Dillon v. Northam

Re: William G. Dillon, Jr. and Tampico Enterprises, Inc. v. The Honorable Ralph S. Northam, M. Norman Oliver, and Gary T. Settle

Docket No.: CL20-3812

FOURTH JUDICIAL CIRCUIT OF VIRGINIA CIRCUIT COURT OF THE CITY OF NORFOLK

July 30, 2020

DAVID W. LANNETTI JUDGE

Paul J. Duggan, Esquire

Paul Duggan Law

56 West Gay Street, #103

Harrisonburg, Virginia 22802

Calvin C. Brown, Esquire

Sandra S. Gregor, Esquire

Office of the Attorney General

209 North 9^th Street

Richmond, Virginia 23219

Dear Counsel:

Today the Court rules on the motion for temporary injunction and petition for writ of mandamus filed by Plaintiffs William G. Dillon, Jr. and Tampico Enterprises, Inc. Plaintiffs seek to enjoin Defendants Virginia Governor Ralph S. Northam, State Health Commissioner M. Norman Oliver, and Virginia State Police Superintendent Gary T. Settle (collectively, "the Commonwealth") from enforcing Executive Order 63 ("EO 63"), Executive Order 67 ("EO 67"), Order of Public Health Emergency 5 ("HO 5"), and Order of Public Health Emergency 7 ("HO 7").¹ Plaintiffs also petition the Court for a writ of mandamus directing Governor Northam to notify Virginians that Plaintiffs are not limited by these orders and that the Commonwealth has no discretion to enforce the orders against Plaintiffs.

The Court finds that Plaintiffs failed to prove that they will suffer irreparable injury without the requested temporary injunction, that the requested relief is in the public interest, and that the equities tip in their favor. The Court also finds that issuing a writ of mandamus is inappropriate because promulgation and enforcement of EO 63, EO 67, HO 5, and HO 7 (collectively, the "Contested Orders") are not ministerial acts. The Court therefore DENIES Plaintiffs' motion for temporary injunction and DENIES Plaintiffs' petition for a writ of mandamus.

Background

In late 2019, a novel coronavirus known as COVID-19 began rapidly spreading throughout the world. Derrick Bryson Taylor, A Timeline of the Coronavirus Pandemic, N.Y. Times (July 15, 2020), https://www.nytimes.com/article/coronavirus-timeline.html. On March 7, 2020, Virginia reported its first confirmed case of COVID-19. Va. Dep't Health, First Virginia Case of COVID-19 Confirmed at Fort Belvoir (Mar. 7, 2020), https://www.vdh.virginia.gov/news/2020-news-releases/first-virginia-case-of-covid-19-confirmed-at-fort-belvoir/. Four days later, the World Health Organization declared COVID-19 a pandemic. Timeline of WHO's Response to COVID-19, World Health Organization, https://www.who.int/news-room/detail/29-06-2020-covidtimeline (last updated June 30, 2020). To date, COVID-19 has infected over four million people in the United States, including more than 85,000 Virginians. CDC, United States COVID-19 Cases and Deaths by State, https://www.cdc.gov/covid-data-tracker/index.html#cases (last visited July 29, 2020). During this same time period, the virus has killed almost 150,000 Americans and more than 2,000 Virginians. Id.

Although much remains unknown about COVID-19, public health officials currently believe that it spreads "mainly from person-to-person," especially when people come within six feet of each other. CDC, How COVID-19 Spreads (updated June 16, 2020), https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/how-covid-spreads.html. Even asymptomatic people can spread the disease. Id. To help prevent the disease's spread, the Centers for Disease Control and Prevention recommend that people practice social distancing, wash hands frequently, "routinely clean and disinfect frequently touched surfaces," and wear face coverings. Id. There is no current vaccine or known treatment options to protect against infection from COVID-19. Order of Pub. Health Emergency No. 2 (Mar. 25, 2020).

In response to increasing cases of COVID-19 in Virginia, Governor Ralph Northam declared a State of Emergency on March 12, 2020. Exec. Order No. 51 (Mar. 12, 2020.). Consistent with the advice of health professionals, Governor Northam issued Executive Order 53 on March 23, 2020, which, inter alia, closed "all dining and congregation areas in restaurants, dining establishments, food courts, breweries, microbreweries, distilleries, wineries, tasting rooms, and farmers markets." Exec. Order No. 53 (Mar. 23, 2020). Subsequent Executive Orders, which were issued as the spread of the virus slowed, relaxed these restrictions. See, e.g., Exec. Order No. 61 (May 8, 2020) (allowing, inter alia, restaurants to begin outdoor dining at fifty percent occupancy with parties of up to ten patrons, social distancing, and certain employee facemask requirements); Exec. Order No. 65 (June 2, 2020) (allowing, inter alia, restaurants to host indoor and outdoor dining at fifty percent occupancy with parties of up to fifty patrons, social distancing, and facemask requirements); Exec. Order No. 67 (June 30, 2020) (lifting restrictions in restaurant regarding, inter alia, occupancy and the number of patrons per party but maintaining social distancing and facemasks requirements).² The Governor has acknowledgedthat the "extreme measures" mandated by these orders requires Virginians to make "sacrifices." Exec. Order No. 61. Nevertheless, he stated that these sacrifices have been important "to slow the spread of COVID-19 and "necessary to save lives." Id.

On May 26, 2020, the Governor issued EO 63, which mandated that individuals wear face coverings while inside most buildings, including "[f]ood and beverage establishments," which the order defines as "restaurants, dining establishments, food courts, breweries, microbreweries, distilleries, wineries, tasting rooms, and farmers markets, when permitted to reopen for indoor dining." Exec. Order No. 63 (May 26, 2020). EO 67, issued on June 30, 2020, removed the prior maximum-capacity limits on restaurants; however, restaurants still must space tables six feet apart and close "[b]ar seats and congregating areas of restaurants . . . except for through-traffic." Exec. Order No. 67. Consistent with EO 63, EO 67 requires restaurant employees "working in customer-facing areas" to "wear face coverings over their nose and mouth at all times." Id. These Executive Orders received separate numbers as "Orders of Public Health Emergency." For example, EO 67 is also known as Order of Public Health Emergency 7.

Dillon is the President and Director of Tampico Enterprises, Inc. ("Tampico"), a Virginia corporation headquartered in the City of Virginia Beach and doing business as Abbey Road Pub & Restaurant ("Abbey Road"). (Am. Compl. ¶¶ 1-2.) The restaurant can seat approximately 240 patrons using 15 bar seats, 45 outdoor seats, and 180 indoor seats. (July 1, 2020, Hr'g Tr. ("Tr.") 20.)

On May 28, 2020, Dillon, pro se, filed a "Complaint, Application for Temporary Injunction, and Petition for Writ of Mandamus" (the "May 28 Pleading") on behalf of Tampico. On June 16, 2020, Paul J. Duggan, Esquire, moved to amend the May 28 Pleading and filed a "Complaint, Application for Temporary Injunction and Declaratory Judgment, Verified Petition for Writ of Mandamus, and Memorandum of Law in Support Thereof" on behalf of both Dillon and Tampico. Because Dillon is not a licensed Virginia attorney, the Court declared the May 28 Complaint a nullity and deemed the June 16 Complaint the initial pleading in this matter. (June 24, 2020, Order.) On June 24, 2020, with leave of Court, Duggan filed an Amended Complaint (the "Complaint") and sought emergency relief in the form of a temporary injunction and writ of mandamus.

The Court presided over a hearing on July 1, 2020 (the "Hearing"). On the morning of the Hearing, the Commonwealth filed "Defendants' Memorandum in Opposition to Temporary Injunction and Writ of Mandamus." At the conclusion of the Hearing, the Court took the matter under advisement and granted Dillon leave to file a response to the Commonwealth's opposition memorandum. (Tr. 97.) Dillon filed his responsive brief on July 22, 2020, and the Commonwealth filed a reply brief on July 24, 2020.

Positions of the Parties

Plaintiffs' Position

Plaintiffs argue that the Court should grant them a temporary injunction because they satisfy all four temporary injunction requirements. (Am. Compl. ¶¶ 71-167.) The bulk of the Complaint alleges why Plaintiffs believe they will ultimately succeed on the merits at trial. (Id. ¶¶ 71-165.) More specifically, they argue that the Contested Orders (1) were issued in contravention of the Virginia Constitution, (2) violate their right to assemble, particularly because the orders' indefinite nature and disparate treatment of assemblies—at, for example, home improvement stores versus concert venues versus restaurants—have "no logical (much less medical) basis," (3) fail to adhere to the procedural requirements of the Virginia Administrative Process Act ("VAPA"), (4) constitute an unconstitutional delegation of legislative authority to the executive branch, and (5) ignore the public welfare, rendering them void. (Id.)

Plaintiffs articulate three bases to support their claim that they will suffer irreparable harm absent a temporary injunction. First, they claim that "[i]t is exceedingly difficult to calculate the monetary harm suffered by the Plaintiffs and their employees to date and the future harm the Plaintiffs and their employees will suffer." (Id. ¶ 161.) At the Hearing, Plaintiffs expanded on this allegation by arguing that the Contested Orders have resulted in lost sales revenue and profits when compared to 2019; they claim that they cannot easily ascertain "differences in profits" between 2019 and 2020, however. (Tr. 25, 30, 52.) Second, Plaintiffs note that the Commonwealth's ability to assert a sovereign immunity defense would result "in there being no adequate remedy at law."³ (Am. Compl. ¶ 162.) Third, they argue that the indefinite duration of the Contested Orders might cause the closure of "a large number of restaurants." (Id. ¶ 163.)

Plaintiffs contend that the balance of equities tips in...