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Don’t look now, but COVID numbers are ticking up again

In the state as a whole.

Texas reported more than 4,100 people hospitalized with the coronavirus on Wednesday, its largest total in six weeks and one that comes amid rising infections in El Paso and North Texas.

Hospitalizations hit a low in late September after a summer surge, but have risen incrementally for the past 10 days, reaching 4,133 on Wednesday. Other key metrics were also up slightly from a week earlier, including the reported rolling average of new daily infections and the number of people testing positive for the virus.

Public health officials said the increase is likely due to a combination of factors, including pandemic fatigue and expanded reopenings, especially bars. Bars were only allowed to begin reopening in select counties on Wednesday, but many have already been opened for weeks after reclassifying as restaurants — a loophole that the state created in hopes it would lead to better social distancing.

[…]

The biggest increases appear to be in West Texas and areas in and around Dallas.

Dallas County Judge Clay Jenkins raised the county’s pandemic risk level back to red on Wednesday, and earlier this week Gov. Greg Abbott sent medical staff and supplies to El Paso to help respond to a wave of new COVID-19 cases.

“With a new and quickly escalating wave of COVID-19 cases hitting North Texas, it is more important than ever that we make good decisions,” Jenkins tweeted.

And here in the Houston area.

Houston-area COVID-19 numbers, trending in a positive direction for the last couple months, have taken a turn for the worse.

Four key coronavirus metrics all show an increase in the past week, according to the Texas Medical Center, which tracks the data for the complex’s seven major hospital systems. Those numbers had started trickling up the previous week in daily reports produced by the center.

The latest numbers from Wednesday’s report:

• The number of COVID-19 cases reported Tuesday, 671, represents a 62 percent increase over last week’s daily average of 412 cases per day.

• The number of COVID-19 patients admitted to TMC hospitals Tuesday, 102, represents an 18 percent increase over last week’s daily average of 86 patients per day.

• The TMC COVID-19 test positivity rate of 3.8 percent represents an 8 percent over last week’s daily average.

• The so-called R(t), or reproduction rate, the rate at which the virus is spreading, hit 1.16 Tuesday, an 18 percent increase in the past week. On Sept. 29, the number was 0.64, which meant the virus’ spread was then decreasing significantly.

The latest metric is probably the most concerning to health officials. A number below 1.0 means the virus is burning out in the area; a number above 1.0 means the spread is accelerating. After 32 consecutive days in which the metric showed the virus was burning out in the Houston area, it now shows the virus is again picking up steam.

And as was the case in the month of June, it’s already too late to stop this. The best we can do now is go back to what we had been doing before to bend the curve back in the downward direction. First and foremost, wear your goddamn masks, and practice social distancing. Don’t be this guy.

As for bars, I want them to survive, and I’ve been up front about the arbitrariness of the state’s definition of what a “bar” is versus what a “restaurant” is. I support the various ways that have been suggested to help bars survive by being more like restaurants, and by enabling to-go and outdoor service. And we really need a federal rescue bill for bars and restaurants and theaters and music halls and other public-gathering businesses that have been so devastated by this pandemic. But we have to be real and recognize that there are no circumstances under which crowding a bunch of people into indoor spaces is a good idea. How many times are we going to have to learn this lesson? The Trib has more.

Abbott to allow bars to reopen

Sort of. It’s kind of the most Abbott thing ever.

Gov. Greg Abbott announced Wednesday that bars in Texas can reopen for in-person service next week — as long as their county governments choose to allow it.

Effective Oct. 14, bars in counties that opt in will be able to resume in-person service at 50% capacity, though all customers must be seated while eating or drinking. The governor will impose no outdoors capacity limits on bars or similar establishments.

“It is time to open them up,” Abbott said in a Facebook video. “If we continue to contain COVID, then these openings, just like other businesses, should be able to expand in the near future.”

But soon after Abbott’s announcement, the state’s two most populous counties indicated they would not go along with the reopening plan. Dallas County Judge Clay Jenkins said on Twitter that he “will not file to open them at this time,” noting that “our numbers are increasing.” Harris County Judge Lina Hidalgo said in a statement that “indoor, maskless gatherings should not be taking place right now, and this applies to bars, as well.”

In addition to bars being allowed to reopen, businesses currently limited to 50% capacity may now expand to 75% capacity — including establishments like movie theaters, bowling alleys, bingo halls and amusement parks.

But Abbott said in his order that bars in regions of the state with high hospitalizations for coronavirus won’t be able to reopen. He defined those regions as areas where coronavirus patients make up more than 15% of hospital capacity.

“It is time to open up more, provided that safe protocols continue to be followed,” Abbott said. “If everyone continues the safe practices, Texas will be able to contain COVID and we will be able to reopen 100%.”

The announcement drew mixed reviews from bar owners. Some applauded the step, while others complained that Abbott left the power in the hands of counties.

“The truth is we remain closed until someone else makes the decision to open us up based on whatever parameters they deem appropriate — data, politics, personal animus, you name it,” said Michael Klein, president of the Texas Bar and Nightclub Alliance. “Abbott has forced 254 other people to make this decision for him with no guideposts as to how to make that decision. He’s officially passed the buck.”

Klein predicted that most urban counties, where the majority of his organization’s members are located, will not reopen.

You can add Bexar County to that “no bars yet” list as well. There’s a very good reason why most counties will likely decline this invitation from Abbott:

You have to admire Abbott’s consistent strategy of making local officials be the ones who have to make the tough decisions – when he lets them – and otherwise grabbing the power and glory for himself. Naturally, Republican-led counties are all over this, so be sure to keep an eye on the infection rates in places like Montgomery over the next month. To be sure, many bars have been able to operate with various workarounds as restaurants. And for things like outdoor service and to-go service, I support all that. It’s not enough for most bars, and the best thing we could have done about that is allocate a bunch of federal money to help them all – bars, breweries, wineries, distilleries, restaurants, music clubs, hotels, you name it – get through this, to the point where the disease is under control and it is safe for everyone to gather again. Abbott and his buddies were never really interested in any of that, though, so here we are. I feel like I’ve said this before, but I sure hope this works out. I don’t expect that it will, but I hope so anyway.

UPDATE: At least initially, only Denton County among the ten most populous counties will go forward with bar reopenings.

Bar owners still mad at Abbott

Can’t blame them, but the situation is complicated.

As Gov. Greg Abbott outlined his latest reopening plan this week, bar owner Greg Barrineau watched in disbelief. Abbott, who announced that Texas restaurants could expand dine-in service to 75% capacity, said bars must remain closed.

“Some bars and their associations have offered some very helpful ideas,” Abbott said of reopening, “and we will continue to work with them on that process.”

But Barrineau, who has laid off his 12 staff members and suffered hundreds of thousands of dollars in losses at Drink Texas, a bar with locations in San Antonio and Boerne, said that assertion of collaboration is “insanity — he doesn’t care about small businesses.”

Michael Klein, the head of Texas Bar and Nightclub Alliance, which represents thousands of bars, said that Abbott’s statement about working together was “incorrect,” carefully choosing his words. The TBNA laid out a six-point plan to reopen in August, but Klein said the governor, whom he referred to strictly as “anti-business Abbott,” has not responded to the plan.

“We’ve never heard back from them,” Klein said. “We believe that he is disingenuous.”

Abbott’s office did not respond to requests for comment.

While restaurant owners applauded Abbott’s move to allow them to increase operations, Klein said Thursday’s ruling was “completely unacceptable” for many bars and other facilities where alcohol sales make up more than half of the revenue. It could leave 30% of Texas bars and 39% of distilleries permanently closed within six months, industry leaders said.

[…]

Spread from conventional bars and nightclubs has been widely documented throughout the U.S., and infectious disease experts caution going inside establishments that don’t follow social distancing protocols.

Kristin Mondy, chief of the infectious disease division in the University of Texas at Austin’s medical school, said there is increased risk in spreading the virus if strangers mingle in a tight, closed space, especially as drinking could cause bar customers to loosen their inhibitions.

Klein said the industry’s plan would reduce those issues by complying with Centers for Disease Control and Prevention requirements.

Some of the requirements in TBNA’s plan include ensuring all patrons are seated at their own tables, barring dance floors and mingling among groups, requiring face masks for all servers and customers when not at their tables, and conducting temperature checks upon entry. Mondy said these procedures could help as long as mask-wearing and social distancing are enforced.

[…]

Cord Switzer, who has helped run Fredericksburg Winery for almost 25 years with his family, said he has been able to technically and legally become a food server — but no one that comes is actually eating the food. That’s not why they go to a winery, he said.

“It makes no sense to me,” Switzer said. “We have never been interested in being in the food service business. We have no intent of doing that in the future, but it was our only choice.”

Switzer started wine tastings on Saturday for the first time in two months and hopes to begin recouping his losses after making 30% of last year’s revenue. But he doesn’t understand the governor’s categorization, and industry advocates share Switzer’s confusion.

“Texas winery owners continue to be perplexed by Governor Abbott’s steadfast refusal to recognize that the lion’s share of Texas alcohol manufacturer’s tasting rooms have little, if anything, in common with bars and nightclubs,” said Patrick Whitehead, the president of the Texas Wine and Grape Growers Association, in an email. “Governor Abbott’s arbitrary, and frankly unfair, act of lumping our tasting rooms into the category of bars is like a surgeon operating with a chainsaw rather [than] a scalpel.”

Switzer’s money troubles are not unique; nearly half of distilleries surveyed by the Texas Whiskey Association have experienced revenue losses greater than 60%. Spence Whelan, the head of the association, which represents distilleries across Texas, said continued restrictions could be disastrous for the industry, which normally relies on a big fourth quarter in holiday sales to stay afloat. This fall, with little or no visitors, that could be wiped out. Under Texas law, whiskey distilleries cannot ship or deliver whiskey directly to customers, nor can they sell more than two bottles of whiskey per person.

At the very least, Whelan said, those rules should be relaxed. Many places don’t want to open yet anyway, and there are other ways to bring in money. He said the industry has sent more than 15,000 letters to the governor’s office asking to waive those restrictions and has received no response.

Let’s acknowledge that bars are a high-risk environment for COVID-19, and the reopening of bars in May was a significant contributor to the subsequent outbreaks that swept the state in June and July. We should also acknowledge that there’s evidence that the reopening of restaurants, even at lower capacities, is also a risk factor in spreading COVID-19. The bar owners’ complaint – and wineries’, and distilleries’, and craft breweries’ – is that Abbott has been particularly rigid about how these risks are categorized, and has been unresponsive to any input that would allow these entities to operate in a lower-risk fashion.

I have a lot of sympathy for these complaints. Some bars have been able to reopen by creative interpretation of the 51% rule, by incorporating to-go service, and by a recent rule change that lets them have food trucks on their premises. But this doesn’t work for every bar, it imposes extra costs on them, and it doesn’t change the fundamental nature of their business. The only good thing that may come out of it is the expanded allowance for to-go service, and maybe if we’re very lucky a broader rethinking of our antiquated regulatory scheme for alcohol. I don’t know how effective the risk-mitigation strategies that have been proposed by the various industry groups would be, but we could study them and try the ones that comply with known best practices. We could surely let the places that have ample outdoor space like wineries and craft breweries with beer gardens take advantage of those spaces (to some extent we already are permitting this), and we could make allowances for those that have large and well-ventilated indoor spaces where social distancing would work. And, you know, Abbott and Dan Patrick could put a little pressure on the two Republican Senators to support a relief bill in Congress that included funds for bars and other places that rely heavily on alcohol sales (such as music halls) that just can’t be allowed to reopen right now. Abbott has done none of this, and as noted in the story has been repeatedly unwilling to engage in any discussion about it.

So this is both a legitimate set of concerns by members of a significant sector of the Texas economy, and a real opportunity for Democrats going forward. Dems don’t need to pander or reverse course on their properly-held principles about minimizing COVID risk. They just need to be willing to consider the various risk-mitigation strategies that have been proposed, and to continue to push for a response from Congress that truly addresses the broad economic pain that much of the country is still experiencing. Good policy is so often good politics, and the opportunity to do both here is enormous.

From the “Those who forget the past are condemned to repeat it” department

Who’s ready to re-reopen Texas?

Gov. Greg Abbott signaled he may be preparing to roll back some emergency restrictions put in place this summer at the height of the state’s coronavirus surge.

Responding to concerns from the battered restaurant industry, the governor tweeted Monday night that new infections and hospitalizations from COVID-19 are receding, and added, “I hope to provide updates next week about next steps.”

“Since my last orders in July, COVID numbers have declined—most importantly hospitalizations,” said Abbott, a Republican.

The governor gave no indication about what steps he might take, and a spokesman did not respond to questions. Abbott has previously said he would consider allowing bars to reopen and restaurants to open further if positive trends continue.

Statewide, new daily infections and hospitalizations are declining, though they remain well above where where they were when Abbott began reopening the state in May — hospitalizations are now double, and average new daily infections are four times as high. It’s also unclear whether the rate of people testing positive, a key metric, is anywhere near where public health experts recommend before opening more businesses and allowing children back into schools.

What could possibly go wrong? See here for a statement from Mayor Turner, who unsurprisingly urges caution. You should also read this Politico profile of County Judge Lina Hidalgo, which I will blog about separately, and remember that at every step of the way in this crisis, Lina Hidalgo has been right and Greg Abbott has been wrong.

Food trucks and bars

I approve of this.

The Texas Alcoholic Beverage Commission approved rules Tuesday intended to make it easier for bars to legally operate as restaurants during the COVID-19 pandemic.

The state agency greatly expanded rules that had already offered a limited lifeline for some bars to temporarily reclassify themselves and generate a sliver of sales during the coronavirus crisis. The goal is to provide more ways for businesses to qualify as restaurants under Gov. Greg Abbott’s executive order GA-28, which prohibits bars from reopening but allows restaurants to remain open at 50% capacity.

TABC’s amendments to Rule 33.5, which deals with food and beverage certificates, go into effect immediately.

The amended rules mean that bars can now reopen whether or not they have commercial-grade kitchens. Off-site food will also be allowed to be sold at the bars. This would include packaged items.

Additionally, bars will be able to more easily partner with food trucks. Sales from these food orders will be able to count toward the TABC’s rule that alcohol must account for less than 51% of the establishment’s gross revenue in order for it to open as a restaurant.

As we have discussed before, the 51% rule is more than a little arbitrary, and bars have deserved more flexibility to operate. I don’t want to downplay the risks here – you are still much better off avoiding indoor spaces and taking any food or drink to go if there isn’t an outdoor seating arrangement. If they comply with the limited capacity rules that apply to restaurants, then I favor approaches like this that let more bars be classified as restaurants, because they need the help. In the absence of federal help, this is the best we can do at this time. (To be fair, not all bar owners agree with this approach. A more serious review of the TABC’s 51% formula is still needed.) Reform Austin, the Dallas Observer, and the Current have more.

There’s a lot of COVID litigation out there

Texas Lawyer surveys the landscape.

The COVID-19 pandemic has created a growing subset of new business litigation in Texas: companies suing the government over shutdown orders or definitions of essential versus nonessential businesses.

One of the latest examples to make headlines was a large group of bar owners who sued Texas Gov. Greg Abbott over his order that closed bars again because of the rising infection rate in the Lone Star State.

But Texas Lawyer’s research revealed that the bar litigation was at least the 15th similar lawsuit filed in the state since the onset of the pandemic in early March. It’s likely that there are even more cases filed in small or mid-sized cities in Texas.

One of the most interesting legal claims raised by this type of litigation is whether the governor has exceeded his authority under the Texas Disaster Act to suspend laws in the state, said Brad Nitschke, partner in Jackson Walker in Dallas, who has been tracking COVID-19 litigation.

“The executive is given a large toolbox to respond to emergency situations. To some extent, at least, it sort of has to be that way,” Nitschke said. “I think we are more accustomed in Texas to what that looks like for a hurricane or tornado, or a catastrophic drought.”

Using the same statute to respond to a pandemic is sort of like trying to put a square peg into a round hole, he added.

“It’s clear the governor has significant authority to act in the case of a disaster,” Nitschke said. “I think the unique circumstance of a pandemic like this one is going to give courts a chance to figure out what the outer limits of that authority may be.”

[…]

It will be tough for plaintiffs to win these sorts of cases, said Christy Drake-Adams, assistant general counsel of the Texas City Attorneys Association and the Texas Municipal League.

Drake-Adams noted that the league’s insurance risk pool has seen eight similar lawsuits against small and mid-sized Texas cities, which generally argue about the definition of essential versus nonessential businesses.

“They think they should have been allowed to continue operating, because they were an essential business,” explained Drake-Adams.

She said that government defendants who are fighting these types of lawsuits have a strong defense: That governmental immunity protects them from the claims.

“To the extent that plaintiffs are throwing in constitutional claims, I would say it’s pretty clear that the government has broad authority to act to protect the public health and to regulate in times of emergency, and that authority is expressly provided in law. It’s not clear that anyone’s constitutional rights have been violated as a result of those regulations,” Drake-Adams said.

There was a quote in there from Jared Woodfill about why the plaintiffs are right, but 1) screw that guy, and 2) we’ve heard from him plenty in the stories about each individual lawsuit he’s filed. This was the first time I’d seen an analysis from someone not connected to any of the lawsuits, though since cities or counties are the defendants in some of them, the perspective given here isn’t fully objective, either. Texas Lawyer reviewed the Hunton Andrews Kurth COVID-19 Complaint Tracker for the basis of this story; you can see media coverage of that tracker here. About half of the lawsuits involve the state (two), a state agency (one), or local governments (five), the rest are between private entities. I feel like it will be multiple years before there’s little to no litigation of interest of this nature to continue tracking.

Ellis and Crownover on the smoking ban

State Sen. Rodney Ellis and State Rep. Myra Crownover have an op-ed arguing in favor of the statewide smoking ban legislation they’re sponsoring. I don’t know how persuasive their case may be to anyone who isn’t already in favor of it – I get the impression this is more a matter of faith these days than anything else – but there you have it in case you were curious. What I’m curious about is how much actual effect this legislation will have. Maybe it’s just my urban elitism speaking, but it strikes me that with the extension of Houston’s ban, I can’t remember the last time I encountered a lit cigarette inside a public building. Maybe if I visited a bar in unincorporated Harris County I would, but as far as my normal habits go, it’s just not an issue for me.

So help me out here: Where, if at all, do you encounter smokers? I’m only talking about places that would be affected by this proposal, which includes bars, restaurants and all indoor public places across Texas, including offices, convention centers and bus stations. It would also ban smoking in the bleachers of outdoor sporting or music events, and anywhere within 15 feet of a doorway to a public building. Putting it that way, the latter is probably where I’m most likely to run into smokers, though not at my own office building – they’re restricted to a rooftop area near the cafeteria, which I can easily avoid. What about you? Leave a comment and let me know.

One thing from the op-ed:

As Lance Armstrong recently stated, in 10 years we will look back at this debate and wonder, “What were we debating, and why did it take Texas so long?”

I have to say I agree with this. When I came to Houston in 1988, smoke was everywhere – restaurants, hotel lobbies, office buildings (at my first job, my smoking coworkers lit up in the building’s atrium; the place had a permanent haze), you name it. Now, it’s all gone, and it’s totally normal this way. I fully expect that this will be one of those stories I’ll some day tell my kids about how things used to be that will make them roll their eyes in disbelief.