FAYETTEVILLE, Ark. — Pulaski County Circuit Judge Wendell Griffen ruled Tuesday (Jan. 26) against a lawsuit presented by a group of bar and restaurant owners in Northwest Arkansas challenging the state's 11 p.m. curfew for businesses that serve alcohol. The measure was put in place by health authorities to combat the spread of Covid-19.
Over a dozen establishments in Northwest Arkansas say they can't continue to make ends meet with the 11 p.m. curfew that's been imposed because of the coronavirus pandemic.
“Certainly, if the curfew is renewed and the injunction doesn’t work, you will see a number of the bars shut their doors permanently,” Aaron Schauer, the Piano Bar on Dickson Street owner, told 5NEWS.
Bar owners in the lawsuit have confirmed with 5NEWS that they plan to appeal the lawsuit with the Arkansas Supreme Court.
The following statement is Judge Griffen's note:
"Hearing on Petitioners Motion for Temporary/Preliminary Injunctive Relief, Respondents' Motion to Dismiss for failure to state facts upon which a claim for relief may be granted per ARCP 12(b)(6), and Respondents' Motion to Exclude or Limiit Witnesses. Gary Barrett and B.C. Pickett appeared for Petitioners. Michael Mosley and Brittany Edwards appeared for Respondents. Arguments presented. Court held that Respondends' Motion to Dismiss must be treated as one for summary judgment pursuant to ARCP 12(b)6 and ARCP 56 because "matters outside the pleading are presented to and not excluded by the court..." Because witness testimony is not permissible in a hearing for summary judgment, Respondents' Motion to Exclude/Limit Witness testimony is GRANTED. Based on the pleadings and exhibits presented by the parties, the Court finds that there are no genuine issues of material fact related to Petitioners procedural due process, substantive due process, equal protection, and taking allegations, and that Respondents are entitled to judgment as a matter of law on those allegations. Specifically, the Court finds that Petitioners have not suffered a procedural due process deprivation because their restaurant and bar establishments are operated based on licenses issued as a privilege, not based on a fundamental right. As such, Petitioners are not entitled to the procedural due process requirements of notice and an opportunity to be heard before Respondents could restrict the hours of their business operations to not later than 11 p.m. The Court finds that Petitioners substantive due process also fails. As to that claim, Plaintiffs do not assert a fundamental right so as to require proof of a compelling governmental interest before the challenged Executive Order and Directive could be valid. The Court finds that public health and safety is a legitimate governmental interest which the existing coronavirus pandemic threatens, and is a rational basis for the challenged Executive Order and Directive. The Court finds that Petitioners' Equal Protection claim fails, also, because the challenged state action is based on a rational basis. Finally, the Court finds that Petitioners' takings claim fails. Petitioners have not sustained a taking of their property. Rather, they concede that their establishments have not been taken, but their business revenue has been threatened and decreased. That does not meet the constitutional standard for a takings claim. Respondents' Moion for Summary Judgment is GRANTED, and the Complaint for Declaratory Judgment is dismissed, with prejudice. Petitioners' Motion for injunctive relief is denied because petitioners have not sustained irreparable injury and are not likely to succeed on the merits of their complaint for declaratory judgment based on their procedural and substantive due process, equal protection, and takings allegations. Court will issue Memorandum Order within 24 hours."
This is a developing story.