Wisconsin judge blocks governor's order limiting capacity

MADISON, Wis. — A Wisconsin judge on Wednesday temporarily blocked an order from Gov. Tony Evers’ administration limiting the number of people who can gather in bars, restaurants and other indoor places, a move that comes as the state breaks records for new coronavirus cases, deaths and hospitalizations.

The Democratic governor's order, issued by the Evers-appointed state health secretary Andrea Palm last week, limited the number of customers in many indoor establishments to 25% of capacity. Gatherings in indoor spaces without an occupancy limit were limited to 10 people. The order does not apply to colleges, schools, churches, polling locations, political rallies and outdoor venues.

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The Tavern League of Wisconsin, the powerful lobbying group for the state’s 5,000 bars, restaurants and taverns, argued that the capacity limits amounted to "defacto closure." It said that Palm didn’t have the legal authority to issue the order, which instead should have gone through the Republican-led Legislature’s rule-making process.

A GOP-controlled legislative committee on Monday met to begin the process of creating the rule, which would then allow the Legislature to strike it down.

Sawyer County Circuit Judge John Yackel, who blocked the order a day after the Tavern League of Wisconsin sued, set a court date for Monday. He said the hearing will give attorneys for the Evers administration a chance to argue why the order should not be put on hold while the lawsuit plays out.

Evers’ spokeswoman, Britt Cudaback, said the ruling would be challenged.

"This is a dangerous decision that leaves our state without a statewide effort to contain this virus," she said.

Eating at a restaurant where seating capacity is not reduced and tables are not spaced at least six feet apart is in the The Centers for Disease Control and Prevention's "highest risk" category for contracting COVID-19. By comparison, the lowest risk is purchasing food for take-out or curbside pickup, according to the CDC.

Evers put the new limits in place through Nov. 6 as the virus is surging across Wisconsin. The state opened a field hospital near Milwaukee on Wednesday to handle an overflow of patients from hospitals, which treated a record-high 1,017 COVID-19 patients on Wednesday. That broke the previous day's record of 950 patients.

The state also broke records on Tuesday for daily new confirmed cases and deaths.

Deb Standridge, CEO of the Milwaukee field hospital, said she has been fielding calls from hospitals around the state about taking patients but that they weren’t expected to arrive until Thursday at the earliest. The temporary facility, which was built in April and later mothballed, has 50 beds but can rapidly double that number and has an overcall capacity of 530 patients, she said.

"I cannot give you a number because we are still having those conversations and hospitals are making those decisions," Standridge said. She added that patients in Milwaukee will be near the end of their medical care and likely be within three to six days of going home.

The U.S. Army Corps of Engineers, which months ago made preliminary plans for a second field hospital in Madison and looked at other sites around the state, has been called in to "relook at those plans" in case a second or third facility is needed, said Julie Willems Van Dijk, deputy secretary of the Wisconsin Department of Health.

"It has been our fervent hope that we would never need to use the alternative care facility," she said. "But in a crisis such as a pandemic, we must prepare for the worst and then work to try and prevent it from coming to pass."

To date, more than 158,000 people have tested positive for COVID-19 and 1,536 have died in Wisconsin since the pandemic started.

Democratic lawmakers said the attempt to undo the capacity limits order would hurt the state's pandemic response.

"Make no mistake, if this dangerous decision stands, Wisconsin will be choosing full bars over full classrooms," tweeted state Sen. LaTonya Johnson, of Milwaukee. "What a pathetic set of priorities to teach our children."

Earlier this year, the conservative-controlled Wisconsin Supreme Court ended Evers' "safer at home" order. Republican lawmakers are currently suing to end the governor's statewide mask mandate, arguing as the Tavern League has done in this lawsuit that the order exceeded Evers' authority. A judge on Monday upheld the mask mandate, saying the Legislature has the power to strike it down if it wants to.

Evers has argued that Republicans are making it more difficult for the state to deal with the pandemic.

The Tavern League, the Sawyer County Tavern League and the Flambeau Forest Inn in the village of Winter brought the lawsuit. It argues that the Flambeau Forest Inn would be forced to limit its capacity to 10 people under the state order, which would include five customers and five employees needed to operate the restaurant.

"Flambeau could not operate profitably under these conditions and would be forced to discontinue its business operations," the lawsuit said.

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Follow Scott Bauer on Twitter: https://twitter.com/sbauerAP

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