Off the Kuff Rotating Header Image

bars

Alcohol to go passes both chambers

Off to get a signature.

The Texas Senate on Wednesday passed a measure to permanently allow Texans to purchase alcohol to-go from restaurants, advancing a shared goal of Gov. Greg Abbott and restaurateurs.

House Bill 1024which cleared the lower chamber last month, would allow beer, wine and mixed drinks to be included in pickup and delivery food orders, securing a revenue stream made available to restaurants in the last year during the pandemic intended to help those businesses when they closed their dining areas.

The Senate approved the legislation, filed by Republican state Rep. Charlie Geren, a restaurant owner in Fort Worth, in a 30-1 vote. The measure now heads to Abbott’s desk.

Abbott signed a waiver in March last year to allow to-go alcohol sales. The waiver was originally to last until May 2020, but it was extended indefinitely. As lawmakers began their work during the current legislative session, expanding Texans’ access to booze picked up bipartisan support.

“Making tools for alcohol-to-go permanent will accelerate the industry’s recovery, supporting thousands of jobs and small businesses along the way,” said state Sen. Kelly Hancock, R-North Richland Hills, laying out the bill Wednesday. “Once this provision was placed in through the pandemic, we saw restaurants that were closed down, open back up.”

See here for the background. Not much to say that I haven’t already said. It’s just nice to see at least one positive bill come out of the dumpster fire that is this session.

Booze to go set to go

Good.

The Texas House has passed legislation that would allow restaurants to sell alcohol to go beyond the coronavirus pandemic.

The chamber signed off on House Bill 1024 to permanently allow beer, wine and mixed drinks to be included in pickup and delivery food orders and secure a revenue stream made available to restaurants in the last year in an effort to help those businesses when they closed their dining areas.

Initial approval of the bill came Wednesday, and a formal approval came a day later by a 144-1 vote. The legislation will now head to the Senate, where a version of the measure must still be approved by a committee before it can be considered by the full chamber.

Gov. Greg Abbott originally signed a waiver last March to allow to-go alcohol sales. The waiver was originally to last until last May, but it was extended indefinitely. As lawmakers began their work during the current legislative session, expanding Texans’ access to booze picked up rare bipartisan support.

[…]

The new, permanent alcohol-to-go option could benefit the restaurant industry after it has faced an excruciating year during the coronavirus pandemic. According to the Texas Restaurant Association, 700,000 restaurant employees in Texas lost their jobs in the early days of the pandemic, and thousands of Texas restaurants have closed.

“The TRA is thrilled that restaurants are one step closer to offering alcoholic drinks to-go on a permanent basis,” the association said in a statement following the House vote. “Texans overwhelmingly support alcohol to-go, and the entire industry has rallied around the practice to ensure it is implemented safely.”

See here for the previous update. While nothing is ever certain, I expect this to breeze through the Senate, and we already know Greg Abbott supports it. I saw someone say on Twitter that we may not be able to get other things done but at least we’ll have drinks to go. I’m more upbeat about that – I think this will be a needed boon for the restaurants, and anything that brings us a step closer to dismantling the ridiculous tangle of alcohol laws we have in this state is a positive – but I do recognize that this is likely one of the few laws we’re going to get this session that’s actually worth celebrating. May as well enjoy the wins where you can, there ain’t gonna be many of them.

Drinks to go on the legislative menu

Looks likely to succeed.

As the 87th legislature kicks into high gear in Austin tomorrow, a new bill introduced in both the Texas House and Senate is aiming to make to-go alcohol from restaurants and bars permanent.

Venues in Texas have been able to sell beer, wine and liquor with takeout food orders since the beginning of the coronavirus pandemic, when Gov. Greg Abbott signed an emergency waiver in an effort to help the struggling service industry as it navigated shutdowns and other safety regulations.

The governor allowed to-go mixed drinks in June 2020 after bar and restaurant operators lobbied him to ease the restrictions further. Before that, many offered cocktail kits with the liquor in its original package.

Sen. Kelly Hancock and Rep. Charlie Green filed Senate Bill 298 and House Bill 1094, respectively, on Jan. 7. The bills would allow Texans to buy alcohol from licensed venues, via pick-up and delivery, for off-premise consumption.

“Without Governor Abbott’s temporary waiver allowing restaurants to safely sell alcohol with their to-go food orders, Texas would have seen many more restaurants – small and large – close their doors and lose their employees because of this pandemic,” said Emily Williams Knight, president and CEO of the Texas Restaurant Association (TRA), in a statement. “We know the road to recovery will be long, which is precisely why we need tools like alcohol to-go to become permanent.”

Here’s SB298; HB1094 had not been filed as of when I went looking. You know I support this, and from all evidence so does Greg Abbott, which is perhaps a bit more important. There will likely be some concern about the potential for increased drunk driving, but we do have open container laws, and I’m not aware of any increases in DUI since May when the prohibition on drinks to go was first lifted. There’s still plenty of other things we can do to clean up the byzantine system of alcohol regulation in this state, but I’ll take this as a start.

The regional COVID situation

Not great, Bob.

COVID-19 is surging across southeast Texas, especially in the suburban counties outside of Houston, which have seen a steady increase in the number of new cases, data show. Galveston, Chambers, Brazoria, Liberty, and Montgomery counties have all had higher COVID-19 cases per capita than at any point during the pandemic. Chambers County leads the region with 463 virus cases per 10,000 residents, followed by Galveston County with 433 cases per capita, according to data compiled by the Houston Chronicle.

Experts say the latest spike is driven by a combination of factors — public fatigue from basic COVID-19 restrictions such as mask wearing and social distancing, but also more family gatherings in households and larger groups in bars and restaurants. While case counts are consistently much higher than they were in previous weeks and months, they have yet to equal the peak seen during the summer.

Yet the virus’s resurgence in places like Galveston County has put business owners like Railean on edge, owing to an executive order from Gov. Greg Abbott that could trigger new restrictions — including the complete closure of some bars — if regional virus hospitalizations exceed 15 percent of hospitals’ total bed capacity for seven consecutive days. At a time when thousands of restaurants — as many as 10,000 across the state, per the Texas Restaurant Association — have closed due to the COVID-19 pandemic, further closures could be catastrophic for the industry.

“It would be absolutely devastating to lose this holiday season, devastating to our businesses,” said Gina Spagnola, president of the Galveston Chamber of Commerce.

The Texas Department of State Health Services divides each of the state’s 254 counties into 22 “trauma service areas” which coordinate systems of emergency healthcare and preparedness for their respective regions. Galveston, Chambers, Brazoria, and Liberty Counties are part of a nine-county region trauma service area where COVID-19 hospitalizations have spiked significantly since early November. On Saturday, the region’s rate of hospital beds in use by covid-infected patients eclipsed the 15 percent mark for the first time before dipping back down to 13 percent by Tuesday.

After seven consecutive days above that 15 percent mark, per Abbott’s executive order, the state health agency would notify county judges in all nine counties of the following restrictions: hospitals must suspend elective surgeries; businesses including restaurants, retail stores, offices gyms, and museums would be limited to 50 percent capacity; and bars and other establishments with more than 51 percent alcohol sales must close.

I wish the Chron had included the comparable number for Harris County. I tried computing it myself based on the Chron’s coronavirus page and 2019 Census numbers I found on Wikipedia, but I got higher totals for Chambers and Galveston than what the story gives. The Harris County number I calculate by the same method was lower than those two, but I don’t know how to adjust them, so we’ll leave it at that. I could still probably make a moral comparison between Harris’s more strenuous effort to combat the virus and the more lax attitude of some neighbors, but I don’t know what that would accomplish at this point. The bulk of the blame for all this remains with Donald Trump, Greg Abbott, and the Senate for not passing further COVID relief, which among other things might have helped all these businesses to survive without being open. We can’t wind the clock back and make Trump take COVID seriously, but we could still do the stimulus. Greg Abbott could still tell our Senators to demand that the Senate pass something that would help our state and our businesses. I’m going to keep saying that, every time. On so many levels, it didn’t have to be like this.

The bar conundrum

Ugh.

Halloween this year in downtown Austin was a raucous affair. Nightclubs advertised dancing and drink specials. Thousands of people crowded 6th Street, partying shoulder to shoulder, some with masks and some without.

All of this happened as bars in Austin were still under a shutdown order to stop the spread of the coronavirus.

Those bars and nightclubs are some of the more than 2,500 so far that have been permitted to reopen by the state on the promise that in the middle of a pandemic, they’d convert themselves into restaurants.

Shuttering Texas’ nearly 8,000 bars has been one of Gov. Greg Abbott’s most drastic safety restrictions. He most recently allowed bars to open in parts of the state where coronavirus hospitalizations are relatively low, with permission from the local officials.

But in areas where bar bans are still being enforced, many of those businesses are still operating like, well, bars. Just weeks after Halloween, with Thanksgiving on the horizon, frustrated health experts and local officials say the loophole is defeating the purpose of the bar ban and could be one reason the state is battling its largest outbreak in months.

“The restrictions were put in place for a reason,” said Dr. Philip Huang, the director of Dallas Public Health. “And if you get around it, if you’re trying to cheat, then you’re sort of eliminating the reduced transmission that you’re trying to achieve.”

Public health officials and experts have said since this spring that bars pose unique dangers for spreading COVID-19. The Texas Medical Association notes it is one of the worst ways to spread the virus.

“Packed bars, where people are talking very close to each other and they’re shouting, or they’re yelling and people are touching a lot — that’s super high risk,” said Aliza Norwood, a medical expert at the Dell Medical School at the University of Texas at Austin.

If the current trend continues — over 8,300 Texans were hospitalized with confirmed coronavirus infections Monday, up by nearly 900 from last week — “there may be a time in which it is appropriate to shut down bars and restaurants completely,” Norwood said.

Austin health officials agree.

“We are at a precarious spot right now where cases are rising across the country,  cases are rising across Texas,” said Mark Escott, interim Austin-Travis County health authority, before adding, “We really have to find a way to stabilize things to avoid that surge.”

But Abbott, who has concentrated power within himself to take action on COVID-19, said he has no plans to do so. He did not respond to requests for comment.

I’ve been an advocate for taking steps to help bars survive, with the rule interpretation that lets them be classified as restaurants a key component of that. I’ve done this because I want to see these businesses survive and their employees keep their jobs, and I believed it could be done in a reasonably safe fashion, with an emphasis on outdoor and to-go service. That obviously hasn’t worked out so well. The best answer would have been to pay the bars to shut down long enough to get the virus under control. It’s still not too late to do that, but that’s going to require Mitch McConnell’s Senate to take action, and I think we both know that’s not going to happen. One can only wonder what some advocacy from Republicans like Greg Abbott and Ted Cruz and John Cornyn might have accomplished, but that would have required them to take this seriously in the first place. In the meantime, just because these places are open doesn’t mean you have to go to them, or that you have to be inside of them if you still want to support them in some way. Keep yourself safe, at least.

Who’s concerned about the state’s coronavirus spike?

Not Greg Abbott, or Dan Patrick, or Ken Paxton, that’s for sure.

The Oregon governor is calling it a “freeze.” In New Mexico, it’s a “reset.”

Across the country, state elected officials are frantically rolling back their reopening plans to slow the burgeoning surge in coronavirus infections.

But in Texas, Republican leaders remain unwilling to change course in the face of soaring hospitalizations and an early uptick in deaths from the virus that has public health experts increasingly alarmed.

Gov. Greg Abbott has yet to impose new restrictions or allow county officials to take additional measures. Attorney General Ken Paxton has intervened to strike down locally adopted restrictions. Other requests to further limit gatherings, close nonessential businesses or impose stricter mask requirements have been blocked.

On Friday, a state appeals court halted a temporary shutdown of nonessential businesses in El Paso County, where cases have skyrocketed and mobile morgues have been rushed in to handle all the casualties. Paxton and a group of restaurant owners had sued to block the order, claiming the governor has final say on any new restrictions.

“I will not let rogue political subdivisions try to kill small businesses and holiday gatherings through unlawful executive orders,” Paxton said in a statement celebrating the appeals court ruling. On Twitter, he added: “We must never shut Texas down again!!”

[…]

Since September, Abbott has relied on a reopening plan that ratchets up restrictions in regions that have growing numbers of people hospitalized with COVID-19; the threshold is now seven continuous days of coronavirus patients filling at least 15 percent of all available beds in that area.

Few if any other states are using a similar threshold, and public health experts have long cautioned against relying on hospitalizations alone because they provide a delayed glimpse into the state of an outbreak — it takes someone several days to be hospitalized after they contract COVID.

Rebecca Fischer, assistant professor of epidemiology and biostatistics at Texas A&M, said it’s important to consider multiple factors, including the rate at which people are testing positive for the virus, emergency room visits and infections at nursing and other long-term care facilities. And she said local governments need decision-making power to best respond to their situations, which may differ even within a given region.

“When I see county judges that are trying so hard to work toward the public health of their constituents and then are just cut off and told no, it kills me,” Fischer said. “Everybody in the public health realm is left scratching their head as to why that would be the case.”

Let’s be clear:

1. They don’t care. Abbott doesn’t want to talk about coronavirus. Paxton will sue any local official who tries to take action to save lives. Dan Patrick has never walked back his comments about letting Grandma die so businesses can reopen.

2. They will never give any authority to local officials. If anything, there will be further bills in the upcoming Lege to restrict what local officials can do even more.

3. They will go straight to Defcon 1 the minute the Biden administration attempts to take any action to combat the virus.

How many people get sick and die as a result is not their concern. They could not be more clear about this.

Will Greg Abbott ever talk about COVID-19 again?

Signs point to No.

On Wednesday, Gov. Greg Abbott knocked on doors in the Fort Worth suburbs, fist-bumping with police officers and warning residents that Democrats want to raise their taxes.

That night, he opened Game 2 of the World Series at Globe Life Field in Arlington, belting out a hearty “play ball” before a stadium partly filled with cheering fans.

With the Nov. 3 election fast approaching, the state’s top Republican is in full campaign mode, trying to block Democrats from retaking the Texas House.

But away from the choreographed appearances, the governor is facing another challenge: Coronavirus infections are rising again, filling up hospitals in parts of the state. Unlike when cases mounted earlier this summer, Abbott has been all but silent about COVID-19’s resurgence.

The governor hardly has mentioned the uptick, which has been most severe in parts of North and West Texas. In news releases, he has announced that he’s sending resources and medical staff to hot spots, but he has downplayed or failed to even mention the outbreaks — part of a third wave sweeping the South and Midwest.

Abbott hasn’t held a public briefing on the pandemic in more than a month.

For a governor who made a point of being on television every night as cases spiked this summer, making himself the face of the state’s response, the silence is notable and likely strategic.

“There’s no advantage to Abbott coming out now to acknowledge the spiking numbers, which say Texas isn’t doing a good job, which say he isn’t doing a good job,” said Brandon Rottinghaus, a political science professor at the University of Houston. “With a week until the election, that would not be beneficial for him.”

[…]

Nearly 5,000 people were hospitalized Thursday with COVID-19, a 55 percent jump since Oct. 3. The average of new daily infections has been rising steadily for two weeks, and the rate of people testing positive for the virus is now just shy of 9 percent, after dipping to a low of 6.3 percent in September.

In Tarrant County, where Abbott appeared Wednesday, health officials have warned residents of substantial community spread, meaning the virus is being transmitted through workplaces and schools.

“The signs are pointing to a big surge coming,” Tarrant County public health director Vinny Taneja told WFAA-TV in Dallas on Wednesday.

Abbott has been an important figurehead in the state’s coronavirus response. When the number of people hospitalized with the coronavirus reached 5,000 in late June, he responded by closing the bars and cutting maximum occupancy for restaurants to 50 percent. He later issued a statewide mask mandate, which remains in effect.

Asked about the new trends Wednesday as he door-knocked for a fellow Republican, Abbott told reporters the state is preparing for a vaccine rollout as soon as late November, a claim that conflicts with remarks from top federal health officials.

The state’s own health officials aren’t planning for a wide rollout of a potential vaccine until July of next year.

Earlier this month, amid mounting pressure from conservatives, Abbott released a video announcing bars could open in counties with local approval, hoping to show a state that had put the worst of the pandemic behind it as voters prepared to head to the polls.

“The good news is that even with more businesses opening, even with more students returning to school and more gatherings like football games, Texans have shown that we can contain the spread of COVID,” Abbott said.

Anyone remember Abbott’s four metrics for reopening? Because I’m pretty sure he doesn’t at this point. Part of the problem, I admit, is that everyone is focused on the election – I sure am – and that means there’s basically no public pressure on Abbott to take action. But this has been building for weeks, and we’ve got kids back in schools while bars are open and people are attending live sporting events – college football appears to be a non-trivial factor in community spread – while a bunch of jackasses are going around the state demanding that we open up even faster. And of course there’s a malevolent President who’s doing all he can to ensure that things are getting worse. Is anyone surprised that Greg Abbott can’t be bothered to at least remind everyone that they should be wearing masks and avoiding crowds?

As little as I think of Abbott, I do expect he’ll have to start talking about this again after the election. If nothing else, we’ll be embarking on a legislative session soon, and we need to decide how we’re going to handle that. I just hope we get something that resembles leadership from Abbott before too many more people are hospitalized or dead.

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.