Ohio County lawsuit challenges Justice executive orders

Businesses, parents argue COVID-19 rules violated rights

CHARLESTON — Even though Ohio County is in the gold on the County Alert System color-coded map, a group of local businesses and two unidentified parents are seeing red when it comes to Gov. Jim Justice’s executive orders.

According to a complaint filed in the U.S. District Court for the Northern District of West Virginia, six Ohio County businesses filed a motion for injunctive relief Thursday, requesting that the court prohibit West Virginia from enforcing Justice’s executive orders issued during the COVID-19 pandemic, including orders that limit what the businesses can and cannot do as well as the rules determining when schools can re-open.

Eden LLC; Fulton Fun Factory LLC; Hinebaugh Athletics LLC; The Rejuvenation Center LLC; Hinebaugh Enterprises LLC; and Noah’s Ark Childcare and Learning Center — all Wheeling-based businesses — joined together for the lawsuit. They were joined by two mothers only identified by their initials with several children in Ohio County public schools.

Attorneys for the businesses detailed in the court filing how all six businesses were affected by various executive orders signed by Justice during the course of the coronavirus pandemic which hit the state in March and continues to wreak havoc. Justice first declared a state of emergency for the virus on March 16 with the first positive case of the virus reported the Department of Health and Human Resources on March 17.

Justice’s first major action involved closing all schools for in-person learning on March 13. Shortly after the first positive case was reported, Justice closed all restaurants and bars except for drive-thru, pick-up, and delivery, followed by the closure of all gyms and recreational facilities on March 18. Barbershops, hair and nail saloons were closed on March 19.

On March 23, Justice issued a stay-at-home order for all residents and closed all non-essential businesses. Travel was limited to groceries and supplies, medical services, and essential employees. Justice started lifting business closure orders in phases on April 30. The stay-at-home order was replaced on May 4 with a “Safer At Home” order.

By the beginning of June, most businesses could re-open, though there were additional restrictions put in place. These restrictions included limiting the number of people in businesses at one time depending on the square footage, enforcing six feet of social distance, and requiring masks.

Eden LLC operates Eden Family Restaurant which opened on Feb. 7 — one month before the COVID-19 pandemic hit the state. The restaurant claims they saw a 90 percent reduction of sales once they were allowed to re-open. Restaurants are only allowed to have 50 percent capacity. The Fulton Fun Factory, an amusement business specializing in bounce houses, had to issue refunds to customers who booked in advance after Justice’s executive orders closed down amusement parks and zoos.

Hinebaugh Athletics and Rejuvenation Center claim to continue to be harmed by regulations put in place to limit the spread of the virus in athletic facilities. Noah’s Ark claims that they lost customers due to being closed down and those customers not coming back after they re-opened.

“In essence, (Justice’s) executive orders are heavy-handed and never-ending,” wrote Paul Harris, the attorney representing the businesses and parents. “The citizens and business owners within the State are required to live in constant fear and worry that another shutdown is imminent. Instead of dealing with the purported issues of COVID-19 outbreaks with the precision of a surgical scalpel, Defendant brings down a proverbial sledgehammer causing destruction of the livelihood of citizens.”

Harris accused Justice of violating the constitutional rights of the business owners and causing financial hardships with his executive orders. Harris cited the decision of a federal judge in Pennsylvania who ruled in favor of several western Pennsylvania counties against Gov. Tom Wolf regarding his authority to issue open-ended executive orders during the pandemic.

A decision rendered in that case found that some of the executive orders entered by the Governor of Pennsylvania violated constitutional rights of its citizens, namely the orders abrogating a citizen’s rights protected by the First and Fourteenth Amendments, Harris wrote.

On behalf of the parents, Harris also accused Justice of unequal treatment of residents by using a color-coded system to determine what counties have increases of COVID-19 cases and using that information to determine whether county schools could remain open or close.

“(Justice) treats citizens located in different counties within the State of West Virginia differently than citizens located in other counties, without any empirical data to sustain such a distinction,” Harris wrote. “These closures are restricting the private and public school students of the Northern District of West Virginia, and through the State of West Virginia, from receiving a meaningful education.”

Earlier this week, a Putnam County restaurant filed a lawsuit in the U.S. District Court for the Southern District of West Virginia seeking damages and an injunction against Justice, the Putnam County Commission, and the Putnam County Health Department. Andrew and Ashley Stewart, owners of the Bridge Cafe and Bistro, claim that Justice’s executive orders limiting occupancy in restaurants and requiring face masks has caused local authorities to harass them.

In another case, Charleston attorney Alex McLaughlin filed suit last week against Justice, the Department of Health and Human Resources, and the state Board of Education over the County Alert System color-coded map and metrics. McLaughlin asked for an injunction to prevent state officials from enforcing the metric. Kanawha County Circuit Judge Tod Kaufman scheduled oral arguments in the case for Friday, Sept. 25, at 8 a.m.


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