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Judge Blocks Evers Administration’s Order Limiting Bar Capacity, Gatherings

Ruling Comes Day After State Broke New Record Highs In Daily Cases And Deaths

a bar tender in a mask puts a beer on the table for a customer
Customer Sarah Seefeldt, left, orders a beer at Izzy Hops Swig & Nosh in Milwaukee on Wednesday, Oct. 14, 2020. Angela Major/WPR

A Sawyer County judge has temporarily blocked an order from the Evers administration limiting public gatherings and capacity in bars and restaurants during the COVID-19 pandemic.

The Tavern League of Wisconsin filed the lawsuit challenging the governor’s order Tuesday.

Judge John Yackel sided with the Tavern League, blocking the emergency health order Wednesday morning and setting a court date for Monday.

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The order, which went into effect Thursday, requires bars and restaurants across the state to limit capacity to 25 percent until Nov. 6.

The Tavern League argued the order amounted to “de facto closure.” Its lawsuit argues the court should throw out the Evers administration’s latest emergency order because it wasn’t created through the emergency rulemaking process, a process requiring state lawmakers to approve any restrictions on people and businesses during the pandemic. Using the process would essentially give the GOP-controlled Legislature veto power over any restrictions.

The Evers administration has argued its powers to act unilaterally to respond to the COVID-19 pandemic haven’t expired, because status of the pandemic has changed drastically in Wisconsin. Gov. Tony Evers has issued three states of the emergency responding to the pandemic in Wisconsin since March, which can last for a maximum of 60 days.

Bean Prettie, the general manager of Anchor Bar and Grill in Superior, hadn’t heard of the ruling when reached Wednesday morning, but she said the 25 percent capacity limit would’ve led to some businesses closing entirely.

“I was stopped at a store yesterday because they could only have 12 people in there,” Prettie said. “How is a business going to survive on that?”

Anchor Bar and Grill has reduced its capacity to 25 percent to comply with the order, Prettie said.

She said she’d have to consult with the owner of Anchor Bar and Grill about whether to increase capacity now that restrictions have been lifted, but said she didn’t imagine filling more than the 35 tables they have set out already. The restaurant has a capacity limit of about 125, Prettie said.

Michael Vitucci is the owner of Bar Management Group, which owns multiple bars in Milwaukee, including Izzy Hops Swig and Nosh, and Murphy’s Irish Pub. Vitucci said he hopes bars and restaurants continue to follow health and safety measures like social distancing. But Vitucci also said he thinks the ruling Wednesday will keep some bars and restaurants open.

“I think it’s definitely going to keep them afloat,” he said. “It’s hard enough trying to make ends meet at 50 percent (capacity). When you go down to 25 (percent capacity), that is extreme hardship — more extreme now that they’ve been suffering for the last, God knows, six to nine months.”

Vitucci said he plans to continue to follow the restrictions laid out under Milwaukee’s local public health order, so the ruling from the judge Wednesday doesn’t change much for his bars.

Last Wednesday, the Milwaukee Health Department announced it would continue to enforce its local restrictions after determining they were more restrictive than the state’s, despite allowing a higher number of customers in some cases. Milwaukee’s restrictions also include an 80-point COVID-19 checklist. Madison also announced a similar move.

Another emergency order from the governor’s administration extending the statewide mask mandate is also facing a legal challenge.

The ruling Wednesday comes as the state continues to set records for confirmed cases of COVID-19, deaths and hospitalizations. It also comes a day after the state broke two records for new daily cases reached and deaths reported. Thirty-four deaths were reported and 3,279 new cases.