DENVER, CO.- As America Held Hostage-The Coronavirus Edition enters its third month, business owners are getting fed up. The latest example comes from Colorado, where the owners of a restaurant are suing the state, as well as the governor claiming their constitutional rights have been violated.
According to The Denver Post, the owners of a Castle Rock restaurant filed the suit in Douglas County District court on Friday by their attorney Randy Corporon on behalf of the restaurant’s owners, Jesse and April Arellano, who own C&C Breakfast & Korean Kitchen in the city.
We are behind you C&C Breakfast & Korean Kitchen!!
Owners of shuttered Castle Rock diner sues state over closure – https://t.co/1bppmXz9Gj
— Bridget Holleran (@towson6719) May 26, 2020
The suit alleges that the actions by Colorado Gov. Jared Polis to suspend the restaurant’s license indefinitely through the Colorado Department of Public Health and Environment “is unlawful, unprecedented and highly suspect.”
The suspension of the restaurant’s license stems from Mother’s Day, when the restaurant reopened despite Polis’ emergency order effectively shuttering all businesses in the state that were deemed “non-essential.”
According to Fox 21 News, documents submitted to the court said that the order issued by Polis and/or the DPHE change almost weekly, which creates a sense of limbo and uncertainty among business owners in the state.
“…numerous and overlapping executive and public health orders,” the suit says, was based on overstated COVID-19 rates, which left the owners of C&C in Castle Rock “in a continual state of limbo and uncertainty.”
The suit went on that the orders had been renewed and amended repeatedly, “with no complete end in sight,” and argued that “there is a reasonable expectation that the owners of C&C in Castle Rock ‘will be subject to these or similar orders ad infinitum, or again at the start of the next flu season.’”
The Arellano’s said that they were trying to comply with one of the orders which allowed only curb-side service, however due to financial hardships, they said they had no choice but to open the restaurant for dine-services, which they did on May 10 (Mother’s Day).
On May 11, the hammer came down, as the Tri-County Health Department ordered that the restaurant be closed.
The lawsuit stated that, “On May 21, 2020, the DCPHE filed a Notice of Charges and Notice of Duty to Answer with the Office of Administrative Courts. To date, there has been no hearing or opportunity to formally respond to the summary Orders.
“Due to Defendants’ actions, Plaintiffs have been left completely unable to operate the business, could not operate profitably under the previous and current scheme even if allowed to open, and are left with no recourse other than court action.”
In other words, the CDPHE told the plaintiffs that they were to appear at a hearing to contest the action, yet no hearing has been set up, which in effect deprives them of their rights to administrative due process.
The lawsuit continued that the owners believe that Polis is hostile toward them and has a “desire for revenge.”
The suit alleges that the defendants “arbitrarily and irrationally” had selected small businesses like C&C Coffee and Kitchen to “continue to bear the burden of what can only be deemed a speculative concern” over the risks associated with COVID-19.
“Certainly, the Plaintiffs opening their restaurant to customers, when so many other businesses are permitted to open their doors to customers, does not constitute an ‘imminent health threat.’”
The plaintiffs alleged that Polis and the health department acted with “particular hostility and a desire for revenge” when the restaurant’s license was suspended indefinitely.
This, they claim “represent[s] an unconscionable and malicious act designed with the specific intent to punish Plaintiffs rather than abate an ‘imminent’ health hazard.”
The lawsuit claims that Polis exceeded his authority under the Colorado Disaster Emergency Relief Act, which addresses all areas of emergency management.
They claim that this act doesn’t give him the authority to “designate and discriminate among various types of citizens and business for selective imposition of emergency orders.”
“Nothing within the enabling legislation of the Act provides that the Governor may issue such comprehensive orders and regulations that discriminate between ‘critical’ and ‘non-critical’ services, dictate strict limitations on how businesses must operate, and/or selectively target certain businesses or a single business for enforcement or punishment.”
The suit continued:
“At best, the legislation allows for rules of general applicability over a certain ‘area’ but not the type of intrusive micromanagement over the economy and individual business operations that the Governor seeks to impose.”
The suit argues that Polis is violating the Equal Protection Clause of the Fourteenth Amendment because the orders “provide no rational or standard to explain which entities are able to receive the coveted designation of ‘critical’ as opposed to the remaining business entities that are considered ‘non-critical.’”
“The practical consequence, as is the case with the Plaintiffs, is that the government’s arbitrary designation between ‘critical’ and ‘non-critical’ entities means the government is picking and choosing who has the opportunity to continue to remain open and potentially operate at a profit and those who will be doomed to bankruptcy and economic ruin.”
The restaurant was subject to national attention after Colorado Community Media video went viral nationwide, showing full booths and tables, and a line going out the door, as Coloradans desperate to escape being locked down went out to get a bite to eat.
The public health order was still in effect at the time, through May 26, which prohibited gatherings of no more than ten people, the observation of proper social distancing of six feet, wearing of masks and prohibition of in-person dining.
This past Monday, Polis said that restaurants could begin to serve in-person diners on May 27, however with a limit of either 50% of their maximum capacity or 50 people.
This is just one of many such suits that can be expected to be filed over what many believe to be these arbitrary, capricious actions by overzealous governors.