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Travis County enforcing dine-in service curfew for bars, restaurants around New Year's holiday

The order quickly faced opposition from Gov. Greg Abbott, who said it isn't allowed under his executive order.

AUSTIN, Texas — While many Austin-area bars have been permitted to stay open if they are serving food, a new order will prohibit both bars and restaurants from operating dine-in services on nights around the New Year's holiday.

Starting on Dec. 31 at 10:30 p.m. and through Jan. 3 at 6 a.m., all dine-in food and beverage services will be restricted from 10:30 p.m. to 6 a.m. This order is being enforced on both the City and Travis County level and only applies to businesses that serve food or drink. All other businesses can continue to operate as outlined in previous COVID-19 orders.

Venues that serve food and drink will still be allowed to operate during this timeframe if they are using drive-thru, curbside pick-up or delivery services. This change also applies to any venue serving food or drink from an onsite kitchen, food truck or catering service.

The City of Austin's order can be read here, and the Travis County order can be read here.

However, the orders quickly faced opposition from Gov. Greg Abbott, who said the restrictions aren't allowed under his executive order.

Why the in-door dining curfew has been ordered in Austin

Austin-Travis County's new orders come at a time when COVID-19 cases have increased across the area, placing a strain on local hospital capacity. In recent days, local health leaders have also pleaded for individuals to stay home around the holidays.

“The situation is critical,” said Dr. Mark Escott, Interim Austin-Travis County Health Authority. “We are asking the public to stay home as much as possible and not gather with people outside their households for New Year's Eve. We are asking people to only go out to restaurants for take away, delivery or drive-thru services. We are now experiencing uncontrolled widespread community transmission of COVID-19, particularly in circumstances where masking and distancing are not possible, making bars and similar establishments extremely concerning over this holiday weekend.”

At a press briefing on Dec. 30, Travis County Judge Andy Brown said "this order will save lives." Dr. Escott said COVID-19 cases in Austin have increased since Dec. 1. 

Austin Mayor Steve Adler said "we have been told we should not exceed 200 ICU beds." He said, previously, an average of 84 ICU beds were in use, whereas that number has now increased to around the "mid-130s."

KVUE spoke to Serena Bumpus, the director of practice for the Texas Nurses Association, before the orders were announced. She said it's important for everyone to heed caution this New Year's Eve. 

"We know bars are an area, especially on New Year's Eve in Downtown Austin, that can be crowded, where it's very difficult to maintain that physical and social distancing, which ends up putting you at greater risk for potentially contracting COVID-19," Bumpus said. "Most people aren't going to wear a mask while they're drinking alcohol, if that's what they plan to do."

She added that it's also important to slow the spread because it could help slow the rate that hospitals get overwhelmed with patients.

"I think what the public needs to understand is our hospitals need to be able to take care of the person who gets in a car accident. They need to be able to take care of the person who has a heart attack or stroke. And when the hospitals are oversaturated with patients who are diagnosed with COVID-19, they aren't able to effectively care for those individuals," she said. "It is not an ideal situation to be laying on a stretcher in a hallway outside of the emergency department for hours on end while you're waiting for a bed in one of the units and you don't get the care that you need."

RELATED: List: More than two dozen Austin bars have been cited for COVID-19 violations

How Austin's curfew will be enforced

Mayor Steve Adler said enforcement personnel with the city will be out on Friday and Saturday night, issuing citations if needed.

While enforcement for the curfew will be carried out by the City and County, the Texas Alcoholic Beverage Commission (TABC) will continue to enforce the State's COVID-19 rules for bars operating as restaurants on New Year's Eve.

"Protecting the health and safety of Texans during this pandemic is TABC’s top priority," the agency said in a statement on Tuesday. "Our agents are continuing to inspect businesses to ensure they’re following state standards to slow the spread of the coronavirus. On New Year’s Eve, TABC agents will be enforcing the rules under Executive Order GA-32."

Anyone who witnesses a suspected violation can report it to Austin 311. Violations will be against Austin City Code Section 2-6-24 and are a criminal offense punishable through criminal enforcement, except as limited by state order. A criminal violation of the order is a misdemeanor punishable by a fine of up to $1,000.

Pushback from the governor

"This shutdown order by Austin isn't allowed. Period," Abbott tweeted on Tuesday night. "My executive order stops cities like Austin from arbitrarily shutting down businesses. The city has a responsibility to enforce existing orders, not make new ones."

The Texas Attorney General's office also tweeted, calling the order a violation and adding that Austin and Travis County must "rescind or modify their local orders immediately." On Wednesday evening, the office announced it has filed a lawsuit against the City of Austin and Travis County.

“Mayor Adler and Judge Brown do not have the authority to flout Gov. Abbott’s executive orders by shutting down businesses in Travis County and our state’s capital city,” said Paxton.

Adler told KVUE a court will make a decision on the order on Thursday.

Under the governor's order, counties may only scale back if they meet certain criteria, which were set by the State. If COVID-19 patients make up more than 15% of all hospital beds in one region for more than a week, counties in that region can limit capacities at places like restaurants, stores and other indoor facilities. COVID-19 patients currently make up 13% of all Austin-area hospital capacity and 34% of ICU capacity. 

The executive order also states that it "shall supersede any conflicting order issued by local officials in response to the COVID- 19 disaster, but only to the extent that such a local order restricts services allowed by this executive order, allows gatherings prohibited by this executive order, or expands the list or scope of services as set forth in this executive order."

RELATED: Are Austin-Travis County's curfew orders in violation of Gov. Abbott's executive order? The city says no

The mayor said the curfew does not violate the governor's order's because it's an "operational constraint." He said the order has been issued "in a way that our lawyers tell us is appropriate."

Last month, the governor did not take action against a similar Thanksgiving weekend curfew imposed in San Antonio and Bexar County.

The Texas Restaurant Association said it was grateful for the governor and Texas Attorney General Ken Paxton's pushback.

"Restaurants are deeply invested within their communities, and so they continue to do all they can to prevent the spread of COVID-19, often at tremendous cost," the organization tweeted. "The public is exhausted and confused, and it's past time that our leaders stop looking for scapegoats and rally around those prevention strategies that we know work like wearing a mask, social distancing and avoiding unregulated gatherings."

On Dec. 31, a Travis County district judge sided with the City of Austin to keep the New Year holiday restrictions on dine-in services at Austin-Travis County bars and restaurants. 

Travis County Judge Andy Brown Released the following statement regarding today’s court ruling pertaining to County Judge Order 2020-24:

“My priority during this pandemic is to protect the health and safety of our community. I issued this order based on the advice of our health officials, including Dr. Mark Escott, and the alarming increase of COVID-19 cases in Travis County. Today’s ruling will help our community slow the spread of COVID-19, while allowing businesses to safely continue their operations through takeout, drive-thru, and delivery service options. I encourage everyone in Travis County to order food for takeout from a local restaurant and to celebrate the New Year safely at home tonight.”

Read the full order from District Judge Amy Clark Meachum here.

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