PHILADELPHIA – The City of Philadelphia and its Mayor Jim Kenney say a lawsuit filed by a coalition of Philadelphia restaurateurs over the City’s “Safer At Home” order, which banned indoor dining until this past New Year’s Day to protect citizens from the spread of COVID-19, should be dismissed with prejudice.
Philadelphia Restaurant Owners Against Lockdown, LLC of Philadelphia first filed suit in the U.S. District Court for the Eastern District of Pennsylvania on Nov. 19 versus both the City and Kenney.
“Plaintiff is a group of small business owners in the restaurant industry, operating restaurants in the City and County of Philadelphia. The “Safer at Home” ban on indoor dining issued by Mayor Kenney, under the color of state law, continues to restrict plaintiff’s right to operate and remain in business, partly based upon the geographic location of its affiliated business, e.g., the City of Philadelphia.,” the suit stated.
“A business operating out of compliance of the “Safer at Home” ban on indoor dining, such as the restaurants affiliated with plaintiff, Philadelphia Restaurant Owners Against Lockdown, LLC, are subject to fines and penalties, and possible police action, including jail time.”
The plaintiffs argued that the “Safer at Home” ban on indoor dining did not provide for compensation to the affected business owners, or for prior notice and an opportunity to be heard relative to the mandated shutdown.
“In an arbitrary and capricious manner, defendants, Kenney and the City of Philadelphia, have deprived plaintiff of the economic benefits and use of property while permitting similar businesses to operate and compete against these plaintiffs’ business. Moreover, there is no reasonable or substantial basis to shutdown indoor dining in the City of Philadelphia, when it remains IN operation in adjacent counties,” per the suit.
“The plaintiff should not be forced to endure the destruction of their businesses while they are obligated to prove that defendants, Kenney and the City of Philadelphia, have taken plaintiff’s private property without the payment of just compensation in violation of the Fifth Amendment of the Constitution of the United States, and without due process of law.”
UPDATE
Counsel for the City and Kenney filed a motion to dismiss the case with prejudice on Jan. 19, countering that the “Safer At Home” measure was taken only to slow the spread of COVID-19 and was in the interest of public health and safety.
“Plaintiff alleges that this prohibition on indoor dining is unconstitutional, claiming it takes private property without just compensation, is arbitrary, capricious, and shocks the conscience in violation of substantive due process, does not provide notice and opportunity to be heard as required by procedural due process, and that its distinction between indoor dining and other activities is irrational and arbitrary in violation of equal protection,” the dismissal motion stated.
“However, plaintiff’s claims all fail as a matter of law because the order is a temporary measure rationally related to stop the spread of COVID-19 by targeting specific, high risk activities. Accordingly, plaintiff’s complaint should be dismissed with prejudice.”
The defendants say the plaintiffs bring four federal constitutional claims, but do not plead any of them sufficiently.
“First, plaintiff’s procedural due process claim fails because individual procedural due process protections do not apply to pre-enforcement challenges to bare legislative action – such as administrative rulemaking like the restrictions – that apply to broad categories. Second, plaintiff’s substantive due process challenge fails because the restrictions’ prohibition on indoor dining is rationally related to preventing the spread of COVID-19,” according to the dismissal motion.
“Third, there is no equal protection violation because it is rational to distinguish between indoor dining – a maskless, indoor activity – and other, less risky activities that allow mask wearing and that take place outdoors. Finally, plaintiff’s takings claim fails because the complaint does not request compensation, because no specific property or economic impact is alleged, and because the restrictions are a temporary, public program that balances the public benefits and burdens and so do not constitute a taking.”
For violation of the Taking Clause, substantive due process, procedural due process and equal protection, the plaintiff is seeking the following reliefs:
• An emergency injunction to prohibit defendants from enforcing the “Safer at Home” ban on indoor dining in the manner and fashion engaged by defendants, unless and until they justify their rationale to this Honorable Court;
• A declaratory judgment that issuance and enforcement of the “Safer at Home” ban on indoor dining is unconstitutional for the reasons stated herein, and that the actions of the defendants are unlawful and unconstitutional;
• A permanent injunction prohibiting defendants from enforcing the unlawful and unconstitutional ban on indoor dining;
• A declaration that the rights of the plaintiffs and the citizens of the Commonwealth have been violated by the various actions of the defendants and the said defendants are enjoined from engaging in such violations;
• Award of costs and expenses, including reasonable attorneys’ fees under 42 U.S.C. Sections 1983 and 1988 and;
• Such other relief as this Court deems appropriate, plus a trial by jury.
The plaintiff is represented by Brian E. Fritz of Fritz & Goldenberg, in Philadelphia.
The defendants are represented by Danielle E. Walsh and Michael Wu-Kung Pfautz of the City of Philadelphia’s Law Department.
U.S. District Court for the Eastern District of Pennsylvania case 2:20-cv-05809
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com