PORT ST. LUCIE — Stuart lawyer Travis R. Walker argued virtually Friday, Aug. 28, before a 19th Judicial Circuit Court judge for an emergency injunction in a lawsuit he filed pro bono, aiming to lift a Department of Business and Professional Regulation (DBPR) ruling June 26 that has shut down bars, lounges, nightclubs and taverns statewide since then.

The action, heard via Zoom in St. Lucie County Circuit Court, was a motion asking the judge to allow Shea’s Pub in Port St. Lucie to reopen immediately. Judge Barbara W. Bronis denied the motion, he said. Walker explained that he and his client had a high legal bar to meet in this hearing because the emergency motion was made as part of a class-action lawsuit that has not been heard yet where it was filed, in the 2nd Judicial Circuit Court in and for Leon County.

That main lawsuit, Case No. 2020-CA-001319, has more than 80 plaintiffs. One of them is Jeffrey Kennedy, principal of Jeffrey Kennedy LLC d/b/a Back to Butch’s Bar in Okeechobee County. The attorney said his next step is very likely going to be filing on Kennedy’s behalf for a similar emergency injunction in the 19th Judicial Circuit Court for Okeechobee County. The full case is set for a daylong hearing in Tallahassee on Friday, Sept. 18.

Among the other establishments that have joined as plaintiffs in the intended class-action lawsuit are: The Crafted Keg and The Stillery, both in Martin County; the Last Resort Saloon in Palm Beach County; Bar 17 in Charlotte County; seven establishments in Pinellas County; two in Hillsborough; and one each in Bay, Duval, Leon, Okaloosa, Polk and Sarasota counties. These number 20 total, but they’re only the ones who gave permission to Walker’s law firm to be identified publicly.

“There is statewide litigation. We have roughly 80 to 90 bar owners that we represent across the state, and we’re on file in Leon County, which is where DBPR is,” Walker said.

Several other attorneys across Florida have filed similar actions and met with similar results. “They’ve tried to get the bars reopened in Volusia, which is where Daytona is, in the Orlando area and down in Lauderdale, and so far, the judges in all three of those cases have denied having the executive order removed to allow these bars to reopen,” he added.

“So it’s an uphill battle, but we’re trying to pool resources and arguments in order to make it as effective as possible and adjusting as we need to. But there’s a bigger Goliath in the room, and that’s the state government, that’s for sure,” Walker said.

He said that at Friday’s hearing, “They had actually four attorneys from the state, between the Governor’s Office and DBPR, so they’re using a fair amount of resources to try to shut us down.” As a result, he added, “We’re just trying to use every strategy we can to get the bars back open and in business — trying to find some point of leverage for all of our clients.”

Walker said that certification as a class of litigants could come from filing motions in any county where he has clients, but that, “at some point, if it’s from the class, the state is likely to move everything to Leon County anyway.”

He said the attorneys in other, similar lawsuits are using different strategies than he is. “Most of them filed in their local courts, but in an effort to make it consolidated and to really be in DBPR’s back yard, we wanted to take an aggressive stance and file in Leon County.

“We do believe that there are judges out there that are more in line with the way that we see the law on this issue,” he explained. “That’s a challenge, but we are pursuing a class certification at some point because there are thousands of bars across the state that are affected by this and they need to have their voices heard.”

The lawsuit is a not-yet-certified class action against Florida Gov. Ron DeSantis and Halsey Beshears, secretary of the state DBPR, over their emergency orders that kept these businesses closed from March through early June and then, again, since June 26.

Subject of the lawsuit is “Amended Emergency Order 2020-09 issued by … Beshears … on July 1 … for declaratory relief, injunctive relief and/or for damages that exceed $30,000” to Kennedy’s company alone. He and the other plaintiffs (whose pleas are identical) state in the suit that they are vendors licensed to sell alcoholic beverages for consumption on their premises, but are not restaurants licensed to offer food service, and derive more than 50 percent of their gross revenue from alcoholic beverage sales. “Plaintiffs have been, and continue to be, unable to operate their businesses completely or substantially since June 26,” it says.

The DBPR rules allow vendors where more than 50 percent of gross revenue is derived from food sales to offer alcoholic beverages for sale to patrons for on-premises consumption, so long as they operate at no more than 50 percent of indoor capacity; the groups of these lawsuit plaintiffs seek the same. Presently, free-standing establishments of this type can sell packaged and sealed alcoholic beverages to the public for consumption off the premises only.

Until Friday, Walker said, civic, veterans and fraternal nonprofit organizations that made more than 50% of their revenue from alcohol sales were included, but he stated that afternoon he’d seen an email from DBPR saying it was now exempting such places from the governor’s closure order.

He had been approached by some of those clubs, citing specifically the VFW, inquiring about joining the lawsuit, but explained that he balked because he did not want to confuse the issues before the court.

So, at Back to Butch’s, for example, it has been open only Friday through Sundays for package sales, but Kennedy has had live music around the lagoon off the Rim Canal behind his bar, and they are selling some food on weekends, as well.

The plaintiffs seek:
• Injunctions that will pause or limit enforcement of Beshears’ ruling under DeSantis’s executive order;
• Equal protection under the Florida Constitution; and
• Just compensation for taking away a citizen’s rights.

Walker explained: “The DBPR is going to allow the American Legion and the Amvets and all those guys to reopen, the VFW, Moose Lodges and such. Which is good — it doesn’t help all the for-profit bars but it does help the nonprofit bars — and I think it was a lot of political pressure being applied to the governor’s office. I think they just capitulated because these guys are veterans and a lot of the organizations, they were keeping them from doing charitable work and all that type of stuff. I’m hoping that this is going to give us the opening to get all the bars open again, but there’s just no guarantee. We’re just going to have to keep fighting the good fight.”