Some Northwest Arkansas bar owners are part of a lawsuit being filed in Pulaski County against Gov. Asa Hutchinson, the Alcohol Beverage Control Commission and the Arkansas Department of Health in an effort to overturn a statewide COVID-19 mandate requiring bars to close at 11 p.m.
Business owners in the food and hospitality industry have experienced severe economic strain during the pandemic. Hutchinson ordered all restaurant dining rooms and bars to shut down in late March to curb the spread of COVID-19. After two months of being shut down, Arkansas bars and restaurants were permitted to reopen at limited capacity in late May.
With an 11 p.m. curfew as of Nov. 20, bar owners now face losing crucial business hours due to the night-life culture that surrounds the bar industry.
Aaron Schauer, owner of The Piano Bar on Dickson Street, said that while having to file a lawsuit is not the ideal outcome, he said he thinks it is necessary to protect his business and employees. Since the curfew was enacted, Schauer has witnessed a 50% decrease in sales, forcing him to further reduce his staff to account for the lost revenue.
“I’m not seeking monetary reimbursement or anything like that,” Schauer said. “What I am seeking is for my right to be open, for this curfew to be lifted and for us not to be fined because of the actions of our patrons.”
The limited serving capacity has hindered business owners’ efforts to make up for the lost revenue, with 79% of restaurant owners nationwide reporting lower sales in October 2020 compared to October 2019. Roughly 75% of operators from the survey expect sales to further decrease in the coming months, according to the National Restaurant Association.
Alcoholic Beverage Control agents visit bars frequently to ensure patrons are wearing masks and social distancing, Schauer said. Business owners found to not be enforcing these guidelines may receive a $100 to $500 citation and/or face up to one month in prison.
Gov. Hutchinson accepted the Winter COVID Task Force’s recommendation of the 11 p.m. curfew in November to counteract the continual rise in COVID-19 positivity rates across the state. The positive test rate was 9.01% as of Nov. 19 and reached 11.95% Tuesday, according to the Mayo Clinic.
“(The mandate was enacted) in an effort to reduce the spread of the virus as a result of prolonged social interaction in group settings. This is a balanced approach that is limited and targeted as we work to reduce new COVID cases in our state,” Hutchinson said in a statement released Nov. 19.
The mandate was originally set to expire Jan. 3 but has since been extended to Feb. 3.
The extension was a huge disappointment to bar owners, said Bo Counts, the owner of Pinpoint Fayetteville. Pinpoint was one of the first bars to voluntarily close in March before the mandate was enacted and remained completely closed until mid-August. Counts needed time to reinvent the way he served customers in order to follow ADH guidelines, he said.
Counts transitioned his business to a restaurant-style service since patrons could no longer approach the bar to order a drink. During October, Counts converted Pinpoint into a pop-up bar called Nightmare on Block Street to provide his guests with a socially distanced way to celebrate Halloween.
Having previously gone almost six months with no revenue, the curfew has been a further blow to him and his business, Counts said.
The directive specifically targets restaurants and bars licensed to sell alcoholic beverages. No major stimulus has been distributed to these businesses since the Coronavirus Aid, Relief, and Economic Security Act was passed in March. The Act provided critical financing to small businesses adversely affected by the pandemic.
“It’s so unfair to give very targeted and specific restrictions without giving very targeted and specific relief,” Counts said.
It is frustrating to Counts that policymakers set rules for bar owners when most are not working first-hand in the industry and do not experience the full repercussions of these policies, he said.
The lawsuit cites a graph published Nov. 19 by the ADH tracing active cases in Arkansas to associated activities. The data shows public schools were associated with 2,559 active cases, retail stores with 1,845 and restaurants with 610. Bars were associated with the lowest number of active cases, totaling 37.
Schauer said he thinks policymakers did not fairly consider the data before enacting the mandate, which suggests public schools account for a substantial fraction of COVID-19 spread, and bars account for a small portion of the spread.
“However, it’s my business that is in trouble and my employees' livelihoods that are in peril,” Schauer said. “That’s why we unfortunately have to move forward with the lawsuit, because it doesn’t seem that the state is willing to act with reason.”
Counts worries that if the mandate is not lifted soon, Fayetteville bars will be forced to close for good, he said. This could result in decreased tourism in Northwest Arkansas as the area’s entertainment and hospitality industries continue to battle the effects of the pandemic.
“I don’t think Fayetteville is really thinking about the ramifications of this industry disappearing,” he said. “It’s going to make Fayetteville a lot less of an attractive place to visit or to live.”