Bar owners sue to block Utah’s 10 p.m. alcohol curfew

Gov. Gary Herbert plans to meet with a hospitality industry already hurting from COVID-19.

A group of Utah bar and restaurant owners sued Thursday to block the month-old health order that prohibits alcohol service after 10 p.m.

In the 3rd District Court complaint, the bar owners said the ban, intended to help curb the spread of the coronavirus, is an “unreasonable restriction” on their businesses and one that is “causing irreparable and distinct harms” to the establishments and their employees.

Gov. Gary Herbert and Richard Saunders, the interim executive director of the Utah Department of Health, are named as defendants.

It was filed by 10 entities that own and operate bars and restaurants across the state, the suit states, that “are struggling to or who can no longer pay their employees, rent, mortgages, insurance premiums, and are on the verge of losing their businesses as a direct result of this restriction.”

The 10 p.m. alcohol restriction for restaurants and bars was enacted Nov. 10 and was initially supposed to last two weeks. It has been extended indefinitely as COVID-19 cases have surged in the state.

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Last week, more than two dozen bar owners sent a letter to Herbert urging him to remove the ban. As of Wednesday, the group had not received a response from Herbert, Kirk Bengtzen, owner of Twist Bar and Bistro, said Thursday during a “Trib Talk” podcast.

Herbert, however, said a meeting would happen soon.

We have sectors of our economy which are hurting, like our hospitality industry,” he said Thursday during his weekly COVID-19 news conference. “We will be meeting with them shortly to find ways to help them improve their economic outcome.“

State health officials responded to last week’s letter, saying the alcohol curfew was warranted because COVID-19 spreads easily in crowded, indoor environments where people are not wearing masks.

“This is precisely the type of environment that is created late at night in bars, where social distancing becomes nearly impossible,” health officials said in the response. “By stopping alcohol sales at 10 p.m., our intent is to limit these types of large, indoor gatherings where COVID-19 could spread from person to person.”

The owners said in the suit that the state is in a position to help the industry. Utah still has more than $300 million in pandemic funding available through the Coronavirus Aid, Relief, and Economic Security (CARES) Act. If the state doesn’t spend the money before Dec. 31, it must be returned to the federal treasury.

The lawsuit does not seek money, rather just for the mandate to end, Bengtzen said on the podcast. “Just let us be the safe places that the CDC [Centers for Disease Control and Prevention] already approved us to be.”

Twist, Club 90, The Break, Big Willies Lounge, Sun Trapp and Wing Nutz are among the bars and restaurants that joined the suit.

Under federal and state orders, bars and restaurants are allowed to operate if servers wear masks at all times; if patrons wear face coverings when they are not seated or actively eating or drinking; and if there is a 6-foot distance between tables.

The latter requirement has cut seating capacity by more than 50% in some businesses.

The additional burden of a 10 p.m. alcohol service curfew “is simply not required to limit crowds,” the suit argues, “and its effect is to push [an] already struggling restaurant and bar industry to the brink of collapse.”

The Utah Department of Health, according to the suit, also fails to appreciate that bars and restaurants are highly regulated and policed by the Department of Alcoholic Beverage Control.

“In fact, there may be no other service industry in Utah equally capable of enforcing public health restrictions as these highly regulated industries,” the suit states. “In light of the social distancing and mask restrictions that are already being implemented and strictly enforced at these businesses, the 10 p.m. alcohol service curfew is arbitrary, capricious and unduly burdensome.’