Lawmakers ask state regulators, governor to reconsider bar closures

Jason Carrier works from his computer at the Dogwood, but the scene at the Austin bar changed overnight about six weeks ago.

He’s no longer surrounded by customers. He’s often the only person in the bar.

Carrier is one of three founders of Carmack Concepts, the company behind Austin mainstays the Dogwood, Chuggin’ Monkey and the Dizzy Rooster — which were among hundreds of Central Texas businesses that closed their doors when Gov. Greg Abbott pulled back on moves to reopen businesses amid rising COVID-19 cases, hospitalizations and deaths.

The governor shuttered bars and reduced restaurant occupancy June 26. A week later, he issued a statewide mask order and suspended elective surgeries in much of the state.

“We didn’t know June 26 was coming,” Carrier said, adding that, “it’s the unknown” that makes it impossible to plan for the future.

Abbott’s bar order closed businesses that operate with more than half of their income coming from alcohol sales, a threshold the Texas Alcoholic Beverage Commission uses to distinguish between restaurants and bars.

That 51% rule has made allies of a Democrat and Republican, who say it’s too arbitrary and closes businesses, including those that operate primarily outdoors, that could safely meet social distancing guidelines.

“We fall under the same umbrella as a busy nightclub ... but there’s all different types of businesses under 51%,” Carrier said while speaking from the Dogwood’s Domain Northside location, which boasts an outdoor patio.

U.S. Rep. Chip Roy, a Republican from Hays County, penned a letter Monday to TABC Chairman Kevin Lilly, urging the agency to rethink its classification for restaurants and bars during the pandemic. Roy sent a copy of the letter to Abbott.

“It is not my view that a simple majority of on-premise alcohol sales should dictate whether hundreds of businesses survive during this unprecedented time,” Roy wrote.

Roy represents the 21st Congressional District, which stretches from Austin to San Antonio and encompasses six Hill Country counties, an area known for its wineries and distilleries, which have been forced to shut down.

51% rule

It’s not clear if a rule change would have to come from the TABC or the governor, who has additional executive power over agencies during a disaster. Roy said he has yet to hear back from the agency.

“TABC has the obligation to go figure this out within the governor’s office,” Roy told the American-Statesman. “Don’t apply arbitrary standards that are crushing businesses.”

Abbott’s office did not return a request for comment.

A Texas Alcoholic Beverage Commission spokesman said the agency is working with Roy and his staff to “update him on the latest efforts by TABC to help industry members affected by the COVID-19 pandemic operate while protecting the health of their customers and employees.”

State Rep. Erin Zwiener, D-Driftwood, who represents Hays and Blanco counties, partly overlapping Roy’s district, sent a letter to Abbott on Tuesday suggesting that “when it is time to begin reopening,” craft alcohol establishments with large outdoor areas should be viewed differently.

“The risk posed by tasting wine in a vineyard is significantly lower than that of a crowded bar,” Zwiener wrote.

“I am hoping (Abbott) does not use (the 51% rule) as the determining factor,” Zweiner told the Statesman. “This distinction on what percentage of alcohol someone sells is not a useful distinction in disease spread.”

Packed bars

Abbott and state health officials attributed some of the state’s spike in COVID-19 cases to packed bars as the state reopened through the end of May and early June.

Social media feeds were flooded with images of packed Austin bars during Memorial Day weekend.

Videos of crowds at Buford’s on West Sixth Street and Plaza de Toros R3 bar dance club in Southeast Austin caught the attention of Mayor Steve Adler, who pleaded with residents to follow social distancing guidelines.

TABC officials later suspended the alcohol permit for Buford’s and another downtown Austin bar, and they were found in violation of protocols in place to slow the spread of the coronavirus.

Abbott has said he wishes he hadn’t let bars reopen so soon because “the bar setting, in reality, just doesn't work with a pandemic.”

"If I could go back and redo anything, it probably would have been to slow down the opening of bars, now seeing in the aftermath of how quickly the coronavirus spread in the bar setting," Abbott said in a local TV interview in June.

Meanwhile, Carrier is hoping to shift the permits at his Austin bars to reopen them while being classified as restaurants by the alcohol agency.

“When we get (the permit), we’ll open and try our best to act as a restaurant,” he said. “That’s better than being closed, but unfortunately that business model is not sustainable.”

Carrier said he and his partners hope they won’t have to shutter their businesses for good.

“The most handicapping part of this is the unknown and not being able to plan,” Carrier said. “So many good restaurants and bars are losing everything.”