Lawsuit against state health director filed

A third lawsuit has been filed in Lake County Common Pleas Court

A third lawsuit has been filed against Ohio Health Director Amy Acton in Lake County Common Pleas Court regarding novel coronavirus-related orders as the second is set for a June 9 preliminary injunction hearing.

Beachwood-based Connick Law filed the latest lawsuit June 4, arguing in the complaint Acton’s novel coronavirus-related orders mandate that “restaurants and bars in the state of Ohio enforce constitutionally vague regulations and laws against their patrons, and, which if not enforced, expose the restaurant and bar owners to constitutional strict criminal penalties and/or reprisal for conduct of others that they have no reasonable control over.”

Connick Law is representing eight bars and restaurants. All but one is located in Northeast Ohio and includes Eastlake’s Diamondback Bar and Grill and Willoughby’s Frank and Tony’s. Other plaintiffs include Cleveland-based Harry Buffalo and TownHall. The only non-Northeast Ohio business involved in the suit is based in Columbus. Governor Mike DeWine is named as a defendant in the suit along with Acton.

Plaintiffs are seeking judgement that would bar the state from imposing criminal, civil or equitable penalties for non-compliance with the health director’s orders.

Dine-in service at Ohio bars and restaurants resumed May 21. Along with the reopenings came orders from Acton. Connick Law attorneys argue that some of those requirements are unconstitutionally vague. For example, establishments offering dine-in services must take “affirmative steps with customers to achieve safe social distancing guidelines.” The attorneys argue those steps are undefined.

Connick Law attorneys argue violating the rules could lead to owners being criminally punished or having property like liquor licenses “unconstitutionally seized.” They use as an example patrons waiting in line deciding to move closer to each other or removing/navigating barriers to a distance of less than 6 feet. This would subjugate owners to “strict criminal liability for the acts of their patrons.”

“Even more ridiculous is the requirement that plaintiffs ask patrons not to enter if they are symptomatic of COVID-19,” the attorneys stated in the complaint. “How can a non-medical doctor be expected to diagnose a patron standing in line waiting to get in? And then, if once in, of the bar patron is found to be infected with COVID-19, be subject to criminal liability for failure to diagnose.”

The case has been assigned to Lake County Common Pleas Court Judge John P. O’Donnell. The judge on June 9 is holding a preliminary injunction hearing on a lawsuit filed against Acton regarding the prohibition of amusement games in bars, restaurants and bowling alleys under the state’s COVID-19

reopening plan.

Twenty businesses across the state, including Willoughby’s Garage Bar, in late May filed a lawsuit challenging the health director’s order.

Amusement games include billiards, pinball, video and arcade games. The lawsuit filed by Akron-based Stark & Noll Co. LPA argues that the order was issued by the Ohio Department of Health “without any basis to support the conclusion that the patrons of bars, restaurants and bowling alleys cannot safely participate in such games.”

Plaintiff attorneys argued in a June 2 court filing that the businesses “continue to suffer extraordinary damages” due to the prohibition and requested a preliminary hearing injunction date. That hearing will be held before Lake County Common Pleas Court Judge John P. O’Donnell.

The plaintiffs are seeking the preliminary injunction to prohibit Acton and those who enforce the health department’s orders from imposing penalties to those businesses as long as they adhere to safety regulations.

The lawsuit states that the order violates the plaintiffs’ rights under the Ohio Constitution to conduct their legitimate businesses.

The suit further argues that as a direct and proximate result of the order, the plaintiffs face “imminent risk of losing their businesses, their livelihoods, and economic security, of being criminally prosecuted and suffering irreparable harm to their rights as citizens of the state of Ohio to be treated equally under the law, to receive due process and to be protected from arbitrary conduct of an unelected official in whom virtually all powers of government, legislative and executive, have been singularly and unlawfully reposed.”

“Defendants have made no showing that games offered by plaintiffs cannot

be conducted in a manner that complies with spacing standards and sanitizing standards recommended by defendants,” the lawsuit states.

Attorneys for the plaintiffs also argue that Acton’s orders “are even more constitutionally suspect because it exempts state-supported lottery kiosks found in bars and bowling alleys.

Also named as defendants in the suit are Ohio Attorney General Dave Yost and the Lake County General Health District, which enforces the health directives in the county.

A spokesperson for the Ohio Department of Health previously declined comment, stating the department does not comment on pending litigation.

The lawsuit was filed shortly before 5 p.m. May 20, hours after another Lake County judge granted a preliminary injunction allowing gyms to reopen immediately.

Lake County Common Pleas Court Judge Eugene A. Lucci ruled in favor of the 35 gyms across the state that filed a suit against Acton Acton prohibiting her and those responsible for enforcing her directives from “imposing or enforcing penalties solely for non-compliance with the director’s order” against gyms and fitness centers, “so long as they operate in compliance with all applicable safety regulations, whether those in the state’s order, the state’s supplemental guidelines governing businesses like those of the plaintiffs in this case.”

Lucci wrote that Acton has “acted in an impermissible arbitrary, unreasonable and oppressive manner without procedural safeguards.”

“(Acton) has quarantined the entire people of the state of Ohio for much more than 14 days,” Lucci wrote. “The director has no statutory authority to close all businesses including plaintiffs’ gyms, which she deems non-essential for a period of two months.”