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Morgantown bar owners file new federal lawsuit over closure orders

CHARLESTON — Lawsuits continue to pile up for Gov. Jim Justice with Morgantown bar owners challenging an executive order indefinitely shutting them down due to COVID-19 coronavirus infections among university students.

Wheeling attorney Martin Sheehan filed a complaint in the U.S. District Court for the Northern District of West Virginia on Monday against Justice, West Virginia Alcohol Beverage Control Administration Commissioner Frederic Wooton and Emily Muzzarelli, the interim city manager for Morgantown.

Sheehan represents 12 Morgantown bars and companies that own bars that are closed due to community spread of COVID-19 in Monongalia County tied to students on the Morgantown campus of West Virginia University. Justice ordered the indefinite shutdown by executive order on Sept. 2 two days after Monongalia County bars re-opened after a temporary shutdown in July and August.

According to the complaint, the bars are seeking a declaratory judgment from the court determining that Justice’s executive orders are unenforceable. The complaint also requests a declaratory judgment against the city manager to prevent the city from enforcing a Sept. 2 ordinance giving it authority to order restrictions of bars and restaurants based on state executive orders and county health department guidance and determine occupancy limitations in bars and restaurants.

Sheehan said the combined executive orders during the pandemic, including the recent bar closure orders for Monongalia County, violate the due process rights of the businesses.

“The executive orders, individually, and in combination, lack any process for administrative review, do not provide for any right to review by a neutral and detached official, do not provide for a hearing, do not include the right to have counsel assist in any such review, and do not allow for cross-examination of witness and further do not provide for prompt review and contain no requirement for reasoned decision-making, all of which are core elements of the right to due process,” Sheehan wrote.

Sheehan accused Justice of violating the constitutional separation of powers between the branches of government by using the state of emergency for the coronavirus to legislate by executive order. He also accused Justice of violating the takings clause of the U.S. Constitution by shutting down the businesses without offering compensation.

“The imposition of specific limits on the operation of bars and restaurants in Monongalia County, by executive order, has affected the plaintiffs, and each of the plaintiffs, and has constituted the taking of their property, used to generate adequate income to discharge the obligations of the plaintiffs, and each of them, without any just compensation,” Sheehan wrote.

Justice first declared a state of emergency for the virus on March 16 with the first positive case of the virus reported by the Department of Health and Human Resources on March 17. Justice announced the closure of bars and restaurants the same day, limiting them to carry-out, drive-thru or delivery services for food.

Restaurants remained closed until May 21 and were allowed to re-open as part of Justice’s phased re-opening of businesses and activities, though they were only allowed to seat customers at 50 percent of capacity and staff were required to wear masks. Bars were allowed to re-open on May 26.

A spike in COVID-19 cases tied to returning students to WVU in July caused Justice to issue an executive order July 13 closing bars in Monongalia County for 10 days. That executive order was extended four times until the order was lifted on Aug. 31. Monongalia County bars were given further rules to follow, including limiting occupancy to 50 percent capacity, strict enforcement of prohibitions of people younger than 21 entering the establishment, closure of dance floors and prohibition of live entertainment.

By Sept. 2, Justice indefinitely closed all bars in Monongalia County after photographs emerged on social media showing long lines of WVU students at bars with little social distancing and few masks. The behavior resulted in a scolding letter to students from WVU President Gordan Gee. As of Monday there are 185 WVU Morgantown students in isolation due to likely COVID-19 infections, with 665 active cases of the virus in Monongalia County.

The federal lawsuit is one of three dealing with Justice’s executive orders limiting what businesses can do during the pandemic and determining how schools can re-open. Oral arguments will be heard Friday morning in another lawsuit filed in the Kanawha County Circuit Court regarding the County Alert System school re-entry protocols and metrics.

Steven Allen Adams can be reached at sadams@newsandsentinel.com.

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