KMK Law Complex Litigation Blog

During the summer, Ohio Governor Mike DeWine and the Ohio Liquor Control Commission instituted new rules governing alcohol sales.  The emergency measure, intended to combat the spread of COVID-19, mandated that all alcohol-serving establishments cease alcohol sales at 10 p.m.^[1]  The primary targets of the order were bars and restaurants which, according to the Governor, had contributed to outbreaks in Cleveland, Columbus, and Toledo.^[2]  Customers could be served until 10 p.m., but had until 11 p.m. to finish their drinks.

The last-call order was to remain in effect for 120 days, but could be extended by the Joint Committee on Agency Rule Review (JCARR), a legislative committee of the Ohio General Assembly that reviews state agency rulemaking.^[3]  JCARR declined to extend the order, allowing it to expire over the weekend.^[4]  However, Ohio bars and restaurants should not expect to see a boom in late-night alcohol sales.  As most restauranteurs are acutely aware, Ohio is continuing to impose a statewide, three-week curfew requiring citizens to stay home between 10 p.m. and 5 a.m. with certain exceptions such as for work, emergencies, groceries and supplies—including carryout orders.^[5]  Curfew violations have rarely been enforced to this point and Governor DeWine himself has stated: “We do not expect law enforcement to go pull people over.”^[6] 

What does all this mean, in practical terms, for Ohio restaurants and bars as they continue to navigate this difficult time?  Not much has changed.  The fact that the curfew remains in effect means that Ohioans are still unable to enjoy a nightcap at their favorite watering hole.  Allowing limited carryout alcohol sales during hours of operation that overlap with the curfew will likely not mitigate the loss of dine-in alcohol sales for many establishments during those hours, particularly for bars that do not have carryout food service and rely heavily on late-night alcohol sales on the premises.

The Brent Spence Bridge’s recent shutdown aside,^[7] Southwest Ohioans accustomed to crossing the Ohio River for their late-night bar entertainment might be surprised to find even stricter restrictions recently imposed by Kentucky Governor Andy Beshear.

Specifically, Governor Beshear ordered Kentucky’s bars and restaurants to close indoor dining (and drinking) service until December 13 in an effort to curb the pandemic.^[8]  While delivery and takeout are still permitted, Kentuckians (and any interloping Ohioans) will not be permitted to sidle up to their favorite Kentucky bar for another couple of weeks. 

The new prohibition imposed in Kentucky has faced immediate opposition.  In fact, dozens of Louisville restauranteurs have signed a petition stating that even if Governor Beshear’s order is extended, they will still open their dining rooms at 50% capacity on December 14.^[9]  Some establishments are not waiting until December 14 to challenge the governor’s order.  At least two restaurants have already had their licenses suspended for violations, but have continued operations.^[10]  Certainly, bars and restaurants flouting Governor Beshear’s order will pay some price for their failure to comply, though that price is not yet clear.  Regardless, Kentucky’s continued prohibitions on indoor dining and drinking, and the industry’s response, is a situation worth monitoring.

Undoubtedly, the restaurant and bar industry have suffered greatly during the coronavirus pandemic.  Whether in Ohio or Kentucky, state restrictions have fundamentally altered the business climate across all industries.  KMK Law continues to monitor the dynamic regulatory environment of pandemic-related restrictions and has a multi-disciplinary team advising clients on these matters.  Please contact a member of the KMK Law Coronavirus (COVID-19) Response Team for assistance, including those listed below.

[1] Talia Naquin & Adrienne DiPiazza, Governor DeWine’s 10 p.m. last call for alcohol to prevent spread of coronavirus approved, Fox8.com (July 31, 2020), available at https://fox8.com/news/coronavirus/gov-dewines-10-p-m-last-call-for-alcohol-to-prevent-spread-of-coronavirus-approved/. 

[2] Id.

[3] See About, Joint Comm. on Agency Rule Rev., http://www.jcarr.state.oh.us/about (last visited Dec. 1, 2020).

[4] See Jesse Balmert, Gov. Mike DeWine’s 10 p.m. last call order expired but curfew still bans late-night bar visits, Cincinnati.com (Nov. 30, 2020), available at https://www.cincinnati.com/story/news/politics/2020/11/30/ohios-last-call-covid-19-order-expired-curfew-still-place/6464837002/. 

[5] Jessie Balmert & Jackie Borchardt, Rather than close businesses, Ohio imposes 3-week curfew, Cincinnati.com (Nov. 17, 2020), available at https://www.cincinnati.com/story/news/politics/2020/11/17/coronavirus-ohio-gov-mike-dewine-order-curfew-nov-17/6317088002/. 

[6] Id.

[7] Fire on the Brent Spence Bridge, Fox19.com (Nov. 11, 2020), available at https://www.fox19.com/video/2020/11/11/fire-brent-spence-bridge/. 

[8] Chris Otts, Beshear closes bars, restaurants to indoor service starting Nov. 20, WDRB.com (Nov. 18, 2020), available at https://www.wdrb.com/in-depth/beshear-closes-bars-restaurants-to-indoor-service-starting-nov-20/article_be9ae99c-29dc-11eb-8028-6ffe264bce87.html. 

[9] Dhalia Ghabour, Online petition: Restaurants will reopen Dec. 14 with or without Beshear’s approval, Courier-Journal.com (Nov. 30, 2020), available at https://www.courier-journal.com/story/entertainment/dining/restaurant/2020/11/30/louisville-restaurants-say-theyll-open-without-governor-ok/6472157002/. 

[10] Clint Mayhew, Indoor dining: Northern Kentucky Restaurant says it will stay open, fight coronavirus restrictions, Cincinnati.com (Nov. 25, 2020), available at https://www.cincinnati.com/story/news/local/hebron/2020/11/25/nky-restaurant-pledges-stay-open-while-challenging-covid-19-orders/6419289002/; Bill Estep, Health department suspends license of KY restaurant for defying ban on indoor dining, Kentucky.com (Nov. 24, 2020), available at https://www.kentucky.com/news/coronavirus/article247393680.html#:~:text=Health%20department%20suspends%
20license%20of%20KY%20restaurant%20defying%20ban%20on%20indoor%20dining,-By%20Bill%20Estep&text=Health%20officials%20issued%20an%20order,not%20to%20serve%20customers%20inside.