GALVESTON

Sharky’s Tavern is a bar and has been open for three weeks.

That fact seemed to violate executive orders Gov. Greg Abbott issued in March, which ostensibly shut down whole sectors of the Texas economy, including bars, and ordered Texans not to gather in groups larger than 10.

Abbott himself seemed to think he had closed bars and taverns in the state in efforts to reduce the spread of COVID-19. In announcing he was reopening parts of the Texas economy, he has spoken about waiting to reopen bar doors.

It was only this week that Abbott announced a rollback of rules on bars, saying they could reopen at 25 percent capacity on Friday.

Since May 1, the city of Galveston has four times told Sharky’s, 504 25th St., to stay closed.

And, still, the bar is open.

The reasons behind Sharky’s continued operations involves written rules, spoken interpretations of those rules, suspicions of political favoritism, emails, pizza ovens and, as of Wednesday, a lawsuit against the city.

Sharky’s owners and defenders say the reasoning behind opening is simple: Although many people, including the governor, appear to believe bars are supposed to be closed, the actual written orders forming the base of those beliefs are too ambiguous to enforce.

“You can come get a beer,” said John David Robertson, who owns the bar with his wife, Holly Landry.

On May 5, days after Texas began opening restaurant dining rooms at limited capacity for the first time since the middle of March, Abbott announced he was prepared to open some other types of businesses, including gyms and barbershops.

But Abbott wasn’t prepared to reopen bars, which he said needed tighter rules and more consideration before being allowed to open.

Bars are “the type of setting that promotes the transmission of infectious diseases,” Abbott said.

The delay annoyed some local bar operators, who said the state’s definition of what’s a bar and what’s a restaurant is arbitrary.

That’s part of the reason Sharky’s, which is a bar under the state’s standards, opened its doors on May 1, Robertson said.

“We sell food,” Robertson said. “We sell pizza, and we sell a lot of it. We’re known for our pizza and our live music.”

Robertson, who’s running for a spot on the Galveston City Council, said he was hesitant to talk about Sharky’s opening because he didn’t want it “blown out of proportion.”

But the issue has drawn the attention of the city and other local business owners.

Since May 1, the city of Galveston has sent the police department or the city marshal’s office to Sharky’s Tavern four times, city spokeswoman Marissa Barnett said.

The officers were dispatched after complaints to the city about the business being open, officials said.

Each time they went to the business, the officer and the marshal told operators the bar should be closed, Barnett said.

The owners have chosen to keep the bar open. The city has not fined Sharky’s or made any arrests because it’s open but has reported the fact that it’s open to the Texas Alcoholic Beverage Commission, Barnett said.

The commission did not respond to a request for comment Wednesday.

STATE REP GETS INVOLVED

The most recent confrontation between Sharky’s and the city also prompted the bar owners to seek a different kind of state help.

On Saturday evening, state Rep. Mayes Middleton called Galveston City Manager Brian Maxwell to request the city stop attempting to close Sharky’s. Middleton said the city was “harassing” the business.

“I reminded the city they cannot arrest someone or criminally charge someone for just operating their business at this time,” Middleton said in a text to The Daily News.

After Middleton and Maxwell spoke, Middleton sent an email to Robertson, saying he had brokered an agreement with the city.

“I talked to Brian Maxwell and got him to commit that once a bar is turned over to TABC that they will no longer attempt to enforce their city closure ordinances and leave it solely to TABC,” Middleton wrote. “So basically, the city should leave you alone.”

On Monday, Maxwell said there were no local orders closing bars and that it had always been the city’s policy to report violations of state orders to the alcohol commission, even before Middleton’s call. Maxwell called the entreaty by Middleton unusual.

“I don’t think he had any authority,” Maxwell said. “I think he was just calling on behalf of a friend.

“Sharky’s feels like they are not a bar, they are a restaurant,” Maxwell said. “We informed them that is really a TABC decision, so we notified TABC and we moved on.”

The following day, copies of Middleton’s email began circulating among local bar owners. The message prompted complaints that Sharky’s was being treated differently than other bars, which have remained closed during the pandemic precautions.

“Everybody’s hurting,” said Todd Slaughter, the owner of Rumors Beach Bar, 3102 Seawall Blvd., in Galveston. “But we’re all sitting here watching this lady thumbing her nose at the city and everything that we’re supposed to be doing all the way up to the governor, saying she’s going to just run her business.”

What businesses should be opened or closed is legally a gray area, and agencies attempting to enforce orders should think twice, Middleton said.

“If there is any question or lack of clarity at all, we must err on the side of small businesses and allow people to make a living,” Middleton said.

A LAWSUIT EMERGES

On Wednesday, the dispute entered a new stage when Holly Landry filed a lawsuit against Maxwell, Galveston Mayor Jim Yarbrough and Cecil “Butch” Stroud, the city marshal, claiming Abbott’s order did not actually close bars and the city’s attempts to enforce the orders was a violation of the Texas Constitution.

Abbott’s Executive Order GA-18 doesn’t say bars should close, said Jared Woodfill, the attorney representing Sharky’s. It states “people shall avoid visiting bars,” he said.

“The problem we’re having is that local officials across the state, like the mayor, the city manager in Galveston and the city marshal, are misinterpreting the order itself,” Woodfill said. “Technically, under the order, the only folks that could be cited would be the individuals that chose to go to the bar.”

Woodfill, who is the former chairman of the Harris County Republican Party, said the Sharky’s lawsuit is tied to hundreds of lawsuits filed in other counties challenging the enforcement of state and local orders related to COVID-19.

Woodfill is the lawyer for a group that earlier this month sued Harris County over its order to require people to wear masks in public spaces.

In April, his law firm filed a lawsuit in Travis County over Abbott’s orders, which claimed state stay-at-home orders violated religious rights.

“It’s happening all across the state,” Woodfill said. “I think there’s just a mass misunderstanding about what the order said.”

City officials declined to comment on the lawsuit on Wednesday.

Abbott on Monday announced that all bars in Texas can begin to open at 25 percent capacity Friday. Woodfill said he believed that order was unconstitutional as well.

John Wayne Ferguson: 409-683-5226; john.ferguson@galvnews.com or on Twitter @johnwferguson.

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(19) comments

Donna Spencer

And this guy wants us to vote for him for city council ! What a class guy. Finding loopholes and legal angles to avoid what is suppose to be for the good of us all. What a great guy.... yeah. I thought I had seen them open a few weeks ago but now I know how this guy thinks. And we should vote for him ? Sure.....

Allison Buchtien

Yeah, that was my thought exactly. I want a council member representing me who follows the rules and isn't in it for himself.

Kelly Naschke

Bravo to Sharky’s and Middleton. Enough is enough. Would rather see them go bankrupt and fire employees? You don’t want to go...STAY HOME. No one is putting gun to your head and dragging you in there. Stay home, watch more lies, inconsistencies, and democrat and media fear mongering.

PD Hyatt

If I lived in his district I would surely vote for him as sticking up for our Constitution and not bowing down to the haters of it is who I am for!

Blanca Bell

We and risk our health at Home Depot and Walmart but not at Sharky's ?

Well done, stay open and stick to your guns!

Ted Gillis

Rules are just suggestions to some people.

Mr. Sunset Man strikes again.

Miles has proven that he could care less about municipal rules or laws. It’s all about the Wild West for him and his likes.

Rick Altemose

"We're known for our pizza and our live music." That's precisely the reason that bars are so much more dangerous during a pandemic that other equivalently crowded retail spaces (the loud music- pizza is fine). if you have to raise your voice, even shout to talk to your companions, you are spreading whatever germs you have, even if you don't have symptoms yet.

Joshua Moore

Stay home, don't go out anymore. Maybe you can outlast the germs outside.

Ron Binkley

Ms Landry.....you are just splitting hairs playing the word game. You should be doing what's best for your employees and guests instead challenging a law that is meant to help protect everyone. It's all about the almighty buck, right?

Joshua Moore

Glad they are doing this. Anyone who has a business and provides is essential. Last I checked, the government does not have to authority to dictate who is essential and can provide for their families, as well as who cannot. We are not a communist country.

Jim Forsythe

The federal government derives its authority for isolation and quarantine from the Commerce Clause of the U.S. Constitution.

Under section 361 of the Public Health Service Act (42 U.S. Code § 264), the U.S. Secretary of Health and Human Services is authorized to take measures to prevent the entry and spread of communicable diseases from foreign countries into the United States and between states.

State, local, and tribal authorities

Enforce isolation and quarantine within their borders.

It is possible for federal, state, local, and tribal health authorities to have and use all at the same time separate but coexisting legal quarantine power in certain events. In the event of a conflict, federal law is supreme.

Enforcement

If a quarantinable disease is suspected or identified, the CDC may issue a federal isolation or quarantine order.

Public health authorities at the federal, state, local, and tribal levels may sometimes seek help from police or other law enforcement officers to enforce a public health order.

U.S. Customs and Border Protection and U.S. Coast Guard officers are authorized to help enforce federal quarantine orders.

Breaking a federal quarantine order is punishable by fines and imprisonment.

Federal law allows the conditional release of persons from quarantine if they comply with medical monitoring and surveillance.

Seamus Dughan

And yet, there are sooo many judges who would disagree with you.

Ray Taft

So Abbott announces something and we’re all supposed to jump through his hoop?

Abbott is still getting his paycheck, and making sure our property taxes go up so government workers everywhere can get their paychecks. What about us, Abbott?

Time is up for Abbott! It’s time that Texans stop waiting. Let’s reopen and get back to work. Abbott can stay home with all the Democrats.

Bailey Jones

Dems don't want him either, Ray.

Ray Taft

Ok. Then stay home by yourselves. Abbott can wing it.

Kimberly Klepcyk

Will definitely remember which businesses were concerned with the health and good for all. The closures were based on minimizing the spread to the community. It's not just about putting yourself at risk. So tired of people asserting that they have a right to put others in harm's way. There are limits to your rights when you exercising that right infringes on the rights of others. It is a balance.

Wayne D Holt

A question for Mr. Maxwell; If there are no local orders to close bars; all alleged violations are turned over to TABC and the city doesn't trouble themselves with it after that; and Rep. MIddleton's assistance wasn't needed...why were GPD officers sent to this business four times? Were our officers informed this was the policy? When people called in a complaint, wouldn't it make more sense to have the dispatcher let them know over the phone rather than sending a unit to do what you say was clearly unnecessary?

This answer has all the hallmarks of another Maxwellian gem: the beach closings were never to protect the public, it was just for the responders' protection. Why then aren't we protecting our officers instead of forcing them to go into harm's way four times and interact with all those dangerous pizza eating revelers?

Lena Gilley

Yes! Everything needs to open back up! Pretty stupid decision to cancel fireworks in Galveston! Still going to be a lot of people in Galveston

Seamus Dughan

Holding their ground took significant courage. Its not about money, its about fulfilling commitments to landlords, employees and the public. Its living your principals. The "marshalls" acted like stormtroopers and did their best to intimidate Ms. Landry, Mr. Robertson put his candidacy on the line. Unlike the parking marshalls, GPD acted like public servants.

Civil disobedience, if that is even what this was, is a core requirement of a free society. Its refusing to sit in the back of the bus, its "sitting-in" to protest a war, its tossing tea into a harbor. There is zero actual proof that shutting down saved a single life or that fighting to stay solvent cost one.

History may not reveal which approach worked best, sadly, because there weren't enough Sharkey's out there.

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