January 12, 2022 308 PM
BREWSTER COUNTY — A federal judge has ruled in favor of Brewster County Judge Eleazar Cano in a lengthy legal battle between the local official and Gage Hotel owner J.P. Bryan, who claimed Cano’s early-pandemic decision to shutter hotels violated his constitutional rights.
In the December 15 ruling, U.S. District Judge David Counts declared that Cano had a “rational basis” for ordering the closure of hotels and short-term rentals in response to the COVID-19 pandemic and was within his right to do so, rejecting Bryan’s claims that Cano’s actions were unjustified and unconstitutional.
“While there is more than one reasonable way to respond to the COVID-19 outbreak, Judge Cano’s orders and declarations have at least a real and substantial relation to protecting public health,” said the ruling.
Bryan, a Houston businessman and preservationist who operates the Marathon establishment, first sued a number of Brewster County officials, including Cano, in March 2020, claiming county leaders had not identified an “emergency or urgent public necessity” that justified the shuttering of hotels. Bryan soon withdrew that lawsuit, but filed a new one solely targeting Cano in April of that year. The suit argued Cano’s actions violated the Fourth Amendment of the Constitution because the shutdown amounted to the unreasonable seizure of property, and the Fourteenth Amendment — or “equal protection” clause — because other businesses were allowed to continue operating.
Bryan and his attorneys also claimed Cano did not have adequate cause to shut down hotels, because at the time of the closures there were no reported cases of COVID-19 in the tri-county region.
Cano testified that at the time he was in communication with a local coronavirus management team and, given what was known about the spread of the virus, the area’s tourist-friendly economy, and limited medical resources in the region, acted to mitigate the effects of the virus in the area. Cano did not respond to requests for comment for this story.
In addition to rejecting Bryan’s claims that his rights were violated by Cano, Counts dismissed the hotelier’s claim that he was owed monetary damages to compensate him for business lost during the month-long closure .
While Bryan claims the shut down resulted in a revenue loss of $438,202 (a figure Cano’s lawyers have disputed), according to court documents, Counts concluded Cano could not be sued for monetary damages because he is protected in his role as a state official and was simply acting on behalf of the state to protect citizens of the county from the virus.
“Plaintiffs ignore the likelihood that the restrictions that were put in place postponed any outbreak in Brewster County or at least flattened the curve by reducing the number of deaths in the short term to avoid overwhelming the hospital system,” said the ruling. “Plaintiffs also ignore that the outbreak originated in China and spread quickly across the world, primarily through travel-related cases.”
Cano’s original disaster proclamation, issued in March of 2020, required the closure of all county hotels and short-term rentals; a few days later, he issued an amended order allowing hotel stays for emergency workers, military personnel and law enforcement or those using rentals as long-term residences. The order ended in early May when Governor Greg Abbott allowed a statewide mandate to expire and declared the move to reopen would supersede local orders.
Other area county judges issued shelter-in-place orders and limitations on nonessential businesses similar to Abbott’s statewide mandates, including Cano, Presidio County Judge Cinderela Guevara and Jeff Davis County Judge Kerith Hurley. Only Brewster and Presidio counties ordered the suspension of hotel and short-term rental operations.
Bryan and his attorneys, who did not respond to requests for comment for this story, are within the appeal window for the case, which extends 30 days after the judge issued his final ruling. If Bryan decides to appeal the judge’s decision, the case will be brought before the Fifth Circuit Court of Appeals.
Other businesses and entrepreneurs across the country are seeking to recuperate revenue losses brought by the coronavirus pandemic. Some, including Terry Black’s Barbecue with locations in Austin and Dallas, have sued their liability insurance providers for monetary damages, but have met little success.