The Ohio Department of Health was sued in federal court Thursday for its ban on “non-essential businesses” during the coronavirus pandemic.
Unlike other states, Ohio’s stay-at-home order was actually issued by Department of Health Director Amy Acton, not the governor. As such, the lawsuit names Acton in her official capacity as the defendant.
The lawsuit was filed in the U.S. District Court for the Southern District of Ohio by the 1851 Center for Constitutional Law on behalf of Gilded Social, a Columbus-based bridal shop that isn’t allowed to operate under the restrictions of Acton’s order.
The complaint asks the court to declare Acton’s order unconstitutional and issue a permanent injunction against its enforcement.
“As a direct result of the Director’s unconstitutional practices, Plaintiffs and many others now face an imminent risk of criminal prosecution and extensive daily fines, or in the alternative, decimation of their businesses, livelihoods, and economic security, as well as continued irreparable harm to their rights under the Fifth and Fourteenth Amendment to the United States Constitution,” the lawsuit states.
Specifically, the lawsuit argues that Acton’s order violates Ohioans’ procedural due process rights because the state has failed to justify its ban on non-essential businesses in an “immediate hearing,” which is required by the Constitution and binding precedent.
“Applied here, precedent dictates that this entitles Plaintiffs and other Ohio businesses shut down as ‘non-essential’ to a prompt hearing wherein the State must prove that the business is neither essential nor safe. In the absence of such safeguards, the Director’s Order must be immediately enjoined,” says the complaint.
Additionally, the lawsuit calls Acton’s order “impermissibly vague,” since it provides no definition of “essentiality” and fails to provide law enforcement “with sufficient clarity as to how to consistently enforce the Director’s regulations without arbitrariness.”
The 1851 Center said Tanya Rutner Hartman, owner of the bridal shop, runs an otherwise-successful business, but is now forced to “choose between financial ruin or prosecution.”
“The requirement of an immediate hearing where the state must prove its case is more than a technicality: because the state cannot justify its arbitrary closures, many Ohio businesses will be free to immediately re-open, even if simply on a limited basis,” 1851 Center Executive Director Maurice Thompson said in a press release. “Basic rights like this are overlooked when health administrators are empowered to serve unchecked as the legislative, executive, and judicial branches of government all at once.”
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Anthony Gockowski is managing editor of The Minnesota Sun and The Ohio Star. Follow Anthony on Twitter. Email tips to [email protected].
The 1851 Center for Constitutional Law is this month’s awardee of $100. With my $1200 “stimulus”, I am sending $100 each month for the next year to those individuals and organizations that best oppose this naked power grab. Previous month it was to Rep. Thomas Massie – KY, for demanding a recorded vote on CARES. He drove through the night to do so, sleeping for about an hour or so at a rest stop. He stood alone in that and was being pressured by any and all not to – including the US President. A principled man and member of Congress; sadly, a rare combination.