For Justin Park, running his own bar selling high-end craft cocktails has been a dream come true. Or at least it was before COVID-19 hit. His place, Bar Leather Apron, has been shut down under mayor’s orders since March, except for a brief window over the summer.

Park’s dream isn’t dead, but it is definitely deferred.

“Our landlords are working with us,” he said. “They’re working with us to make sure we exist on the other side of this.”

Bar Leather Apron owner Justin Park.

Justin Park, co-owner of Bar Leather Apron, says his bar remains closed because of a technicality, even though the space is carefully controlled, while other, bigger bars are open.

Cory Lum/Civil Beat

As bar owners go, that might make Park one of the lucky ones. Oahu’s bars are shut down under Mayor Kirk Caldwell’s decree, and many owners see no end in sight. Under Caldwell’s tiered reopening plan, bars don’t get to open until the new case count drops below 20 per day for two weeks, a level not seen on Oahu since July. The current seven-day average is above 60.

For many bar owners, it’s devastating. Take Chip Jewitt. He owns the Republik music venue, Playbar Waikiki Nightclub and Agave and Vine in Ala Moana Center. Even closed, his expenses are staggering, with leases alone amounting to tens of thousands a month. And how much of a break he gets depends on the landlord.

“They get it; they know there’s no money coming in,” he says. “But they’ve got mortgages too.”

He’s less understanding about Hawaiian Electric Co., which he said charges him just under $700 per meter to stay connected even though he uses virtually no power. That adds up to another $3,500 per month.

Jim Kelly, Hawaiian Electric’s vice president for corporate relations, declined to comment about a particular customer. However, he said, in general commercial customers do not pay a per-meter charge but do pay a “demand charge” based on their highest use of electricity over 12 months. The charge helps pay for the infrastructure that needs to be available at any time to meet that customer’s peak demand.

Kelly said customers can stop their service and resume it upon request.

Altogether Jewitt employs approximately 150 workers, including 70 to 80 at the Republik alone. All are laid off.

It’s clear Jewitt understands business, its risks and realities. What he doesn’t understand, he says, are the arbitrary rules that prevent him from opening a small place like Agave and Vine, which is less a bar than a cafe, he says, and cafes are allowed to be open. Agave and Vine still got shut down.

The Republik can also operate safely, he says. The space can hold 1,000, and he’s willing to cut it by half, or more.

With 300 to 400 people, he says, there would be plenty of room to stay socially distanced. And although he says he wouldn’t make money, he could provide a creative outlet for local musicians.

The mayor’s tiered reopening plan gives him little hope.

“There’s no light at the end of the tunnel,” he says. “Caldwell’s made it clear: no bars will be open on his watch.”

Caldwell’s spokesman, Alexander Zannes, declined to comment for this article.

Last week Hawaii News Now reported that 116 bars and restaurants serving alcohol closed or gave up their liquor licenses between March and September. In the same period a year earlier, there were 42 closures, Hawaii News Now reported, citing the Honolulu Liquor Commission.

The impact on employment is enormous. Although the U.S. Bureau of Labor Statistics doesn’t track bar workers specifically, it does publish numbers on employment in bars and restaurants lumped together.

The data shows jobs in bars and restaurants in Honolulu plummeted from almost 50,000 in January to 19,000 at the low point in April, a nearly 60% decline. Some restaurant jobs have bounced back. The latest figures placed the jobs at 24,500 in September for Oahu.

On Oahu people can buy cocktails at restaurants, strip clubs and many drinking establishments, but many bars remain closed.

Flickr: Rick

People like Dean Carrico feel it intensely. Carrico spent nearly 15 years tending bar at the Irish Rose Saloon, located at the edge of Waikiki. The job provided a good life and a community of co-workers and regular customers, Carrico says. He met his wife, Rebecca Rank, there. And he made enough money, even in high-cost Hawaii, that he and Rank could save money to open a bookstore one day.

But all that changed with COVID-19. He lost his job when the city shut down bars in March. The other shoe fell earlier this month when Rank was laid off from her job with HMS Host at Honolulu’s Daniel K. Inouye International Airport. It’s surprising to Rank that more than six months into the pandemic the only solution city officials can devise is a policy that closes a whole category of businesses casting thousands of people out of work.

“We should have been able to figure out something better than this by now,” she said.

One thing that irks Carrico is how arbitrary the city’s rules are when it comes to classifying bars that must close versus restaurants that can stay open.

Carrico pointed to a neighborhood dive that’s technically a restaurant, and thus open, but with the trappings of a honky tonk: dartboards, video games, eclectic rock music and the pervasive smell of stale beer.

Carrico noted that food is almost nowhere to be seen amidst the dozen or so people drinking beer. Nobody gets a menu when they arrive; in fact, there’s no menu in sight on any of the tables.

Still, the barroom doesn’t seem particularly dangerous: people are spaced out, although none are wearing masks. And Carrico said that’s pretty typical, people being low-key and careful. He said Caldwell seems to have the wrong impression about bars.

“When he discusses bars, he makes it sound like ‘Caligula,'” Carrico says. “Which bars is he going to? I want to go to that one.”

Lawsuit: Orders Defy Logic

The seemingly arbitrary distinction between bars and restaurants is a main theme in a federal lawsuit brought recently by the Irish Rose and its sister bars, Kelley O’Neil’s, Anna O’Brien’s, O’Toole’s Irish Pub and Suzie Wong’s Hideaway. The suit names Caldwell as well as Gov. David Ige as defendants and asks the court to order Caldwell to lift the shutdown order on bars, and for $50 million in damages. The bars’ attorney, James DiPasquale, has also filed a motion asking the court to step in and lift the mayor’s order while the lawsuit plays out.

“The Defendants’ Proclamations and Orders are so incredibly onerous, capricious, arbitrary and frankly hypocritical that it defies any form of logic,” DiPasquale wrote. “The decision seems to be based upon some fact that COVID-19 can only be spread in small local bars, but not inside highly trafficked large chain restaurants with massive bars advertising drink specials and unlimited sports programing, or alternatively strip clubs and sports bars.”

The apparent difference between places allowed to remain open and the Irish-themed bars, the lawsuit says, is that the ones allowed to operate have kitchens.

The U.S. Supreme Court thus far has deferred to state and local authorities’ emergency public health rules related to COVID-19 when considering challenges. In a widely cited opinion, Chief Justice John Roberts noted that the U.S. Constitution principally gives the states the power to protect public health and safety.

“When those officials ‘undertake to act in areas fraught with medical and scientific uncertainties,’ their latitude ‘must be especially broad,’” Roberts wrote. “Where those broad limits are not exceeded, they should not be subject to second-guessing by an ‘unelected federal judiciary,’ which lacks the background, competence, and expertise to assess public health and is not accountable to the people.”

Krishna Jayaram, special assistant to Attorney General Clare Connors, declined to discuss the lawsuit.

“The Governor’s actions throughout the pandemic have been based on science and facts and are squarely within his emergency authorities,” he said. “We will respond to the filing in due course.”

Department of Health Edpidemiologist Jennifer Smith at August 14, 2020 press conference.

Jennifer Smith, a virologist and COVID-19 case investigator with the state Department of Health, said bars and nightclubs have been the sources of significant clusters of cases. But she said such establishments still can operate in ways to significantly mitigate risk.

Cory Lum/Civil Beat

DiPasquale hopes that his challenge can succeed because it is narrowly framed, attacking only the application of Caldwell’s order to bars, not Caldwell’s order entirely. A central issue, DiPasquale said, will be whether he can convince a judge to apply an analytical standard called strict scrutiny.

DiPasquale has filed the suit as a class action, meaning scores of additional bars can join in as plaintiffs if the judge allows it. It could be a month before the judge entertains the motion to lift the order, he said.

‘It Doesn’t Have To Be All Or Nothing’

Regardless of whether the rules are capricious, there is one reality: some bars on Oahu have been a significant source of spread, says Jennifer Smith, a virologist and case investigator with the Hawaii Department of Health.

In her previous role as a contact tracer, Smith said, she saw a number of clusters of cases arising from bars and nightclubs, although she declined to say which ones. Still, Smith said bars and clubs can take steps to mitigate risk and operate safely.

“It doesn’t have to be all or nothing,” said Smith, who was placed on leave from the department after revealing flaws in the state’s contact tracing effort.

Smith said what makes perhaps the most difference is the clientele and their intentions. Places where the disease spreads, she said, tended to be places where younger people went to get drunk and meet people to hook up with.

“That’s what people in their 20s do,” she said.

And that’s not the crowd Justin Park caters to. Park’s bars are intimate, 20-seat spots where almost everybody needs a reservation. They’re like fine dining, cocktail hour as theater in a jewelry box. As a Native Hawaiian, Park values storytelling as part of his life, and he sees similarities with the art of bartending.

Park now has another bar in the works, Maze, in Kakaako. He’s planning more food for this bar, to be paired with a carefully curated cocktail menu.

Bar Leather Apron was a carefully tended environment before COVID-19, Park says. And it’s easy to keep customers spaced out and safe. The rules to him simply make no sense.

“There are people who are opening on a technicality,” he said. “And there are people who can’t open because of a technicality.”

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