City Bar, Inc., individually and on behalf of all others similarly situated v. John Bel Edwards, in his official capacity as Governor of the State of Louisiana

STATE OF LOUISIANA
COURT OF APPEAL
FIRST CIRCUIT

2021 CA 1437

4 CITY BAR, INC., ROSIE' S TAVERN, LLC, BIG DAN' S BAR, INC., BIG
TYME INVESTMENTS, LLC D/ B/ A BIG DADDY' S PUB & GRUB, CD
ENTERPRISES OF HOUMA LLC D/ B/ A LARUSSA' S LOUNGE, CKBCPB5
LLC D/ B/ A THE CHATTER BOX, DE & BC ENTERPRISES, LLC D/B/ A D& B
SPORTS BAR, DOUG MCCARTHY ENTERPRISES, INC. D/B/ A "501", JOM
LLC D/B/ A JUST ONE MORE, LONGSHOTS 1, LLC D/ B/ A LONGSHOTZ,
MY PLACE BAR & GRILL, LLC, THE OUTER LIMITS BAR, LLC,
PARADISE SPORTS BAR & DAIQUIRIS, LLC D/ B/ A EPIC LOUNGE, POOL
DO' S SPORTS BAR LLP, R& J LAPEYROUSE, LLC D/ B/ A JEAUX' S NEW
HORIZON, R. BEASLEY, LLC D/B/ A RAM ROD' S SALOON, SANDI' S
ANCHOR LOUNGE, LLC D/ B/ A DA CAMP, TAP DAT, LLC D/B/ A THE
BRASS MONKEY, TIPSY. CAJUN, LLC WANOUS, LLC, D/B/ A AFS 2ND ST.
PUB, 910 E MAIN 33, LLC D/B/ A QUARTER TAVERN, GROS MARINE
SERVICES, MADISONVILLE RIVERSIDE BAR, LLC. SWIDERSKI
INVESTMENTS LLC DBA LENNY' S AND YE OLDE MEMORIES, LLC

VERSUS

JOHN BEL EDWARDS, IN HIS OFFICIAL CAPACITY AS GOVERNOR OF
THE STATE OF LOUISIANA
Judgment rendered ' AUG 3 n 2022

On Appeal from the
Nineteenth Judicial District Court
In and for the Parish of East Baton Rouge
State of Louisiana
No. C703353
The Honorable Timothy E. Kelley, Judge Presiding
Jimmy R. Faircloth, Jr. Attorneys for Plaintiffs/Appellants
Mary Katherine Price City Bar, Inc. et. al.
Richard F. Norem, III
Alexandria, LA

James M. Garner Attorneys for Defendant/Appellee
Darnell Bludworth John Bel Edwards, In His Official
Joshua S. Force Capacity as Governor of the State of
Christopher T. Chocheles Louisiana
Josie N. Serigne
Jack M. Weiss
New Orleans, LA
Matthew F. Block
Baton Rouge, LA

wi'& cil
BEFORE: GUIDRY, HOLDRIDGE, AND CHUTZ, JJ.

HOLDRIDGE, J.

On January 11, 2021, City Bar, Inc. and other Louisiana business owners

operating bars serving alcohol and/ or food pursuant to lawfully issued permits by

Louisiana authorities ( sometimes referred to collectively as the " bar owners"), filed

this class action lawsuit against John Bel Edwards in his official capacity as the

Governor of Louisiana. In the petition, the bar owners alleged that they were

uniquely singled -out by a series of Executive Orders ( sometimes referred to

collectively as the " Bar Closure Orders") closing and restricting the operation of bars

statewide for the purpose of slowing the spread of COVID- 19. They sought just

compensation for the taking of their property, permits, business operations, and

income, to serve the public good under the Governor' s authority to confiscate or

commandeer private property pursuant to Article I, Section 4 of the Louisiana

Constitution and the Louisiana Health Emergency Powers Act, La. R.S. 29: 760

et.seq. ( LHEPA).

In their original and amended petitions, the bar owners alleged the following
facts: On March 11, 20205 the World Health Organization declared a global

pandemic in response to the spread of COVID- 19, an infectious disease. That same

day, Governor Edwards declared a statewide public health emergency under LHEPA

as a result of the imminent, yet then -unknown threat posed to Louisiana citizens by
COVID- 19. On March 22, 2020, Governor Edwards signed 33 JBE 2020,

commonly referred to as the " Stay at Home Order," directing Louisiana citizens to

stay at home unless taking essential trips and ordering the closure of non- essential

businesses. The Stay at Home Order mandated the closure of pool halls, concert and
music halls, and bars.

Beginning in April of 2020, the Federal Government released a series of

guidelines for "opening up America again," which included a three -phased approach

OA

to re -opening the country based on advice of public health experts. On April 30,

2020, Governor Edwards renewed the statewide Stay at Home Order, and three

weeks later, issued an order moving Louisiana into Phase 1 of reopening. The order

permitted certain businesses, including bars with a state -issued food services permit,

to reopen at 25% occupancy. However, bars without food service permits issued by

the Louisiana Department of Health remained closed to the public.

On June 5, 2020, Governor Edwards issued an order moving Louisiana into

Phase 2 of the reopening, initially permitting bars, which had been shuttered for

nearly two and a half months, to be reopened. Bars serving food were allowed to

operate at 50% capacity. However, on July 11, 2020, the Governor issued another

order mandating the re -closure of all bars, but no other businesses, for on -premises

consumption.
On July 23, 2020, the Governor extended the Bar Closure Order, but

permitted all other non- essential businesses to reopen under certain restrictions. In

August of 2020, the Governor extended the Bar Closure Order on August 6th and

On September 11, 2020, the Governor issued an order moving Louisiana into
Phase 3 of the reopening. Although all other businesses were allowed to operate at

75% capacity, bars were allowed to reopen at 25% capacity and under certain

conditions: ( 1) the parish where the bar is located had 5% or less COVID- 19

positivity for two weeks, and ( 2) the Parish elected to opt -in and reopen bars.

After being essentially closed for nine months, by mid- October to early

November,
bars around the state were beginning to reopen at 25% capacity.

However, on November 24, 2020, in response to an increase in COVID- 19 cases,

the Governor issued an order moving Louisiana from a Phase 3 reopening to a
modified Phase 2 shutdown effective through at least February 10, 2021. Modified

Phase 2 order effectively forced bars to close again entirely.
3

The bar owners alleged that the Governor' s Bar Closure Order and extensions

thereof (referred to collectively as the Bar Closure Orders) deprived them of the

lawful use of their permits, in particular, the right to sell alcohol for on -premises

consumption, as the bars had been effectively closed since the March 2020 Stay at

Home Order, except for brief, sporadic periods during the Phase 2 and Phase 3 orders

when 25% occupancy was allowed.

The bar owners asserted three causes of action which they claimed entitled

them to just compensation and damages caused by the Bar Closure Orders. In Count

I of the petition, the bar owners asserted a cause of action for inverse condemnation

under Article I, Section 4 of the Louisiana Constitution, which provides in part that

property shall not be taken or damaged by the state ... except for public purposes

and with just compensation paid to the owner or into court for his benefit." The bar

owners based their takings claims on the three -pronged test for evaluating takings
claims under the Louisiana Constitution enunciated by the Louisiana Supreme Court

in State Through Department of Transportation and Development v. Chambers

Investment Co., Inc., 595 So. 2d 598, 603 ( La. 1992). The bar owners alleged that

the ownership of a business is a fundamental right protected by the Louisiana

Constitution, and further, that they have constitutionally protected property rights in

lawfully -issued alcohol permits and in business enterprises operating as bars.
Plaintiffs alleged that their constitutional property rights were taken and damaged

under the Bar Closure Orders for the express purpose of protecting the public by
removing or reducing a risk to public health or safety and that the removal of a threat

to public health or safety caused by the existing use or disuse of property constitutes
a " public purpose" under Article I, Section 4 of the Constitution.

In Count II of the petition, the bar owners alleged that the Bar Closure Orders

constituted a"
regulatory taking" under Article I, Section 4 of the Louisiana

E!

Constitution and the jurisprudence construing that provision. The bar owners cited

Louisiana jurisprudence recognizing that a regulatory taking occurs when a

regulation destroys a major portion of the property' s value or eliminates the practical

economic uses of the property. They alleged that the Bar Closure Orders destroyed

the value of their permits by preventing them from engaging in the sole economic

use of those permits, on -premises consumption of alcoholic beverages. Therefore,

the bar owners claimed, the closure of bars for on -premises consumption constituted

a regulatory taking.

In Count III of the petition, the bar owners asserted a cause of action for the

statutory taking" of their property. They alleged that the Bar Closure Orders, which

were issued under the authority of LHEPA, which provides that the Governor may,

s] ubject to any applicable requirements for compensation, commandeer or utilize

any private property if he finds this necessary to cope with the disaster or

emergency." La. R. S. 29: 766( D)( 4) ( Emphasis added). They also cited a similar

provision contained in the Louisiana Homeland Security Assistance and Disaster

Act, La. R.S. 29: 724( D)( 4). The bar owners asserted that the commandeering or

utilization of property by executive order through the LHEPA is a particular kind of

statutory taking under Louisiana law. They also cited La. R.S. 29: 771( C), insisting

that it mandates compensation for private property " lawfully taken or appropriated

by a public health authority for its temporary or permanent use during a public health

emergency declared by the governor...." According to the bar owners, the Governor

promulgated the Bar Closure Orders closing their establishments for the express

purpose of coping with the emergency declaration by protecting the public at large

from the potential transmission of COVID- 19 by their customers, not by or from the
bar owners or their business activities. The bar owners maintained the closure of

their businesses to protect some members of the public from other members of the

5

public constitutes a statutory taking through the inverse commandeering or

utilization of private property under LBEPA, entitling them to just compensation

and damages caused by that statutory taking.

The Governor filed a peremptory exception raising the objection of no cause

of action, asserting that the bar owners could not state cognizable takings claims

under Louisiana law. The Governor argued that his exercise of the State' s police

power to implement life- saving measures in promulgating the Bar Closure Orders

did not constitute a " taking" of the bar owners' property, regardless of whether that

property consists of permits to sell alcohol or the bars themselves. The Governor

urged that under Louisiana law, there is no compensable taking when a deprivation

of property results from a valid exercise of the State' s power to forestall a grave

threat to the lives and property of others. The Governor insisted that the use of a bar

as a place for alcohol consumption and social gathering at the time the regulations

were implemented threatened to injure the larger community by increasing the
spread of COVID- 19. Accordingly, the Governor posited that he discharged his

duty to protect the lives of Louisiana citizens in an emergency by restricting
activities at bars, and any damages resulting to the bar owners from those restrictions

are not compensable under Louisiana law.

The trial court agreed with the Governor' s position and granted the objection

of no cause of action.
In oral reasons for ruling, the court found that the Bar Closure

Orders did not constitute takings for use of the bar owners' properties or rights by
the government, but instead were implemented as safety measures to protect the

public. The court found there had been no expropriation ofthe bar owners' properties

that would entitle them to just compensation under Louisiana law. The trial court

stressed that the pressure of a great danger, like a global pandemic, justified

reasonable restrictions of constitutional rights for the safety of the general public.

101

The bar owners appealed, arguing that the trial court erred finding that they

failed to allege a constitutional or statutory cause of action for compensation and

damages for the inverse condemnation or use of their private property as a result of

the Governor' s orders issued to cope with the COVID- 19 emergency.

NO CAUSE OF ACTION

The function of the peremptory exception raising the objection of no cause of

action is to test the legal sufficiency of the pleading by determining whether the law

extends a remedy against the defendant to anyone under the factual allegations of

the petition. Badeaux v. Southwest Computer Bureau, Inc., 2005- 0612, 2005-

719 ( La. 3/ 17/ 06), 929 So. 2d 1211, 1217. The focus of an objection of no cause of

action is whether the law provides a remedy against a particular defendant.

Robertson v. Sun Life Financial, 2009- 2275 ( 6/ 11/ 10), 40 So. 3d 507, 511.

The burden of demonstrating that the petition states no cause of action is on

the mover.
Reyer v. Milton Homes, LLC, 2018- 0580 ( La. App. 1St Cir. 2/ 25/ 19),

272 So. 3d 604, 607. The objection is triable on the face of the pleading, and for the

purpose of determining the issues raised by the objection, the well -pleaded facts in

the petition must be accepted as true. Calloway v. Lobrano, 2016- 1170 ( La. App.
1St Cir. 4/ 12/ 17), 218 So. 3d 644, 648.
No evidence may be introduced at any time

to support or controvert the objection that the petition fails to state a cause of action.

La. C. C. P. art. 931.

Because the objection of no cause of action raises a question of law, and the

trial court' s decision is based solely on the sufficiency of the petition, the appellate

court conducts a de novo review of the trial court' s ruling on the objection.
Badeaux, 929 So. 2d at 1217. An objection of no cause of action should be granted

only when it appears beyond doubt that there are no set of facts in support of any
claim against the particular defendant in the case. Every reasonable interpretation

VA

must be accorded the language used in the petition in favor of maintaining its

sufficiency and affording the plaintiff an opportunity of presenting evidence at trial.

Moreover, if the petition states a cause of action on any ground or portion of the

demand, the objection should be overruled. Id. Thus, the question to be asked in

evaluating an objection of no cause of action is whether, viewed in the light most

favorable to the plaintiff, and with every doubt resolved in the plaintiff's behalf, the

petition states any valid cause of action against the defendant for relief. Calloway,
218 So. 3d at 648- 649.

CONSITUTIONAL TAKINGS CLAIMS

In this case, the bar owners maintain that the Governor' s Bar Closure Orders

severely harmed, and in some cases, destroyed their property rights for a public
purpose,
entitling them to just compensation under Article I, Section 4 of the

Louisiana Constitution, which provides, in pertinent part:

A) Every person has the right to acquire, own, control, use, enjoy,
protect, and dispose of private property. This right is subject to
reasonable restrictions and the reasonable exercise of the police
power.

13)( 1)
Property shall not be taken or damaged by the state or its
political subdivisions except for public purposes and with just
compensation paid to the owner or into the court for his benefit....

2) As used in Subparagraph ( 1) of this Paragraph..." public
purpose"
shall be limited to the following:

c) The removal of a threat to public health or safety caused by
the existing use or disuse of the property.

The bar owners contend that the Governor' s targeted closure of bars resulted

in the taking or damage of their property " in the constitutional sense"
as required by

the Louisiana law to support a claim of inverse condemnation under Article I,

Section 4( B) of the Louisiana Constitution. See Chambers, 595 So. 2d at 602. They

also argue that the Governor' s targeted closure of bars gives rise to a claim of

3

compensation for the inverse use of private property " to cope with" an emergency

under the various provisions of Governor' s Emergency Proclamations.

The Governor contends that emergency actions taken by him to control the

spread of COVID cannot subject the State to liability for a taking, and therefore, the

trial court properly held that the temporary restriction of on -premises consumption

at bars did not constitute a compensable " taking" under the Louisiana Constitution.

The Governor maintains that the success of the bar owners' claims turns on the

distinction between the State' s power of eminent domain and the State' s police

power to address public health concerns arising during a national, state, and local

pandemic.
According to the Governor, any blurriness in these concepts can be

cleared up by analyzing the nature of the State action, and under such an analysis,

the exercise of police power to prevent impending danger does not require

compensation.

In support of his claim that the bar owners have no cause of action for

compensation under Article I, Section 4 of the Louisiana Constitution, the Governor

relies heavily on language in a footnote in the case Avenal v. State and Department

of Natural Resources, 2003- 3521 ( La. 10/ 19/ 04), 886 So. 2d 1085, cert. denied, 544

U.S. 1049, 125 S. Ct. 2305, 161 L.Ed.2d 1090 ( 2005), which involved a taking claim

by oyster fisherman against the Department of Natural Resources. Under all of the

circumstances of that case, the Louisiana Supreme Court found that the plaintiffs

property rights had not been " taken" because the regulations at issue did not deprive

them of all economically beneficial use of their property. Avenal, 886 So. 2d at

1107.
Although the Supreme Court concluded that the regulations may have

damaged their property rights in their oyster beds and the profits generated by them
under Article I, Section 4 of the Louisiana Constitution, those claims were

prescribed. Avenal, 886 So. 2d at 1107- 1110. Ina footnote in the lengthy opinion

9

analyzing the takings claims before it, the Court noted that the plaintiffs had also

asserted a taking claim under the Fifth Amendment to the United States Constitution,

which provides that private property shall not be taken for public use, without just

compensation. Avenal, 886 So. 2d at 1107 n. 28. In response to that claim, the

Louisiana Supreme Court observed that even if the plaintiffs were deprived of all

economically beneficial and productive use of their property rights, they were not

entitled to compensation as the regulation was a valid exercise of the State' s police

power under federal law. Id. One reason given by the Court for its refusal to

recognize a cause of action under federal law was the project would save Louisiana' s

coast and was thus a matter of" actual necessity" because it would "forestall [ a] grave

threat to the lives and property of others," citing United States Supreme Court cases

stating that proposition. Id. The Governor urges this test is dispositive of whether

the bar owners have stated a cause of action under Article I, Section 4 of the

Louisiana Constitution. According to the Governor, it is undisputed that his

Emergency Proclamations " forestalled a grave threat" and helped to avoid

imminent peril" to the lives of Louisiana residents. Therefore, the Governor

submits, the temporary prohibition of onsite consumption at bars in response to the

imminent peril threatened by the spread of COVID 19 cannot, under any

circumstances, constitute " takings" in the constitutional sense.

We do not find the statements by the Louisiana Supreme Court in a footnote

in Avenal regarding federal takings claims dispositive of the issue of whether the

bar owners have stated a cause of action under Article I, Section 4 of the Louisiana

Constitution. The bar owners do not dispute that the Governor had authority through
his emergency police powers to issue the Bar Closure Orders; however, they urge
that the Governor' s reliance on the State' s police power as a defense to their takings

claims is misguided. They cite the text of Article I, Section 4 specifically

10

recognizing that "[ t]he... removal of a threat to public health or safety caused by the

existing use or disuse of the property" constitutes a " public purpose" for the purposes

of Section B. La. Const. art. I Section 4( B)( 2)( c). We agree with the bar owners'

position that the fact the Bar Closure Orders were enacted to forestall a threat to

public safety is not determinative of whether they have stated takings causes of

action under Article I, Section 4 of the Louisiana Constitution. Rather, it is one of

the public purposes identified in the Constitution for which private property can be
taken by the government " with just compensation." ( Emphasis added). Therefore,

we shall analyze the takings jurisprudence in order to determine whether the

Governor met his burden of proving that the bar owners have not stated legally
cognizable takings claims on the face of their petition.

The Louisiana Constitution is the supreme law of this State, to which all

contrary governmental actions must yield. Faulk v. Union Pacific Railroad

Company, 2014- 1598 ( La. 6/ 30/ 15), 172 So. 3d 1034, 1043. When there has been a

taking, the Louisiana Constitution requires compensation even though the State has

not initiated expropriation proceedings in accordance with the laws set up for that
purpose. This " inverse condemnation"
action provides a procedural remedy to a

property owner seeking compensation for property already taken or damaged against
the government. Faulk, 172 So. 3d at 1043- 1044.

Under the Louisiana Constitution, the action for inverse condemnation is

available in all cases where there has been a taking or damaging of property when
just compensation has not been paid, without regard to whether the property is
corporeal or incorporeal. Faulk, 172 So.3d at 1044. One aim of Article I, Section

4 is to assure that the State compensates owners for any taking or damaging of their
rights with respect to things as well as for taking or damaging the objects of those
rights. Chambers, 595 So. 2d at 602. The constitutional command of Article I,

11

Section 4 is self-executing, such that the cause of action arises whenever the State

commits a taking without justly compensating the victim. Faulk, 172 So. 3d at

1044.' It is hornbook law that any substantial interference with the free use and

enjoyment of property may constitute a taking within the meaning of the Louisiana

Constitution. Chambers, 595 So. 2d at 602.

Whether a " taking" has occurred must first be considered before the question
1st
of compensation.
Layne v. City of Mandeville, 633 So.2d 608, 612 ( La. App.

Cir. 1993), writ denied, 94- 0268 ( La. 3/ 25/ 94), 635 So.2d 234. In Chambers,

recognizing that the taking and damaging of property rights is by nature abstract and

incompletely understood, the Louisiana Supreme Court adopted a three -pronged test

to analyze claims of inverse condemnation under Article I, Section 4 ofthe Louisiana

Constitution. The first prong involves a determination of whether a person' s legal

right with respect to a thing or an object has been affected; in this part of the analysis,

a court must be able to identify a recognized species of private property right that
has been affected. Second, if it is determined that property is involved, the court

must then decide, whether the property, either a right or a thing, has been taken or
damaged in the constitutional sense. The court stressed that if property is taken or

damaged, one may say that there has been an attempted exercise of the eminent

domain power.
The final question is whether the taking or damaging is for a public
purpose under Article I, Section 4. Chambers, 595 So. 2d at 603.

Louisiana law recognizes that a governmental regulation can constitute a

taking under Article I, Section 4 of the Louisiana Constitution. In Annison v.

Hoover, 517 So. 2d 420, 423 ( La. App. 1" Cir. 1987), writ denied, 519 So. 2d 148

1988),
this court identified a distinction between physical takings of property,

By contrast, in order for a taking to be compensable under the Taking Clause of the United States Constitution, it
must constitute an actual, permanent invasion of the property, amounting to an appropriation of, and not merely an
injury to the property. See Faulk, 172 So. 3d at 1044 n. 13.
12

which are easily identifiable, and regulatory takings of property, which may or may

not be easily identifiable. This court also observed that regulatory programs that

affect property values may or may not constitute takings. This court held that a

taking has occurred if there has been a substantial diminution in value to such an

extent there has been a destruction of the major portion of the property' s value.

Annison, 517 So. 2d at 423.

In Faulk, the Louisiana Supreme Court addressed a certified question from a

federal court asking whether the application of a particular statute constituted an

unconstitutional taking of private property in violation of Article I, Section 4 of the

Louisiana Constitution. Faulk, 172 So. 3d at 1038. The Supreme Court

acknowledged that federal takings jurisprudence may serve as " guideposts" in

addressing takings claims under the Louisiana Constitution. Faulk, 172 So. 3d at

1056 n. 33. The Court observed that federal case law recognizes that compensation

may be required under the Federal Constitution when a governmental regulation of

private property is so onerous that its effect is tantamount to a direct appropriation

or ouster and that a temporary government action may give rise to a taking claim if

permanent action of the same character would constitute a taking. Faulk, 172 So. 3d

at 1056- 1057. The Supreme Court recognized the difficulty of applying any one
approach or test in analyzing takings claims under the Louisiana Constitution,

stating:

N]o magic formula enables a court to judge, in every case, whether a
given government interference with property is a taking. In view of the
nearly infinite variety of ways in which government actions or
regulations can affect property interests, the courts have recognized few
invariable rules in this area. Most takings claims turn on situation -
specific factual inquiries. Such considerations for determining whether
a taking has occurred include: the character of the land at issue; the
property owner' s distinct investment -backed expectations, a matter

often informed by the law in force in the state in which the property is
located; and the degree to which the invasion is intended or is the
foreseeable result of authorized government action.

13

Citations Omitted]
Faulk, 172 So. 3d at 1057.

Under federal takings jurisprudence, it is well established that when a

government regulation goes too far, it constitutes a regulatory taking. Pennsylvania

Coal Co. v. Mahon, 260 U.S. 393, 415 ( 1922), 43 S. Ct. 158, 67 L.Ed. 322;

Robinson v. City of Baton Rouge, 13- 375 ( US. Dist. Ct. M.D. La.), 2015 WL

13522820 at * 8( unpublished). However, in decades of regulatory takings

jurisprudence, federal courts refused to define any set formula for determining " how
far is too far." Id. Instead, federal courts engage in ad hoc, factual inquiries based

on criteria set forth in Penn Central Transportation Co. v. City of New York, 438

U.S. 104, 123- 24, 98 S. Ct. 2646, 2659, 57 L.Ed.2d 631 ( 1978), which are designed

to determine when justice and fairness demand that economic injuries caused by
public action be compensated by the government rather than
remaining

disproportionately concentrated on a few persons. In determining whether a

regulatory taking has occurred, some of the factors federal courts examine include:

1) the economic impact on the claimant; ( 2) interference with distinct investment -

backed expectations; ( 3) the character of the government action; and ( 4) the public

interest advanced in support of the governmental action. Robinson, 2015 WL

13522820 at *
8. Ultimately, the determination of whether a regulatory taking has
occurred will depend largely upon the particular circumstances of each case.2 Id.

2 Avenal, so heavily relied on by the Governor in this case, plainly demonstrates that the question of whether a given
governmental action has resulted in a compensable taking or damage claim under the Louisiana Constitution is
inherently a fact -specific inquiry. Avenal and the cases cited therein demonstrate that in order to determine whether a
plaintiff is entitled to eminent domain compensation because private property has been taken or damaged, a court must
conduct a full analysis of the facts and circumstances of the case. In Avenal, an eight-day jury trial was held on the
merits to determine whether the State had taken actions which had taken or damaged the plaintiffs' right to property.
After a review of the entire record and applicable law, the Supreme Court found that a coastal restoration project that
lowered the salinity of water covering oyster fishermen' s leases did not constitute a " taking" under the Louisiana
Constitution because a vast majority of the leases at issue contained hold harmless indemnity clauses validly releasing
the State from liability as a result of the project. With respect to leases that did not contain hold harmless clauses, the
Supreme Court ruled that those fishermen' s rights were not " taken" because they had not been denied of all
economically beneficial uses oftheir property, although their rights may have been " damaged" under Article I, Section
4prescribed.
of the Louisiana Constitution. The court did not further address the damage claim because it found those claims had
14

Recently, the Louisiana Supreme Court decreed that " even in a pandemic, the

Constitution cannot be put away and forgotten." State v. Spell, 2021- 00876 ( La.

5/ 13/ 22), 339 So. 3d 1125, 1139 ( citing Roman Catholic Diocese of Brooklyn v.

Cuomo, U.S. , 141 S. Ct. 63, 68, 208 L.Ed.2d 206 ( 2020)( per curiam). We

conclude that the trial court erred in granting the objection of no cause of action

because the Governor' s Bar Closure Orders were enacted in response to a public

health threat posed by the pandemic. Certainly, the fact that the Governors' Bar

Closure Orders were enacted in response to a pandemic is a factor that must be

considered by the trial court in examining the character of the governmental action

in order to determine whether a compensable taking occurred under all of the facts

of this case. However, as Louisiana and federal takings jurisprudence demonstrates,

it is only one of many factors that must be considered in evaluating takings claims.

Thus, in determining whether the bar owners' property has been taken or damaged

in the constitutional sense, a court must consider the economic impact of the Bar

Closure Orders on the bar owners. Relevant to this determination is the magnitude

or character of the burden the Governor' s Bar Closure Orders imposed on private

property rights and how the burden was distributed among property owners as a
result of those orders. See Lingle v. Chevron, U. S. A., Inc., 544 U.S. 528, 542, 125

S. Ct. 2074, 2084, 161 L.Ed.2d 876 ( 2005). The takings alleged by the bar owners

must be examined in the larger context of the response to the pandemic to determine

if the bar owners in this case have actually suffered greater losses than the losses

suffered by other citizens and businesses. In a pandemic, all citizens and businesses

may be called upon to share the burden of losing their liberties and businesses

interests for a period of time for the public good of stopping the spread of a dreaded
disease. However, certain individuals or businesses may be called upon to suffer a

greater loss for the public good and should, in some cases, be compensated for their

15

greater loss in protecting the health and welfare of the citizens of this State. Further,

the defendant and the citizens of the State should be willing to pay those parties who

have suffered a greater loss and had to sacrifice more in an attempt to protect the

health and safety of all.

On an objection of no cause of action, a court may consider only whether the

plaintiff has stated a legally cognizable claim on the face of the petition; it may not

evaluate the likelihood that the plaintiff will succeed in establishing the elements of
that cause of action. Examining the allegations of the petition, we find that the bar

owners have alleged sufficient facts to state cognizable takings claims under Article

I, Section 4 of the Louisiana Constitution against the Governor in his official

capacity. The bar owners alleged that they had constitutionally protected property
rights in lawfully issued alcohol permits and income derived from their business

enterprises acting as bars. They further alleged that these rights were taken and

damaged by the Governor for the express purpose of protecting the public by

removing or reducing a risk to public health or safety, satisfying the " public purpose"

prong of the constitutional takings' analysis. Finally, the bar owners alleged that the

Governor' s Bar Closure Orders constituted regulatory takings and damaged their
property rights, and thus, constituted takings in the constitutional sense. As the

jurisprudence demonstrates, a court can only determine whether the bar owners can

satisfy this prong ofthe Chambers test after all of the facts of this case are developed

and those facts are properly analyzed in the context of takings jurisprudence. The

trial court erred in finding that the Governor' s Bar Closure Orders could not

constitute takings in the constitutional sense under any circumstances. Although

there may be procedural mechanisms available to the Governor to challenge the

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efficacy of the bar owners' takings claims, we simply conclude today that an

objection of no cause of action was not an appropriate one.'

CONCLUSION

For these foregoing reasons, we reverse the trial court' s judgment granting the

Governor' s peremptory exception raising the objection of no cause of action. We

remand the matter to the trial court for proceedings consistent with this opinion.

Appeal costs, in the amount of $ 1, 708. 00, are assessed to appellee, John Bel

Edwards, in his official capacity as the Governor of Louisiana.

REVERSED AND REMANDED.

3 Because we have found that the bar owners have stated a cause of action under the Louisiana Constitution, we need
not address whether they have alleged facts sufficient to support a statutory cause of action. When the petition sets
forth a cause of action, none of the other causes of action may be dismissed on a peremptory exception pleading the
objection of no cause of action. Calloway, 218 So. 3d at 649.
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