Texas shut down bars to slow the spread of coronavirus — but allowed thousands to open through a restaurant loophole

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Halloween this year in downtown Austin was a raucous affair. Nightclubs advertised dancing and drink specials. Thousands of people crowded 6th Street, partying shoulder to shoulder, some with masks and some without.

All of this happened as bars in Austin were still under a shutdown order to stop the spread of the coronavirus.

Those bars and nightclubs are some of the more than 2,500 so far that have been permitted to reopen by the state on the promise that in the middle of a pandemic, they’d convert themselves into restaurants.

Shuttering Texas’ nearly 8,000 bars has been one of Gov. Greg Abbott’s most drastic safety restrictions. He most recently allowed bars to open in parts of the state where coronavirus hospitalizations are relatively low, with permission from the local officials.

But in areas where bar bans are still being enforced, many of those businesses are still operating like, well, bars. Just weeks after Halloween, with Thanksgiving on the horizon, frustrated health experts and local officials say the loophole is defeating the purpose of the bar ban and could be one reason the state is battling its largest outbreak in months.

“The restrictions were put in place for a reason,” said Dr. Philip Huang, the director of Dallas Public Health. “And if you get around it, if you're trying to cheat, then you're sort of eliminating the reduced transmission that you're trying to achieve.”

Public health officials and experts have said since this spring that bars pose unique dangers for spreading COVID-19. The Texas Medical Association notes it is one of the worst ways to spread the virus.

“Packed bars, where people are talking very close to each other and they're shouting, or they're yelling and people are touching a lot — that's super high risk,” said Aliza Norwood, a medical expert at the Dell Medical School at the University of Texas at Austin.

If the current trend continues — over 8,300 Texans were hospitalized with confirmed coronavirus infections Monday, up by nearly 900 from last week — “there may be a time in which it is appropriate to shut down bars and restaurants completely,” Norwood said.

Austin health officials agree.

“We are at a precarious spot right now where cases are rising across the country, cases are rising across Texas,” said Mark Escott, interim Austin-Travis County health authority, before adding, “We really have to find a way to stabilize things to avoid that surge.”

But Abbott, who has concentrated power within himself to take action on COVID-19, said he has no plans to do so. He did not respond to requests for comment.

The governor has had a tumultuous relationship with bars since the beginning of the pandemic. After shutting down dine-in service March 19, Abbott allowed bars to reopen — with capacity limits — on May 22. But in late June, as cases and hospitalizations soared in Texas, Abbott ordered the bars to once again close their doors, expressing regret for opening them too quickly in the first place.

That was met with anger and a lawsuit from dozens of Texas’ bar owners who said that Abbott was unfairly targeting their industry while other businesses were allowed to continue.

Finally, last month Abbott announced bars could reopen, but only if counties allow. In places like Austin, El Paso and Dallas, county judges said no. So in those cities bars are still out of luck — unless they become a restaurant.

Since June, the Texas Alcoholic Beverage Commission let bars reclassify as restaurants by offering food and committing that alcohol sales will be less than half of their revenue. Servers would also have to wear masks at all times. Customers, too, when not at their tables, and tables must be 6 feet apart or have dividers to allow for proper social distancing.

The commission has received more than 2,700 applications from bars seeking reclassification, a small number of which have been denied. About 200 are still processing.

Chris Porter, a TABC spokesperson, said that since June, the agency has conducted more than 20,000 inspections of facilities, shutting more than 200 down for 30 days because of infractions.

“The vast majority of businesses are taking the state’s health and safety guidelines seriously and are able to operate in a way that promotes the safety of their customers and employees,” Porter said.

But many county officials say bars, operating under the guise of restaurants, are openly flouting guidelines and that with TABC failing to enforce the rules, their hands are tied.

More than 170 of the reclassified bars are in Dallas, a county in a region where the hospitalization rate is nearing 15%. Abbott said counties where the hospitalization rate exceeds 15% must shut down bars and impose stricter occupancy limits on businesses.

Dallas County Judge Clay Jenkins sent a letter earlier this month, citing health officials, asking Abbott to let them take measures to restrict gatherings to stop the spread.

Among his list of demands, he asked Abbott to “close any venues functionally serving as bars, and [close] any loopholes permitting bar operations that may have been created by the TABC.”

In Austin, where over 260 bars reclassified, more than half of cases earlier this month came from young people age 20 to 39. And during a media call soon after Halloween, Janet Pichette, Austin Public Health’s chief epidemiologist, warned that the city was beginning to see an uptick in cases and “the impact of Halloween gatherings on our community.”

On Thursday, Escott, the Austin-Travis County health official, placed the county in Stage 4 of its public health guidelines, which urges restaurants, including reclassified bars, to voluntarily limit capacity to 50% or 25%.

In Texas’ worst hit county, El Paso, where the hospitalization rate is 38% and cases have surged for weeks, County Judge Ricardo Samaniego is desperate. His order to temporarily shut down some businesses was rejected by an appeals court. He wants the state to either give him the authority to close “bad actors” or enforce its own guidelines.

“Where were you when bars turned to restaurants and charged food funds so they could have 51% of food sales [while otherwise still acting as bars]?” he said in an interview.

Asked whether he would expand local authority to impose safety restrictions, Abbott blamed local officials for not being stringent enough in a press conference last week.

“Most enforcement that we see is done by TABC," Abbott said.

Meanwhile, bars that are being shut down by TABC say the enforcement feels inconsistent and unfair. During a recent round of sweeps, eight bars were closed after 1,700 inspections.

Oscar Gamboa, the owner of Bodega’s in Amarillo, said it’s unclear why his bar was shut down but not others that he sees flagrantly violating rules. TABC told him he was shut down for failing to enforce mask mandates, for not serving food and because the business was too crowded, all of which Gamboa disputes.

“If the TABC went out every single night, they’d shut everybody down,” Gamboa said. He closed his dance floor and paid thousands of dollars to renovate his kitchen.

But Gamboa said nearby bars “with gigantic dance floors, no masks on, nobody social distancing, selling Hot Pockets and Lunchables [to comply with TABC guidelines], they’re not closed.”

Shawna Odom, the general manager of the Lubbock bar Kong's, also said she feels her bar was closed arbitrarily.

Odom said she received approval from TABC to reclassify in October. A week later, TABC agents wrote them up for not enough people wearing masks, though she claims everyone was seated at their tables, which means they weren’t required. She received a written warning.

“I've literally went in other bars over here, and there's not been a face mask in sight. I was like literally 75% are wearing masks here,” Odom said. Odom was later shut down for 30 days over a paperwork issue.

Porter defended his agency’s 220 inspectors.

“In most cases, agents will attempt to address issues with a verbal or written warning, but in cases where it’s determined that public health is at risk, the business could face an emergency suspension of its license to sell alcohol,” Porter said.

Still, even as health experts urge the public to avoid bars, the industry has tried to downplay any risks. Michael Klein, the head of the Texas Bar and Nightclub Alliance, said that with such a high recovery rate for COVID-19, government officials should allow businesses and customers to decide about opening.

“People can vote with their pocketbooks,” Klein said, who reluctantly encouraged his thousands of members to reclassify. “There's absolutely no reason that our businesses should either be singled out or targeted.”

But with more than 1.1 million total cases and 20,500 deaths in Texas alone, public health officials disagree.

Norwood said the sooner coronavirus is under control, the better off businesses like bars will be.

“If less people get sick, there's less likelihood that community spread will rise, less likelihood that hospitals will fill up and then less likelihood that we'll have to shut down bars and restaurants,” she said.

Disclosure: Dell, Texas Medical Association and University of Texas at Austin have been financial supporters of The Texas Tribune, a nonprofit, nonpartisan news organization that is funded in part by donations from members, foundations and corporate sponsors. Financial supporters play no role in the Tribune's journalism. Find a complete list of them here.