TALLAHASSEE, Fla. (Legal Newsline) - A dissenting judge on a Florida appeals court attacked his colleagues for failing to stay an order by state alcohol officials suspending a bar owner’s alcohol license for failing to follow COVID-19 orders.
Saying the license was property protected by the Florida Constitution, Judge Adam Tanenbaum said the court had a duty to independently evaluate the evidence presented by state officials before approving their suspension of the license held by Showntail The Legend. The bar lost its license after allegedly failing to comply with emergency orders prohibiting on-premises consumption of alcohol at bars and nightclubs that weren’t also licensed to sell food.
The appeals court majority denied Showntail The Legend’s request for a stay, citing the public health emergency. The Florida Department of Business and Professional Regulation, for its part, called the request “ludicrous,” said it flew “in the face of scientific evidence and common sense,” and accused the company “shirk[ing] public safety measures in the name of profit.”
Judge Tanenbaum, in dissent, said the bar owners deserved more thorough consideration. Citing authorities including John Locke (“The supreme power cannot take from any man any part of his property without his own consent: for the preservation of property being the end of government…”) and James Madison, the judge said the emergency suspension “implicates a property interest and these inalienable rights.”
“We should not just take DBPR’s word for it in determining probable danger when the underlying suspension has stemmed from a public health matter rather than a regulatory matter,” the judge wrote. “That, however, essentially was what DBPR asked us to do in opposing the stay.”
Florida officials justified the suspension order on a suspicion that “younger individuals” were spreading Covid in bars. To support its claims DBPR cited three articles from the Internet. One a Japanese study of infection “clusters,” one was from Business Insider, with “seven good reasons why science suggests sipping a brew outside” is safer, and a third was from the Centers for Disease Control Website about the risks of reopening both restaurants and bars.
“Simply put, DBPR offered nothing from which we logically could infer that bars and other non-restaurant licensees selling alcohol on premises—that is, staying open for business at all—posed a probable danger, while restaurant licensees selling alcohol on premises did not,” he concluded.