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Breaking Down the Law: Why did courts uphold Sisolak's order to close bars and taverns?

On Monday, a Clark County District Court Judge denied a request for a Temporary Restraining Order and Preliminary Injunction filed by a large group of Bar and Tavern owners in Las Vegas.

The Bar owners had sought relief from Governor Sisolak’s July 10th Emergency Directive shutting down bars and taverns that do not serve food and prohibiting gaming on bar tops and bar areas, arguing they were unfairly targeted by the Governor.

It is not clear whether the Bar owners will appeal the ruling.

What was the basis for the Court’s decision and what does the ruling mean to bars and taverns in Nevada moving forward? Here to discuss the issue is attorney Matt Hoffmann with Battle Born Injury Lawyers.

Thanks, etc.

  1. What was the basis of the bar-owners’ Complaint, and what reasons did the Court give for denying their request?
  • The bar-owners sued the State alleging that the July 10th Emergency Directive violated their Constitutional rights to Equal Protection under the laws and Substantive Due Process.
  • The Directive prohibited gaming at bar areas, even if the facilities serve food. And that is the big issue for them, since gaming is the biggest source of revenue.
  • Essentially, they argue that the Governor singled out bars and taverns versus other non-essential businesses without any rational basis.
  • They filed for Declaratory relief from the Court to hold that the Directive is Unconstitutional.
    • Then they filed a Motion for a Temporary Restraining Order and Preliminary Injunction so they could reopen immediately pending the Court’s ultimate decision on whether the Emergency Directive itself is Constitutional.
  • So the Court did not rule on the ultimate question of Constitutionality – it just ruled on the Motion for Temporary Restraining order and Preliminary Injunction.
  • But the biggest thing to come out of this ruling is actually a victory for the bar-owners.
  • The Court ruled that the Governor’s Emergency Directives are subject to judicial review.
    • That is a big deal, since the State had argued the emergency directives are “political questions” not reviewable by the courts.
  • And rather than getting into the legal formalities on this, the simple answer is the Court found that the Governor’s actions were “rationally related” to a “legitimate governmental purpose.”
  • So the Court ruled that the threat of COVID-19 spreading justified shutting down Bars and Taverns that do not serve food, and forbidding the use of gaming machines located on bar tops or in bar areas.
  1. So the Court ruled it is okay to use gaming machines on casino floors, but not gaming machines located on bar tops?
  • Not specifically.
  • What the Court ruled is that the Directive prohibiting gaming from bar tops was a decision rationally related to a legitimate governmental concern, the spread of COVID-19.
  • And I think the Court is WRONG.
  • No matter how you feel about whether gaming should or should not be going on, how can it be “rational” to allow someone to play video poker at a free-standing machine on a casino floor, but not if the machine is on top of a bar?
  • These bars installed plexiglass, require customers to wear masks, and every other machine is turned off.
  • Same goes with bars that do not serve food.
  • Why is it okay to have 4 people sitting at a table eating AND drinking, but it is NOT okay to have 4 people sitting at a table and just drinking?
  • How can you say that is “rational?”
  • I think the bar owners are absolutely correct on this one on the basis they are being treated completely different for no rational reason whatsoever.
  • So I expect them to appeal this ruling, or the ultimate ruling on the case itself, to the Nevada Supreme Court.
  • BUT – now that the judge has found that the Governor’s Emergency Directives ARE subject to judicial review, I expect the Governor to lift these restrictions before the Courts are flooded with new, similar lawsuits, and before our Supreme Court would ever hear any arguments.
  • Hard cases make bad law.