Gov. Tony Evers’ order limiting gatherings, bar capacity is back in place after judge’s ruling

MADISON – A Barron County judge has revived Gov. Tony Evers’ order limiting public gatherings, including the number of customers who may visit bars and restaurants at one time. 

Judge James Babler denied a motion from the Tavern League of Wisconsin and two bars to continue to block the Evers administration’s latest health emergency order after a ruling last week by a Sawyer County judge that prevented enforcement of the order temporarily

Babler, who was appointed by former Democratic Gov. Jim Doyle, said the plaintiffs could not show they were complying with the order and therefore hadn’t proven they were harmed by it.

He also said the May state Supreme Court ruling that knocked down Evers’ stay-at-home order did not make clear what authority the administration has in placing such limits, despite the plaintiffs arguing the decision prevents Evers from issuing the latest order. 

“I beg the Supreme Court for clarity because should this issue be decided by them, trial judges need to know how they need to rule,” Babler said. “There’s no showing of irreparable harm. … I merely have the theoretical issue that if they were to comply, they would suffer harm.”

The Tavern League contended in the lawsuit that the May ruling that struck down much of Evers’ stay-at-home order requires such policies to be made by the rules process, which gives veto power to a Republican-controlled legislative committee. 

Scott Stenger, a lobbyist for the Tavern League, said the group would not be appealing the decision but pleaded with state and federal officials to help the industry. 

“I don’t think that’s a viable solution,” Stenger said of appealing. “Instead we’ll continue to work. Maybe somebody now will listen to the fact that this isn’t a joke anymore. We’re going out of business. We need help. We shouldn’t be the enemy in this.”

Evers in a statement said, “This critically important ruling will help us prevent the spread of this virus by restoring limits on public gatherings.”

“This crisis is urgent. Wisconsinites, stay home,” he said. 

Stenger said the group wants to work with the Evers administration on what role bars can play in the state’s response to the virus but no one has reached out to them.

“We didn’t read about this order until we got a press release,” he said.

Stenger said his members would gladly stay closed if the state or federal government would provide subsidies to compensate for the lack of paychecks.

“We are a backseat to the health emergency that’s here, we understand that … but for god’s sake do something,” Stenger said. “There are things you can do that at least say, ‘Hey, we hear you. We are going to do what we can to help.’ Instead, we’ve been made out to be the bad guys.”

Many bars and restaurants were eligible earlier this year to apply for grants through the Wisconsin Economic Development Corp. funded by the federal relief package known as the CARES Act. 

The grants, announced by Evers in May, were available to businesses with 20 or fewer employees that were affected by the pandemic and have not already received assistance from the economic development corporation. As many as 30,000 businesses were eligible. 

Since then, state lawmakers and Congress have not passed new relief legislation. There are no plans on the part of state lawmakers to meet again to provide more relief for the state, which could include a funding package for businesses that are losing revenue.

Congress also remains stalled on a new relief package. 

Stenger said making changes to state law that don’t require funding, like allowing bars to provide alcoholic drinks to go, would help the industry, too. There is currently no proposal from lawmakers or Evers to make that change, though.

“You can’t just say, ‘Close your business for eight months,'” he said. “Many of those people saying that haven’t missed a paycheck.”

The Tavern League’s lawsuit was filed at a time when Wisconsin is posting daily records in new infections.

More than 34,000 people are infected with COVID-19 right now and 1,600 people have died since April. Overall, about 174,000 people have been infected since the pandemic hit Wisconsin in February. 

Evers said the new limits were crucial in reducing the spread of the virus, which Health Services Secretary Andrea Palm says can be exacerbated in environments like bars where people are talking closely without masks. 

Track COVID-19 in Wisconsin: See the latest numbers and trends

Misha Tseytlin, an attorney for an Amery bar in the lawsuit and former solicitor general under former GOP Attorney General Brad Schimel, indicated the bar he represents in the suit likely would appeal the decision quickly. 

Babler took over the case after both parties asked for new judges. 

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Contact Molly Beck at molly.beck@jrn.com. Follow her on Twitter at @MollyBeck.