Nine Ohio bar and restaurant owners, including some with businesses in Cincinnati, filed suit Tuesday against Gov. Mike DeWine and the Ohio Liquor Control Commission for enacting a 10 p.m. nightly cutoff on liquor sales.
“The Curfew and (sic) only serves to penalize and to harshly punish Plaintiffs, and those like them, in the operation of their businesses,” according to the motion, which requests a statewide injunction against the curfew.
A judge denied the plaintiffs' request for an initial, temporary injunction shortly after noon on Wednesday, but their attorney indicated they intend to proceed with the case.
The plaintiffs in question include the owners of 16-Bit Bar + Arcade, which has one location in Columbus and another in Over-the-Rhine, and Late Night Slice, which opened a Cincinnati location on Elm Street in early 2019.
DeWine proposed the liquor sales cutoff in a July 30 news conference, shortly after his Kentucky counterpart Andy Beshear announced a two-week closure for all bars in the state. The Ohio Liquor Control Commission passed the cutoff during an emergency meeting the following morning.
Under the new rule, bars and restaurants must stop selling alcohol at 10 p.m., and any alcohol purchased before that point must be consumed by 11. Businesses found in violation could have their liquor licenses suspended or canceled.
According to DeWine, most reopened bars and restaurants in the state had been working hard to observe social distancing and safety guidelines to protect patrons from COVID-19. However, health investigators had also observed crowded patios and dance floors, particularly after dark.
"We do not want to shut down Ohio bars and restaurants," he said on July 30. "That would be devastating to them. But we do have to take some action and see what kind of results we get from that action."
The businesses suing him claim the curfew is “arbitrary and unreasonable exercising of power” with potential to seriously harm their bottom line.
According to Tuesday’s motion, about half of all sales at Late Night Slice happen after 10 p.m. The first weekend of the cufew saw them drop by a little less than 18%.
Other bars and restaurants claimed a 50% drop in business since the pandemic began and wrote they expected to lose 90% of post-10 p.m. revenue if they are not allowed to sell liquor after that time.
The losses hit especially hard due to the months-long closure many experienced and the expense of implementing new sanitation procedures in order to reopen, according to the suit.
“(The rule’s) disparate treatment of liquor permit holders lacks a real or substantial scientific relation to the spread of COVID-19,” the plaintiffs wrote.
Each of the participating businesses attached its own safety plan to the filing.
In a memorandum opposing the suit, DeWine’s lawyers wrote: “Plaintiffs are in the wrong forum. Their attacks are simply partisan, personal opposition to the steps the State of Ohio has taken to protect its citizens from the onslaught of the COVID-19 pandemic.”
The memorandum argues that consumption of alcohol has a direct and negative effect on the likelihood patrons will continue to socially distance and remain mindful of hygiene recommendations.
“The later the hour, the higher level of intoxication of the remaining patrons, with a resulting erosion of inhibitions leading to increased patron-to-patron socializing and conversation,” wrote Ohio Department of Safety Commander Eric Wolf in an affidavit quoted by the defense. “Simply stated, the later in the evening the patrons stay, the more alcohol they consume and the less likely they are to socially distance.”
The memorandum also quotes health experts, including Dr. Anthony Fauci, Dr. Deborah Birx and Dr. Robert Redfield of the Centers for Disease Control and Prevention, who recommended shutting down bars at various points in June and July.