California winery challenges notion that it’s any different to have bars or taprooms without food open from restaurants or bars that serve food where state doesn’t require people to actually order food. Lawsuit is a road map for others looking to file similar challenges to unfounded restrictions.

I had a call on Friday with an astute reporter that questioned what the point was with the multiple state reopening plans that emphasize food service as the line drawn in determining which alcohol serving establishments get to re-open and which remain shuttered or strictly “to go”. Across the country some states have made this a line in the sand with various degrees of what “serving food” means ranging from having on-premise kitchens to having co-committed food trucks on down to putting out menus for Pizza Hut delivery. 

She raised an interesting and simple point – eating isn’t mandated in these alcohol establishments that serve food. Determinations about people’s behavior where food is served are explained by governors not allowing non-food establishments to open as though they’re fact and as though food makes people act different. Two quick problems with this: 1) as a general principle you should consider it a bad sign if someone says “just trust me” on the science/conclusion to justify a law, but thankfully, the law requires more as well, and 2) if people aren’t required to order food at these places, but can just sit and drink – how are your determinations about which places get to open and which remain shut even “rational” in terms of constitutional tests.

That’s an important point as the governors’ and mayoral justifications across the country, from California and Colorado to Illinois, all go something along the lines of “alcohol makes people feel comfortable and we don’t want people sitting around drinking and mingling.” The problem with that justification as the proffered rational for not allowing bars and taprooms and tasting rooms to open is not tested or proven and the failure to require patrons to consume food renders the distinction meaningless.

Thankfully, we didn’t have to wait long for someone to test these restrictions. The folks at Caymus Vineyards out near St. Helena have filed a constitutional challenge to California’s food-based restrictions. And apart from a potential confusion between strict scrutiny and rational basis, the complaint (you can read the complaint here) is a good template for others looking to challenge similar restrictions in their locales.
In the suit, Caymus argues that the California order is discriminatory in allowing wineries with food service to open but keeping those without food service shuttered for tastings.

Arguing that the discrimination violates the Equal Protection and Due Process clauses of the Fourteenth Amendment – including claims that the government has an obligation to treat like businesses in a like manner, the suit seeks to stop the practice. Interestingly, the suit also alleges that the shutdown is a taking and that damages are owed for the improper order by virtue of the Fifth Amendment’s Takings Clause as well as similar claims brought under the California state constitution.

It does not appear as though a temporary restraining order was requested, so the timeline for this may not be as expeditious as other suits challenging stay at home and closure orders or portions of have been.

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