8/25/2020 10:42 AM Velva L. Price District Clerk Travis County D-1-GN-20-004403 CAUSE NO. ______D-1-GN-20-004403 Ruben Tamez STAND FOR SOMETHING GROUP LIVE, LLC § IN THE DISTRICT COURT d.b.a. The Rail Club Live, § CARDINAL COMPANIES INT’L, LLC, § d.b.a. Barge295, § DAVE & BOBBY LLC § d.b.a. Soggy Bottom Saloon, § COOTER BROWN’S PRIVATE CLUB, INC. § d.b.a. Cooter Browns, § PATRICIA ADAMS, d.b.a. Lazy H Bar, §200TH ____ JUDICIAL DISTRICT ROBIN EVANS, d.b.a. The Bar On Veterans, § O’MOJO ENTERPRISES, LLC, § d.b.a. Six Springs Tavern, § LWDC ENTERPRISES, LLC, § d.b.a. Pearl’s Cherokee Lounge § HORNY TOAD’S BAR & GRILL, LLC, § d.b.a. Horny Toads Bar and Grill § A. POWERS ENTERPRISES, LLC d.b.a. Scout Bar, § THE STATION BAR INC. d.b.a. The Whiskey Girl, § OZZIE RABBIT LLC d.b.a. The Ozzie Rabbit Lodge, § TOMERICA, LLC d.b.a. Caves Lounge, § STACEY B. JONES, LLC d.b.a. Basin Nights, § UISCE BEATHA CORP, d.b.a. Plaza Pub, § Plaintiffs, § § V. § § GREG ABBOTT, as Governor of Texas, § TEXAS ALCOHOLIC BEVERAGE COMMISSION, § TRAVIS COUNTY, TEXAS and STATE OF TEXAS § Defendants. §

PLAINTIFFS’ ORIGINAL PETITION, REQUEST FOR DECLARATORY ACTION, AND APPLICATION FOR IMMEDIATE INJUNCTIVE RELIEF

Plaintiffs’ Original Petition - Stand For Something Group Live, LLC et al. v. Abbott, et al. Page 1

TO THE HONORABLE JUDGE OF SAID COURT:

COME NOW, the above-named Plaintiffs to file this original petition seeking the Court’s declaration and temporary restraint of Gregory Wayne Abbott, in his official capacity as

Governor of the State of Texas (“Abbott” or “Governor”), the Texas Alcoholic Beverage

Commission (“TABC”), and the State of Texas as follows:

SUMMARY: Governor Abbott’s Executive Orders fail to treat like with like without a rational basis: standalone bars are shuttered while other bars, e.g., those inside hotels and restaurants, remain open for business. Governor Abbott has created a set of rules masquerading as laws that irrationally close some bars but leave others open, causing impermissibly unequal treatment and untold damage to established businesses due to ill-considered and clumsy executive orders such as GA-28. These executive orders imperil and violate the rights of Texas residents guaranteed by the Texas Constitution, including the right to Equal Protection (Article 1,

§ 3), protection from retroactive laws (Article 1, § 16), protection against regulatory takings

(Article 1, § 17), and right of Texans to assemble for their common good (Article 1, § 27).

The TABC has an obligation to submit its operating rules to the public for comment and feedback before implementing them. Rather than follow Texas law, it has adopted Gov. Abbott’s executive orders as a sufficient reason to find some bars to be dangerous and others to be not dangerous, based on whether they have a restaurant attached.

This Court should enjoin the TABC from its practice of forcing the closure of some bars based on Gov. Abbott’s executive orders because: a) those orders are irrational and unconstitutional, and b) based on alleged emergencies when the TABC could, should and is obligated to follow a notice and hearing process according to Texas law.

Plaintiffs’ Original Petition - Stand For Something Group Live, LLC et al. v. Abbott, et al. Page 2

I. DISCOVERY PLAN

1. Discovery in this cause is intended to be conducted under Level 3 of Rule 190.

II. RULE 47 STATEMENT OF RELIEF

2. The remedy sought herein is within the jurisdictional limits of the Court. Plaintiffs seek non-monetary relief and all other relief to which they may show themselves entitled. III. PARTIES A. Plaintiffs (all of whom may be reached at the office of the undersigned):

3. Stand For Something Group Live, LLC, d.b.a. The Rail Club Live, is a domestic limited liability company (“LLC”) in Fort Worth, Texas.

4. Cardinal Companies International, LLC, d.b.a. Barge295 operates in Seabrook, Texas.

5. Dave & Bobby LLC, d.b.a. Soggy Bottom Saloon, operates in Beaumont, Texas.

6. Cooter Brown’s Private Club, Inc., d.b.a. Cooter Browns, operates in Burleson, Texas.

7. Patricia Adams, an individual, d.b.a. Lazy H Bar, operates in Liberty, Texas.

8. Robin Evans, an individual, d.b.a. The Bar on Veterans, is in Harker Heights, Texas.

9. O’Mojo Enterprises, LLC, d.b.a. Six Springs Tavern, operates in Richardson, Texas.

10. LWDC Enterprises, LLC, d.b.a. Pearl’s Cherokee Lounge, operates in Arlington, Texas.

11. Horny Toads, LLC, d.b.a. Horny Toads Bar and Grill, operates in Galveston, Texas.

12. A. Powers Enterprises, LLC, d.b.a. Scout Bar, operates in Houston, Texas.

13. The Station Bar, Inc. d.b.a. The Whiskey Girl is a Texas corporation in Abilene, Texas.

14. Tomerica, LLC, d.b.a. Caves Lounge, operates in Arlington, Texas.

15. Ozzie Rabbit, LLC, d.b.a. The Ozzie Rabbit Lodge, operates in Fort Worth, Texas.

16. Stacey B. Jones, LLC, d.b.a. Basin Nights, operates in Odessa, Texas.

17. Uisce Beatha Corp, d.b.a. Plaza Pub, operates in Arlington, Texas.

Plaintiffs’ Original Petition - Stand For Something Group Live, LLC et al. v. Abbott, et al. Page 3

B. Defendants

18. Defendant Gregory Wayne Abbott is an individual sued in his official capacity as the

Governor of Texas and may be served at: Office of the Governor, State Insurance Bldg., 1100

San Jacinto, Austin, Texas 78701; or by mail to: PO Box 12428, Austin TX 78711.

19. Defendant Texas Alcoholic Beverage Commission (“TABC”) is the state agency that regulates the sale of alcoholic beverages and may be served through its Executive Director,

Bentley Nettles or through its Presiding Officer Kevin J. Lilly at 5806 Mesa Dr. Austin, Texas

78731, or by mail to: P.O. Box 13127, Austin, Texas 78711.

20. Defendant State of Texas can be served at the Office of the Attorney General, 300 W.

15th Street, Austin, TX 78701.

IV. JURISDICTION & VENUE

21. The Court has jurisdiction over the Plaintiffs’ request for declaratory relief against the

Governor because the Declaratory Judgment Act waives governmental immunity regarding challenges to validity of government actions. See TEX. CIV. PRAC. & REM. CODE §§ 37.004,

37.006; Texas Lottery Commission v. First State Bank of DeQueen, 325 S.W.3d 628 (2010).

22. Venue is properly found in Travis County as the suit arises out of the Governor’s actions in his official capacity, planned, written, and executed from the State Capital in Austin, Texas, where the TABC and its governing board are also located.

23. Based on past experience as described in the 5th Circuit Court’s ruling in In re Abbott,

956 F.3d 696 (5th Cir. 2020), Plaintiffs expect Defendant Abbott to assert that his proclamations and orders are not the same as enforcing non-laws and thus he should be permitted to dodge responsibility for the wanton economic destruction he is causing. To be sure, the Fifth Circuit recognized in In re Abbott that under section 418.012 of the Texas Government Code, the Texas

Plaintiffs’ Original Petition - Stand For Something Group Live, LLC et al. v. Abbott, et al. Page 4

Governor “may issue executive orders, proclamations, and regulations and amend or rescind them,” but then concluded that the Governor does not have the power to enforce such orders and thus is not subject to suit under the Eleventh Amendment. Id. at 708-710.

24. Plaintiffs acknowledge the Fifth Circuit’s ruling and recognize that Abbott did not physically appear at Plaintiffs’ businesses on a white steed and armed with a Colt .45 to ensure compliance with his executive orders. However, this is not a federal suit, and a Texas court should evaluate a request for an injunction regarding the enforcement of an unconstitutional rule pretending to be a law differently than a federal court applies Ex parte Young reasoning to claims of immunity.

25. The Fifth Circuit’s evaluation warrants examination if only to distinguish between every case it cites and this suit. In In re Abbott, the Fifth Circuit granted mandamus to release Gov.

Abbott and the Attorney General because they were only creating and threatening enforcement of executive orders, but not harming abortion providers by closing them down, therefore missing the “enforcement connection” element of Ex parte Young requirements. 956 F.3d at 709-710.

26. Greg Abbott’s executive orders are not merely the executive following laws written by the Texas Legislature. In this instance, the TABC acts with the direction of Governor Abbott, that direction being delivered via GA-28. The Governor is not only the head of the enforcement agency; he is the creator of the “law” being enforced, as well as the arbiter of the enforcement, because the TABC uses its own administrators to decide whether a business can remain open, instead of genuine courts.

27. The TABC is not enforcing statutes created by the Texas Legislature, or even following the notice-and-hearing rule procedure that it is obligated to follow under normal circumstances.

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28. Thus, not only is Governor Abbott creating laws, he is also administering and enforcing them. His emergency declarations have created a situation where he need not bother with a state legislature or this Court - he is all three branches of government, based on a declared emergency regarding a virus which appeared six months ago and which is too deadly to allow a neighborhood bar to operate, but is not so deadly that a Humperdinks, Applebee’s, or Chili’s cannot operate almost normally.

29. Without GA-28, the TABC would not be enforcing vague, ad hoc rules and would not be suspending licenses, especially given the rigorous adherence to safety shown by Plaintiffs.

30. However, if such mincing of words is to be the backdrop of this discussion, then

Plaintiffs seek the Court’s assistance to enjoin the Governor from issuing the executive orders which he admits have no force of law when challenged in court, but which every state department and every major city in this state has relied and is relying on today to issue their own emergency orders, and interpreting them illiberally to close down long-established businesses and eliminate the livelihood of tens of thousands of Texans.

31. And if that is too much, then this Court should declare these orders to be without validity, so that there is no ambiguity with all the executive branches following these non-laws. If

Governor Abbot really believes that his executive orders do not have the force of law, then the citizens of this state need to be reassured by this Court’s declaration that these orders are mere suggestion. Further, state agencies such as the TABC need to know that their boss, the governor who appoints every person who leads one of those organizations, does not expect his orders to be treated as laws. Governor Abbott has created uncertainty regarding the rights of Texas business owners and citizens - this suit seeks declarations by this Court to eliminate these uncertainties, which is without doubt within the jurisdiction of the District Courts of Texas.

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V. FACTS A. The Disaster Act of 1975 & Executive Orders from Governor Abbott.

32. On May 22, 1975 Governor Dolph Briscoe signed H.B. 2032 into law and the Texas

Disaster Act of 1975 (“Disaster Act”) was born.1 Since its 1987 re-codification, the Disaster Act has been found in Chapter 418 of the Texas Government Code.2

33. The Disaster Act was amended in 2005 following a year of heavy hurricane and flood damage. The amendment’s intention was to allow county judges and mayors to order evacuations and “control the movement of persons and the occupancy of premises” in damaged areas.3

34. The Disaster Act gives the Texas Governor broad powers in the case of an emergency, purporting to give his pronouncements the force of law at § 418.012, and giving him the ability to suspend laws if, based on his own judgment, they “prevent, hinder, or delay necessary action in coping with a disaster” at § 418.016.

35. The Disaster Act has rarely been invoked, and thus its deficiencies have not been obvious until about March 20204, when the COVID-19 virus caused widespread alarm and executives all over Texas began issuing orders created by no legislative process.

36. Section 418.016 of the Act purports to give Gov. Abbott the power to suspend statutes that hinder efforts to cope with a disaster; Gov. Abbott has vigorously exercised that alleged power, though no central listing of such suspensions is available to government watchdogs.

37. Abbott also adopted an approach that divided tasks and businesses into essential or nonessential, apparently based on whether individuals could operate without the indicated task or

1 Act of May 22, 1975, 64th R.S., H.B. 2032 (1975). 2 Act of May 21, 1987, 70th R.S., S.B. 894 (1987); TEX. GOV’T CODE § 418.001 (“This chapter may be cited as the Texas Disaster Act of 1975”). 3 Act of June 9, 2005, 79th R.S., H.B. 3111 (2005), adding TEX. GOV’T CODE § 418.108(f)-(g). 4 All dates in this document occur in 2020 unless otherwise specified; all internet URLs last checked August 12, 2020 or later.

Plaintiffs’ Original Petition - Stand For Something Group Live, LLC et al. v. Abbott, et al. Page 7 business for a short period of time. This division was made without regard to the real danger of viral spread or the long-term economic impact on those with “non-essential” jobs.

38. Abbott’s first executive order on the subject, GA-08, used vague language to indicate that people “shall avoid social gatherings” and “shall avoid eating or drinking at bars…”5

39. Over time, these orders have reflected the preferences of issuing executives and often have no scientific basis, leading to ludicrous results, e.g. all bars must close, unless they are located in a restaurant.

40. Executive Order GA-08 and each subsequent order or proclamation has cited the Texas

Disaster Act of 1975 as support for its enforcement.6

41. Since GA-08, Gov. Abbott has issued more than 20 other orders—each one assuming control over commercial and private activities of individuals, requiring that individuals work from home, minimize social gatherings, etc.

42. Nearly all of these executive orders are tantamount to creating state policy, in that they adopt specific approaches to combat the spread of the COVID-19 virus. The order represents one of several approaches that could be taken, but Governor Abbott has elevated his own personal choices to be enforced as though they are law. However, because the Governor is not a legislator using a legislative process, his “law-making” has been unbalanced and subject to frequent irrational conclusions, e.g., liquor stores can remain open and essentially unimpeded in their commercial activity, but state-certified hair stylists with 1500 hours of regulated training were

5 The Governor of the State of Texas, Exec. Order GA-08 at 1-2 (March 19, 2020), https://lrl.texas.gov/scanned/govdocs/Greg%20Abbott/2020/GA-08.pdf. 6 Legislative Reference Library of Texas, Executive Orders by Governor Greg Abbott, https://lrl.texas.gov/legeLeaders/governors/displayDocs.cfm?govdoctypeID=5&governorID=45; Legislative Reference Library of Texas, Proclamations by Governor Greg Abbott, https://lrl.texas.gov/legeLeaders/governors/displayProcs.cfm?governorID=45.

Plaintiffs’ Original Petition - Stand For Something Group Live, LLC et al. v. Abbott, et al. Page 8 outlawed until the Governor realized that he really did not want to put them in just for trying to earn a living.7

43. Rather than call a special session of the Texas Legislature, Abbott has issued these decrees designed to force the entire state to bend to his will, and then argued in federal court that he is not actually doing anything to enforce his will, and thus courts have no jurisdiction over his actions. Plaintiffs point to a recent COVID-19 ruling by the Texas Supreme Court to suggest that a state district court should demand more: “Any government that has made the grave decision to suspend the liberties of free people during a health emergency should welcome the opportunity to demonstrate—both to its citizens and to the courts—that its chosen measures are absolutely necessary to combat threat of overwhelming severity.” In re Salon A La Mode, et al, No. 20-

0340, 2020 WL 2125844 (Tex. May 5, 2020) (emphasis added).

44. This Original Petition comes before this Court more than four months after the virus became a cause for concern. But even back then, the Supreme Court recognized that we would learn more and that more rational approaches should be employed, stating, “When the present crisis began, perhaps not enough was known about the virus to second-guess the worst-case projections motivating the lockdowns. As more becomes known about the threat and about the less restrictive, more targeted ways to respond to it, continued burdens on constitutional liberties may not survive judicial scrutiny.” Id.

45. The Governor has been given daily opportunities to address and mend his initial mistakes. He has failed to do so. Though we now know that the virus is manageable with masks, social distancing and readily available medicines, Gov. Abbott continues to act as though he is the only governing force in the state and the Texas Legislature can be ignored indefinitely.

7 The Governor of the State of Texas, Exec. Order GA-22 (May 7, 2020), https://lrl.texas.gov/scanned/govdocs/Greg%20Abbott/2020/GA-22.pdf.

Plaintiffs’ Original Petition - Stand For Something Group Live, LLC et al. v. Abbott, et al. Page 9

46. The Supreme Court has warned that Governor Abbott’s approach will warrant closer examination over time:

The Constitution is not suspended when the government declares a state of disaster.” In re Abbott, No. 20-0291. --- S.W.3d ----, ----, 2020 WL 1042226. at *1 (Tex. Apr. 23, 2020). … No court should relish being asked to question the judgment of government officials who were elected to make difficult decisions in times such as these. However, when constitutional rights are at stake, courts cannot automatically defer to the judgments of other branches of government. When properly called upon, the judicial branch must not shrink from its duty to require the government's anti-virus orders to comply with the Constitution and the law, no matter the circumstances.

In re Salon A La Mode, et al, No. 20-0340, 2020 WL 2125844 (Tex. May 5, 2020).

B. Texas Alcoholic Beverage Commission Procedure

47. In Texas, businesses must obtain a license to sell alcohol. This process is governed by statutes gathered and known as the Alcoholic Beverage Code8 (“Code”). The Texas Alcoholic

Beverage Commission (“TABC”) implements the Code using administrative rules adopted by the TABC after the public is provided notice and opportunity for comment. Title 16, Part 3 of the

Texas Administrative Code (“TAC”) addresses the Alcoholic Beverage Commission.9

48. Relevant sections of the Alcoholic Beverage Code include:

a. Section 5.07(c), which requires the commission to develop and implement policies that will provide the public with a reasonable opportunity to appear and speak on any issue under the jurisdiction of the commission.

b. Section 5.31, which gives the TABC authority to "prescribe and publish rules necessary to carry out the provisions of this code.”

8 The Commission’s Administrative Rules can always be found on the Secretary of State’s website as part of the Texas Administrative Code at: http://texreg.sos.state.tx.us/public/readtac$ext.ViewTAC?tac_view=3&ti=16&pt=3. The TABC maintains a webpage with links to an annotated copy of the Code and TABC Administrative Rules at https://www.tabc.state.tx.us/laws/code_and_rules.asp. 9 See https://www.tabc.state.tx.us/laws/index.asp.

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c. Section 5.21, allows the TABC to establish an advisory committee “to accomplish the purposes of this code.”

d. Section 5.363, states that the TABC may delegate enforcement and disciplinary action to administrators, though the TABC has the final decision in disciplinary actions of contested cases if the contested case has an administrative hearing.

e. Section 5.435 allows the public or party speaking on an issue, including a suspension of license, to testify and be considered in the final decision of the commission.10

f. Section 11.61 of the Code addresses cancellation and suspension of permits, stating:

The commission or administrator may suspend for not more than 60 days or cancel an original or renewal permit if it is found, after notice and hearing, that any of the following is true: (1) the permittee has been finally convicted of a violation of this code; (2) the permittee violated a provision of this code or a rule of the commission; [...] (23) the permittee sold, served, or delivered an alcoholic beverage at a time when its sale is prohibited.

g. Section 11.614 of the Code instructs the process of suspensions:

(a) If the commission or administrator determines that the continued operation of a permitted or licensed business would constitute a continuing threat to the public welfare, the commission or administrator may issue an emergency order, without a hearing, suspending the permit or license for not more than 90 days. (b) An order suspending a permit or license under this section must state the length of the suspension in the order. (c) If an emergency order is issued without a hearing under this section, the commission or administrator shall set the time and place for a hearing to be conducted not later than the 10th day after the date the order was issued. A hearing under this section to affirm, modify, or set aside the emergency order shall be conducted by the State Office of Administrative Hearings at a location authorized by Section 11.015. The order shall be affirmed to the extent that reasonable cause existed to issue the order. (d) The commission by rule may prescribe procedures for the determination and appeal of an emergency order issued under this section, including a rule allowing the commission to affirm, modify, or set aside a decision made by the State Office of Administrative Hearings under Subsection (c). (e) A proceeding under this section is a contested case under Chapter 2001, Government Code.

10 The opportunity for the public to physically face the commissioners is being eliminated at the end of 2020. See https://www.tabc.state.tx.us/laws/code/86th/AllTitles.pdf.

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49. Section 411.204 of the Texas Gov’t Code requires businesses which sell alcoholic beverages to display signs giving notice that handguns are disallowed on premises (“51% Rule”):

Sec. 411.204. NOTICE REQUIRED ON CERTAIN PREMISES. (a) A business that has a permit or license issued under Chapter 25, 28, 32, 69, or 74, Alcoholic Beverage Code, and that derives 51 percent or more of its income from the sale of alcoholic beverages for on-premises consumption as determined by the Texas Alcoholic Beverage Commission under Section 104.06, Alcoholic Beverage Code, shall prominently display at each entrance to the business premises a sign that complies with the requirements of Subsection (c). [...] (c) The sign required under Subsections (a) and (b) must give notice in both English and Spanish that it is unlawful for a person licensed under this subchapter to carry a handgun on the premises. The sign must appear in contrasting colors with block letters at least one inch in height and must include on its face the number "51" printed in solid red at least five inches in height. The sign shall be displayed in a conspicuous manner clearly visible to the public.

TEXAS GOV’T CODE § 411.204. 50. The TABC decided, based on Governor Abbott’s executive orders, that an organization may not have any commercial or even non-profit activity of any sort if it has previously earned more than 51% of its revenue from alcohol sales unless it also has a kitchen and is serving food, even though as demonstrated above, the only practical distinction between businesses with different types of liquor license is the requirement to display signage.

51. The distinction is neither an effective, nor an appropriate indicator of the nature of the business. As noted above, the 51% Rule requires businesses to display signage notifying patrons that firearms are prohibited on site. The 51% Rule is not a distinction between restaurants and bars, but rather the distinction between lawful possession of firearms on the premises and unlawful possession of firearms on the premises.

52. Plaintiffs understand that the TABC rule is based on the 51% number because any organization with 51% of its sales as alcohol must have a ‘no handgun’ sign present. Using the

51% level therefore allows for ease of regulation using a bright-line rule, even though that number does not relate directly to the business’s status as a bar.

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53. Under TABC rules, up to 60% of a restaurant’s receipts can be for alcohol without losing its status as a restaurant.11 No part of the bar/restaurant distinction rests on 51% Rule. A restaurant with a bar is not prevented from operating its bar area under GA-28. A restaurant with a dance floor is not prevented from operation. Every sports bar, every Chili’s, every

Humperdinks, and every other restaurant with a bar may operate its bar under GA-28.

C. Executive Order GA-28 and recent “Reopening of Texas”

54. Many of Governor Abbott’s Executive Orders have negatively and disproportionately impacted bars more than other businesses which operate in exactly the same way that “bars” do.

55. After closing down all restaurants and bars in the state, on April 27, 2020, the Governor issued Executive Order GA-18 relating to the expanded reopening as part of the safe, strategic plan to “reopen” Texas. (Exhibit A.) GA-18 provided that certain “Reopened Services” would be allowed to operate even if they were not “Essential Services” on May 2, 2020. See Id.

56. Those Reopened Services included “dine-in restaurants for restaurants that operate at up to 25% of the total listed occupancy of the restaurant” but only “[r]estaurants that had less than

51% of their gross receipts from the sale of alcoholic beverages.” Id. In other words, any business generating a majority of its revenue from alcohol sales in the past could not reopen, irrespective of any other considerations.

57. On June 3, 2020, Governor Abbott issued Executive Order GA-26 which provided for the restricted reopening of businesses that serve food and alcohol based on erroneous 51% Rule distinction. (Exhibit B.) However, in addition to the already-opened businesses with less than

51% alcohol income under GA-18, this time the Governor allowed businesses with more than

51% alcohol income to open at 50% capacity with restrictions. In effect, GA-26 allowed

11Restaurants usually hold a Mixed Beverage Permit and subordinate Food and Beverage Permit. See https://www.tabc.texas.gov/licensing/MB_FB_permit/MBwFB_Interview_0917195.html.

Plaintiffs’ Original Petition - Stand For Something Group Live, LLC et al. v. Abbott, et al. Page 13 businesses with 51% or more in alcohol sales to operate their businesses in the way which restaurants were already operating. Id.

58. Based on the promises, and in compliance with the commands of GA-26, Texas businesses, whose only distinction from other businesses based on the 51% Rule are restriction of firearm possession on the premises, ordered supplies, hired staff, and resumed operations.

59. On June 26, 2020, at 8:45 am, Governor Abbott issued GA-28, which closed any business with the aforementioned signage, regardless of the true nature of the business or the services it provided. (Exhibit C.) Texas bar owners, operators, and employees were given mere hours to comply with the following under GA-28:

60. GA-28 did not close “bar” type areas. It closed businesses based on the erroneous belief that the 51% Rule defines the bright line between bars and restaurants, regardless of the verbiage of the legislation that makes abundantly clear that the only distinction between the businesses in question is the requirement to provide signage that firearms are not lawful on the premises.

61. Importantly, the following businesses remain unaffected by GA-28; bars affiliated with other facilities, such as hotels, bowling alleys, and; bars in restaurants that are not licensed as bars with the TABC. The only discoverable difference here is that one group has a license to sell food and can remain open while continuing to sell just as much alcohol as it did pre-COVID, whereas all others are prevented from any commercial activity at all. The honest bar owners,

Plaintiffs’ Original Petition - Stand For Something Group Live, LLC et al. v. Abbott, et al. Page 14 having once received their licenses, are now prohibited from doing that which others do without licenses. The law-abiding bar owners are punished disproportionately, and, in fact, exclusively, despite providing a service indistinguishable from that offered by every Chili’s.

62. In May 2020, under the name of “Open Texas” the Governor issued a set of detailed, but predominantly voluntary guidelines for various businesses. This guidance included reopening and social distancing/sanitation standards for restaurants and bars holding TABC permits.

63. Despite compliance with the voluntary guidelines, on Friday, June 26, 2020, Governor

Abbott proclaimed in Executive Order GA-28 (“GA-28”) that all bars (including establishments where 51% or more of their revenue comes from alcohol sales) in the State of Texas would be indefinitely and completely shut down with a mere three hours’ notice.

64. GA-28 was written in a way that precludes any business with 51% notice signage from operating any other business on their premises, even if said business were divorced from the sale of alcohol. Regardless of whether more than 51% of one’s business’ income is from alcohol sales, if said business merely has that ability, it remains, nevertheless, arbitrarily closed. Yet, only days prior to issuing GA-28, Governor Abbott stated that the largest contributors to new

COVID-19 cases in Texas were nursing homes, meat packing plants and jails—all of which remain open and functioning without capacity restrictions under GA-28.12

65. Although much of Texans’ on-site alcohol consumption remains unaffected thanks to restaurants and other similar establishments not hampered by the 51% Rule prejudice, the

Governor has nevertheless found his patsy and has blamed bars and bars alone for the increase in

COVID-19 cases. The Governor has not explained in any way (much less, as is required, with a

12 Governor Abbott Announces Phase III to Open Texas, https://gov.texas.gov/news/post/governor-abbott-announces-phase-iii-to-open-texas.

Plaintiffs’ Original Petition - Stand For Something Group Live, LLC et al. v. Abbott, et al. Page 15 rational basis or compelling government interest) why consumption of alcohol at a bar is more dangerous than consumption of alcohol at a restaurant (or other such location).

66. In addition, it is not clear how closing standalone bars is to have any material effect on reducing Texas’ virus positivity rate. The Texas Medical Association has issued a chart ranking activities according to risk level.13 Bars, churches, gyms, and restaurants are all “high-risk” and yet churches, gyms and restaurants remain open while bars are not.

67. On June 27, 2020 the TABC issued an Industry Notice (“Notice”) which is incorporated herein by reference. The Notice in pertinent part reads:

“Current law prohibits a Mixed Beverage Permit (MB) holder from delivering alcohol to consumers unless they also have a Food and Beverage Certificate (FB), selling alcohol to go, and selling mixed drinks for off-premise consumption. However, the Governor, pursuant to the March 13, 2020 disaster declaration, suspended these limitations so that certain MB permittees may conduct alcohol to-go and delivery transactions according to the below guidance.” 14

68. The phrase “certain MB permittees” is bolded and underlined for emphasis, as the Notice creates two classes - the first is a set of permit holders who can ignore state law and sell alcohol on a to-go basis, and a second set which are not so favored. The second set of disfavored businesses are similarly situated but are prohibited from adapting to the changing circumstances as restaurants have been allowed to do.

69. The harm caused arises from the fact that “certain” businesses are still in operation, whereas others are not, with any reason for the confusing disparity altogether absent.

13 Texas Medical Association Covid-19 Activity Risk Levels, https://www.texmed.org/uploadedFiles/Current/2016_Public_Health/Infectious_Diseases/309193 %20Risk%20Assessment%20Chart%20V2_FINAL.pdf. 14 See Exhibit I, TABC, Industry Notice, June 27, 2020, available online at https://tabc.texas.gov/coronavirus/files/PickupAndDeliveryOfAlcoholWithFoodOrders.pdf.

Plaintiffs’ Original Petition - Stand For Something Group Live, LLC et al. v. Abbott, et al. Page 16

Example 1 – The Rail Club Live

70. For example, as the Declaration of Chris Palone has stated, the certificate of occupancy under which Plaintiff Stand for Something Group Live, LLC, d.b.a. The Rail Club Live, operates, allows use of the facility as a multi-purpose event hall. Unsurprisingly, the facility has used the property for multiple purposes. In addition to concerts, the facility has regularly hosted events such as a guitar school, church gatherings, and charity fundraisers. Since COVID-19 and the government mandates related thereto, Polone has also opened his business’s doors to provide a place for bands to practice, and even a space for still others to stream their performances, that they might produce income of their own via virtual donations.

71. All of these other means of staying in business have been prohibited because Polone has previously obtained the state’s permission to earn income through the sale of alcohol. Because of that, he must close his business. Meanwhile other bars, which are associated with white-listed restaurants artificially distinguished by the 51% Rule, act without restriction from Abbott, and his agents, the TABC. On June 27, 2020, upon the issuance of GA-28, and in the spirit of compliance, Polone, like many other business owners, took additional steps to ensure the safety of his patrons moving forward. However, Polone is an experienced hazardous material professional, having previously worked as an emergency response supervisor for multiple companies. Though Palone has managed countless hazardous material releases and operations involving infectious substances, the TABC ultimately forced him to close, despite his precautions, which included all of the following steps:

a. Allowing only forty people inside, less than 25% of its allowed occupancy;

b. Checking temperatures of those present, including staff, artists, media, owners, etc.;

c. Using ten tables with four chairs each, using colorful tape to ensure social distancing;

Plaintiffs’ Original Petition - Stand For Something Group Live, LLC et al. v. Abbott, et al. Page 17

d. Requiring masks to be worn to enter the building;

e. Issuing hand sanitizer to every person who entered the building;

f. Locking all alcohol on the premises inside the liquor cabinet;

g. Requiring employees to sanitize surfaces continuously, and;

h. Decontaminating via foggers the entire building with a CDC-approved germicide that

destroys COVID-19 two hours prior to events.

The TABC mindlessly deemed the operations a “threat to public welfare” and demanded that the facility be closed under TEX. ALCO. BEV. CODE § 11.614(a).

72. For Polone, and for many others, despite the choice not to sell alcohol, the simple fact of potentially earning 51% or more of his income from alcohol or having done so in the past has proved to be a fatal black mark resulting in the suspension of a TABC-issued license.

73. Palone is not alone; many others continue to be denied the option to use their buildings for business purposes far removed from the activities commonly associated with “visiting a bar” and therefore within GA-28.

74. The Declaration of Chris Polone is attached as Exhibit D and incorporated here.

Example 2 – The Whiskey Girl

75. As a second example, Elvin Coy Chew (“Chew”), owner of Plaintiff The Whiskey Girl, operates a neighborhood bar in Abilene, Texas. His facility is a bar that does not sell food.

However, it has reasonably responded to the virus threat by spacing chairs, removing bar stools, using plastic cups, and taking other reasonable steps. But in spite of its Cheers-type atmosphere, the TABC shut down the bar based on GA-28.

76. The Declaration of Elvin Coy Chew is attached as Exhibit E and incorporated here.

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Example 3 - The Lazy H

77. As a third example, Patricia Adams, owner of Plaintiff Lazy H, operates her business in

Liberty, Texas. Her facility is a bar and does sell food to customers. Patricia Adams vigorously acted to promoted a safe and enjoyable environment by:

a. Placing caution tape around all bars;

b. Spacing all tables six feet apart, and ensuring all tables have no more than six chairs;

c. Ensuring each table had a bottle of hand sanitizer;

d. Marking the floor with tape around each table to display the safe distances;

e. Checking the temperatures of all patrons at the door with a digital thermometer;

f. Requiring all patrons to wear masks as they enter or move through the business;

g. Allowing a maximum of 25 patrons into the 100-person capacity building;

h. Posting social distancing reminder signs on the outside and throughout the building;

i. Posting signs in restrooms to remind people to wash their hands;

j. Sanitizing all tables and chairs as patrons left;

k. Handing a bottle-opener (sanitized between uses) to customers with their beverages

instead of handing opened drinks to the customers;

l. Using a three-stage commercial HEPA filtration system which replaces air inside the

building ten times an hour.

78. Despite these responsible efforts, the TABC chose to close her bar and serve her a 30-day suspension pushing her struggling business and employees into further financial ruin.

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79. On top of these onerous and irrational actions on the part of the Governor and TABC officials, TABC agents asked Patricia Adams to waive her suspension hearing, which she agreed to because she feared loss of her license, her business, or both if she did not agree.

80. The Declaration of Patricia Adams is attached as Exhibit F and incorporated here.

D. Conclusion

81. While TABC mindlessly closes any business which happens to fall on the wrong side of the erroneously applied 51% Rule, other bars in restaurants, hotels, and your average Chili’s franchise all remain open and operating; essentially, “business as usual.” Having been denied the same opportunity to provide for their families and despite being granted the same License as currently-open businesses, Polone, Chew, and Adams suffer disproportionately to those similarly situated, because of the current enforcement of GA-28.

82. There is no rational explanation as to why “bars” located within “certain” establishments, such as hotels, are operating normally, but “bars” that are standalone, and owned by small business owners, should be forced to shut down and face bankruptcy. If bar areas are dangerous, then all bars should be closed, including those inside restaurants; if bar areas are not dangerous, then all bars should be open. No rational person can suggest that a bar area is inherently made less dangerous by attaching it to a restaurant or bowling alley.

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VI. CLAIMS

A. Claim 1 – Declaration – GA-28 violates Article 1, Section 16 of Texas Constitution, which prevents the retroactive creation of laws.

83. This Court may declare the rights and other legal relations of the parties in dispute whether or not further relief is or could be sought.

84. This Court has jurisdiction over the Plaintiffs’ request for declaratory relief against the

Governor because the Declaratory Judgment Act waives governmental immunity when the plaintiff is challenging the validity of an ordinance, order, or government action. See TEX. CIV.

PRAC. & REM. CODE §§ 37.004, 37.006.

85. Additionally, private parties may seek declaratory relief against state officials who allegedly act without legal or statutory authority and to compel state officers to act within their official capacity. See Andrade v. NAACP of Austin, 287 S.W.3d 240 (Tex. App. Austin 2009); see also Castro v. McNabb, 319 S.W.3d 721 (Tex. App. El Paso 2009).

86. Pursuant to TEX. CIV. PRAC. & REM. CODE § 37.008 for a declaratory judgment action to be proper: (1) there must be a real controversy between the parties, and; (2) the controversy must be one that will actually be determined by the judicial declaration sought. See Brooks v.

Northglen Ass’n., 141 S.W.3d 158, 163–164 (Tex. 2004). A justiciable controversy exists between the Plaintiffs and the Governor, which controversy a declaratory judgment would settle.

87. Plaintiffs, therefore, seek a declaration that GA-28 violates Article 1 § 16 of the Texas

Constitution, as it creates a retroactive document which purports to bear the force of law.

88. Article I § 16 of the Texas Constitution guarantees that no retroactive law be made:

No bill of attainder, ex post facto law, retroactive law, or any law impairing the obligation of contracts, shall be made.

TEX. CONST. art. I, § 16.

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89. Since a real controversy exists between the Governor’s GA-28 executive order, the

TABC’s enforcement of that order, and the Plaintiffs impacted, and this controversy may be met by injunctive relief in this Court, the prevention of retroactive laws is founded in two key objectives: “[I]t protects the people's reasonable, settled expectations"—i.e., "the rules should not change after the game has been played"—and it "protects against abuses of legislative power."

Robinson v. Crown Cork & Seal Co., Inc., 335 S.W.3d 126, 139 (Tex. 2010) (citing Landgraf v.

USI Film Prods., 511 U.S. 244, 265-266, 114 S. Ct. 1483, 128 L. Ed. 2d 229 (1994)).

90. GA-28 is retroactive in nature, because it invalidates the legal business status of businesses after they secured that status following proper procedure based on an erroneous application of the 51% Rule to discriminate against them. In this way, it turns back the clock and applies new restrictions and in materially all cases closes those businesses with license to earn

51% or more revenue coming from alcohol.

91. As the Third District Court of Appeals affirms in Zaatari v. City of Austin, the right to dispose of one’s property as one sees fit is paramount. See Zaatari v. City of Austin, No. 03-17-

00812-CV, Tex. App. LEXIS 10290, at *29 (Tex. App.—Austin Nov. 27, 2019, no pet. h.). In this case, the question is on whether GA-28 has retroactively eliminated the ability of the

Plaintiffs to use their property as they see fit, in this case doing business.

92. The Texas Supreme Court has provided instruction regarding the constitutionality of retroactive laws with the three-factor Robinson test, 335 S.W.3d at 145; see also Tenet Hosps.

Ltd. v. Rivera, 445 S.W.3d 698, 706-08 (Tex. 2014). First among the factors is “the nature and strength of the public interest served by the statute as evidenced by the Legislature's factual findings.” 335 S.W.3d at 145.

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93. As claimed by GA-28 and the TABC, public health is the public interest demanding the implementation of a retroactive policy seemingly bearing the force of law.

94. As explored above, public health is not a compelling state interest in undermining fundamental, constitutionally protected rights. Again, Berean Baptist Church demonstrates that as of now, there is no pandemic exception to the Constitution. Of course, the Texas Supreme has recently made a similar statement supra.

95. Additionally, as demonstrated by the plethora of Plaintiff statements, the public health concern of the state is unfounded. In all cases, Plaintiffs’ businesses were able to adhere to the health guidelines with no problem. In some cases, the Plaintiffs’ businesses exceeded the required safety measures to be even safer than those that are operating unabated.

96. The second Robinson factor balances the purpose of intended versus the nature of the right in question. See Robinson, 335 S.W.3d at 147-48. Ultimately, GA-28 substantially violates the legally obtained right of the Plaintiffs to do business. In this case, the government has announced without a shred of evidence that every “bar-plus-restaurant” in the state may operate, but no “bar-without-restaurant” is safe. Even given the purported purpose of eliminating the potential public health risks, the government cannot show that shutting down every bar has any public benefit if the commercial traffic is merely delivered to the preferred bars which can only be considered to be more crowded since fewer bars are open.

97. No person would say that shutting down some grocery stores in order to lower risk of virus spread is a rational step if the result is that all people going to all grocery stores are now going to all go to a subset of those grocery stores who are government-preferred because the preferred stores also sell fresh fish (an irrelevant additional element, like prohibiting handguns).

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98. The third Robinson factor concerns how much the statute impairs that right. Considering the declarations of all Plaintiffs that they are unable to do business in any materially significant way and that in some cases they are completely blocked from doing business, GA-28 not only impairs, but goes so far as to remove the legal rights of the plaintiffs. As bluntly stated in

Zaatari, “[t]he elimination of a right plainly has a significant impact on that right.” Zaatari, 2019

Tex. App. LEXIS 10290 at *32.

99. Having failed all three factors of the Robinson standard, GA-28 ought to be enjoined and ruled unconstitutional for violating Article 1, Section 16 of the Texas Constitution.

B. Claim 2 – Declaration – GA-28 violates Article 1, Section 17 of Texas Constitution, which prevents regulatory takings.

100. This Court may declare the rights and other legal relations of the parties in dispute whether or not further relief is or could be sought.

101. This Court has jurisdiction over the Plaintiffs’ request for declaratory relief against the

Governor because the Declaratory Judgment Act waives governmental immunity when the plaintiff is challenging the validity of an ordinance, order, or government action. See TEX. CIV.

PRAC. & REM. CODE §§ 37.004, 37.006.

102. Additionally, private parties may seek declaratory relief against state officials who allegedly act without legal or statutory authority and to compel state officers to act within their official capacity. See Andrade v. NAACP of Austin, 287 S.W.3d 240 (Tex. App. Austin 2009);

Castro v. McNabb, 319 S.W.3d 721 (Tex. App. El Paso 2009).

103. Pursuant to TEX. CIV. PRAC. & REM. CODE § 37.008 for a declaratory judgment action to be proper: (1) there must be a real controversy between the parties, and; (2) the controversy must be one that will actually be determined by the judicial declaration sought. See Brooks v.

Plaintiffs’ Original Petition - Stand For Something Group Live, LLC et al. v. Abbott, et al. Page 24

Northglen Ass’n., 141 S.W.3d 158, 163–164 (Tex. 2004). A justiciable controversy exists between the Plaintiffs and the Governor, which controversy a declaratory judgment would settle.

104. Plaintiffs, therefore, seek a declaration that GA-28 violates Article 1 § 17 of the Texas

Constitution, in as much as the Governor and TABC unlawfully and substantially damaged

Plaintiffs’ property.

105. Article 1 § 17 of the Texas Constitution guarantees that no retroactive law be made and reads as follows:

No person's property shall be taken, damaged, or destroyed for or applied to public use without adequate compensation being made . . . .

TEX. CONST. art. I, § 17.

106. To recover takings under Article I, section 17 of the Texas Constitution, a claimant must allege and prove that a governmental entity (1) intentionally, (2) took or damaged the claimant’s property, (3) for a public use. City of Dallas v. Jennings, 142 S.W.3d 310, 313 (Tex. 2004).

107. Alternatively, a claimant may establish a taking by showing a governmental entity unreasonably interfered with his right to use and enjoy his property, or that a governmental entity has denied claimant all economically beneficial or productive use of his land. See Wilkinson v.

DFW International Airport Board, 54 S.W.3d 1, 13 (Tex. App.—Dallas 2001, pet. denied); see also Sheffield Development Co., Inc. v. City of Glenn Heights, 140 S.W.3d 660, 671 (Tex. 2004).

108. To establish a regulatory taking, a claimant must show that when weighing private and public interests, a regulation (1) has an unreasonable economic impact on claimant, or it (2) unreasonably interferes with claimant’s distinct investment-backed expectations to an extent that amounts to a taking for which the public should bear cost. See Sheffield Development Co., 140

S.W.3d at 671, 672. However, a claimant must also allege and prove that the injuries to his

Plaintiffs’ Original Petition - Stand For Something Group Live, LLC et al. v. Abbott, et al. Page 25 property are different from those sustained by the community as a whole. Felts v. Harris County,

915 S.W.2d 482, 484 (Tex. 1996); Wilkinson, 54 S.W.3d at 13.

109. Takings and unreasonable interferences do not require “total” taking. Takings are classified as either physical or regulatory. Traditionally, a compensable regulatory taking occurs when governmental regulations deprive the owner of all economically viable use of his property or totally destroy his property’s value. Even if a governmental regulation has not completely destroyed the property’s value, courts recognize a regulatory taking if the governmental action unreasonably interferes with the owner 's rights to use and enjoy his property.

110. Courts determine whether the government has affected a taking by considering: (1) the economic impact of the regulation, and (2) the extent to which the regulation interferes with the owner's “distinct investment-backed expectations.” The second factor (“expectations of the property owner”) is critical in evaluating the reasonableness of the government's interference.

The existing and permitted uses of the property constitute the “primary expectation” of the property owner affected by regulation. The extent of the governmental intrusion may be a question for the trier of fact, but whether the facts constitute a taking is a question of law. City of

Dallas v. VRC LLC, 260 S.W.3d 60, 62 (Tex. App.—Dallas 2008).

111. In this instance, GA-18 creates a regulatory taking by preventing Plaintiffs from conducting materially all business operations on their property, which fulfills the burdens presented above to demonstrate economic impact of such regulatory action. In the cases of several plaintiffs, GA-28 enforcement not only applied onerous and unreasonable restrictions on the businesses but also suspended the Plaintiffs’ licenses, halting all business operations. In many cases, losses from GA-28 enforcement exceed hundreds of thousands of dollars.

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112. As previously analyzed, there is no overwhelming public interest which requires such odious enforcement. Each of the Plaintiffs is fully capable of adhering to the safety regulations required of any business operating under the 51% limit as is proven by the declarations attached.

113. More importantly, fundamental rights are not those that can be thrown by the wayside due to bureaucratic fear of responsibility should something go awry. The Constitution has no pandemic exception. GA-28 and Defendants actions constitute a regulatory taking, which is unlawful under Article 1 § 17 of the Texas Constitution.

114. Therefore, Plaintiffs respectfully request the courts to rule GA-28 unconstitutional based on the presented analysis and evidence.

C. Claim 3 – Declaration – The enforcement of Executive Order GA-28 is an impermissible violation of this state’s constitutional guarantees of equal protection.

115. This Court may declare the rights and other legal relations of the parties in dispute whether or not further relief is or could be sought.

116. This Court has jurisdiction over the Plaintiffs’ request for declaratory relief against the

Governor because the Declaratory Judgment Act waives governmental immunity when the plaintiff is challenging the validity of an ordinance, order, or government action. See TEX. CIV.

PRAC. & REM. CODE §§ 37.004, 37.006.

117. Additionally, private parties may seek declaratory relief against state officials who allegedly act without legal or statutory authority and to compel state officers to act within their official capacity. See Andrade v. NAACP of Austin, 287 S.W.3d 240 (Tex. App. Austin 2009);

Castro v. McNabb, 319 S.W.3d 721 (Tex. App. El Paso 2009).

118. Pursuant to TEX. CIV. PRAC. & REM. CODE § 37.008 for a declaratory judgment action to be proper: (1) there must be a real controversy between the parties, and; (2) the controversy must be one that will actually be determined by the judicial declaration sought. See Brooks v.

Plaintiffs’ Original Petition - Stand For Something Group Live, LLC et al. v. Abbott, et al. Page 27

Northglen Ass’n., 141 S.W.3d 158, 163–164 (Tex. 2004); A justiciable controversy exists between the Plaintiffs and the Governor, which controversy a declaratory judgment would settle.

119. Plaintiffs, therefore, seek a declaration that GA-28 violates Article I, § 3 of the Texas

Constitution inasmuch as it denies the equal protection guaranteed to Texans therein.

120. Article I, § 3 of the Texas Constitution guarantees equal protection, and reads:

All free men, when they form a social compact, have equal rights, and no man, or set of men, is entitled to exclusive separate public emoluments, or privileges, but in consideration of public services.

TEX. CONST. art. I, § 3.

121. Plaintiffs recognize that the legislature may, at times, discriminate between groups and classes of individuals. Likewise, Plaintiffs recognize that the Governor may, at no time, discriminate between groups and classes of individuals, or, in other words legislate.

122. Since a real controversy exists between the Governor’s GA-28 executive order, the

TABC’s enforcement of that order, and the Plaintiffs impacted, and this controversy may be met by injunctive relief in this Court, the establishment of an equal protection claim requires the satisfaction of two elements: (1) that the moving party was treated differently than other similarly situated parties; and (2) it was treated differently without a reasonable basis. City of

Floresville v. Starnes Investment Group, LLC, 502 S.W.3d 859 (Tex. App.--San Antonio 2016).

The critical point in successful equal protection claims is that a plaintiff must allege that he is being treated differently from others directly comparable in all material respects. Id.

123. The basis for an equal protection violation is that similarly situated individuals are treated differently by the government. Guillory v. Seaton, LLC, 470 S.W.3d 237, 246 (Tex. App.

Houston 1st Dist. 2015) (quoting City of Humble v. Metro. Transit Auth., 636 S.W.2d 484, 491

(Tex. App.—Austin 1982)). Nothing differentiates the businesses herein mentioned, which have long been closed, from those which remain open except for signage required by the 51% Rule

Plaintiffs’ Original Petition - Stand For Something Group Live, LLC et al. v. Abbott, et al. Page 28 and a FB Permit. For example, when a local Chili’s makes 51% or more of its income from selling alcohol, it may continue serving drinks during a happy hour, but Plaintiffs’ businesses may not even operate, or hold innocuous non-commercial activities which have zero alcohol involvement. (See Exhibit G, describing the TABC’s “bust” of a non-alcoholic concert held for a non-profit at a 10% occupancy rate.)

124. The business models of bars are parallel to those of restaurants, yet restaurants are not required to shut down, even when they have a bar. There is no rational basis for the distinction.

125. Nothing in GA-28 disallows the bar portion of “restaurants” to operate or allows “bars” to operate under the same adjustments as “restaurants.” Instead GA-28 forces bars to close and gives their business to a competitor. Under GA-28, customers are still drinking the same beverages, with the same friends, in a similar space. The only significant change is the type of license held by the establishment they are patronizing.

126. GA-28’s closure rules are arbitrarily based upon an establishment’s license as a “bar” and the percentage of revenue derived from alcohol sales, notwithstanding the fact that these establishments can, and often do, function in a manner identical to that of their “restaurant” counterparts. In fact, many of the Plaintiffs’ businesses, although they are licensed as bars, have certificates of occupancy as restaurants, as well.

127. In the instant case, for GA-28 to be constitutional, when compared to restaurants and other similarly situated businesses, there must be a rational relationship between the separate classification and, importantly, the separate treatment of bars. The mere happenstance that a bar is located in a restaurant, hotel, or wedding venue does not alter the inherent risks of the bar.

128. Even the Centers for Disease Control (“CDC”) treats the two equally; like as like. For example, the relevant business tab begins with the words “As restaurants and bars resume

Plaintiffs’ Original Petition - Stand For Something Group Live, LLC et al. v. Abbott, et al. Page 29 operations” which betrays the common-sense notion that the two share a similar nature and therefore ought to share a similar fate.15

129. The Court ought also to consider that Governor Abbott recognizes that personal responsibility is a driving factor in safety and decision-making. He publicly stated on August 10,

2020 in an interview regarding Fall 2020 College Football plans, “You know, I'd defer to the position of the college football players. And what I see from the college football player[s] is they really want to play. It's their careers. It's their health. And I think schools should work with them on protocols to make sure that their health can be maintained and secured and allow them to play. And then, once they are able to establish that, we can work out how many people can be allowed in the stands to watch them play.”16 (See Exhibit H.) This statement from the Governor clearly affirms personal responsibility ought to be prioritized when making decisions about health and safety.

130. If the Governor is comfortable with allowing adults to make responsible decisions about their own safety in the context of football, where few of the safety practices that other businesses utilize will be used and sweaty skin-on-skin is part of the game, he ought to be comfortable with allowing businesses and patrons to make adult, responsible decisions about their health and safety practices. To discriminate between the two, allowing one and disallowing the other, is hypocritical and indefensible. Governor Abbott’s GA-28 edict violates both the 14th Amendment of the United States Constitution and Article I, § 3 of the Texas Constitution..

15 See Centers for Disease Control and Prevention, Considerations for Restaurants and Bars, June 30, 2020, https://www.cdc.gov/coronavirus/2019-ncov/community/organizations/business- employers/bars-restaurants.html 16 See https://www.kvue.com/article/news/health/coronavirus/governor-greg-abbott-schools- coronavirus-relief-college-football/269-78c44c5e-1fd9-4020-b987-bb9fb070034b (last checked on August 19, 2020). The transcript is admissible as a statement of a party opponent and not hearsay, as Governor Abbott was not offered for the truth asserted.

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131. In the recently decided case 6th St. Bus. Partners LLC v. Abbott, Governor Abbott successfully argued that since he was not the direct enforcement, i.e. he was not traveling to the locations of businesses in violation of his edicts to shut them down, so enforcement-based injuries should not be traced to him or redressed by him In re Abbott, 956 F.3d 696 (5th Cir.

2020). See 6th St. Bus. Partners LLC v. Abbott, No. 1:20-CV-706-RP, 2020 U.S. Dist. LEXIS

130814 (W.D. Tex. July 24, 2020).

132. The Governor’s argument is a mere facade for the executive branch of a government.

While Governor Abbott did not physically enforce GA-28, he is the head of the executive branch of Texas. He directly appoints and instructs the heads of his regulatory agencies, including the

TABC. To assert that Gov. Abbott is not responsible for the enforcement of his edicts is to say that a general is not responsible for the course of a battle since he is not on the frontline firing his

M-16. Such an attempt to dodge responsibility is conduct unbecoming an officer.

133. Additionally, it is Governor Abbott who has issued these orders in the first place, and who instructed the TABC to enforce them. Had Governor Abbott simply refrained from action, the Plaintiffs would not be forced to seek redress in this matter. However, the very act of creating and promulgating GA-28 traces the damages back to him. After all, as the image below shows, the TABC’s citations state specifically that they are enforcing the GA-28 rules on the authority and at the direction of Governor Abbott:

(The full document is attached as Exhibit J-Adams.)

Plaintiffs’ Original Petition - Stand For Something Group Live, LLC et al. v. Abbott, et al. Page 31

134. This connection between the executive orders and the department activity is the missing link discussed in case law when other courts have granted jurisdictional pleas to executives, such as Morrison v. Perry, 739 F.3d 740 (5th Cir. 2014).

D. Claim 4 – Declaration – The enforcement of Executive Order GA-28 is an impermissible violation of this state’s constitutional guarantees of the right of citizens to assemble for their common good.

135. Plaintiffs seek a permanent injunction against Defendants to prevent them from enforcing the TABC rule that a 51% “no gun” sign can be employed as a single-element test to support the complete and total elimination of commercial property to be used as location where citizens may assemble for their common good, a right protected by Art. I, section 27 of the Texas

Constitution.

136. Plaintiffs contend that relaxing evenings with friends at a bar constitute an assembly for the common good of a bar’s clients. One might even recognize that such gatherings of the bar owner Sam Adams and a few of his friends resulted in considerable progress in establishing this country. Drinking with friends is a well-established practice pre-dating this country’s founding.

137. As a reminder, the rights to assemble under the federal and state constitutions differ. The

United States Constitution’s right to assemble is generally in connection with political matters; the Texas Constitution also protects the rights of citizens to assemble for their common good in a peaceable manner. Zaatari, 2019 Tex. App. LEXIS 10290 at *40-48. That common good is the common good of the citizens involved, and not the common good of the state. Id. at *44-46.

138. In Zaatari, the Third Court of Appeals reasoned that the Texas Constitution’s right to assemble has a “common good” prong that the United States Constitution does not, and found that Austin’s short-term rental ordinance infringed on Texan’s fundamental right to assemble because it limited the number of people gathering at a residence used as a short-term rental. Id.

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139. Further, the court in Zaatari recognized that the right to assemble is particularly strong on private property. Id. at *50-52.

140. Ultimately, Zaatari teaches that a Texan’s right to assemble on private property is fundamental and examined under a strict scrutiny analysis. Id. at *56.

141. Because the TABC rule limits assembly on private property without legal support of the

Texas Legislature, and without regard to the peacefulness of or reasons for the assembly, this

Court should declare the TABC interpretation invalid for its violations of Plaintiffs’ fundamental rights, and enjoin this rule that has never gone through any public review process, and even if passed by the Texas Legislature would not pass constitutional muster.

E. Claim 5 – Declaration – TABC violated its own procedure for issuance and enforcement of codes and suspensions and deprives the Plaintiffs of their right to due process of law as guaranteed by Art. I, section 19 of the Texas Constitution.

142. According to Section 5.31 of the Texas Alcoholic Beverage Code, the TABC commission is responsible for creation and enforcement of administrative codes. Alternatively, they can create an advisory committee to execute these responsibilities should they desire to do so as specified in section 5.21 of the Code. Additionally, section 5.363 of the Code provides that the commission may appoint administrators to enforce the code. In the event of a contested case of enforcement that includes a hearing, the commission makes the final decision.

143. Under ordinary circumstances, the TABC enforcement, either administrator or commission, may suspend, after notice of hearing, the permit or license if the permittee or licensee if found in violation of any one of a lengthy list of code requirements found in section

11.61 of the Texas Alcoholic Beverage Code. This provision need not be considered as the avenue of enforcement in this instance as the TABC has on multiple occasions declared its use of the emergency orders. For example, on June 29, 2020, the TABC released a statement of enforcement stating, “The Texas Alcoholic Beverage Commission has suspended seven bars'

Plaintiffs’ Original Petition - Stand For Something Group Live, LLC et al. v. Abbott, et al. Page 33 alcohol permits for 30 days after they refused to comply with an executive order from Gov. Greg

Abbott requiring that bars cease operations to limit the spread of COVID-19.” The order mentioned, GA-28, is contingent on the existence of an emergency. Additionally, in Exhibits D,

E, F, G, and J, TABC is documented as using the emergency procedure found in section 11.614 of the Code and not the normal method outlined in sections 5.435 and 11.61.

144. For emergency procedures, TABC employs section 11.614 of the Code. According to this provision, the only violation a permittee or licensee may be accused of is out of his hands. The final deciding factor is whether the commission or an administrator believes that said permittee or licensee is “a continuing threat to the public welfare.” There is no hearing before suspension as would normally be required under section 5.435 of the Code. There is no allegation of code violation required. Through the function and wording of the provision, the accused is considered guilty until proven innocent. This is the exact procedure TABC employed against Plaintiffs.

145. Section 11.614 of the Texas Alcoholic Beverage Code is an irrational and unsound provision, which TABC has used to baselessly ignore the rule of law. TABC claims emergency authority because there exists an Executive Order declaring that the Plaintiffs’ businesses threaten the “public welfare”; an order which according to In re Abbott and the Governor himself as noted above is non-binding and unenforceable. TABC believes this order grants it the power and in fact directs it to close down the Plaintiffs’ businesses for the crime of being open. If the

TABC had claimed emergency authority for an emergency lasting a short period of time such as a week or even a month, such enforcement might be excusable. However, five months into an

“emergency” is not the proper time or the proper foundation for such an egregious abuse of power.

Plaintiffs’ Original Petition - Stand For Something Group Live, LLC et al. v. Abbott, et al. Page 34

146. Even if the Defendants had used the traditional authority granted them, they would still have to demonstrate a violation of the Alcoholic Beverage Code as outlined in sections 5.435 and

11.61 of the Code to close Plaintiffs’ businesses. Nowhere in this Code are Executive Orders considered a part of the Code and certainly not a standard for suspension of permit or license.

Additionally, under the Code, the TABC commission would be required to hold a hearing and take that hearing into consideration as per section 5.435 of the Code. Using the non-enforceable

GA-28 as the premise for “code violation,” TABC suspended materially all Plaintiffs’ licenses and closed their businesses, as well as setting an ex post facto hearing date after the “sentence” had already been served. TABC’s enforcement of GA-28 completely ignores established procedure in its own Code and baselessly destroys the livelihoods of the Plaintiffs, violating their right to due process.

147. Texans are guaranteed the right to due course of law. Plaintiffs assert that GA-28 and section 11.614 of the Code violated and continue to violate Plaintiffs’ substantive-due-course-of- law protections contained in article I, section 19 of the Texas Constitution.

148. In relevant part, the due course of law section provides that no citizen shall be deprived of property except by the "due course of the law of the land." Tex. Const. art. I, § 19.

149. In 2015, in the case of Patel v. Tex. Dep’t of Licensing & Regulation, the Texas Supreme

Court set out the elements for an as-applied challenge to an economic-regulation under the Texas

Constitution's substantive-due-course-of-law requirement. See City of Fort Worth v. Rylie, 563

S.W.3d 346, 353 (Tex. App.—Fort Worth 2018) (citing Patel, 469 S.W.3d 69, 87 (Tex. 2015)).

150. According to the Texas Supreme Court “the proponent of an as-applied challenge to an economic regulation statute under Section 19's substantive due course of law requirement must demonstrate that either (1) the statute's purpose could not arguably be rationally related to a

Plaintiffs’ Original Petition - Stand For Something Group Live, LLC et al. v. Abbott, et al. Page 35 legitimate governmental interest; or (2) when considered as a whole, the statute's actual, real- world effect as applied to the challenging party could not arguably be rationally related to, or is so burdensome as to be oppressive in light of, the governmental interest.” Patel v. Tex. Dep't of

Licensing & Regulation, 469 S.W.3d 69, 87 (Tex. 2015).

151. Moreover “[t]he test is rational basis with bite, demanding actual rationality, scrutinizing the law's actual basis, and applying an actual test.” Patel, 469 S.W.3d at 98 (Tex. 2015) (Willett,

J. concurring).

152. The application of GA-28 through the emergency procedures of section 11.614 of the

Code is arbitrary and oppressive. As explored above, the TABC emergency order protocol denies

Plaintiffs their right to due process of law. One size does not fit all, but the Order appears to imagine that every bar looks like the Dallas Stark Club in its 1980s heyday. That view is irrational, as neighbor bars look more like the Cheers sitcom from the 1990s. The result is an imbalanced “law” that benefits large chain restaurants burden to the detriment of small owners of non-chain bars which provides no substantive benefit to public health.

153. As Justice Willet wrote it in his concurring opinion, “Granting special economic favors to preferred interests may be a common government purpose—"the favored pastime of state and local governments," as the Tenth Circuit put it—but common doesn't mean constitutional.

Merely asserting—and accepting—"Because government says so" is incompatible with individual freedom.” See Patel 469 S.W.3d at 105 (Willett, J. concurring).

154. This Court should enjoin these emergency hearings and rule-making. This virus appeared six months ago, giving the TABC plenty of time to establish proper rules to slow its spread.

Texans deserve more than kangaroo administrative hearings where they are guilty of doing exactly what their neighboring competitors are doing and lose their livelihood.

Plaintiffs’ Original Petition - Stand For Something Group Live, LLC et al. v. Abbott, et al. Page 36

F. Claim 6 – Application for immediate injunctive relief and to enjoin enforcement of Executive Order GA-28 until this case is heard on its merits.

155. Based on the damages that Plaintiffs are suffering due to the TABC’s enforcement of

Governor Abbott’s executive orders, Plaintiffs seek a temporary restraining order (“TRO”), temporary injunction, and permanent injunction against the Governor prohibiting him and his agents, including the TABC from taking any further steps to enforce GA-28 until such time as the legitimate law-making power in this state, the Texas Legislature, can be convened to explore what actual laws should be passed and enforced regarding these matters.

156. The purpose of a TRO is to preserve the status quo, which the Supreme Court has defined as "the last, actual, peaceable, non-contested status which preceded the pending controversy." In re Newton, 146 S.W.3d 648, 651 (Tex. 2004) (cleaned up).

157. A TRO restrains a party from acting only during the pendency of motion for temporary injunction, i.e., until a full evidentiary hearing on the motion occurs. Del Valle ISD v. Lopez, 845

S.W.2d 808, 809 (Tex. 1992); see TEX. R. CIV. P. 680.82.

158. Businesses have a right to transact lawful business. The loss of constitutional freedoms for “even minimal periods of time, unquestionably constitutes irreparable injury.” Elrod v.

Burns, 427 U.S. 347, 373 (1976).

159. Irreparable injury to the Plaintiffs has resulted from the passage and subsequent enforcement of GA-28.

160. Accordingly, there is no harm to the Governor in granting the relief requested. After all, he has declined any association with these issues. However, the harm to the Plaintiffs, if such injunctive relief is denied, will be significant and irreparable. Many bars are facing bankruptcy for no reason other than Governor Abbott’s executive orders and the TABC’s Procrustean approach to their enforcement.

Plaintiffs’ Original Petition - Stand For Something Group Live, LLC et al. v. Abbott, et al. Page 37

161. Therefore, Plaintiffs respectfully request this Court issue a temporary restraining order against the Governor restraining him, his agents, representatives, employees or anyone acting on his behalf, until further order of the Court from taking any actions to enforce GA-28 referenced above, including but not limited to: a) preventing Plaintiffs from operating their businesses, and; b) suspending the Plaintiffs’ licenses and instituting any enforcement actions against Plaintiffs based in any way upon GA-28.

162. Additionally, the Texas Supreme Court has recently clarified that declaratory judgment claims remain available to invalidate unconstitutional statutes. Town of Shady Shores v.

Swanson, 590 S.W.3d 544, 552-53 (Tex. 2019). As pleaded herein, Plaintiffs allege that GA-28 is unconstitutional to the extent it allows the Governor of Texas to provide equal protection to bars, but not to bars, by allowing bars to operate, except when they are so allowed.

163. Governor Abbott seeks to enforce mere rules as though they are laws on an emergency basis, though the alleged emergency is going on five months now, and the proper means of enacting such policies has been ignored for the duration of the “crisis”. If there was ever an actual emergency requiring immediate action by the State, that time has passed. Absent judicial intervention, Plaintiffs face ongoing requirements impacting their operation and no practical ability to again prevent Governor Abbott and the TABC from further penalizing Plaintiffs and forcing the closure of the Plaintiffs’ businesses if they do not keep up with the every latest proclamation, executive order, and all utterances issued by Governor Abbott, as though these statements are laws.

164. The Court should enjoin Governor Abbott and TABC from enforcing the GA-28 against

Plaintiffs, or whatever iteration that might come to pass. Texas is not in a state of disaster, and is handling all other issues in a mundane way. This Court cannot stand by and let “it’s an

Plaintiffs’ Original Petition - Stand For Something Group Live, LLC et al. v. Abbott, et al. Page 38 emergency” trump the Texas Constitution in such a way that business owners go to jail for the crime of operating, while at the same time the City is releasing those jailed for theft.

165. There is no adequate remedy at law that will give Plaintiffs complete, final, and equitable relief because civil and criminal penalties, loss of income, and damaged business relationships should be addressed immediately. Plaintiffs’ damages cannot be measured with certainty, and it is neither equitable nor conscionable to allow Defendants to violate the constitutional rights of

Plaintiffs under the authority of regulations which do not carry the force of law.

166. The comparative injury or balance of equities and hardships to the parties and to the public interest support granting temporary injunctive relief because Plaintiffs are only asking the

Court to preserve the status quo and require Defendants to cease unlawfully infringing upon

Plaintiffs’ constitutional rights.

167. “If we tolerate unconstitutional government orders during an emergency, whether out of expediency or fear, we abandon the Constitution at the moment we need it most.” In re Salon A

La Mode, et al, No. 20-0340, 2020 WL 2125844 (Tex. May 5, 2020).

G. Claim 7 – Application for immediate injunctive relief and to enjoin enforcement of Alcoholic Beverage Code Section 11.614 until this case is heard on its merits. 168. Based on the damages that Plaintiffs are suffering due to the TABC’s enforcement of the

Governor Abbott’s executive orders, Plaintiffs seek a temporary restraining order (“TRO”), temporary injunction, and permanent injunction against the TABC commission, Kevin Lilly,

Bentley Nettles, and all other relevant agents and officials of TABC, prohibiting them from taking any further steps to apply TEX. ALCO. BEV. CODE § 11.614 until such time as the legitimate law-making power in this state, the Texas Legislature, can be convened and explore what actual laws should be passed and enforced regarding these matters.

Plaintiffs’ Original Petition - Stand For Something Group Live, LLC et al. v. Abbott, et al. Page 39

169. The purpose of a TRO is to preserve the status quo, which the Supreme Court has defined as "the last, actual, peaceable, non-contested status which preceded the pending controversy." In re Newton, 146 S.W.3d 648 at 651.

170. A TRO restrains a party from acting only during the pendency of motion for temporary injunction, i.e., until a full evidentiary hearing on the motion occurs. Del Valle ISD v. Lopez, 845

S.W.2d 808, 809 (Tex. 1992); see TEX. R. CIV. P. 680.82.

171. Businesses have a right to transact lawful business. The loss of constitutional freedoms for “even minimal periods of time, unquestionably constitutes irreparable injury.” Elrod v.

Burns, 427 U.S. 347, 373 (1976).

172. Irreparable injury to the Plaintiffs has resulted from the application of TEX. ALCO. BEV.

CODE § 11.614.

173. Accordingly, there is no harm to the TABC or its officials in granting the relief requested.

After all, they have based their actions on a non-binding executive order, with which Governor

Abbott has declined any association. However, the harm to the Plaintiffs, if such injunctive relief is denied, will be significant and irreparable. Many bars are facing bankruptcy for no reason other than Governor Abbott’s executive orders and the TABC has decided to take a Procrustean approach to their enforcement.

174. Therefore, Plaintiffs respectfully request this Court issue a temporary restraining order against the TABC, Kevin Lilly, Bentley Nettles, and all other relevant TABC officials, agents, and administrators, restraining them, their agents, representatives, employees or anyone acting on their behalf, until further order of the Court from taking any actions to apply TEX. ALCO. BEV.

CODE § 11.614 referenced above, including but not limited to: a) preventing Plaintiffs from

Plaintiffs’ Original Petition - Stand For Something Group Live, LLC et al. v. Abbott, et al. Page 40 operating their businesses, and; b) suspending the Plaintiffs’ licenses and instituting any enforcement actions against Plaintiffs based in any way upon TEX. ALCO. BEV. CODE § 11.614.

VII. ATTORNEYS’ FEES

175. Plaintiffs request payment of their reasonable attorneys’ fees and costs. The Plaintiffs have retained the firm of Norred Law, PLLC to represent them in this action and have agreed to pay the firm reasonable and necessary attorneys’ fees. An award of reasonable and necessary attorneys’ fees to the Plaintiffs would be equitable and just and therefore authorized by Section

37.009 of the Civil Practice and Remedies Code.

VIII. PRAYER FOR RELIEF

WHEREFORE, PREMISES CONSIDERED, the Plaintiffs respectfully pray for the following relief:

i. a declaration that GA-28 violates the Texas Constitution;

ii. a temporary restraining order, and, upon hearing,

iii. a temporary, and then permanent injunction for relief requested above;

iv. Plaintiffs’ reasonable and necessary attorneys’ fees in prosecuting its claim(s)

through trial and, if necessary, through appeal;

v. upon final trial, judgment against the Defendant for full permanent injunctive relief;

vi. all costs of suit; and,

vii. such other and further relief, at law or in equity, to which the Plaintiffs may show

themselves justly entitled.

Plaintiffs’ Original Petition - Stand For Something Group Live, LLC et al. v. Abbott, et al. Page 41

Respectfully submitted this 24th day of August, 2020,

By:/s/Warren V. Norred Warren Norred, Texas Bar No. 24045094 Norred Law, PLLC 515 E. Border Arlington, TX 76001 [email protected] Tel: (817) 704-3984, Fax: (817) 549-0161

Keith Strahan, Texas Bar No. 24073602 Fulton Strahan Law Group, PLLC 7676 Hillmont Street, Ste 191 Houston, TX 77040 [email protected] Tel: (713) 589-6964, Fax: (832) 201-8847

Counsel for Plaintiffs

Exhibits attached: A: Executive Order GA-18 B: Executive Order GA-26 C: Executive Order GA-28 D: Declaration of Palone (The Rail Club Live) E: Declaration of Chew (The Whiskey Girl) F: Declaration of Adams (Lazy H) G: TABC Enforcement Packet H: Transcript of Governor’s Interview I: Industry Notice, TABC, June 27, 2020 J: Declarations of Other Plaintiffs* P. 1-2: Robinson (Barge295) P. 3-4: Parham (Soggy Bottom) P. 5: Worley (Cooter Brown’s) P. 6-7: Evans (Bar on Veterans) P. 8-10: Springs (Six Springs Tavern) P. 11: Cowley (Pearl’s Cherokee Lounge) P. 12: Freeman (Horny Toads) P. 13-15: Osbakken (Caves Lounge) P. 16-17: Osbakken (Ozzie Rabbit Lounge) P. 18: Jones (Basin Nights) P. 19: Redmond (Plaza Pub) *The Scout Bar’s declaration is not included in this appendix.

Plaintiffs’ Original Petition - Stand For Something Group Live, LLC et al. v. Abbott, et al. Page 42

Exhibit A

p. 43 Exhibit A

p. 44 Exhibit A

p. 45 Exhibit A

p. 46 Exhibit A

p. 47 Exhibit A

p. 48 Exhibit B

p. 49 Exhibit B

p. 50 Exhibit B

p. 51 Exhibit B

p. 52 Exhibit B

p. 53 Exhibit C

p. 54 Exhibit C

p. 55 Exhibit C

p. 56 Exhibit C

p. 57 Exhibit C

p. 58 Exhibit C

p. 59 Unsworn Declaration (TEX. CIV. PRAC. & REM. CODE § 132.001)

“My name is Christopher Polone, my date of birth is July 4, 1992 and my office address is 3101 Joyce Drive Fort Worth TX. 76116. I declare under penalty of perjury that the following statements are true and correct.

1. I own Stand For Something Group Live LLC. D.B.A. The Rail Club Live, located at 3101 Joyce Drive Fort Worth, TX. 76116. We operate as a Multi-Purpose Event Hall, with a Mixed Beverage Permit.

2. I am an experienced Live Music Venue Owner and Hazardous Materials Professional. I was an Emergency Response Supervisor for multiple Hazardous Materials Emergency Response Companies, and managed countless hazardous material releases and operations involving infectious substances.

3. Using my professional experience I went above and beyond CDC recommendations and Texas Covid-19 mandates to ensure the safety of my patrons. I have been operating The Rail Club Live for the last two years without any incidents or TABC violations. Further, I have not sold alcohol since June 25, 2020. I have only held protest events.

4. On June 26, 2020, I was at my business, preparing for a show with a band, Dispositions, who was performing live that evening. The performance was also set up to be livestreamed.

5. On Friday, June 26th, 2020, I became aware of the GA-28 Executive Order issued by Governor Abbott. That order indicated to me that I could comply by ensuring that the business’s sales were less than 51% alcohol. We did a lot of things to ensure the safety of our customers that evening, including:

A) We only allowed 40 people, which is less than 25% of our listed occupancy.

B) We checked temperatures of all people on site, including staff, artist, media, owners, and even protesters.

C) We set out ten tables with four chairs to a table, with each grouping six feet from other groups. We then used colorful duct tape to make a visible barrier around the tables to ensure social distancing.

D) We allowed only masked individuals to enter.

E) Hand sanitizer was issued to every person who entered the building.

F) All alcohol was locked in our liquor cabinet.

G) Employees sanitized surfaces continuously.

H) Two hours prior to the event, we decontaminated our entire building with a CDC approved germicide that kills COVID-19 via foggers.

p. 60 p. 61 p. 62 p. 63 p. 64 p. 65 FILED 458-20-4413 ACCEPTED 458-20-4413 8/3/2020 3:39 PM 8/3/2020 4:27 PM STATE OFFICE OF STATE OFFICE OF ADMINISTRATIVE HEARINGS ADMINISTRATIVE HEARINGS Jessie Harbin, CLERK Jessie Harbin, CLERK

THE STATE OF TEXAS § COUNTY OF TRAVIS §

BEFORE ME, the undersigned authority, this day personally appeared Ronald Swenson, Deputy Chief of the Enforcement Division, for the Texas Alcoholic Beverage Commission, to me well known, and who, after being duly sworn, did depose as follows:

THAT my name is Ronald Swenson, and I am the Deputy Chief of the Enforcement Division, for the Texas Alcoholic Beverage Commission. As the Deputy Chief of the Enforcement Division, I am custodian of all the records and files of the Enforcement Division and am familiar with the manner in which its record are created and maintained by virtue of my duties and responsibilities.

I HEREBY CERTIFY that attached are 18 pages of records, i.e. Inter-office Communication, and Agent Narratives including photographs, for PATRICIA ADAMS dba LAZY H, Permit Nos. BG527294 and BL. These are original record or exact duplicates of the original records as taken from the official records of the Enforcement Division. It is the regular practice of the Enforcement Division to make this type of record at or near the time of each act, event, condition, opinion, or diagnosis set forth in the record. It is the regular practice of the Enforcement Division for this type of record to be made by, or from information transmitted by, persons with knowledge of the matters set forth in them. It is the regular practice of the Enforcement Division to keep this type of record in the course of regularly co t business activity. It is the regular practice of the business activity to ake the ords.

Ronald ~we~~!),,/

swo~ AND SUBSCRIBED BEFORE ME, this 29TH day of July 2020, TO CERTIFY WHICH WITNESS MY HAND AND SEAL OF OFFICE.

.~o~-...... ~•~"••-.....~.._ KATHY GERSBACH , ...~_4/'\ Nolary Public, StateofTuaa i_•\ ..~}*] Notary ID# 12871297-2 \:>;._;;;, ... 4.°3/ .., CommlNlon ExplrN ,,,,,,,JI:,.,,.,. OCTOBER 30. 2023

p. 66

TEXAS ALCOHOLIC BEVERAGE COMMISSION Texans Helping Businesses & Protecting Communities

INTER-OFFICE COMMUNICATION

TO: Ronald Swenson, Deputy Chief of Enforcement, Headquarters

FROM: Randy Chatham, Lieutenant, Houston Regional Office

SUBJECT: Emergency Order Request for Lazy H BG527294

DATE: July 25, 2020

Governor Abbott initiated Executive Order GA28, prohibiting visitation of bars or similar establishments that hold a permit from the Texas Alcoholic Beverage Commission (TABC) and are not restaurants (not having less than 51% of their gross receipts from the sale of alcoholic beverages) in the interest of the public’s general welfare, health, and safety, effective 12:00 p.m., June 26, 2020.

On July 25, 2020, Agents conducted an undercover operation at Lazy H, BG527294, located at 3905 North Main Street in Liberty, Liberty County, Texas 77575. Said location is required to post a red, 51% weapon sign, designating said location as a bar, and is not a restaurant, in the State of Texas. Said inspection has been detailed in Inspection Incident Report 330397.

During said inspection, conducted at approximately 6:16 p.m., Agents observed the location to be conducting on-premise sales and consumption of alcoholic beverages, allowing customers to congregate in violation of the Governor’s order cited above. Agents entered the location in plain clothes to conceal their identity. They entered the location and each was served an alcoholic beverage. Employees and patrons were observed on the premises in violation of the order.

This violation of the Governor’s order jeopardizes the welfare, health, and safety of the general public as the virus that causes COVID-19 can be spread to others by infected persons who have few or no symptoms. Even if an infected person is only mildly ill, the people they could spread it to may become seriously ill or even die, especially if they are 65 or older with pre-existing health conditions that place them at higher risk.

As such, I am requesting a 30-day emergency suspension of said premises for violation of the June 26, 2020, Executive Order GA28 set forth by Governor Abbott.

p. 67 Texas Alcoholic Beverage Commission Administrative Notice

Notice No.: Q3 2 6 5 4 Q ~Sa S:'-7 "'t..<;4 License/Permit Number

Tradename Temporary Permit Number $'tn.C<1' °?:>~<:,s w ~ ~ Business Address City County

License/Pennij Holder Notice Issue Dale n ry 0 You are bein issued a WARNING for the violation(s) listed below. u3 A dminlstrative Case will be filed for the following violation(s). Offense(s}: Description VloCode;:

t,~;!' r,-...~'(',E,. ,.~ ,·.-. ~ (\.n.6;(\..

am

...:C=-:...1\!...~ !0------~ Date of V10lation nme f'4-t-f''tq..,"t~ Art1~&..-1> Print name of licensee/permittee/employee acknowledging receipt or this nobee \J r SSN/Other ID # --Date of Birth Ethnicity Sex Signature of licensee/pennittee/employee actuiowledging receipt or this ootice 3 -Name--of-T,.,.~q..~~~•:.._i~i..f..w_e_,t?""'ue.:inb:.g.z...::-= oo~""tlce~--~::l.o!~~";:> District#

p. 68

TEXAS ALCOHOLIC Texas Alcoholic Beverage Commission

BEVERAGE COMMISSION

Incident Report

Inspection 3390397 Trade Name LAZY H

Location Address 3905 N MAIN ST

LIBERTY, TX 77575

County Liberty

Admin Vio Notice #: 326540 Violation Date: 7/25/2020 6:16 PM

Issue Date: 7/27/2020 Admin Status: Open Notice Type: CASE

Vio Admin Offense Detail: 585 - Emergency Order

ENF1500 - Incident Report 7/28/2020 9:51 PM 1/11

p. 69

TEXAS ALCOHOLIC Texas Alcoholic Beverage Commission

BEVERAGE COMMISSION

Incident Report

Case No. Report Date 3390397.1 7/25/2020

Current Report status Location Reporting Officer

Approved

Date Entered Davidson, Joseph

7/25/2020 8:56 PM 3905 N MAIN ST

Entered By Assisted By Davidson, Joseph LIBERTY, TX 77575

Date Verified

Chambers, Price

Verified By

Falls, Charles

Date Approved 7/25/2020 9:38 PM Jones, James

Approved By Jones, James

Incident Date 7/25/2020

Report Type Incident Report

Call Source Connecting Case TABC

Reporting Agency Division TABC Enforcement

Report narrative Admin #326540

My name is Joseph Davidson. I am currently employed as an Enforcement Agent for the Texas Alcoholic Beverage Commission. I have been a peace officer in the State of Texas for approximately 21 years.

On 07/25/2020 Agents from the Texas Alcoholic Beverage Commission were conducting an undercover investigation pertaining to bars operating in violation of Texas Governors Executive order GA-28.

Authority GA-28 Office of the Governor Governor Abbott took executive action to contain spread of COVID-19 June 26, 2020, Austin, Texas Limits Certain Businesses and Services with Direct Link to Infections

On June 26, 2020 Governor Greg Abbott, issued an executive order limiting certain businesses and services as part of the state’s efforts to contain the spread of COVID- 19. This decision came as the number of people testing positive for COVID-19 and the number of hospitalizations had increased and the positivity rate in Texas increased above 10%, which the Governor previously stated would lead to further preventative action. The targeted, measured directives in the executive order are based on links between certain types of businesses and services and the recent rise in positive cases throughout the state.

The order includes the following:

All bars and similar establishments that receive more than 51% of their gross receipts from the sale of alcoholic beverages were required to close at 12:00 PM on June 26, 2020. These businesses may remain open for delivery and take-out, including for alcoholic beverages, as authorized by the Texas Alcoholic Beverage Commission

Agent Price Chambers and I were assigned to the undercover team during the operation. Agent Falls and Sergeant Jones were assigned to the open/contact team.

Agent Chambers and I exited our vehicle and noticed there were approximately 8-10 vehicles in the parking lot and customers were entering the location through the back

ENF1500 - Incident Report 7/28/2020 9:51 PM 2/11

p. 70

TEXAS ALCOHOLIC Texas Alcoholic Beverage Commission

BEVERAGE COMMISSION

Incident Report

door of the location. At approximately 6:16 pm Agent Chambers and I entered a location identified as Lazy H, located at 3905 N. Main Street in Liberty Texas. Lazy H holds TABC Permit number BG527294. TABC records designates the location as a 51% location due to the reported sales of alcoholic beverages exceed 51% of their total reported sales. The original permit was issued on 12/09/2002 and expires on 12/8/2021 and is current and active.

Agent Chambers and I entered through the back door of the location. Agent Chambers and I were greeted by a white male who was an employee and was seated at a table. Agent Chambers and I were then approached by an older white female who took our drink orders. Agent Chambers and I ordered a Coors Light and Dos XX beers each for a total price of $6, then another white female brought the alcoholic beverages to us. There were approximately 19 people inside this location with approximately 4 of them being employees. There was hand sanitizer at each table inside the location and masks were available at the front door. There was also a live band at the location. Other patrons were seated at tables inside the location where alcoholic beverages were being served. I knew them to be alcoholic beverages due to them being served in clearly labeled containers. This location was operating in direct conflict with Texas Governors Order GA-28.

This location operates under the authority of Texas Alcoholic Beverage Commission license BG527294. At the time of this violation, the permit was current and active. This location is required to have the red 51 percent sign posted.

A check of TABC ARTS system does not show that this location has applied for a change in signs by filing for a food and beverage certificate.

After gathering video from inside the location Agent Chambers and I then left the location and relayed the information to Agent Falls and Sergeant Jones. The video was captured using a state issued cell phone. The video was later uploaded onto a state-maintained server. The digital media was then transferred to a disc and will be entered into evidence at the Lufkin Office.

ENF1500 - Incident Report 7/28/2020 9:51 PM 3/11

p. 71

TEXAS ALCOHOLIC Texas Alcoholic Beverage Commission

BEVERAGE COMMISSION

Incident Report

Case No. Report Date 3390397.2 7/25/2020

Current Report status Location Reporting Officer

Approved

Date Entered Falls, Charles

7/25/2020 8:59 PM 3905 N MAIN ST

Entered By Assisted By Falls, Charles LIBERTY, TX 77575

Date Verified

Davidson, Joseph

Verified By

Chambers, Price

Date Approved 7/25/2020 9:29 PM Jones, James

Approved By Jones, James

Incident Date 7/25/2020

Report Type Supplement Report

Call Source Connecting Case

Reporting Agency Division

Report narrative On July 25, 2020, at approximately 6:16 pm, Agents Davidson and Chambers entered

a license location commonly known as Lazy H (BG 527294) in an undercover capacity to investigate violations of Governors Order GA-28.

I, Agent Falls, was assigned to the Open Team and took a position where I would not be seen by patrons entering the location’s parking lot but could access the location if the Undercover Team needed assistance.

The Undercover Team exited the location at approximately 6:31 pm without incident.

ENF1500 - Incident Report 7/28/2020 9:51 PM 4/11

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TEXAS ALCOHOLIC Texas Alcoholic Beverage Commission

BEVERAGE COMMISSION

Incident Report

Case No. Report Date 3390397.3 7/25/2020

Current Report status Location Reporting Officer

Approved

Date Entered Jones, James

7/25/2020 9:25 PM 3905 N MAIN ST

Entered By Assisted By Jones, James LIBERTY, TX 77575

Date Verified

Chambers, Price

Verified By

Davidson, Joseph

Date Approved 7/25/2020 9:29 PM Falls, Charles

Approved By Jones, James

Incident Date 7/25/2020

Report Type Supplement Report

Call Source Connecting Case

Reporting Agency Division

Report narrative On July 25, 2020, at approximately 6:16 pm, Agents Davidson and Chambers entered

a license location commonly known as Lazy H (BG 527294) in an undercover capacity to investigate violations of Governors Order GA-28.

I, Sergeant James Jones, was the supervisor and part of the Open Team with Agent Falls. We took a position where we could not be seen by patrons entering the location’s parking lot, but could access the location if the Undercover Team needed assistance. I did not enter or speak with anyone at the location.

ENF1500 - Incident Report 7/28/2020 9:51 PM 5/11

p. 73

TEXAS ALCOHOLIC Texas Alcoholic Beverage Commission

BEVERAGE COMMISSION

Incident Report

Case No. Report Date 3390397.4 7/25/2020

Current Report status Location Reporting Officer

Approved

Date Entered Chambers, Price

7/25/2020 9:34 PM 3905 N MAIN ST

Entered By Assisted By Chambers, Price LIBERTY, TX 77575

Date Verified

Davidson, Joseph

Verified By

Falls, Charles

Date Approved 7/25/2020 9:39 PM Jones, James

Approved By Jones, James

Incident Date 7/25/2020

Report Type Supplement Report

Call Source Connecting Case

Reporting Agency Division

Report narrative TABC CASE REPORT

Date of Offense: July 25, 2020 Tradename: Lazy H License/Permit #: BG527294 Admin. Notice #: 326540 Crim. Notice #: Not Applicable Agents Involved: Sergeant. J Jones, J. Davidson, C. Falls and P.Chambers. ______

L icense/Permit Information: Date of Issue: 12/09/2002 Expiration Date: 12/08/2021 Issued to: Lazy H Address: 3905 North Main, Liberty 77575

Introduction: I, Agent Price D. Chambers, am a certified peace officer employed by the Texas Alcoholic Beverage Commission as an Enforcement Agent, stationed in the Houston District Office. On July 25, 2020, I was performing my duties as an undercover agent with Agent J. Davidson in an Undercover Compliance Operation. The Open/Identification team consisted of Agent C. Falls and Sergeant J. Jones. The purpose of this operation was to enter locations and observe any violations of the Governor’s Order GA-28.

Narrative: On the listed date at approximately 6:16 PM, myself and Agent Davidson drove into the parking lot for the above listed location and observed the parking lot to contain approximately 10 cars. We entered Lazy H, located at 3905 N. Main in Liberty, Liberty County, Texas. We were met at the door by a white male who escorted us to a table back alongside the pool tables. An older white female approached us and took an order for our alcoholic beverages she told us we could remove our masks and only had to have them on when we were up moving around. While waiting for our beverages to arrive I did observe approximately 19 people sitting at various tables and a small band getting ready to play. A young female approached us who had been

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p. 74

TEXAS ALCOHOLIC Texas Alcoholic Beverage Commission

BEVERAGE COMMISSION

Incident Report

acting in a bartender capacity when we entered and delivered us our beers and set a bottle opener on the table stating, “the State of Texas would not allow her to open our beer”. All employees were observed wearing masks and there was hand sanitizer at each table. At the entrance there was a small table with hand sanitizer and masks available to anyone entering by the front door. At approximately 6:31 Agent Davidson and I exited the location.

Authorities: Governor’s Order GA-28

Attachments: Video and photos were taken inside location

Evidence: Video and photos were uploaded onto the K Drive. Sgt. Jones copied the videos and photos to disk to be submitted and stored in a locker at the Lufkin office until they are transferred to the Conroe Evidence room.

ENF1500 - Incident Report 7/28/2020 9:51 PM 7/11

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TEXAS ALCOHOLIC Texas Alcoholic Beverage Commission

BEVERAGE COMMISSION

Incident Report

Case No. Report Date 3390397.5 7/27/2020

Current Report status Location Reporting Officer

Approved

Date Entered Falls, Charles

7/27/2020 3:36 PM 3905 N MAIN ST

Entered By Assisted By Falls, Charles LIBERTY, TX 77575

Date Verified

Jones, James

Verified By

Date Approved 7/27/2020 3:40 PM

Approved By Jones, James

Incident Date 7/27/2020

Report Type Supplement Report

Call Source Connecting Case

Reporting Agency Division

Report narrative On July 27,2020, at approximately 2:00 pm I, Agent Falls, assisted Sergeant Jones in

serving an Emergency Suspension Order on a license location known as Lazy H . Sergeant Jones served the order to the permitee at their residence without incident.

ENF1500 - Incident Report 7/28/2020 9:51 PM 8/11

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TEXAS ALCOHOLIC Texas Alcoholic Beverage Commission

BEVERAGE COMMISSION

Incident Report

Case No. Report Date 3390397.6 7/27/2020

Current Report status Location Reporting Officer

Approved

Date Entered Jones, James

7/27/2020 3:41 PM 3905 N MAIN ST

Entered By Assisted By Jones, James LIBERTY, TX 77575

Date Verified

Verified By

Date Approved 7/27/2020 3:44 PM

Approved By Jones, James

Incident Date 7/25/2020

Report Type Supplement Report

Call Source Connecting Case

Reporting Agency Division

Report narrative My name is James Jones, I'm a Sergeant with the Texas Alcoholic Beverage

Commission. On 7/27/20 at approximately 2:00 pm I served an Emergency Order of Suspension to Patricia Adams at her residence. Patricia Adams is the owner of Lazy H in Liberty Texas.

ENF1500 - Incident Report 7/28/2020 9:51 PM 9/11

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TEXAS ALCOHOLIC Texas Alcoholic Beverage Commission

BEVERAGE COMMISSION

Incident Report

ENF1500 - Incident Report 7/28/2020 9:51 PM 10/11

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TEXAS ALCOHOLIC Texas Alcoholic Beverage Commission

BEVERAGE COMMISSION

Incident Report

ENF1500 - Incident Report 7/28/2020 9:51 PM 11/11

p. 79 p. 80 p. 81 p. 82 p. 83 p. 84 8/20/2020 Coronavirus: Texas Gov. Abbott talks schools, college football | kvue.com

CORONAVIRUS Texas Gov. Greg Abbott talks schools, COVID-19 relief and college football

Gov. Abbott also shares what he thinks about President Trump's executive order to bring back unemployment bonus payments.

Author: KVUE News Staff Published: 7:31 PM CDT August 10, 2020 Updated: 7:31 PM CDT August 10, 2020

AUSTIN, Texas — In an interview with KVUE anchor Bryan Mays on Monday afternoon, Gov. Greg Abbott revealed when he expects a COVID-19 vaccine will be available in Texas and how he feels about college football returning this fall.

Mays: As students return to class in some school districts, will schools be required to report

COVID-19 cases to Texas Education Agency, and is there a statewide plan to deal with any 00:01 / 05:57 p. 85 https://www.kvue.com/article/news/health/coronavirus/governor-greg-abbott-schools-coronavirus-relief-college-football/269-78c44c5e-1fd9-4020-b987-… 1/5 8/20/2020 Coronavirus: Texas Gov. Abbott talks schools, college football | kvue.com outbreaks?

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Abbott: Whenever there is an illness, an illness like COVID-19, on campus, a school is required to report that to their local health authority and then the local health authority will report it to the State Department of Health Services.

RELATED: LIST: What local school districts are planning for back-to-school

With regard to response to any type of outbreak, the TEA has built-in flexibility into the school system so that schools can take several steps. One would be if anybody in a school, whether it be a student or a teacher or staff member, tests positive. The school has the option to shut down entirely or shut down a part of the school and, during that time, educate children remotely while the school goes about the process of sanitizing the school and stabilizing it for the return of the students. Separate from that, local public health authorities have the ability to temporarily close the school if needed. That was done this past school year for the purpose of closing schools because of flu outbreaks.

Mays: President Donald Trump, through executive order, is attempting to bring back the weekly unemployment bonus payments, about $400 a week. Individual states will be responsible for about a quarter of that payment for each person filing. Will Texas be paying that money? If so, where will that money come from?

Abbott: I had the opportunity to speak with the vice president as well as the secretary of treasury [Monday], as well as other members of the cabinet, to learn more about how this process can work, and I'll tell you two updates about it. One is, if the states do pay for it, they said states are able to use the CARES Act funding to pay for that component. However, I also know that the administration continues to negotiate with the Democrats in the U.S. Senate, as well as in the U.S. House, to try to find a strategy in which the federal government will be providing all of that unemployment just like they did in the first round of CARES Act funding.

00:01 / 05:57 p. 86 https://www.kvue.com/article/news/health/coronavirus/governor-greg-abbott-schools-coronavirus-relief-college-football/269-78c44c5e-1fd9-4020-b987-… 2/5 8/20/2020 Coronavirus: Texas Gov. Abbott talks schools, college football | kvue.com

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Mays: Three weeks ago, Texas was averaging about 67,000 tests a day. Now, we've fallen back to 43,000 tests a day. Why has testing decreased so significantly?

Abbott: Let's go back in time to when Texas opened up. We were testing about 20,000-25,000 at that time, and I said the goal was 30,000. What caused us to get so high is we had several surge teams in place and different locations in the state of Texas that were doing rounds of 50,000 tests per week. And it's that massive surge testing that took us over the 50,000 mark. Right now, [it's] staying around the 40,000-45,000 level. I can tell you when schools fully open up, there are new testing strategies that will be employed that may mean that we will be testing far in excess of 50,000 people a day because of the increased testing that will be taking place at schools as well as at nursing homes.

Mays: You recently announced nursing homes that care for individuals that receive Medicare in Texas will receive $1.1 billion through the Quality Incentive Payment Program. That's a program that is performance-based. So how will the funds there be distributed?

Abbott: Those funds are focused on sanitation practices as well as practices to make sure that better infectious disease control protocols will be used. There are limited people who can come into a senior living facility, and our goal is to make sure that if they do, they are, for one, not importing COVID-19 into that senior living facility. Then, separately, to make sure that there are appropriate infectious disease protocols used in that facility.

RELATED: Limited visitation now allowed at nursing and long-term care facilities, says Texas HHSC

Mays: We know there are several vaccine trials underway, many in the state. How confident are you that a vaccine will be made available to Texans when one or more are approved?

Abbott: Well, I'm proud that Texas universities as well as hospitals are involved with regard to the advancement of vaccines. I'm very confident that perhaps as early as later on this year, vaccines will become available. That said, I was just at UT Southwestern [Medical Center] in Dallas last week and learned about more therapeutic drugs that will be able to come to market really soon, maybe as soon as next month, to treat people who do test positive for COVID-19. So the first thing coming up will be treatments for people testing positive. That will be used for the next few months. And then after that, the vaccines should soon come available.

00:01 / 05:57 p. 87 https://www.kvue.com/article/news/health/coronavirus/governor-greg-abbott-schools-coronavirus-relief-college-football/269-78c44c5e-1fd9-4020-b987-… 3/5 8/20/2020 Coronavirus: Texas Gov. Abbott talks schools, college football | kvue.com

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RELATED: Outpatient COVID-19 antibody trial coming to Round Rock

Mays: You live in a college football city. Any thoughts on college football? Should games be played in Texas this fall?

Abbott: You know, I'd defer to the position of the college football players. And what I see from the college football player is they really want to play. It's their careers. It's their health. And I think schools should work with them on protocols to make sure that their health can be maintained and secured and allow them to play. And then, once they are able to establish that, we can work out how many people can be allowed in the stands to watch them play.

RELATED: Texas Longhorns players join #WeWantToPlay Twitter movement

Gov. Greg Abbott discusses schools, COVID-19 relief | KV…

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Sponsored Links by Taboola You May Like 00:01 / 05:57 p. 88 https://www.kvue.com/article/news/health/coronavirus/governor-greg-abbott-schools-coronavirus-relief-college-football/269-78c44c5e-1fd9-4020-b987-… 4/5 8/20/2020 Coronavirus: Texas Gov. Abbott talks schools, college football | kvue.com Before you renew Amazon Prime, read this Wikibuy

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00:01 / 05:57 p. 89 https://www.kvue.com/article/news/health/coronavirus/governor-greg-abbott-schools-coronavirus-relief-college-football/269-78c44c5e-1fd9-4020-b987-… 5/5 INDUSTRY NOTICE June 27, 2020

To: Eligible Mixed Beverage Permittees

Re: Including Alcohol With Pickup and Delivery Orders of Food

The COVID-19 crisis has significantly impacted the alcoholic beverage industry, requiring new methods of operation to prevent the spread of the virus. As such, Governor Abbott has waived certain laws so businesses can adapt to new operating conditions. This guidance explains the parameters for mixed beverage restaurants selling alcohol for customer pickup or delivery.

Current law prohibits a Mixed Beverage Permit (MB) holder from delivering alcohol to consumers unless they also have a Food and Beverage Certificate (FB), selling alcohol to go, and selling mixed drinks for off-premise consumption. However, the Governor, pursuant to the March 13, 2020 disaster declaration, suspended these limitations so that certain MB permittees may conduct alcohol to-go and delivery transactions according to the below guidance.

Eligible MB permittees are hereby authorized to allow customers to pick up food orders that include alcohol and to conduct deliveries to customers of food orders that include alcohol under the following limited conditions:

Eligibility To Offer Consumer Pickup or Delivery to Consumers: • Hold a Mixed Beverage Permit (MB) (regardless of whether they also hold a Food and Beverage (FB) Certificate), and • Have permanent food service capabilities at the premises.

General Authority — Eligible Mixed Beverage permittees may: • Allow customers to pick up alcohol with food orders, • Deliver alcohol with food orders to customers, • Use third parties acting as an agent of the MB to make deliveries, • Use independent contractors holding a Consumer Delivery Permit (CD) to make deliveries on their behalf.

Pickup and Delivery Transactions: The person conducting transaction must be at least 21 years old.

Restrictions on What May Be Picked Up or Delivered: Eligible MB permittees may allow pickup or delivery of any number of beers, ales, wines, and/or distilled spirits ONLY WHEN:

• Alcohol is accompanied by a food order that was prepared on the business’s premises;

Note: There is no required food-to-alcohol ratio.

p. 90

• Beer, ale, and wine are in their original container that is sealed by the manufacturer of the beverage;

• Distilled spirits that are mixed into a drink are in a container that the MB permittee has sealed with an adhesive label (tape) that states the name of the MB permittee and “alcoholic beverage” and that the restaurant places in a bag that it seals with a zip tie, which is then NOT transported in the passenger area of a motor vehicle as defined by Texas Penal Code Sec. 49.031.

• Beverages that are premixed by the MB permittee may exceed 375 milliliters. However, the MB permittee must ensure that the quantity of alcohol in those beverages follows responsible service practices.

• Distilled spirits may still be sold to go or for delivery in their manufacturer sealed containers. However, such containers may not be larger than 375 milliliters.

Note: Non-passenger areas of a motor vehicle include a glove compartment or similar storage container that is locked; the trunk of a vehicle; or the area behind the last upright seat of the vehicle, if the vehicle does not have a trunk.

Limits on Where Alcohol May Be Delivered: Deliveries may only be made to a location: • Where the sale of that type of alcohol is legal; and • Within the county where the business is located, or up to two miles beyond the city limits in which the business is located if that city crosses a county line.

Note: MB Permittees may NOT deliver alcohol to another licensed or permitted location.

Requirements for Completing the Customer Pickup or Delivery to the Customer: • Recipients must not be intoxicated, and • Recipients must present valid proof of their identity that confirms they are at least 21 years old.

Delivering an Open Container of Alcohol is Strictly Prohibited

It’s a criminal offense to “knowingly possesses an open container in a passenger area of a motor vehicle that is located on a public highway, regardless of whether the vehicle is being operated or is stopped or parked.” Texas Penal Code § 49.031(b). An open container is “a bottle, can, or other receptacle that contains any amount of alcoholic beverage and that is open, that has been opened, that has a broken seal, or the contents of which are partially removed.” Texas Penal Code § 49.031(a)(1).

This means that prior to delivering a mixed alcoholic beverage to the consumer, or providing the beverage to go, it must be in a closed/sealed container in the manner outlined above. If the covering or lid on the top of the container has any holes that would provide a way to consume the beverage with the lid intact, it would constitute an illegal open container.

TABC stands ready to help its license and permit holders impacted by the coronavirus situation.

For additional assistance and information, affected businesses may identify and contact their local TABC Regional office or contact TABC's Austin headquarters at (512) 206-3333.

p. 91 Exhibit J - Page 1 of 19

Unsworn Declaration (TEX. CIV. PRAC. & REM. CODE § 132.001)

My name is Michael D Robinson, my date of birth is September, 16th, 1976 and my office address is 2613 Vi Nasa Parkway, Seabrook Texas, 77568, U.S. I declare under penalty of perjury that the following statements are true and correct.

1. I own Barge 295, located at 2613 Vi Nasa parkway Seabrook Texas, 77568. We operate as a bar and grill, with mixed beverage, food and beverage, and late night Permits.

2. I am an experienced restaurant owner; I have owned Barge 295 since February 2017 as well as a catering company since 2005.

3. On June 21, 2020, I was with my family when I was informed our license had been suspended for improper social distancing practices. We had a total of 30 people in our establishment and supposedly had a group of 8 people gathered in front of the bar.

4. On Friday, June 26th, 2020, I became aware of the GA-28 Executive Order issued by Governor Abbott. That order indicated to me that I could comply by ensuring that the business’s alcohol sales were less than 51%.

5. We did a lot of things to ensure the safety of our customers, including:

A) Following all of the TRA’s safe open guidelines;

B) reducing our seating to 50% capacity;

C) not allowing patrons to stand or sit at the bar;

D) requiring masks for all employees and guests;

E) requiring guests to order food along with their drinks;

F) spacing tables 6 feet apart;

G) forbidding groups of 10 or more people; and

H) paying a third party to sanitize and disinfect regularly.

6. I was clear about our intentions and did not hide them, we operated as a restaurant given the fact that we met all of the criteria to be classified as a restaurant according to TRA.

Exhibit J - Declaration of Mike Robinson, owner of Barge295 Page 1

p. 92 Exhibit J - Page 2 of 19

7.I was damaged by loss of business. Total economic loss exceeded $300,000, and that is before any damage to my customers or my business’s reputation.

Executed in Harris County, State of Texas on July 29th, 2020.

Exhibit J - Declaration of Mike Robinson, owner of Barge295 Page 2

p. 93

Exhibit J - Page 1 of 19 Exhibit J - Page 3 of 19

Unsworn Declaration (TEX. CIV. PRAC. & REM. CODE § 132.001)

“My name is Bobby J Parham, my date of birth is October 27,1939 and my office address is 85 Idlewild, Lumberton TX 77657, U.S. I declare under penalty of perjury that the following statements are true and correct.

1.I own Soggy Bottom Saloon , located at 11325 Old Voth Rd Beaumont, TX 77713. We operate as a 51% bar, with beer and wine permit (BG) and extended hours permit.

2.O n Friday, June 26th, 2020, I became aware of the GA-28 Executive Order issued by Governor Abbott. That order indicated to me that I could comply by ensuring that the business’s sales were less than 51%. I did not perceive that this order implied a mandatory shutdown of my business.

3.O n July 25, 2020, I was at my business, preparing for a show with a band, Tim Burge, who was performing live that evening.

4.W e did a lot of things to ensure the safety of our customers, including:

A)W e put up dividers;

B)c hecked everyone's temperature at the door;

C)s paced all tables 6 feet apart;

D)e veryone was required to wear a mask if they were outside their taped off area;

E)n o groups of more than 6 were allowed;

F)w e only allowed 25% of our total occupancy limit;

G)h and sanitizer was available at all doors and every single table; and

H)n o one was allowed to sit at the bar.

5.I was clear about our intentions and did not hide them. TABC called me 3 days before I opened to see if I was in fact going to open. I told them that I was planning on doing so. The next day they called and wanted to meet at my bar. On Thursday, July 23, 2020 they showed up and handed me a copy of the GA 28 orders; they said if I were to still open they would show up: if I would close down on the night of they would give me a warning, but if I remained open they would suspend me 30 days. I opened the night of Freedom Fest, and they never showed up. We closed down early because I felt we proved our point: that we could in fact open and operate just as safe as any restaurant or any other business being allowed to open.

6.2 days later TABC called to meet me at my bar, showed up, gave me a 30 day suspension, and said I put the general public in danger by opening my doors. They issued me a citation for violating the GA 28 order.

Exhibit J - Declaration of Bobby J Parham, owner of Soggy Bottom Saloon Page 3

p. 94 Exhibit J - Page 4 of 19

A)T ABC Personnel refused to show me any rule that I had broken, referring only to Governor Abbott’s recent executive order, though the order does not say that I could not operate as I had planned.

B)H ere is a summary of my exchange with the TABC official:

Me: "Nowhere in the order does it state I can't be open."

Them: "Yes it says it somewhere in there."

Me: "So you are telling me it even says I can't be open to serve beer to-go?"

Them: "No, you can sell beer to-go."

Me: "See, that's the problem! TABC in Beaumont that says one thing, TABC in Houston says another, TABC in Dallas another, etc."

Them: "Sir, I can't tell you what TABC in Houston or Dallas enforces, but I can tell you what I'm enforcing here."

Me: "Sir, that is the problem here. Everyone should have the same rules."

8. I have attached photos of the facility taken by myself. I also have video evidence of my interactions with the TABC.

9. I was damaged by not being able to open and operate the business that I own. No help from the government has been given to me. I went above and beyond CDC regulations for restaurants and other similar businesses. Total economic loss exceeded $100,000, and that is before any damage to my customers or my business’s reputation.

Executed in Jefferson County, State of Texas on August 6th, 2020.

/s/ Bobby J Parham Bobby J Parham

Exhibit J - Declaration of Bobby J Parham, owner of Soggy Bottom Saloon Page 4

p. 95 Exhibit J - Page 5 of 19

Unsworn Declaration (TEX. CIV. PRAC. & REM. CODE § 132.001)

My name is Rodney Lynn Worley. My date of birth is October 31, 1972 and my home address is 12229 Rolling Ridge Drive Burleson, TX, U.S. I declare under penalty of perjury that the following statements are true and correct:

1. I own Cooter Brown's, located at 473 East Renfro Street, Burleson, TX, US. Tara Worley is co-owner. Her date of birth is February 12, 1976. We operate as a 51% private club, with a mixe d beverage and late hours permit.

2. I am an experienced bar owner as I have owned Cooter Brown's for approximately 10 years.

3. On Friday, June 26th, 2020, I became aware of the GA-28 Executive Order issued by Governor Abbott. That order indicated to me that I could comply by ensuring that the business’s sales were less than 51%. We do not have a kitchen, therefore we do not sell anything but alcohol, obviously putting us in the 51% category. We were given a 3 hour notice to close our business.

4. We remained closed with ZERO income until we decided to join the Freedom Fest Protests that took place on July 25th.

5. We went above CDC and restaurant recommendations for safety. We successfully maintained 25% occupancy, social distancing, and strict sanitation procedures.

6. On Monday, July 27, 2020, we received via email an emergency 30 day suspension from TABC for having participated in freedom fest. NOTE: The document states that we were "served " our suspension, even though it was sent via email.

7.W e livestreamed our event and have plenty of picture documentation to prove our safety efforts.

8. The TABC agent that sent us the suspension via email, informed Rodney that they had an undercover agent in our facility on July 25th.

9. We feel that we were personally damaged by the actions of the governor of Texas, the GA-28 order, and the TABC. Total economic loss exceeded $50,000, and that is before any damage to my customers or my business’s reputation.

Executed in Johnson County, State of Texas on August 6, 2020,

/s/Rodney Worley/

Exhibit J - Declaration of Rodney Worley, owner of Cooter Brown’s Page 5 p. 96 Exhibit J - Page 6 of 19

Unsworn Declaration (TEX. CIV. PRAC. & REM. CODE § 132.001)

“My name is Robin L. Evans, my date of birth is December 9, 1962 and my office address is 707 Jorgette Dr., Harker Heights, TX, U.S. I declare under penalty of perjury that the following statements are true and correct.

1.I own a sole proprietorship, DBA The Bar on Veterans, located at 524 E. Veterans Memorial Blvd, Harker Heights, TX. I operate as a bar, with Mixed Beverage and Mixed Beverage late hours and Cartage, MB896093.

2.I am an experienced bar owner; I have owned The Bar on Veterans since 2015.

3.O n Friday, June 26th, 2020, I became aware of the GA-28 Executive Order issued by Governor Abbott. I was also contacted by one of my suppliers stating they would not be able to deliver our order.

4.W e did a lot of things to ensure the safety of our customers, including:

A)I bought hand sanitizer, antibacterial soap and extra cleaning supplies, and enforced regular disinfecting of tables, chairs, and bathroom surfaces;

B)W e moved all tables 6ft apart from each other with a limit of 6 people per table;

C)W e did not allow customers to sit or linger at the bartop;

D)P urchased masks for bartenders and enforced their use;

E)P rovided free masks for customers;

F)C losed all pool tables and games;

G)H ad employees work extra hours in order to sanitize the bar area.

5.O n July 25th, 2020, my business participated in Freedom Fest and we complied with all safety standards put in place for restaurants. I was clear about our intentions and did not hide them.

6.I was contacted by phone and email on July 23, 2020 by Nicole Langley from TABC stating a complaint had been filed concerning my participation in Freedom Fest.

A)T he Harker Heights Police showed up July 25, 2020, ran my driver’s license, walked around and observed what we had in place and left.

B)M onday, July 27th, 2020 I received a phone call from a TABC agent asking if I could meet them at the business so they could serve me my 30 day suspension.

7.T otal economic loss during this shut down has exceeded $60,000, and that is before any damage to my customers or my business’s reputation.

Exhibit J - Declaration of Robin L Evans, owner of The Bar on Veterans Page 6 p. 97 Exhibit J - Page 7 of 19

Executed in Bell County, State of Texas on 6 August 2020.

/s/ Robin L. Evans Robin L. Evans

Exhibit J - Declaration of Robin L Evans, owner of The Bar on Veterans Page 7 p. 98 Exhibit J - Page 8 of 19

Unsworn Declaration (TEX. CIV. PRAC. & REM. CODE § 132.001)

My name is Keri Springs, my date of birth is June 15, 1974 and my office address is 147 N. Plano Rd., Richardson, Texas 75081 U.S. I declare under penalty of perjury that the following statements are true and correct.

1.I own Six Springs Tavern, located at 147 N. Plano Rd., Richardson, Texas 75081. We operate as a Live Music Venue, with a private club license and with a full kitchen and bar.

2.I am an experienced music venue owner. Our venue is 7,0000 sq. ft. Our venue holds ticketed events which occur in the evening and our doors are only open during those events. We open at 5:00 p.m. during the week and at 7:00 p.m. on Friday’s and Saturday’s. We normally close at 12:00 a.m. but have the ability to stay open until 2:00 a.m.

3.O n March 14, 2020 we were initially shut down due to COVID-19. We tried to make money doing food to go but with the few orders we had come in it was not financially viable. We were allowed to reopen our door at 25% capacity (43 people) on June 5, 2020, which we did. After two weeks, we were allowed to open at 50% capacity (86 people). We were open until June 26, 2020.

4.O n Friday, June 26th, 2020, 1 became aware of the GA-28 Executive Order issued by Governor Abbott. That order indicated to me that 1 could comply by ensuring that the business’s alcohol sales would be less than 51%. Another thing about the Executive order I noticed is nowhere in the order does Governor Abbott actually state bars have to close. It just says that “ people shall not visit bars or similar establishment that hold a permit from the Texas Alcoholic Beverage Commission (TABC) and are not restaurants as defined above in paragraph number 6”.

5.W e did a lot of things to ensure the safety of our customers, including:

A)W e deep cleaned the entire venue prior to the concert;

B)W e sanitized every table and barstool that was to be used;

C)W e blocked off areas where patrons were not allowed to go;

D)W e had sanitizer all throughout the venue;

E)A ll tables were spaced 7 ft. apart which is more than the CDC guideline;

F)A ll surfaces were sanitized before opening, during hour of operations and after we closed;

G)P atrons had to wear a mask upon entering the venue and keep said mask on until being seated;

H)P atrons were not allowed to sit in groups larger than 6 people;

Exhibit J - Declaration of Keri L Springs, owner of Six Springs Tavern Page 8 p. 99 Exhibit J - Page 9 of 19

I)P atrons could not move tables and were asked to stay only at the table of their choosing;

J)W e did not have barstools at the bar;

K)W e asked the patrons to let us come to them and take orders and not to order at the bar;

L)I f patrons were to go to the restroom or outside to smoke we asked that they wear their facemask upon doing so;

M)P atrons were not allowed to congregate around tables; we asked them to stay seated unless getting up to go to the bathroom or outside;

N)E very table and barstool was immediately wiped down with sanitizer when patrons would leave and no one would be allowed to be seated at any table that had not been sanitized;

O)W e used plastic cups for easy disposal after each drink and plastic silverware packets which included salt and pepper so as to not use salt and pepper shakers;

P)A ll employees were required to wear a mask; and

Q)A ll microphones on stage were sanitized after each use.

6.I was clear about our intentions and did not hide them. No one from TABC contacted the business until after the last band had performed.

7.O n June 26, 2020 we had three bands play that night since they were already booked and on the calendar.

A) As the last band was performing, around 11:30 p.m., we had three individuals claiming to represent TABC come into our venue to look at our permits. At first, they commented on how well we had followed the guidelines and said they appreciated that. They told us we were “good to go”.

B) I then received a call from said TABC officer about 15 minutes later telling me he was wrong in telling me we were compliant and that due to the type of permit I had I would have to close and ask all my patrons and musicians to leave. They informed me over the phone that if we continued to stay open we would be in violation of the Executive Order and it could result in a 30 day suspension of our license and the possibility of fines.

C) TABC Personnel refused to show me any rule that I had broken, referring only to Governor Abbott’s recent executive order, though the order does not say that I could not operate as I had planned.

D) That was the last day our venue was open.

8.I have attached photos of the venue taken by Brad Springs. I was present when the pictures were taken, and immediately took possession of them. The pictures clearly show the tables are spaced more that the recommended 6 feet, our seating was compliant with the 50%

Exhibit J - Declaration of Keri L Springs, owner of Six Springs Tavern Page 9 p. 100 Exhibit J - Page 10 of 19

capacity and any tables or barstools beyond the capacity of 50% are clearly shown to be unusable.

9.I was damaged by rent, electric bill, water bill, alarm bill, kitchen equipment bill, lost liquor inventory that had to be replaced when we were allowed to reopen, and will have to be replaced in the foreseeable future, food that had to be thrown out due to the first shut down, then repurchased only to throw it away a second time, to just name a few. Total economic loss exceeds $100,000, and that is before any damage to my customers or my business’s reputation.

Executed in Dallas County, State of Texas on August 6, 2020

Exhibit J - Declaration of Keri L Springs, owner of Six Springs Tavern Page 10 p. 101 Exhibit J - Page 11 of 19

Exhibit J - Declaration of David Cowley, owner of Pearl's Cherokee Lounge Page 11 p. 102 Exhibit J - Page 12 of 19

Unsworn Declaration (TEX. CIV. PRAC. & REM. CODE § 132.001)

“My name is John L Freeman, my date of birth is August 18th, 1979 and my office address is 1700 Clinton Drive, Galena Park, TX 77547, U.S. I declare under penalty of perjury that the following statements are true and correct.

1.I own Horny Toad’s Bar and Grill LLC, located at 2408 Strand St., Galveston, TX 77550. We operate as a bar with a permanent kitchen, with a mixed beverage licence.

2.I am an experienced bar owner, operating since 2010. I acquired Horny Toad’s Bar and Grill in 2018.

3.O n Friday, June 26th, 2020, I became aware of the GA-28 Executive Order issued by Governor Abbott. That order indicated to me that I could comply by ensuring that the business’s sales were less than 51%.

4.W e considered our options, and tried to decide whether or not to completely shut down.

A) Our bar is approximately 4,000 square feet in area;

B) We tried to map out what 25% occupancy would look like, in accordance with the social distancing guidelines;

C) The social distancing guidelines would have reduced our usable space to less than 25% occupancy; therefore

D) We have not been open since June 26th, 2020.

5.W e are currently performing remodeling efforts and appliance installations in the hopes of utilizing our kitchen and obtaining a food license.

6.I have attached photos of the facility. I was present when the pictures were taken, and immediately took possession of them.

7.I was damaged by GA-28 Executive Order and Governor Abbott. Total economic loss exceeded $100,000, and that is before any damage to my customers or my business’s reputation.

Executed in Harris County, State of Texas on June 29, 2020

/s/ John L Freeman John L Freeman

Exhibit J - Declaration of John L Freeman, owner of Horny Toad’s Bar and Grille Page 12 p. 103 Exhibit J - Page 13 of 19

Unsworn Declaration (TEX. CIV. PRAC. & REM. CODE § 132.001)

“My name is Thomas A. Osbakken, my date of birth is June 29th, 1974, and my office address is 3204 Calendar Park Ct., Arlington, TX, 76001, U.S. I declare under penalty of perjury that the following statements are true and correct.

1.I own Tomerica LLC, DBA Caves Lounge, located at 900 W. Division St. in Arlington, TX. We operate as a standalone bar, with Mixed Beverage and Late Hours Permits.

2.I am an experienced bar owner of more than 17 years. I started Caves Lounge in 2003. I have kept this bar open and thriving over all of these years despite some setbacks in our economy and other unforeseeable forces. Small businesses are not easy to run, but I have been successful due to my perseverance and hard work.

3.O n Friday, June 26th, 2020, I became aware of the GA-28 Executive Order issued by Governor Abbott. That order indicated to me that I must shut down and close my standalone bar businesses because my business’s sales were greater than 51% from alcohol. The Ozzie Rabbit Lodge does not serve food and has no permanent kitchen on site, so we have been closed for business ever since, by mandate of the state enforced by the TABC.

4.W e did a lot of things to ensure the safety of our customers, including:

A)S ocially distancing guests 6 feet apart in groups no larger than 6;

B)P rovided a contactless way to order drinks;

C)S et up a sanitizing station where guests could wash their hands upon entering the establishments; and enacted a strict cleaning protocols every 20 minutes by the on sight managers to sanitize all commonly touched areas (ie. door handles, sink faucets, pool cues;

D)P rovided all of our guests with the option of sitting on our spacious patios, all socially distanced 6 feet apart from other guests; and

E)R equired our employees and guests to wear masks or face coverings. Once the guest was seated, they could remove the mask to consume their beverage.

5.I was clear about our intentions and did not hide them.

6. We had been previously shut down for 65 days from March 18, 2020 through May 22, 2020. After being open just a little over 3 weeks, I went in to work Friday morning around 9am on June 26, 2020 like any other Friday. I was checking the news and I saw on the television that Governor Abbott was shutting down all standalone bars in the state of Texas by 12 noon that very same day.

7.I have attached photos of the facility taken by myself. I was present when the pictures were taken, and immediately took possession of them.

Exhibit J - Declaration of Thomas A Osbakken, owner of Tomerica LLC Page 13 p. 104 Exhibit J - Page 14 of 19

8. By being forcibly shut down by Governor Abbott, I was damaged by a total economic loss that exceeded $100,000, and that is before any damage to all of my employees and their families.

Executed in Tarrant County, State of Texas on July 29th, 2020.

/s/ Thomas A. Osbakken Thomas A. Osbakken

Photos: Everyone was socially distanced. We had a hand sanitizer station and kept certain bar tables clear. We had a socially distanced ordering line and limited customers sitting at the bar top. We removed furniture to adhere to 25% capacity inside and outside we have a huge patio where everyone was at minimum 6 feet apart with no groups larger than 6.

Exhibit J - Declaration of Thomas A Osbakken, owner of Tomerica LLC Page 14 p. 105 Exhibit J - Page 15 of 19

Exhibit J - Declaration of Thomas A Osbakken, owner of Tomerica LLC Page 15 p. 106 Exhibit J - Page 16 of 19

Unsworn Declaration (TEX. CIV. PRAC. & REM. CODE § 132.001)

“My name is Thomas A. Osbakken, my date of birth is June 29th, 1974, and my office address is 3204 Calendar Park Ct., Arlington, TX, 76001, U.S. I declare under penalty of perjury that the following statements are true and correct.

1.I own Ozzie Rabbit LLC, DBA The Ozzie Rabbit Lodge, located at 6463 E. Lancaster Ave in Fort Worth, TX. We operate as a standalone bar, with Mixed Beverage and Late Hours Permits.

2.I am an experienced bar owner of more than 17 years. I started The Ozzie Rabbit in 2006. I have kept this bar open and thriving over all of these years despite some setbacks in our economy and other unforeseeable forces. Small businesses are not easy to run, but I have been successful due to my perseverance and hard work.

3.O n Friday, June 26th, 2020, I became aware of the GA-28 Executive Order issued by Governor Abbott. That order indicated to me that I must shut down and close my standalone bar businesses because my business’s sales were greater than 51% from alcohol. The Ozzie Rabbit Lodge does not serve food and has no permanent kitchen on site, so we have been closed for business ever since, by mandate of the state enforced by the TABC.

4.W e did a lot of things to ensure the safety of our customers, including:

A)S ocially distancing guests 6 feet apart in groups no larger than 6;

B)P rovided a contactless way to order drinks;

C)S et up a sanitizing station where guests could wash their hands upon entering the establishments; and enacted a strict cleaning protocols every 20 minutes by the on sight managers to sanitize all commonly touched areas (ie. door handles, sink faucets, pool cues;

D)P rovided all of our guests with the option of sitting on our spacious patios, all socially distanced 6 feet apart from other guests; and

E)R equired our employees and guests to wear masks or face coverings. Once the guest was seated, they could remove the mask to consume their beverage.

5.I was clear about our intentions and did not hide them.

6. We had been previously shut down for 65 days from March 18, 2020 through May 22, 2020. After being open just a little over 3 weeks, I went in to work Friday morning around 9am on June 26, 2020 like any other Friday. I was checking the news and I saw on the television that Governor Abbott was shutting down all standalone bars in the state of Texas by 12 noon that very same day.

7.I have attached photos of the facility taken by myself. I was present when the pictures were taken, and immediately took possession of them.

Exhibit J - Declaration of Thomas A Osbakken, owner of Ozzie Rabbit LLC Page 16 p. 107 Exhibit J - Page 17 of 19

8.B y being forcibly shut down by Governor Abbott, I was damaged by a total economic loss that exceeded $100,000, and that is before any damage to all of my employees and their families.

Executed in Tarrant County, State of Texas on July 29th, 2020.

/s/ Thomas A. Osbakken Thomas A. Osbakken

Photos:

All tables were already 6 feet apart. We pulled every other bar stool at the bar. Our patio was already spread out at 6 feet as well.

Exhibit J - Declaration of Thomas A Osbakken, owner of Ozzie Rabbit LLC Page 17 p. 108 Exhibit J - Page 18 of 19

Unsworn Declaration (TEX. CIV. PRAC. & REM. CODE § 132.001)

“My name is Stacey B. Jones, my date of birth is May 24, 1963 and my office address is 2113 Kermit Hwy Odessa, TX, U.S. I declare under penalty of perjury that the following statements are true and correct.

1.I own Basin Nights, located at 2113 Kermit Hwy Odessa, TX. We operate as a Small Bar , with MB permit, Pool hall permit, Dance hall permit, and Health Permit

2.I am an experienced Bar owner, I have owned and operated Basin Nights 15 Years, with a spotless record with the TABC.

3.O n Friday, June 26th, 2020, I became aware of the GA-28 Executive Order issued by Governor Abbott. After our first shut down we were allowed to reopen at 25% occupancy then that was moved up to 50% under strict guidelines. At this time I called the TABC and was told I that I could continue to do curbside service but no one was allowed inside the bar. In lieu of this order I am loosing employees and customers that we have cultivated over the last 15 years.

4.T o ensure the safety of our customers, we followed the Governor’s guideline to a T , including:

A)S ocial Distancing, separating of tables B)P atrons had to be seated to be served C)B locked off dance floor to discourage dancing and no patrons were allowed to come to the bar to order D)P laced hand sanitizers in several location through the bar

5.I was clear about our intentions and did not hide them. No one from TABC contacted the business.

6.S ince June the 26th 2020, we have not been contacted by any TABC personnel. At this point the Curbside business is a small fraction of what our income was before the shut down. I’m within 90 days of closing down Permanently because I cant afford the Payroll or the Utility Bills. Since the two shut downs in 2020 my sales are down roughly $300,000 to date. I have recently been to three locations that are supposedly restaurant bars, they were packed to occupancy with no social distancing, the bar areas are packed with people and the interaction of those people are no different than the interaction of the people in my bar when I’m allowed to be open.

7.I was damaged by Governor Abbott and His mandatory GA-28 Executive Order. Total economic loss exceeded $300,000, and that is before any damage to my customers or my business’s reputation.

Executed in Ector County, State of Texas on August 18, 2020

/s/ Stacey B. Jones Stacey B. Jones

Exhibit J - Declaration of Stacey Jones, owner of Basin Nights Page 18 p. 109 Exhibit J - Page 19 of 19

Unsworn Declaration (TEX. CIV. PRAC. & REM. CODE § 132.001)

“My name is Edward J. Redmond, my date of birth is January 8, 1959 and my office address is 702 Bowen Ct. Arlington, TX 76012, U.S. I declare under penalty of perjury that the following statements are true and correct, and I was present when the photos were taken and declare that they are authentic and represent the facility as indicated. 1. I own Plaza Pub, located at 1605 New York Ave. Arlington, TX 76010. We operate as a 51% bar, with a Wine and Beer Retailer's Permit and Retail Dealer's On-Premise Late Hours License (“BGBL”) and a Health Certificate from Texas Health and Human Resources. 2. Our bar does not have a kitchen and we can not serve food to our customers. 3. I am an experienced bar owner; I have 40 years as a bartender as well as an owner. I have no marks on my license whatsoever. 4. I closed the Plaza Pub around the end of March because I anticipated the closure of bars due to the closures of other businesses Governor Abbott was enforcing at the time. 5. I reopened at limited capacity based on one of Governor Abbott’s executive orders around June 3. I am aware that we were supposed to close again around June 28, based on another of Governor Abbott’s executive orders. 6. We did a lot of things to ensure the safety of our patrons when we reopened, including: A) All tables were spaced six feet apart, and all tables only including no more than 6 chairs. B) Each table had a bottle of hand sanitizer. Tables were marked with tape on the floor displaying the distance others could be to the tables. C) We checked temperatures at the door with a digital thermometer. D) All patrons were required to wear masks as they entered or moved through the bar. E) We only allowed 12 patrons into our 48-person capacity building. F) We had signs posted on the outside of the doors and throughout the building to remind patrons to socially distance. G) We put signs in restrooms to remind people to wash their hands. H) We sanitized all tables and chairs as patrons left. I) We have a UV light used in hospitals to “terminally clean” their rooms after Covid 19 exposure. 7. The forced closure of my fully-licensed business costs me more than $10,000/month in profit and the continued closure is taking the business toward bankruptcy.

8. Executed in Tarrant County, State of Texas on August 4, 2020,

/sEdward J Redmond Edward J Redmond

Exhibit J - Declaration of Edward J Redmond, owner of Plaza Pub Page 19 p. 110