food somehow have a lower rate of the spread of COVID 19 than an establishment that does not meet the threshold under the order.

“Instead of regulating non-compliant businesses, the order takes the lazy and easy route and renders all business owners of bars (whether compliant or not) without the means to earn a living and provide for their employees,” reads the motion.

Way argues his request for a temporary injunction meets all legal requirements for being granted, which is mainly that it has a reasonable chance on its merits of being made permanent.

“When the time came to responsibly enact social distancing and other measures in order to reopen, (Harry’s) complied. However, the application of the order has crippled these once viable businesses while other businesses are spared its wrath,” it reads.

“Every day that passes (Harry’s) and its employees continue to fail to earn an income,” it reads. “Despite being damaged significantly by losing massive income, there is no viable legal claim for (Harry’s) to mount against (the state) for money damages. All claims would be dismissed as a planning function rendering the State of Florida lawsuit-proof under the doctrine of sovereign immunity.

“No case law can support application of (DeSantis’ order), nor does any articulable rational basis for the restraint upon (Harry’s) ability to earn a living exist,” it argues. “You can buy a beer or a shot of Fireball at an Applebee's, but not at Harrys.

“Further, while there is still alcohol consumption at Chili's, there is none at Harrys... an establishment with significant color and character, which is NEVER mistaken for a chain,” reads the motion.