A judge in Northeast Ohio on Wednesday issued a preliminary injunction prohibiting State Health Director Amy Acton and the Ohio Department of Health from penalizing gyms that open for business or the members who visit them during the ongoing COVID-19 pandemic.
Gyms and fitness centers in Ohio were ordered closed on March 22 along with other businesses the state classified as “non-essential.” The state recently eased the COVID-19 restrictions and many gyms are scheduled to reopen on Tuesday, albeit with limited class sizes and strict social distancing requirements.
In a scathing nine-page decision, Lake County Common Pleas Judge Eugene A. Lucci excoriated Acton and her health department for exceeding their authority, saying the director “has no statutory authority to close all businesses, including the plaintiffs’ gyms.” Acton, the judge said, “has acted in an impermissibly arbitrary, and oppressive manner and without any procedural safeguards.”
Judge Lucci went on to say that fundamental liberties—the right to own and use property and earn a living—are at stake in this case. Acton has “criminalized lawful businesses, imposing strict liability for violations, including severe criminal, civil, and equitable penalties,” the judge opined, noting that “some of the plaintiffs’ businesses will not survive the lockdown of two or more months.”
Indeed, Acton’s sweeping orders, if violated, come with stiff penalties. Anyone caught disobeying an order of the director of public health or department of health is subject to up to 90 days in jail, a $750 fine, or both.
Acton’s authority is derived from section 3701.13 of the Ohio Revised Code, which delegates to the director of the Ohio Department of Health “ultimate authority in matters of quarantine and isolation.”
The statute, originally enacted in 1908 amid a tuberculosis pandemic, enables an unelected bureaucrat to bypass the legislature, local governments, and even the governor as she deems necessary during a pandemic.
The case was brought by the owners of 35 independent gyms in the state who are represented by Maurice Thompson, executive director of the 1851 Center for Constitutional Law, a non-profit, non-partisan legal center focused on defending constitutional rights.
“Constitutions are written to prevent governments from arbitrarily interfering in citizens’ lives and businesses,” Thompson said in a press release Wednesday. “On that front, the call to action is clear: the Governor and Health Director may no longer impose their own closures and regulations and write their own criminal penalties to enforce those regulations and closures.”
The plaintiffs, citing State v. Cline, noted in their complaint that “the free use of property is guaranteed by Section 19, Article I of the Ohio Constitution.”
Further, In Norwood v. Horney, the Ohio Supreme Court said that if arbitrary and discriminatory enforcement is to be prevented, “laws must provide explicit standards for those who apply them. A vague law impermissibly delegates basic policy matters to police [officers], judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application.”
“Because there is no means of exercising judicial review over any order issued by Amy Acton purportedly under the authority of Ohio Rev. Code,” the plaintiffs argued, “delegation is impermissibly vague” and “has violated, continues to violate, and will further violate Plaintiffs’ due process rights.”
Members of the Ohio legislature have been up in arms in recent weeks, calling for Acton to be stripped of her unchecked power—and rightly so, as Ohioans continue to suffer under the weight of the lockdown orders, which have devastated families, business owners, and the state’s economy. Ohio has lost nearly a million jobs in the last two months.
A measure currently under consideration in the Ohio Senate (and already passed by the House) would limit Acton’s shutdown orders to 14 days and require her to consult a joint legislative commission if she wishes to extend such an order.
Ohio Governor DeWine, heady with power, has vowed to veto the bill if it lands on his desk.
Judge Lucci seemed to disagree, saying that if he failed to issue an injunction, “There would be a diminishment of public morale, and a feeling that one unelected individual could exercise such unfettered power to force everyone to obey impermissibly oppressive, vague, arbitrary and unreasonable rules that the director devised and revised, and modified and reversed, whenever and as she pleases, without any legislative guidance.”
“The public would be left with feelings that their government is not accountable to them,” Lucci warned.
And that’s exactly how many Ohioans are feeling with scores of them attending protests at the Capitol in recent weeks and thousands upon thousand of citizens taking to social media to vent their frustration over an unelected bureaucrat having “ultimate authority” over their lives and livelihoods.
Judge Lucci noted that the plaintiffs have no adequate remedy, “as there is no means to obtain compensation, no monetary damages that can make them whole, and there is no administrative appeal process within the department of health regulation for this taking.”
“Prolonged lockdowns have deleterious effects upon the public psyche,” he noted. “Humans are naturally social beings; socialization strengthens immunities against diseases and benefits psychological health.”
Explaining that the top killers of Americans are heart disease, obesity, and depression, the judge said that opening up gyms would improve public health. He ticked off a list of the benefits of exercise:
- Physical activity and weight management
- Bone and muscle health
- Relief from physical pains
- Protections against unhealthy conditions
- Triggering production of anti-oxidants for younger and healthier skin (a natural barrier to infection)
- A boost in mental health, a boost in energy levels, improvements in mood, and more quality sleep
“Physical activity is indispensable when a person is striving for optimal physical and mental health,” he said. “Gyms permit people to reap these benefits by regimenting them in a safe environment with proper equipment and properly trained peers, instructors, and mentors.”
Further, “There are safety and equipment issues in trying to duplicate a gym in one’s home, assuming the person has the space, wherewithal, and ability to do so.”
As a result of the injunction, Acton and others involved in creating and enforcing these orders “are hereby enjoined from imposing or enforcing penalties solely for non-compliance with the director’s order” against gyms, fitness centers, and workout facilities so long as they are operating in compliance with safety regulations.
According to The News-Herald, an Ohio Department of Health spokesperson said the Ohio Attorney General’s Office is reviewing the ruling to determine if they’ll appeal the decision.
A spokesman for Gov. DeWine, predictably, told the paper, “Our office disagrees with the ruling’s analysis of law” and noted that the gyms were going to be permitted to open on Tuesday anyway.
The News-Herald quoted Thompson, the plaintiffs’ legal counsel, as saying, “Our case is also targeted toward making sure that what has happened never happens to gyms or other businesses again, especially because the state has been vocal that there will be a ‘second wave’ down the road.”
“We remain available to serve those who are caught in the State’s tangled web of unlawful orders,” the 1851Center for Constitutional Law vowed.
Indeed, the group said on its website that it stands ready to help Ohioans “threatened with penalties for noncompliance with the state’s restrictions” and will be open “around the clock” in order to do so.
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