The Bar’s Open Even When it’s Not COVID Takings

Florida’s Fifth District Court of Appeal recently added to the growing body of case law on “COVID takings.” COVID takings involve claims for compensation based on property use restrictions imposed during the COVID pandemic, usually based on the theory that things like eviction moratoria or emergency orders limiting business hour operations are takings under the Fifth Amendment to the U.S. Constitution or Article X, Section 6(a) to the Florida Constitution. In other articles and blogs, I’ve argued that an owner had a better chance of winning a challenge to emergency orders because the orders exceeded legislatively delegated to state or local governmental executive branches, instead of bringing a takings claim. The Fifth District’s new case doesn’t change my opinion.

In Orlando Bar Group, LLC v. DeSantis, ___So.3d ___, 47 Fla. L. Weekly D827, 22 WL 105148, (Fla. 5th DCA 2022), the court affirmed the trial court’s order dismissing with prejudice several bar owners’ inverse condemnation complaints seeking compensation because of state and local orders that restricted their bars’ hours of operation. (There’s a link to the complete decision). The bar owners alleged that the orders violated their right to allow guests into their bars.

For over three decades, the Supreme Court has acknowledged that depriving a property owner of the power to exclude the public from private property is an unlawful taking. As the Supreme Court has said, the right to exclude public access to private property is one of the most important sticks in the proverbial bundle of sticks comprising private property rights. Here, the owners made the flip side argument: that the right to allow the public into their bars was just as much a constitutionally protected property right as the right to exclude the public.

This distinction, however, gave the Governor and the local governments with a defense to the complaints. The Fifth District Court noted that the COVID orders didn’t prevent the bar owners from excluding the public from their bars. The orders did the opposite, preventing guests from entering the bars. According to this court, the government can limit an owner’s ability to invite the public to enter private property, but it can’t limit an owner’s ability to exclude the public. And the orders therefore simply regulated the property’s use without causing a taking.

The Fifth District also applied a multifactor test to decide whether the ordinances’ application denied the owners the reasonable use of their property. It’s worth reading the decision to see the second part of the court’s reasoning. I commend to your attention the inestimable Robert H. Thomas’s blog,, for a further discussion of Orlando Bar Group.

A little practice pointer. . .on appeal the owners argued that their complaints were dismissed with prejudice, meaning that the trial court wouldn’t let them try to correct any pleading defects. They correctly noted that plaintiffs in civil cases typically can amend their pleadings. The problem was that they didn’t try to amend their complaints or file a motion for a rehearing. The Fifth District held that the question whether they should have been allowed to amend their complaints wasn’t properly preserved for appeal because it wasn’t raised with the trial court.

Here’s the takeaway. . .even if it’s unlikely that the trial court will grant a motion for rehearing, the careful owner’s counsel should always consider whether to request a rehearing, if for no other reason than to preserve this argument on appeal.

Jay Small practices in the areas of eminent domain, condemnation, property rights, inverse condemnation, and land use law. If you have any questions about how government regulations can affect your property, contact him at (407) 425-9044, by email at [email protected], or follow him on LinkedIn.

This blog and these materials are not intended to provide legal advice. They do not represent the legal opinions of the firm, nor should they be regarded as the legal positions of any client of the law firm of Mateer Harbert, P.A. They are provided for general informational purposes only. These materials should not be used as a substitute for the advice of qualified legal counsel.

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