A federal judge may rule Friday on whether bars on Oahu can reopen after they have been closed all but a few weeks since COVID-19 hit Hawaii in March.
Judge Leslie Kobayashi is scheduled to rule after arguments at a hearing Wednesday requesting an injunction against emergency executive orders that shut down bars. According to claims by the plaintiffs, the closings violated their civil rights.
Among the complaints are discrimination, because some establishments are still allowed to serve alcohol; and lack of due process, because those not allowed have not been clearly told why, or given a chance to comply to COVID-19 rules.
“It’s been nine months, and until this very moment (the bar owners) had not been given an opportunity to speak, to be heard,” said James DiPasquale, attorney for the plaintiffs, at Wednesday’s hearing.
The injunction filing is in conjunction with a class action suit filed in October asking for $50 million in damages, with the state of Hawaii, the City and County of Honolulu, Gov. David Ige, Mayor Kirk Caldwell and state Attorney General Clare E. Connors as defendants.
While the bars have been closed, they have still had to pay for liquor license renewals, rent and other expenses, without being allowed to generate revenue, said Bill Comerford, owner of four of the five businesses listed on the suit. Comerford is also chairman of the Hawaii Bar Owners Association.
“They’ve put us into a debt generator,” Comerford said.
Lawyers for the state and the city and county of Honolulu said the bars are closed for public safety reasons caused by the pandemic.
“You have to make some macro decisions,” said city attorney Robert Kohn, of Caldwell’s emergency orders.
“We take no pleasure in this,” said David Day, representing the state. “Police powers can be used to protect the public.
Kohn and Day said bars are more likely than restaurants to cause a spread of COVID-19. Kohn said “loss of inhibition” happens in bars, and Day said “people get more drunk in bars.”
But that is not always the case and liquor commission rules are not enforced consistently from establishment to establishment, DiPasquale said.
“The mayor’s office turns the other cheek” to some businesses, DiPasquale said.
He used the newly opened Makai Bar and Olive Garden restaurant at Ala Moana Shopping Center as an example. Makai Bar is allowed to serve food from the nearby Olive Garden, and thus operate as a restaurant.
Other venues known more for serving alcohol than food have reinvented themselves. Several night clubs that featured nude dancing, including Femme Nu and Club 939, have refashioned themselves as restaurants by using kitchens at next-door eateries.
“My client (Comerford) attempted to serve food. But they said no, and no reason was given,” DiPasquale said. “It’s ‘Sorry, these businesses are worth saving and these are not.’ There’s no logical connection why some places are allowed to operate and others not.”
“Admittedly, the lines are not very clear,” Kohn said. “The city doesn’t have a million inspectors to go around.”
The suit filed in October pointed out that counties in the state other than Oahu were allowing bars to operate. But now, Maui has closed bars for two weeks as COVID-19 numbers have risen nationwide and the state visitor industry is reopening.
Under Caldwell, the City and County of Honolulu is in a four-tier framework, which allows various types of businesses to open based on declining COVID-19 numbers. The current Tier 2 allows restaurants to operate, but not businesses categorized as bars. Bars can’t open until Tier 4.
Kohn noted that Honolulu will soon have a new mayor, Rick Blangiardi, and it’s possible he has a plan the bar owners would prefer to the status quo.