HUNTINGTON – Attorneys for Gov. Jim Justice say a lawsuit by the owners of a Putnam County restaurant claiming the recently amended mask mandate is hurting their business should be dismissed.
Andrew and Ashley Stewart, who own Dinner’s Ready Inc. doing business as Bridge Café & Bistro, filed an emergency motion November 16 in federal court in a case originally filed in September against Justice, the Putnam County Commission and Putnam County sanitarian Rick Snaman in which they challenged the state’s “Stay At Home Order” and mask mandate. The Putnam County Commission was dismissed as a defendant November 19 in an agreed order.
On November 17, U.S. District Judge Robert C. “Chuck” Chambers issued an order directing the defendants to file a response to the emergency motion no later than November 20. He also tentatively scheduled a hearing for November 23.
Justice’s legal team filed its response November 19, asking the court to deny the emergency motion and to dismiss the case with prejudice. They said the state has fared “comparatively well” under the pandemic with actions taken by the governor and his team.
“The public interest will be best served by keeping it that way,” the response said. “If all of us will accept our individual responsibility to wear our masks, wash our hands, avoid crowds, get tested, and adhere to the orders and guidance from the governor, … West Virginia can reduce its rate of COVID-19 infection, reduce the numbers of hospitalizations and deaths, and ultimately resume the activities — including patronizing restaurants and bars — in the less restricted ways we took for granted before March.”
The governor’s attorney say the plaintiffs seek action that “will only delay and complicate achieving those goals.”
“Like much of the litigation spawned from the pandemic, these plaintiffs seek an exception from reasonable actions taken by the executive to protect all of us from the spread of COVID-19,” the response states. “Ordering a restaurant to require patrons to wear a mask is a minor inconvenience, to both the restaurant and the patrons, compared to the enormous costs, pain, suffering, and death which will inevitably result from the unrestricted spread of this virus.
“Making that decision to require masks is the governor’s lawful and constitutional responsibility, his Executive Order should be upheld. Complying with those decisions and orders is our concomitant responsibility. Whether plaintiffs like it or not, we are all in this together, and required to follow lawful Executive Orders, like this one.”
Meanwhile, the restaurant located in Hurricane posted on social media November 18 it was closed until further notice because multiple staff members are out sick and awaiting COVID test results.
In a November 13 executive order, Justice mandates that people wear a mask in all public indoor places.
In their memorandum in support of the emergency motion, the plaintiffs address Justice’s latest executive order regarding mask wearing and his subsequent announcement during a press briefing when he said business owners “are mandated to call the police on any individuals within their business premises who are not wearing masks and that any such violators can be arrested for ‘obstruction.’” The memorandum notes that Justice also said business owners that don’t call law enforcement in those instances can be arrested for obstruction as well.
“Outrageously, the governor, in the absence of any state law supporting his claim, is forcing business owners to involuntarily invite law enforcement into their business premises, for the purposes of investigating and enforcing alleged criminal violations occurring therein, under threat of arrest of the business owner,” the memorandum states. “Thus, he’s demanding that an involuntary and warrantless Fourth Amendment search and seizure take place within a business for the sole purpose of enforcing Executive Order 77-20 – which itself is wholly silent on whether there is any attached attempt at providing an enforcement mechanism.”
The plaintiffs argue they face irreparable harm as a result of deprivation of free speech rights, that no harm would be done to the defendant and that “the public interest always favors vindication of constitutional rights and unfettered exercise.”
“Despite this fact, we are fairly certain Governor Justice will argue that public health must be protected, that the risk posed by the banned activities justifies his restrictions and, therefore, this matter does present a risk of harm to others. However, those arguments ring hollow when one considers the fact that the Governor, just two days ago – and one day following his new mask mandate amendment – attended a football game and was photographed without a mask on and while failing to social distance.”
In September, plaintiff’s attorney John Bryan explained the rationale behind filing the lawsuit.
"We believe it’s unconstitutional under the First Amendment, as the mask debate has become just that – political speech," 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.”
The emergency motion says Putnam County, with more than 50,000 residents, had only two COVID-related deaths in the first six months of the pandemic.
“Since the issuance of the mask mandate, Putnam County, West Virginia has recorded 23 more deaths - all occurring after the issuance and enforcement of the mask mandate against the Plaintiffs, as well as all others,” it states. “The governor could have had no rational basis for such an order. Therefore, the order was arbitrary in origin and application.
“It does not rationally relate to any legitimate effort at the government addressing the COVID-19 virus. It therefore violates the Equal Protection Clause of the 14th Amendment.”
In an online post about the latest mandate, Bryan compared Justice to a tyrant ruling over and forcing peasants and “already suffering” small businesses to carry out his bidding.
“The West Virginia Governor is attempting to enforce laws which he has purportedly enacted via executive order,” the memorandum states. “The legislature of West Virginia has not been called to session since the Governor first declared a State of Emergency in March of 2020. Most other states, including Virginia, have held special sessions of their legislature to enact or amend legislation in response to the COVID-19 pandemic.
“To the contrary, Governor Justice, who has chosen not to call for a special session of the legislature, declared that, referring to public complaints about threatened arrests for violation of the mask mandate.”
It also includes a quote from Justice’s November 16 COVID press briefing regarding the mask mandate.
“I need you to quit believing in any way that ... it’s unconstitutional or whatever it may be,” Justice said. “Who cares about all this right at this moment?”
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 original 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.
The plaintiffs accuse the defendants of violating their First Amendment right to protected speech. They also made 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 sought 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.
The governor is being represented by Benjamin Bailey and Benjamin Hogan of Bailey & Glasser in Charleston, and Snaman is being represented by Adam Strider and Jennifer Tully of Bailey & Wyant in Charleston. The Putnam County Commission was represented by Charles R. Bailey and Kristen V. Hammond of Bailey & Wyant in Charleston.
U.S. District Court case number 3:20-cv-00611