HUNTINGTON – The owners of a Putnam County restaurant have filed a lawsuit challenging the state’s “Stay At Home Order” and face mask mandate.
Andrew and Ashley Stewart, who own Dinner’s Ready Inc. doing business as Bridge Café & Bistro, filed their complaint September 15 in federal court against Gov. Jim Justice, the Putnam County Commission and Putnam County sanitarian Rick Snaman.
"We believe it’s unconstitutional under the First Amendment, as the mask debate has become just that – political speech," attorney John Bryan told The West Virginia Record. "We also believe they are in violation of the Fourteenth Amendment due process clause because they’re an arbitrary deprivation of my clients’ property interests wholly without due process of law.
"Moreover, they’re also a violation of the Equal Protection Clause of the 14th Amendment, because they treated restaurants in Putnam County, where only two deaths have occurred in over 6 months of the virus, just the same as they treated restaurants where the virus had a greater impact."
This summer, Bridge Café & Bistro was at the center of controversy in July when it posted on social media some employees weren’t wearing masks, and it said customers weren’t required to wear them either. After an uproar on social media and threats of having food service and alcohol permits taken away, the restaurant reversed course.
The 38-page complaint features background of West Virginia and Justice’s response to COVID-19, the state of emergency, the state’s plan to allow businesses to reopen. It also includes a copy of the July 8 social media post signed by the Stewarts and the Bridge family.
“Please know that some of our staff have chosen to forego wearing a face covering,” the post states. “Reasons for their decisions are their own, but we can assure you that in no way do they have malicious intent for their community. We will also not turn guests away should they choose not to wear a mask themselves.”
As the complaint notes, the post quickly went viral.
“Mask proponents began to share the post, viciously attacking the plaintiffs for their beliefs expressed therein,” the complaint states. “The post generated thousands of comments, both in support and in derision of the post, and quickly made its way around the local sphere of social media. This in turn brought a substantial amount of coverage by local television news media.”
Within hours, the plaitniffs say Snaman contacted them about the post “threatening an inspection.”
“Snaman informed them that as a result of the expression and speech contained in their Facebook post, that they would be shut down by the Putnam County Department of Health if they failed to comply with the governor’s mask mandate,” the complaint states. “Snaman gave the plaintiffs until Friday of that week to comply, and make it mandatory for all staff, including themselves, to wear face coverings, irregardless of their personal choices.
“The plaintiffs requested written documentation of any law or regulation of which they were in violation, but were provided with none. Snaman would only refer them to the governor’s website.”
On Friday, July 10, Snaman performed an inspection and gave the plaintiffs an ultimatum to require staff to wear masks or be shut down. The plaintiffs relented and complied with the mask mandate and were charged $50 for a follow-up inspection.
On July 14, Snaman returned to the restaurant for another inspection, “continuing his retaliation against the plaintiffs for the stance and comments they had made on Facebook.” They were charged another $50 for another follow-up inspection.
Talking to The Record, Bryan also mentioned a September 14 ruling by U.S District Judge William Stickman IV who ruled that Pennsylvania Gov. Tom Wolf’s pandemic restrictions that required people to stay at home, placed size limits on gatherings and ordered “non-life-sustaining” businesses to shut down were unconstitutional. The Wolf administration said it will appeal.
"Additionally, we believe yesterday's ruling from Judge Stickman in the Western District of Pennsylvania makes a good case that a governor unilaterally choosing who is 'essential' and who is 'non-essential' in smoky rooms, rather than through an open, defined and rational process, is itself a constitutional violation," Bryan, who works out of Union, told The Record. "The governor cannot enact legislation, period. Not in a time of war; not in a 'State of Emergency' which has lasted over six months. The sole process for enactment of new laws in West Virginia is via the state Legislature, according to the state Constitution.
"To the extent that counties attempt to enforce unconstitutional and unenforceable executive orders as if they were laws, we believe they can be sued for money damages under Section 1983."
The plaintiffs accuse the defendants of violating their First Amendment right to protected speech. They also make a Monell Claim against the Putnam County Commission, saying their Fourteenth Amendment right to due process and First Amendment right to freedom of speech were violated. They also argue that executive orders in West Virginia, such as the mask mandate, are not enforceable state laws.
The plaintiffs also seek declaratory and injunctive relief. They want the court to issue a declaration saying the mask mandate, other parts of the state’s reopening guidelines for restaurants and the “Stay At Home Order” are unconstitutional. They also seek a permanent injunction to prohibit enforcement of the challenged orders by the Putnam County Commission and any other state or local officials against the plaintiffs.
They also seek damages, including attorney fees and other relief.
