The governor followed suit, issuing a new order that will allow bars to reopen at 50 percent capacity — provided the local county judge approves.
But to Chris Polone, owner of the Rail Club Live in Fort Worth, it’s not only too-little-too-late, but the issue has become about more than just reopening his bar.
Polone was one of the thousands of business owners forced to close their doors by the order of state and local edicts.
The first closure was a blow for Polone, but the second, in late-June, was a haymaker. At one point, his bar had only $24 left in its account.
“We are in a Cold War,” Polone told The Texan, “that order was a death sentence.”
Once that second order came, Polone organized an Independence Day protest wherein 40 people gathered in his 800-person capacity room, and fittingly dubbed the “Rail Club Tea Party.” No money was exchanged and no alcohol was available for consumption.
The gathering resulted in a Texas Alcoholic Beverage Commission- (TABC) issued a violation against the bar, which Polone promptly ripped up. The TABC asserted that the only individual permitted on the “51 percenter” property was the owner — and thus, everyone in attendance except Polone, even employees, were in violation.
Polone, a former HAZMAT specialist who participated in the response to the Ebola outbreak, said that masks were required, and all sanitation and social distancing protocols followed. The demonstration was solely a protest, Polone added, and no money was exchanged between patrons and business.
Pointing to the Fifth Amendment’s “just compensation” clause, Polone sees a violation of his constitutional right to dictate actions on his property.
The state, and Abbott at its peak, has restricted movement of people throughout the pandemic citing Section 418.018 of the Texas Disaster Act of 1975 in which the legislature bestowed upon the governor the ability to control ingress and egress to and from a disaster area.
The constitutionality not only of the governor’s frequent invocation of the disaster act, but of the act itself, has been called into question by various parties from numerous directions. He’s been sued by a group of legislators challenging his authority to consign the state to a contract for a contact tracing program.
Others have called for a special legislative session, and bars themselves have filed not one but two lawsuits challenging the governor’s authority to close their establishments carte blanche. The first failed in federal court, but Polone and Rail Club Live are listed as the first relator in the second, filed in state court.
The legal challenge is supplemental, Polone indicated, to the broader campaign to marshal public opinion to their side.
Polone’s movement, coined the “Children of Liberty,” then organized the thematic “Freedom Fest” on July 25. Nearly 800 bars joined and opened in defiance of the governor’s order — 797 times the size of his unitary protest three weeks prior.
Two days after, the TABC issued emergency liquor license suspensions for most of those participating bars. The state, and TABC specifically, has been vigilant in cracking down on establishments violating closure orders. Just before the governor re-closed bars, 17 establishments across the state had their permits suspended after undercover operations exposed COVID-19 violations.
Polone said 100 percent of the proceeds from “Freedom Fest” went to charities. The event was planned ahead of time and a video on Polone’s social media can be seen in which Fort Worth city officials inspected the Rail Club Live and approved the operation of the event.
Permit revocations can be appealed. However, the typical court date occurs three weeks after the suspension, usually about a week before the moratorium period runs its course.
At the hearing for his original violation from Independence Day, Polone said that TABC agent Andrew Norton testified, but absent were the undercover agents who witnessed it in person. The TABC then attempted to tack on violations from the “Freedom Fest” protest Polone took to social media blasting the agency.
TABC then released video evidence that their officers were in attendance, apparently posing as a news crew.
Polone said he’s received death threats and had to send his family away from home for a month due to the safety concerns — which, according to Polone, included dead birds appearing in his yard and parking lot en masse.
And it hasn’t stopped there. Polone said he’s been pulled over four times leaving his business from which he lives two miles away.
Two weeks after that hearing, TABC issued another suspension of 60 days to the Rail Club, posting the notice to the front door.
Not to be discouraged, Polone organized another protest set for August 29, this time opting to serve alcohol. A Fort Worth official again approved of the event not once, but twice — and further warned that the city could shut it down if it deemed appropriate. That warning came to fruition when a TABC official visited, leaving with Polone a citation.
A TABC spokesman told The Texan the agency cannot comment on an ongoing investigation.
Shortly thereafter, city officials called the bar, requesting they close down.
Texas bar owners have faced the gamut of tribulations during the pandemic. At the heart of the conflict is the “51 percent” designation, that is used to dictate an establishment in which guns are prohibited.
Abbott has used that designation to divide service industry businesses between those that may operate (restaurants, stores, etc.) at limited capacity and those that may not (bars, breweries, etc.).
The issues with such a split have mounted continuously. First off, early on the classification was based on outdated revenues and wasn’t malleable to include businesses who had adjusted their operations after the pandemic to meet the requirements.
Second, the arbitrarily drawn line between food-based service and alcohol-based service hinges on, in Abbott’s own words, bargoer’s being “less likely to use discipline” when alcohol is factored into the equation.
But alcohol can be ordered at restaurants across the state, many of which have the same liquor licenses that bars possess and many bargoers have gone elsewhere for their consumption. One such example Polone pointed to is BoomerJack’s, a bar and grille five miles from his that he frequents for its $3 “Crown and down.” The restaurant reported $55,000 more in alcohol sales than it did when bars were open.
“Patrons didn’t quit drinking. They went somewhere else,” Polone stated.
Criticizing the state’s delineation, Polone added, “This is the first time in history that public safety boils down to gross revenues generated by hotdogs versus gross revenues generated by Miller Lites.”
Tarrant County Judge Glen Whitely announced Monday that local bars would be allowed to open at 50 percent capacity in conjunction with Gov. Abbott’s order. He further stated, “If flagrant violations of the occupancy requirements are ignored or COVID cases make up more than 15 percent of our Tarrant County hospital capacity, I won’t hesitate to close bars.”
Polone’s protest movement has made great strides in achieving its goals and garnering attention.
“We’re not looting, not burning anything down, not destroying things, and not hurting anyone. And by sticking to it, we went from being a problem to being the solution, turning public perception 180 degrees,” Polone emphasized.
But he doesn’t want the public to forget who he sees as responsible for the economic strife felt by Texas’ business owners: Governor Greg Abbott. Criticizing the aforementioned tweet by Abbott, Polone stated, “You destroyed tens of thousands of people’s lives, and that’s your response? It’s a slap in the face.”
And as Polone now faces $24,000 in fines, that strife is even more unavoidable.
The Rail Club Live is still under a 90-day suspension and, despite the reopening now permitted, Polone is prohibited from operating. He’s gained a large following in leading the movement and landed some sizable blows to the state, especially in terms of public opinion.
But that doesn’t change the fact that revenues must balance expenses in order to stay afloat, and Polone is desperate to prevent the same fate for his establishment as that of the “Cheers” bar in Boston, which closed permanently in August.
“Cheers,” of late, have been few and far between for Texas’ bar owners and patrons. But in taking his stance, Polone hasn’t needed any liquid courage — the regular kind has sufficed.
“This bar is everything to me,” Polone concluded. “I’ve got nothing to lose.”
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Brad Johnson is a senior reporter for The Texan and an Ohio native who graduated from the University of Cincinnati in 2017. He is an avid sports fan who most enjoys watching his favorite teams continue their title drought throughout his cognizant lifetime. In his free time, you may find Brad quoting Monty Python productions and trying to calculate the airspeed velocity of an unladen swallow.