May 6, 2020 244 PM
MARATHON — Local orders shuttering tri-county hotels may have ended, but the lawsuits brought by one prominent hotel owner aren’t over just yet.
J.P. Bryan, a Houston businessman and owner of the Gage Hotel in Marathon, sued Brewster County in March over an order closing hotels and short-term rentals.
The lawsuit, which named Brewster County Judge Eleazar Cano and multiple Brewster County commissioners as defendants, argued that county leaders had not identified an “emergency or urgent public necessity” for closing the hotels and had not properly posted a meeting to discuss the rules. Bryan asked the court for a temporary restraining order halting the emergency closures, as well as economic damages, which his lawyers estimated as $100,000 or less.
News of the suit prompted outrage by some in the tri-county — and the local justice system didn’t view it much more favorably. The same day the lawsuit was filed, Judge Roy Ferguson, then the judge on the case, tossed the request for a restraining order.
Bryan withdrew his lawsuit a few days later, on April 3. But that wasn’t the end of the legal wrangling. A few days later, he again sued over the order, this time in federal court.
The new lawsuit, originally filed on April 10, only named Brewster County Judge Eleazar Cano as a defendant. It made much the same arguments.
Brewster County officials had not shown that COVID-19 was an “imminent threat” to the area, the suit argues, nor had officials considered any “credible expert testimony” to show it was. That presumably excludes Dr. Escovar, a member of the local COVID-19 task force and Brewster County’s health authority, who has repeatedly discussed coronavirus with officials and the general public. Bryan’s lawyers have argued she “should not be regarded as an expert.”
The lawsuit argues that county officials offered “no evidence” that nonessential visitors could spread COVID-19 to Brewster County residents. (It also argues county officials didn’t prove essential workers — who were still allowed to rent rooms — did not pose a threat to residents.)
The lawsuit also calls the emergency orders “unconstitutional.” It argues hotel closures amounted to unreasonable seizure of private property, in violation of the Fourth Amendment. It also cites the Fourteenth Amendment, which says that states can’t “deny to any person … the equal protection of the laws.”
And yet Bryan, as a hotel owner, was “intentionally treated differently” without any “rational basis,” the lawsuit argues. Because while Bryan wasn’t allowed to rent rooms to out-of-towners, other businesses in the area were still allowed to “sell goods and services to all customers, including visitors and travelers from outside Brewster County.”
As Bryan’s lawsuits have progressed, the situation on the ground in Brewster County has changed dramatically.
First, Governor Greg Abbott last week announced that Texas is moving towards a phased “reopening” of regular business. On Friday, he allowed statewide emergency orders to expire as scheduled and did not renew them.
In a news conference announcing the move, Abbott stressed that his directive “supersedes all local orders.” Brewster County officials in turn allowed their hotel-closure orders to expire.
Second, coronavirus has gone from a threat to a reality. After weeks of watching coronavirus creep towards the region, Brewster County officials on Friday afternoon announced their first confirmed case of the disease.
The patient, a South County resident in their 60s, tested positive for coronavirus during the tri-county testing blitz last month. Officials have said they don’t yet know how the individual was infected.
In an Instagram post last week, the Gage Hotel announced it was reopening.
“We are pleased to announce that we will welcome guests back to our historic hotel,” the post read. The hotel’s ancillary businesses, including a restaurant and coffee shop, will also reopen with “limited occupancy and social distance seating.”
But while Brewster County can no longer order the Gage Hotel to close, Bryan is still hoping to recoup financial losses from lost reservations during the emergency orders.
“This is now a suit for damages,” Frank Ainsa, one of Bryan’s lawyers, said in a brief telephone interview on Monday.
In an amended complaint from Friday, Bryan’s lawyers acknowledged that Brewster County’s emergency orders have ended and that Brewster County now has at least one case of coronavirus. But they argue Bryan is still owed at least $75,000 for the “deprivation” of his “constitutional rights.”
Were it not for the emergency public health measures, they argue in court filings, Bryan could have made more money. Before the closures, the Gage Hotel was “on a projected trajectory of earning its highest net profit ever.”
