The Tavern League of Colorado, which represents 200 alcohol-serving establishments, has filed a lawsuit against the state health department for imposing numerical caps on their capacity in an alleged violation of their 14th Amendment right to equal protection under the law.

“Defendants have singled out bars and restaurants for unfair and different treatment, despite the lack of any evidence that bars and restaurants are unique vectors for the spread of COVID,” the lawsuit alleges, referring to the actions of the Colorado Department of Public Health and Environment and its director, Jill Hunsaker Ryan. “Also lacking any evidence is the notion that a restaurant’s square footage is irrelevant to how many patrons it can safely accommodate.”

The lawsuit points to Public Health Order 20-28, which Ryan issued on June 30. “Extra large establishments” may seat up to 100 patrons, although no business can exceed 50% capacity. The association claims that such restrictions are not scientifically-based and are “in the process of destroying a major industry.”

After announcing the lawsuit, Chris Fuselier, owner of Blake Street Tavern in Denver, engaged with several users on Twitter who accused bars of wanting to put “profit over people,” in the words of one individual.

“Out of 414 employee outbreaks, 17 are attributed to full service restaurants. That’s 4%. The numbers in Colorado attributing outbreaks to Restaurants aren’t there!” Fuselier responded, inviting the commenters to visit his establishment to see the safety precautions. (According to the state's outbreak chart, there were 20 outbreaks in the category of sit-down restaurants out of 446 total as of Thursday.)

The lawsuit follows an announcement on Wednesday from Gov. Jared Polis of the curtailment of nighttime drinking hours for bar and restaurant customers. Polis explained that intoxication can lead to patrons being less cautious about distancing and mask usage.

"I know it's summer," he said, but "this is not the summer to party." 

The lawsuit points to other states that have more permissive rules around drink establishments: Alabama and Kansas do not have capacity limits, only a requirement to maintain six feet of distance. Arizona, Florida and several other states have only set a 50% capacity limit, but do not specify a number of persons. 

Colorado, as of Thursday, had 721 cases of COVID-19 per 100,000 people, which is below the national average. Arizona had the highest number per capita, at 2,073. Colorado’s coronavirus caseload has shot up in recent weeks, with a three-day average of 518 cases per day. That is 4½ times more than the 115 cases reported on June 13, the lowest point since the lifting of Colorado’s stay-at-home order.

The Centers for Disease Control and Prevention deems indoor, on-site dining to have a relatively high level of infection risk. Business Insider cataloged the multiple reasons why bars are more dangerous, including the tendency of patrons to sing or speak loudly, the necessity of removing a face mask to drink, and the lack of sunlight, which inactivates the virus. A risk assessment from the Texas Medical Association also concluded bars were the most precarious setting to catch the coronavirus.

Nevertheless, the lawsuit in Denver District Court argues that the state is depriving bar owners of the full use of their liquor licenses without due process, in violation of the Fifth Amendment and the Colorado constitution.

“Tavern League member X-Bar has an establishment comprising 2,000 square feet and has a fire code capacity of 479 with its patio bar,” the lawsuit reads. “Under the Order, X-bar may only accommodate a maximum of 100 patrons. X-bar cannot pay its fixed costs under such an occupancy restriction.”

Alan Chen, a constitutional law professor at the University of Denver, believed the league’s claims were unlikely to succeed because they would have to show that the regulations were not rationally related to a legitimate governmental interest, like the promotion of public health.

“Federal constitutional challenges to state regulations of businesses for public health and safety reasons are a real uphill battle,” he said. “The Supreme Court shows great deference to such regulations under both the Takings Clause [of the Fifth Amendment] and the Equal Protection Clause [of the Fourteenth Amendment].”

While not challenging the other provisions of the public health order — like masking, distancing, and cleaning requirements — the Tavern League asks the court to strike down the numerical limits on capacity.

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