May 9, 2020 10:35:50 PM
Tess Vrbin - [email protected]
The managers of a Starkville gym are suing the city in federal court, claiming that being required to close during the COVID-19 coronavirus pandemic violated their constitutional rights.
Starkville Athletic Club owner John Underwood and his son, manager and CEO Joe Underwood, filed the lawsuit Friday in the U.S. District Court for the Northern District of Mississippi. They claim the closing is a "taking" of private property "for public use, without just compensation" and therefore violates the Fifth Amendment to the U.S. Constitution.
The gym's loss of income since having to close further violates the Fifth Amendment, the complaint reads, because the city imposed a fine and imprisonment as consequences for violating Gov. Tate Reeves' executive order. The suit requests the city pay damages to Starkville Athletic Club for its income lost.
"Plaintiffs will suffer a future loss of income because the city's action creates the false perception in the public that the gymnasium business is an unusually dangerous business, such that it is one of the few businesses which are closed for reasons of public safety," the complaint reads. "Further, because COVID-19 is a danger that will always be with us, defendant city may again close plaintiffs' business, even if it allows the business to reopen."
Reeves ordered "non-essential businesses" to close on April 3 as part of an executive order for Mississippians to "shelter in place" until April 27. "Non-essential businesses" include gyms, barbershops, hair and nail salons and tattoo parlors, according to Reeves' order. Reeves allowed some businesses to reopen with restrictions on April 27 but still required gyms to be closed until he lifted that restriction effective Monday.
The Starkville board of aldermen voted at its April 7 meeting to adopt and enforce Reeves' order. The board considered issuing its own order to close nonessential businesses at a special-call meeting on March 24, but the proposal failed on a 4-3 vote.
The city on April 7 also imposed a fine of up to $1,000 and possible imprisonment of up to 90 days for violators of Reeves' order.
"Defendant city has made the operation of plaintiffs' business a crime, even though plaintiffs can fully comply with social distancing and other guidelines recommended by the government of the United States," the suit states.
'A novel legal problem'
The Eleventh Amendment to the U.S. Constitution prohibits individuals from suing states in federal court, so the Underwoods were left with only the city to take action against even though the city was following a statewide order, according to the suit. Additionally, Reeves did not "send any state police force, state highway patrol, or any other state enforcement executive official" to enforce the order in Starkville or Oktibbeha County, so local entities are responsible for enforcement of the order that the Underwoods' claim is unconstitutional.
The suit cites several more reasons for the claim, including a Facebook post from Reeves saying "there is no such thing as a non-essential business."
Starkville Police Department's gym is still open for officers to use, according to an April 18 Facebook post from SPD that the lawsuit includes to assert that the city "has admitted that the closing of gymnasiums is not an actual necessity."
The suit calls the operation of the SPD gym "arbitrary" and claims it denies Starkville Athletic Club "equal protection of law and due process of law" under the Fourteenth Amendment to the U.S. Constitution.
The suit includes an affidavit from Dr. Cameron Huxford, the Intensive Care Unit medical director at OCH Regional Medical Center, stating that Starkville Athletic Club "provides health benefits which outweigh the risk, if any, that opening the gymnasium would cause increased danger of the spread of COVID-19. ... Being in vigorous health minimizes the harm caused by COVID-19."
Joe Underwood deferred a list of questions from The Dispatch to Tupelo-based attorney Jim Waide, who is representing the Underwoods in their suit.
"I understand that you might count heads among doctors, and the majority of them might say closing every business in town is the best thing, if all you're thinking about is immediate safety, but that's not the only consideration (to be made)," Waide said.
He described the situation as "a novel legal problem" with no precedent, and Mississippi is unique in how few businesses were deemed "non-essential" and therefore were required to close, he said. The lack of precedent means most judges would likely be hesitant to rule in favor of the plaintiff, he said.
Waide also said the state could not have enforced Reeves' executive order if cities had not put in place penalties for violations and authorized their police departments to carry them out. The suit acknowledges that "at all relevant times, (the) defendant acted under color of state law."
Mayor Lynn Spruill said Friday she had not yet been served with the lawsuit and therefore would not comment on it yet.
Reeves issued another executive order Friday allowing gyms, barbershops and hair and nail salons to reopen with restrictions. Employees of all of the above businesses will be required to wear protective face masks, but Starkville will not require customers to wear masks, the board of aldermen decided Saturday.
As of 6 p.m. Friday, Mississippi has 9,378 confirmed cases and 421 deaths of COVID-19, including 86 cases and 4 deaths in Oktibbeha County, according to the Mississippi State Department of Health website.