Wide-ranging lawsuit challenges rules for everything from day care to barbershops

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BOONE COUNTY, Ky. (WTVQ) – Day care centers are failing under the state’s coronavirus restrictions and rules limiting other businesses are “arbitrary and capricious,” a Boone County man argues in a circuit court lawsuit challenging the rules.

Using some arguments he’s used in other lawsuits challenging mass-gathering orders and how they impact churches and protests, Theodore J. Roberts of 2271 Teal Briar Lane, Apt. 208 in Burlington, claims limits imposed by Gov. Andy Beshear’s orders are too vague and place undue burdens that aren’t necessarily guided by science. (Read the lawsuit and arguments for injunction EmergencyMotionTRO-FlorenceSpeedway-filing (3)).

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“The requirement that only ‘essential’ people are allowed at the facility, such as the vending machine supplier, but not fans, media, or any others, is discriminatory and arbitrary. The science behind the transmission of the coronavirus is that, generally speaking, outdoor gatherings are safer than indoor gatherings, particularly if people are social distancing and/or wearing masks,” the lawsuit, filed by attorney Christopher Wiest, of Crestview Hills, Ky., who has filed other lawsuits challenging orders, also argues Beshear, Public Health Commissioner Dr. Steven Stack and Human Services Commissioner Eric Friedlander failed to follow state law by giving businesses due process before the rules were imposed.

Furthermore, Beshear has exceeded his authority by issuing what the lawsuit calls “perpetual” orders without input from the General Assembly, opening up the question of which branch of government — legislative or executive — has the ultimate authority to protect public health and safety in situations such as the current pandemic.

The lawsuit argues the governor has become a “dictator,” taking property without compensating the owners, outside of the powers authorized either in state law or the Constitution.

Furthermore, it notes he attended a rally three weeks ago that violated the rules he has imposed.

The lawsuit is filed not only only behalf of Roberts, who claims he is asthmatic and thus put at risk by wearing a mask, but also Florence Speedway, in Walton, Ky.; Beans Cafe in Dry Ridge, Ky.; John Bernard and his barbershop, Left’s Barbershop in Union, Ky.’ and Little Links of Learning day care in Ft. Wright, Ky.

A hearing is scheduled July 1 in Boone County Circuit Court.

“There simply is no enumerated power from the General Assembly, through the language of K.R.S. 39A, or otherwise, for any emergency powers to exist for a perpetual statewide disaster area as a result of a potentially never-ending disease outbreak, particularly where K.R.S. 214.020 covers the precise subject matter,” the lawsuit argues.

“The Governor’s use of K.R.S. 39A.100 in these circumstances, and as he has used it, is contrary to law, and dangerous to a republican form of Government because it is contrary to inherent checks and balances in that form of government. Turning to K.R.S. 39A.100(c), that provision does permit the Governor to seize property in the area of an emergency, but in so doing, he is required to make just compensation under K.R.S. 39A.100(e), which he has not done. So, in the event that this Court finds the Governor has constitutionally utilized his powers under K.R.S. 39A.100(c), and somehow likewise finds that K.R.S. 39A.100 somehow permits the Governor to issue a perpetual statewide emergency declaration, giving himself dictatorial powers to not only execute the laws but make them as well, Plaintiffs seek a declaration and injunction against the Governor to comply with K.R.S. 39A.100(e) to make just compensation. Nor does K.R.S. 39A.100(j) give the Governor the ability to suspend existing laws or to legislate by fiat, since it contains an express provision that indicates the Governor may take no actions that are prohibited by other law.

“Moreover, it can’t be overstated that no Kentucky case has ever permitted the perpetual lockdown (i.e. quarantine and isolation) of healthy people, not to mention entire segments of Kentucky’s economy, without at least some articulable suspicion that a particular person is ill. Here, there is so such evidence about these businesses (or any particular business), only an assumption. Further, the Challenged Orders have not been issued in accordance with K.R.S. Chapter 13A, and thus are invalid,” the lawsuit argues, seeking an injunction to stop enforcement while the courts rule on the legal issues.

“The business Plaintiffs are and continue to be irreparably harmed in that they cannot do business and comply with the requirements, without operating at a loss. They continue to operate with reasonable safety precautions, and neither the public, nor third parties, will be harmed by the issuance of an injunction, since similar activities are permitted to other similarly situated businesses.

“There is little doubt that COVID-19 has created certain unique challenges to society. It is in such circumstances that our commitment to fundamental principles that have guided our society since this nation’s founding must be adhered to. Principles no less significant than the rule of law, separation of powers, the right to earn a living, the right to acquire and protect property, and the right to be free from arbitrary executive value judgments about the worth of a particular economic activity are at stake. These issues are not and have not been tackled by an elected legislature, but mainly by un-elected appointees. The economic devastation is real. It may be irreparable. It certainly will result in irreparable harm to the Plaintiffs in this case, without prompt court intervention,” the lawsuit concluded.