Bar owners sue Indianapolis over ‘arbitrary and unreasonable’ pandemic rules

The owners of 20 Marion County bars and nightclubs are suing Indianapolis, Mayor Joe Hogsett, and the Marion County Public Health Department and its director, Dr. Virginia Caine, over COVID-19 pandemic restrictions that they say violate their constitutional rights.

The 42-page complaint, filed Tuesday, takes issue with Marion County’s pandemic public health order because it includes tougher restrictions on bars and nightclubs in Marion County than those in the rest of the state. Among those disparities are rules regarding capacity limits, bar seating, treatment of adults-only establishments, live entertainment and dancing, and hours of business.

The owners say those tougher restrictions — which they label “arbitrary and unreasonable” — violate their constitutional rights of equal protection “by singling out their businesses to bear the brunt of months-long business closures and overstrict capacity requirements.”

The complaint was filed by the owners of Tiki Bob’s Cantina, Invy Nightclub, Coaches Tavern, Courtside Convenience, Joe’s Grill Castleton, The Whistle Stop Inn, That Place Bar & Grill, Taps and Dolls, After 6 Lounge, Jokers Comedy Club, 247 Sky Bar, Whiskey Business Southport and Whiskey Business Lawrence, Average Joe Sport’s Pub, Rock Lobster, Mineshaft Saloon, Basey’s Downtown, The Red Room, Mickie’s Pub and Sports Page Lounge.

In a statement, the owners said they “banded together to fight for their survival against stringent and inflexible business restrictions that have led to millions of dollars in losses over a period of just a few months. … Forced business closures by the city, and then later, severe business restrictions more stringent than those put in place by the governor in his Back on Track Indiana plan, have put each of these owners and their families on the brink of financial ruin.”

The owners say the county’s tougher restrictions have caused them lose significant revenue, lay off employees, incur significant debt and put them in eminent danger of permanently closing.

They say those restrictions have been left in place even though deaths caused by COVID-19 in Marion County have decreased since spring and industries and schools have reopened.

The plaintiffs, represented by Richard Bucheri of Poynter & Bucheri LLC, seek declaratory relief, injunctive relief and damages.

They want the court to find the orders unlawful and to strike them down.

Bars and nightclubs in Marion County were allowed to reopen June 19 after being closed for three months due to the pandemic, but they were forced to close a month later, on July 24, when the county health department issued a new public health order that shut down bars and nightclubs and ordered restaurants to close from midnight to 5 a.m.

At the time, Marion County was experiencing a surge in the number of people under 40 who were testing positive for the coronavirus.

The lawsuit states that bar and nightclub owners were caught off guard by the reclosing order and were given no timeline for when they would be allowed to reopen.

On Sept. 8, Caine issued a new public health order that allowed bars and night clubs to open at 25% capacity indoor seating and 50% capacity outdoors. But the public health order, which is still in effect, kept bartop seating closed and prohibited dancing and live entertainment. Restaurants are still required to close between midnight and 5 a.m.

The orders have been stricter than the state’s, which currently allow restaurants and bars with dining service to operate at 75% capacity and bars and nightclubs to operate at 50% capacity.

The lawsuit argues that the county health department order gives no medical or scientific justification for why Marion County should be treated differently than the rest of the state or why bars are treated differently than other businesses.

The lawsuit said the county doesn’t provide a process for businesses to seek an amendment, variance or waiver to the order.

The plaintiffs say state law doesn’t give local health officers the authority to regulate or close businesses indefinitely; that Indianapolis bars and restaurants have paid food and beverage taxes that have financed the building and expansion of massive city projects; and that there has been no “meaningful dialogue or support” from the defendants to mitigate the severe financial consequences caused by the public health order.

In the lawsuit, the plaintiffs give estimates on how much the restrictions have cost them. Tiki Bob’s Cantina, for example, says it has lost more than $1.5 million in irreplaceable revenue and has exhausted all money it received from the Paycheck Protection Program. Invy Nightclub reported the same revenue losses.

Coaches Tavern said it has lost $500,000 in revenue since March.

Mark Bode, a spokesman for the mayor, said the city does not comment on pending litigation, but added that Hogsett “fully supports the Marion County Public Health Department’s leadership and ongoing health orders, which have slowed the spread of the virus in our city and continue to save lives.”

A spokesman for the health department did not immediately respond to IBJ’s request for comment.

Caine has previously said that bars and nightclubs need more restrictions because they attract large groups of young people who closely mingle, and virus transmission has been shown to increase when groups congregate indoors.