MADISON – Gov. Tony Evers took action Tuesday to limit indoor gatherings including in bars and restaurants as coronavirus cases surge in the state and despite repeated legal challenges from Republicans to such measures.
The move by his administration to cap businesses at 25% of capacity starting Thursday comes as Wisconsin suffers from some of the worst COVID-19 outbreaks in the country and as the presidential campaign moves into its final phase.
“There’s no other way to put it, we are overwhelmed,” Evers told reporters in a media briefing on Tuesday.
The new restrictions come after the coronavirus pandemic has already clobbered the service industry after Evers barred indoor dining for two months earlier this year and as health risks keep customers away.
“This could be the final dagger for the restaurant industry,” said Bobby Wiltgen, who operates three downtown Milwaukee restaurants and taverns: Who’s On Third, Oak Barrel Public House and Third Street Tavern.
Wiltgen said bars and restaurants need more support, including a proposed extension of a Milwaukee program that allows outdoor dining in city streets beyond the Nov. 15 expiration date.
Health Services Secretary Andrea Palm, who issued the order at the direction of Evers, said Wisconsin’s surge in cases is in part because of gatherings at bars and restaurants where patrons remove masks to dine and drink.
“You increase the risk for the people around you in that establishment,” Palm said about customers removing masks. “They are absolutely places we are seeing spread and we need to make the choice to reduce our time outside of the house.”
The limits do not apply to campaign events, schools, or churches.
The order puts back in place some restrictions the state hasn’t seen since May, when the state Supreme Court agreed with Republican lawmakers and threw out the administration’s stay-at-home order.
Her new order is likely to get caught up in court as well.
“Do I expect there to be litigation on this? Absolutely,” said Ryan Nilsestuen, Evers’ top attorney.
Nilsestuen said the administration believes the order is lawful because the new order sets restrictions allowed under a different portion of state law than the May state Supreme Court ruling addressed.
Already there is a lawsuit over the extent of the Democratic governor’s powers to deal with health emergencies. That lawsuit, backed by Republican lawmakers, could result in tossing out a mask order Evers issued this summer.
A judge is expected to rule any day in that case. Senate Majority Leader Scott Fitzgerald, R-Juneau, this week said Republicans who control the Legislature don’t have a plan to address COVID-19 but would work on one if the case goes their way.
Neither Fitzgerald nor Assembly Speaker Robin Vos commented Tuesday on Evers’ new order.
Cases in Wisconsin have more than doubled over about a month, with outbreaks spreading to college campuses, the Fox Valley and rural areas. In the Fox Valley and northern regions of the state, hospitalizations quadrupled in that time.
In the order, Palm wrote that the limits were needed because of the rapid increase in hospitalizations.
‘We’re in a crisis right now’
The state reported 2,020 cases and 18 deaths on Tuesday. Nearly 1,400 people have died in Wisconsin since the pandemic began.
Track COVID-19 in Wisconsin: See the latest numbers and trends
“We’re in a crisis right now and need to immediately change our behavior to save lives,” Evers said in a statement. “We are continuing to experience a surge in cases and many of our hospitals are overwhelmed, and I believe limiting indoor public gatherings will help slow the spread of this virus.
“The sooner we get control of this virus, the sooner our economy, communities, and state can bounce back.”
The order requires public gatherings to be limited to no more than 25% of a room or building’s total capacity. It applies to gatherings at locations that are open to the public, including bars, restaurants, stores and spaces with ticketed events — but not campaign rallies.
Wiltgen said Milwaukee restaurants have worked with the city Health Department to create individual safety plans.
“It is impossible to maintain overhead costs and staffing payroll at a 25% capacity,” Wiltgen said.
The order also does not apply to child care centers, schools, health care facilities and hospitals, public infrastructure operations like airports and food production facilities, state and local government facilities, polling locations and churches.
It also does not apply to private residences, offices, manufacturing plants and other facilities only accessible to employees or authorized personnel. Invitation-only events that exclude uninvited guests also are not covered by the order.
Crowds at non-religious weddings and funerals or receptions that are indoor and open to the public would be limited under the order. But it does not apply to private or religious weddings and funerals.
Under the order, President Donald Trump could still hold massive rallies. Trump, a Republican who narrowly won Wisconsin in 2016, was to make two stops in the state last weekend but canceled the trip after he was diagnosed with COVID-19.
Democratic nominee Joe Biden has held far smaller campaign events. At his Wisconsin stops, only a small number of supporters have been allowed inside as he has sought to limit the spread of the illness.
Limits in place until Nov. 6
The limits are set to last until Nov. 6, three days after the election. The Evers administration could shorten or extend that deadline, depending on the progress of the illness.
The administration set the time frame for the order to cover at least two 14-day incubation periods. Health experts encourage anyone who has been exposed to COVID-19 to quarantine for 14 days from the date of exposure because it can take two weeks for symptoms to appear after someone becomes infected with the virus.
The May ruling from the state Supreme Court limited Evers’ ability to fight COVID-19, but Nilsestuen said he believed it still provided the administration with a way to put in its capacity limits.
The court ruled 4-3 in that case, but since then the makeup of the court has changed. Liberal Justice Jill Karofsky in August replaced conservative Justice Daniel Kelly, who had ruled against the stay-at-home order.
Conservative Justice Brian Hagedorn sided with liberals in the earlier case. With a new liberal on the court, the Evers administration may have a better chance in a new legal challenge.
A decision is expected soon in the lawsuit over the mask requirement. Any ruling is expected to be appealed.
Nilsestuen said he views that lawsuit as dealing with a separate issue than any challenge that might come to the capacity limits. The mask case addresses Evers’ powers while the capacity limits were made under the powers of his Department of Health Services, he said.
The lawsuit over masks was brought by state residents represented by the conservative Wisconsin Institute for Law & Liberty. Republican lawmakers filed a brief supporting it and a St. Croix County judge is likely to rule any day.
Tom Daykin of the Milwaukee Journal Sentinel contributed to this report.
Contact Patrick Marley at firstname.lastname@example.org. Follow him on Twitter at @patrickdmarley.