COMMONWEALTH OF KENTUCKY

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BOONE CIRCUIT COURT
FIRST DIVISION
CIVIL ACTION NO. 20-CI-00678
Electronically Filed
Ridgeway Properties, LLC, et. al.

Plaintiffs

On behalf of themselves, and others similarly situated

v.

Northern Kentucky Independent Health District, et. al.

Defendants

PLAINTIFFS’ RENEWED MOTION FOR EMERGENCY TEMPORARY

RESTRAINING ORDER AND TEMPORARY INJUNCTION, WITH THE THIRD
AMENDED VERIFIED COMPLAINT AND OTHER MATERIALS,1 IN SUPPORT

Plaintiffs, by and through Counsel, move this Court for an emergency restraining order

pursuant to C.R. 65.03, supported by the Third Verified Amended Complaint2. They further

seek the entry of a temporary injunction under C.R. 65.04. A memorandum in support is

attached hereto. Plaintiffs will likewise present live testimony in support of this Motion at the

hearing of this matter on the temporary injunction.

The harm is ongoing and irreparable. The Kentucky General Assembly has recognized

that harm in two separate pieces of legislation that they passed by overwhelming majorities with

emergency clauses.

1
Plaintiffs rely, in part, on previous filings in this matter, including, without limitation, those
materials that supported the original Temporary Injunction Motion, and the testimony that was
adduced at the temporary injunction hearing held in July, 2020, in this matter.
2
A Motion to file this has been filed, but has not yet been granted.
1
 2605C460-F510-4F66-A267-1C38A9155C3F : 000002 of 000026
Respectfully submitted,

/s/Christopher Wiest________
Christopher Wiest (KBA 90725)
25 Town Center Blvd, STE 104
Crestview Hills, KY 41017
513-257-1895 (v)
chris@cwiestlaw.com
Trial Attorney for Plaintiff

/s/Thomas Bruns
Thomas Bruns (KBA 84985)
4750 Ashwood Drive, STE 200
Cincinnati, OH 45241
tbruns@bcvalaw.com
Co-Counsel for the Plaintiff

2
 MEMORANDUM IN SUPPORT

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I. FACTS3

Plaintiff Ridgeway Properties, LLC d/b/a Beans Café & Bakery (“Beans Café”) operates

a restaurant, café and bakery, at two locations, the first in Boone County, Kentucky, at 2091 N

Bend Rd, Hebron, KY 41048 and the second at 21 Taft Highway, Dry Ridge, KY 41035 and is

located in Grant County, Kentucky. (Plaintiff’s Third Amended/Intervening and Supplemental

Verified Class Action Complaint, hereinafter “Am. Compl.” at ¶1).

Deans Diner, LLC d/b/a Brewed (“Brewed”), operates a coffee shop, restaurant, and also

sells alcohol at 124 Malabu Dr., Lexington, KY 40503, which, at times, has doubled as an event

venue. Id. at ¶2.

Defendant, Northern Kentucky Independent Health District (NKIHD), is a duly

authorized local health district which, among other things, enforces public health orders in

Northern Kentucky, including in Boone, Kenton, Campbell, and Grant counties, pursuant to KRS

Chapter 212, including those specific statutory provisions challenged in this case. Id. at ¶3.

Defendant Lynne Saddler, M.D. is the District Director of Health of the Northern Kentucky

Independent Health District. Id. at ¶3. Dr. Saddler is charged with enforcing and does enforce

the public health orders in Northern Kentucky, including in Boone, Kenton, Campbell, and Grant

counties, pursuant to KRS Chapter 212, including those specific statutory provisions challenged

in this case. Id. at ¶4.

Defendant Hon. Andrew Beshear is the duly elected Governor of Kentucky. Id. at ¶5.

He is only sued in his official capacity. Id. He issued, or authorized the issuance of, the

Challenged Orders in this case, and he is responsible for their enforcement. Id.

3
These facts are taken from the Plaintiffs’ Third Amended Complaint.
3
 Defendant, Kentucky Cabinet for Health and Family Services (“Cabinet”), is the Cabinet

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empowered under K.R.S. 194A.010 for “operating the public health … programs in the

Commonwealth.” Id. at ¶6. It is through the authority delegated to the Cabinet that the

Challenged Orders are enforced and/or promulgated in this case. Id. Defendant Eric Friedlander

is the acting Secretary of the Cabinet for Health and Family Services, and is only sued in his

official capacity. Id. at ¶7. He issued, or authorized the issuance of the Challenged Orders in

this case, and he is responsible for their enforcement. Id. Defendant Dr. Steven Stack, M.D. is

the commissioner for the Kentucky Department of Public Health, and is only sued in his official

capacity. Id. at ¶8. He issued, or authorized the issuance of the Challenged Orders in this case,

and he is responsible for their enforcement. Id.

Kentucky’s COVID-19 Response Actions, Litigation in this Court, and litigation in the
Kentucky Supreme Court

On March 6, 2020, Governor Andrew Beshear issued a state of emergency Executive

Order 2020-215. Id. at ¶10. Among other things, this Order declared an emergency for COVID-

19 in and for Kentucky. See Exhibit 1, to the Am. Complaint. Throughout March, 2020, the

Governor and/or his designees, specifically Cabinet for Health and Family Services Secretary

Eric Friedlander and Dr. Steven Stack, M.D., Kentucky Commissioner of Public Health, issued a

number of orders to persons and businesses concerning COVID-19. Id. at ¶11.

Throughout the spring, summer, and fall, of 2020, the Governor and/or his designees

issued, changed, and modified numerous orders related to COVID-19. Id. at ¶12.

This action was originally filed June 16, 2020. Id. at ¶13. This Court entered a

temporary injunction against a number of the Governor’s challenged orders on July 20, 2020. Id.

at ¶14. The Kentucky Supreme Court reversed on November 12, 2020, in Beshear v. Acree,

2020 Ky. LEXIS 405, --- S.W.3d --- (2020) (“Acree”). Acree first held that the Governor used

4
the powers granted to him by the legislature. Id. at *3-*4. It next held that the General

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Assembly lawfully delegated emergency powers to the Governor. Id. at *4. And the Court

found significant that “the General Assembly, in 2020 Senate Bill 150, recognized the

Governor's use of the KRS Chapter 39A emergency powers, directed him to declare in writing

when the COVID-19 emergency "has ceased" and further provided: ‘In the event no such

declaration is made by the Governor on or before the first day of the next regular session . . . the

General Assembly may make the determination.’" Id.

Acree also determined that the Governor could act through executive orders and need not

promulgate regulations because KRS 39A.180 superseded the requirements of KRS Chapter

13A. Id. at *5-*6. The Supreme Court in Acree observed that it entered a stay on this Court’s

injunction: “Noting the need for a clear and consistent statewide public health policy, the Court

recognized that the Kentucky legislature has expressly given the Governor broad executive

powers in a public health emergency.” Id. at *30. One does not give power to another if that

person has it already.

The Supreme Court also recognized that “Our first responsibility is to determine what the

legislature intended by examining carefully the laws enacted.” Id. at *39. The Supreme Court

was explicit that: “Also, factually significant for present purposes, as discussed below, the

General Assembly itself in 2020 Senate Bill 150 explicitly recognized the Governor's emergency

declaration and provided that the Governor ‘shall declare’ when the state of emergency ceases,

and if the declared emergency had not ceased ‘on or before the first day of the next regular

session of the General Assembly, the General Assembly may make the determination.’" Id. at

fn.28.

5
 The Governor, in litigating Acree, observed that KRS 39A "recognizes, defines, and

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constrains" executive authority to direct an emergency response. Id. at *48. In disposing of the

Constitutional issues, the Court observed that "[a] constitutional infringement must be 'clear,

complete and unmistakable' in order to render the statute unconstitutional." citing Caneyville

Volunteer Fire Dep't v. Green's Motorcycle Salvage, Inc., 286 S.W.3d 790, 806 (Ky. 2009).

Much emphasis was placed by the Court on the enactment of 2020 SB 150, which

approved of the Governor’s use of executive orders to respond to COVID-19. Id. at *53. The

Kentucky Supreme Court in Acree recognized that the Court was not adjudicating whether or not

the exercise of powers by the Governor was legislative because:

“Fortunately, the need to definitively label the powers necessary to steer the
Commonwealth through an emergency as either solely executive or solely legislative is
largely obviated by KRS Chapter 39A, ‘Statewide Emergency Management Programs,’
which reflects a cooperative approach between the two branches. Plaintiffs and the
Attorney General insist that the statute is in large part unconstitutional, however, because
it grants the Governor legislative authority in violation of the nondelegation doctrine.”4

The Acree Court also stated: “We acknowledge, of course, that making laws for the

Commonwealth is the prerogative of the legislature.” Id. One of the important and critical

factors and features addressed by the Kentucky Supreme Court, and critical to upholding it, was

the ability of “legislative amendment or revocation of the emergency powers granted the

Governor.” Id. at *63.

4
This also recognized that any part of the opinion that discussed whether the Governor had any
implicit powers was, at best, dicta. It is well-settled that our courts should "refrain from reaching
constitutional issues when other, non-constitutional grounds can be relied upon." Baker v.
Fletcher, 204 S.W.3d 589, 597-98 (Ky. 2006); Davis v. Commonwealth, 365 S.W.3d 920, 922
n.3 (Ky. 2012) (discussing dicta).
6
 Kentucky Legislative Response and Current Restrictions

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The General Assembly convened on January 5, 2021. Id. at ¶24. It took immediate

action to address, through its elected representatives, and by overwhelming legislative majorities,

excesses and abuses in the Governor’s COVID-19 response. Id.

21 S SB 1

First, the General Assembly passed, on January 9, 2021, 21 RS SB1.5 Id. at ¶25. 21 RS

SB1 drastically modified KRS 39A. Id. See, also, Exhibit 2 to Am. Compl. Importantly, 21 RS

SB1, at Section 2, placed 30-day limitations (unless extended with the approval of the General

Assembly) on orders that place “restrictions on the in-person meeting or places restrictions on

the functioning of the following: … (b) Private businesses or nonprofit organizations.” Id. at

¶26. It also provided “the Governor shall not declare a new emergency or continue to implement

any of the powers enumerated in this chapter based upon the same or substantially similar facts

and circumstances as the original declaration or implementation without the prior approval of the

General Assembly.” Id.

Section 4 of 21 RS SB1 repealed existing language of that section, and provided that:

“The Governor may suspend a statute by executive order when an emergency is declared under

KRS Chapter 39A if: 1. The statute is specifically enumerated by the Governor in the executive

order; and 2. The executive order specifying the suspension is approved by the Attorney General

in writing.” It also placed important limitations on the statutes the Governor can suspend: (3)

Notwithstanding subsection (2) of this section, the Governor shall not suspend any laws in KRS

Chapters 39A to 39F, KRS Chapter 13A, KRS 446.350, 527.020, 11 311.710 to 311.820, or any

other statutes related to abortion.” Id. at ¶27.

5
https://apps.legislature.ky.gov/recorddocuments/bill/21RS/sb1/bill.pdf
7
 Recognizing the devastation and irreparable harm that Governor Beshear was causing to

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the Commonwealth and its citizens, Kentucky’s elected representatives included, in Section 11

of 21 RS SB1, an emergency clause, causing the legislation to take immediate effect on its

passage: “Whereas the impact of the state of emergency declared in response to COVID-19 on

Kentucky’s citizens and businesses is of the utmost importance, an emergency is declared to

exist, and this Act takes effect upon its passage and approval by the Governor or upon its

otherwise becoming law.” Id. at ¶28.

The Governor vetoed 21 RS SB1 on January 19, 2021, and the General Assembly, for its

part, overrode those vetoes on February 2, 2021 by overwhelming margins: in the House of

Representatives by a vote of 69-20 and a vote in the Kentucky Senate of 29-8.6 Id. at ¶20.

21 S HB 1

Recognizing that 21 RS SB1 might not go far enough to provided long-awaited, and

critical relief to Kentucky businesses, the General Assembly, on January 9, 2021, passed 21 RS

HB1.7 Id. at ¶30. See, also, Exhibit 3. Id.

Section 1 of 21 RS HB 1 provided, in relevant part:

Notwithstanding any state law, administrative regulation, executive order, or executive

directive to the contrary, during the current state of emergency declared by the Governor
in response to COVID-19 or any future state of emergency related to any virus or disease,
including but not limited to any mutated strain of the current COVID-19 virus, until
January 31, 2022:

(1)(a)Any business …may remain open and fully operational for in-person services so
long as it adopts an operating plan that:

1. Meets or exceeds all applicable guidance issued by the Centers for Disease
Control and Prevention or by the executive branch, whichever is least restrictive;

6
With the emergency clause, and notwithstanding the Governor’s veto, the legislation took
immediate effect. Commissioners of Sinking Fund v. George, 104 Ky. 260, 270-272 (1898).
7
https://apps.legislature.ky.gov/recorddocuments/bill/21RS/hb1/bill.pdf (last visited 3/10/2021).
8
 2. Details how the business… will foster the safety of employees, customers,

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attendees and patrons, including social distancing requirements; and

3.Is posted in a conspicuous place on the main entrance door of the physical
location of the business, for-profit or not-for-profit organization, local government,
association, or school or school district, whether public, private, or religiously affiliated,
and on the Web site of the business, for-profit or not-for-profit organization, local
government, association, or school or school district, whether public, private,
or religiously affiliated, if one exists; …

(c) No state or local agency shall enforce restrictions related to the state of emergency
impacting the ability of the entities listed in this subsection to remain open and fully
operational for in-person services that exceed current applicable guidelines issued by the
Centers for Disease Control and Prevention or the executive branch, whichever is least
restrictive.

Id. at ¶31.

And, recognizing the devastation and irreparable harm that Governor Beshear was

causing to the Commonwealth and its citizens, Kentucky’s elected representatives included, in

Section 2 of 21 RS HB1, an emergency clause, causing the legislation to take immediate effect

on its passage: Whereas the economic impact of the state of emergency declared in response to

COVID-19 on Kentucky's citizens and businesses is of the utmost importance, an emergency is

declared to exist, and this Act takes effect upon its passage and approval by the Governor or

upon its otherwise becoming a law.” Id. at ¶32.

The Governor vetoed 21 RS HB1 on January 19, 2021, and the General Assembly, for its

part, overrode those vetoes on February 2, 2021 by overwhelming margins: in the House of

Representatives by a vote of 72-22 and a vote in the Kentucky Senate of 29-8.8 Id. at ¶33.

8
With the emergency clause, and notwithstanding the Governor’s veto, the legislation took
immediate effect. Commissioners of Sinking Fund v. George, 104 Ky. 260, 270-272 (1898).

9
 21 S SB 2

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Further, recognizing ongoing abuses by the Executive Branch of the administrative

regulation process, the General Assembly, on January 9, 2021, passed 21 RS SB2.9 Id. at ¶34.

In relevant part, Section 4, (8)(a) 3, required that documentary evidence be submitted justifying

the finding of an emergency in accordance with subsection (1) of this section to the back of the

emergency regulation (or, if larger, be submitted on CD or disk). Id. at ¶35.

In relevant part, Section 22 of 21 RS SB2, limits administrative regulations to 30 days

that limit the in-person meeting or functioning of a private business, and requires that the

penalty, and due process rights be set forth in any such administrative regulation.10 Id. at ¶36.

Section 25 of 21 RS SB2 contains an emergency clause, causing the legislation to take

immediate effect on its passage: “Whereas, ensuring that Kentucky citizens have adequate access

to the administrative regulation process is a compelling and immediate need, an emergency is

declared to exist, and this Act takes effect upon its passage and approval by the Governor or

upon its otherwise becoming a law.” Id. at ¶37.

The Governor vetoed 21 RS SB2 on January 19, 2021, and the General Assembly, for its

part, overrode those vetoes on February 2, 2021 by overwhelming margins: in the House of

Representatives by a vote of 69-20 and a vote in the Kentucky Senate of 31-6.11 Id. at ¶38.

COVID-19 trends in the Commonwealth

COVID-19 trends in the Commonwealth are on the decline:

9
https://apps.legislature.ky.gov/record/21rs/sb2.html (last visited 3/10/2021).
10
https://apps.legislature.ky.gov/recorddocuments/bill/21RS/sb2/bill.pdf (last visited 3/10/2021).
11
https://apps.legislature.ky.gov/record/21rs/sb2.html (last visited 3/10/2021).
10
 2605C460-F510-4F66-A267-1C38A9155C3F : 000011 of 000026
Kentucky COVID Case Counts
120
100
80
60
40
20
0
1/1/2021 1/8/2021 1/15/2021 1/22/2021 1/29/2021 2/5/2021 2/12/2021 2/19/2021 2/26/2021 3/5/2021

Statewide Overall Incedence Jefferson County Fayette County

Kenton County Boone County Warren County

Id. at ¶39.12

In point of fact, since January 1, 2021, the seven-day average of COVID-19 cases in

Boone County fell from 54.1 cases per 100,000 population, on January 1, 2021, to 14.9 cases per

100,000 population on March 9, 2021. Id. at ¶40.

The statewide incident rate has fallen from 81.4 cases per 100,000 in early January, 2021,

to 14.34 cases per 100,000 population on March 9, 2021. Id. at ¶41.

In part, this is because the Commonwealth is actively vaccinating adults for COVID-19;

in fact, 881,477 adults have received the vaccination, which is 28.3% of adults in the

Commonwealth. Id. at ¶42.13

Currently applicable restrictions

Several restrictions, the Governor contends, are currently applicable. Id. at ¶43. First,

Executive Order 2020-1034 was issued on December 11, 2020, and is contained at Exhibit 4.

Id. It incorporated Healthy at Work Guidance. Id.

12
This data is derived from https://chfs.ky.gov/Pages/cv19maps.aspx (last visited 3/10/2021).
13
https://govstatus.egov.com/ky-covid-vaccine (last visited 3/11/2021).
11
 Second, current Healthy at Work Guidance,14 incorporated by operation of the Executive

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order, is attached at Exhibit 5. Id. at ¶44. In relevant part, it requires these Plaintiffs to: (1)

discontinue service at 11:00 p.m. and close by 12:00 p.m.; (2) limit customers to 60% of the

maximum permitted occupancy or the greatest number that permits individuals not from the

same household to maintain six (6) feet of space between each other with that level of

occupancy; (3) Ensure, pursuant to Executive Order 2020-586 and 902 KAR 2010E,15 which are

attached to this document, that all customers, vendors, contractors, and any other member of the

public who enters the premises wear a face covering so long as they are not subject to any of the

exemptions listed in the Executive Order; (4) Restaurants and bars who fail to follow these

requirements of the Executive Order will be subject to a fine and may also be subject to an order

from a local health department or the Labor Cabinet requiring immediate closure. Id.

Executive Order 2020-586, the Governor contends, is also applicable, which is attached

at Exhibit 6. Id. at ¶45. It was issued on July 9, 2020, and has been renewed repeatedly

approximately every 30 days thereafter, most recently in Executive Order 2021-134 on February

26, 2021, attached at Exhibit 7. Id.

902 KAR 2:211E is the current mask regulation. Id. at ¶46. In relevant part, it requires

face coverings to be worn by anyone inside a “8. Restaurant or bar, if not seated and consuming

food or beverage.” Id. It contains an exemption for anyone “(e) Seated and actively consuming

food or drink at a restaurant, bar, or other establishment that offers food or beverage service.”

Id.

14
We use the term “Guidance” loosely, because these are fully enforceable restrictions.
15
This appears to be a typographical error and instead should refer to 902 KAR 2:211E.
12
 The Section 4, (8)(a) 3 of 21 RS SB2 statement has not been complied with in the

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issuance of 902 KAR 2:211E. Id. at ¶47. 902 KAR 2:211E was filed and in force as of January

5, 2021, contains a fine schedule, and the ability to revoke the license of anyone not complying,

but does not contain due process rights required by 21 RS SB2. Id. at ¶48.

Collectively, the “Guidance” (which are really requirements) for restaurants and bars, as

well as the Executive Orders on masking and mask regulation, are denoted as the “Challenged

Orders and Regulations.” Id. at ¶49.

The Franklin Circuit Court Action

Governor Beshear has taken the public position that he need not comply with House Bill

1, Senate Bill 1, or Senate Bill 2, and has evinced an intention not to comply with them. Id. at

¶50. He has issued directives to other governmental bodies, including the Labor Cabinet and

local Health Departments, to continue to enforce his mandates, and they have and are doing so.

Id.

To that end, he has filed a lawsuit against the Attorney General, Senate President, LRC,

and House Speaker, to have these pieces of legislation declared unconstitutional in the Franklin

Circuit Court. Id. at ¶51.

However, he has not sought class certification, nor has class status been granted. Id. at

¶52. And none of these Plaintiffs are parties to that matter. Id.

None of the Defendants named in that action enforce the challenged statutes – ironically,

only Governor Beshear enforces those statutes. Id. at ¶53.

13
 As a consequence, the Franklin Circuit Court action, and orders it issues, are nullities as a

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matter of law.16 Id. at ¶54. Nor can any such orders be binding to non-parties to that case, such

as these Plaintiffs, under ancient bedrock Kentucky law.17 Id. at ¶55.

The Plaintiffs

In November, 2020, Beans declined to adhere to the Governor’s orders related to

COVID-19, that directed restaurants to cease in person dining. Id. at ¶56. As a consequence of

this failure to comply, personnel from the Northern Kentucky Independent Health District, at the

direction of Dr. Saddler, the Governor, and Secretary Friedlander, caused the food license of

Beans to be revoked at both the Hebron, Kentucky, and Dry Ridge Kentucky, locations. Id. at

¶57.

When the company again refused to comply, Dr. Saddler and others referred the matters

to the Boone and Grant County Attorneys, who criminally charged Beans’ owner, Richard

Hayhoe, with operating a restaurant without a food license. Id. at ¶58.

16
Commonwealth v. Hughes, 873 S.W.2d 828, 830 (1994) (“This Court has repeatedly reaffirmed
the proposition that it has no jurisdiction to decide issues which do not derive from an actual case
or controversy,” citing Ky. Const. § 110); In Re; Constitutionality of House Bill No. 222, Ky.,
262 Ky. 437, 90 S.W.2d 692 (1936) ("Power to render advisory opinions conflicts with
Kentucky Constitution Section 110 and thus cannot be exercised by the Court"); Philpot v.
Patton, Ky., 837 S.W.2d 491, 493 (1992), ("our courts do not function to give advisory opinions,
even on important public issues, unless there is an actual case or controversy.").

“A restraining order granting injunctive relief against the enforcement of a statute or ordinance is
to be directed against the acts of those specific public officials charged with enforcing the statute
to enjoin their threatened enforcement.” Akers v. Floyd County Fiscal Court, Ky., 556 S.W.2d
146 (1977); Commonwealth v. Mountain Truckers Ass'n, Inc., 683 S.W.2d 260, 263 (Ky.App.
1984). The Franklin Circuit Court’s actions in directing an injunction against legislation, rather
than officials that enforce it, raises significant and troubling constitutional questions involving
the separation of powers. Morgan v. Getter, 441 S.W.3d 94, 99 (2014); Delahanty v.
Commonwealth, 558 S.W.3d 489, 506 (Ky. App. 2018).
17
Singleton v. Singleton, 47 Ky. 340 (1848); Combs v. Jones, 244 Ky. 512 (1932).

14
 Ultimately, the situation resolved itself, Hayhoe agreed to comply with lawful regulations

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issued by the state, and the charges were dropped and license restored. Id. at ¶59. Nevertheless,

having faced past enforcement, Hayhoe and Beans reasonably fears additional enforcement

actions should he fail to adhere to the Governor’s restrictions, but adhere to the law as set forth

in 2021 RS SB1, 2021 RS HB1, and/or 2021 RS SB2, even though he is complying with current

Kentucky law. Id. at ¶60.

Beans has prepared a Plan, consistent and compliant with 2021 RS House Bill 1. Id. at

¶61. That plan does not require 60% capacity or 6-foot distancing, nor does it contain mandatory

mask-wearing requirements, but it does meet or exceed all applicable guidance by the CDC. Id.

The Plan has been posted as required by 2021 RS House Bill 1. Id.

Beans has also been cited by the Northern Kentucky Independent Health District for non-

compliance with the mask mandate; it has been unable to challenge that citation, even though it

believes it did not fail to comply, because no process has been given to make the challenge. Id.

at ¶62.

But for the challenged regulations and orders, Beans would increase capacity, and cease

compliance with the masking order and regulation. Id. at ¶63.

All of these issues, and the Governor’s continued enforcement of mandates that he has

been prohibited by statute from enforcing, affect the business negatively, and risks the

continuation of the business. Id. at ¶64.

In November, 2020, Brewed declined to adhere to the Governor’s orders related to

COVID-19, that directed restaurants to cease in person dining. Id. at ¶65.

As a consequence of this failure to comply, the local health department revoked his

permit, and ultimately sought and obtained a temporary injunction against the business. Id. at

15
¶66. The Kentucky Alcoholic Beverage Control Commission also revoked Brewed’s ABC

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license, then restored it, but the business currently faces a enforcement action, all due to non-

compliance with the Governor’s COVID-19 edicts. Id. at ¶67.

Nevertheless, having faced past enforcement, the business reasonably fears additional

enforcement actions, even though it is complying with current Kentucky law. Id. at ¶68.

Brewed has prepared a Plan, consistent with House Bill 1. Id. at ¶69. That plan does not require

operating at 60% capacity or 6-foot distancing, nor does it contain mandatory mask-wearing

requirements, nor does it limit hours of operation, but it does meet or exceed all applicable

guidance by the CDC. Id. The Plan has been posted as required by 2021 RS House Bill 1. Id.

Brewed has also been cited by its health department for non-compliance with the mask

mandate; it has been unable to challenge that citation, even though it believes it did not fail to

comply, because no process has been given to make the challenge. Id. at ¶70.

But for the challenged regulations and orders, Brewed would increase capacity, increase

hours of operation to later than 11:00 p.m. for service (to midnight, and close at 1:00 a.m.), and

cease compliance with the masking order and regulation. Id. at ¶71.

All of these issues, and the Governor’s continued enforcement of mandates that he has

been prohibited by statute from enforcing, affect the business negatively, and risks the

continuation of the business. Id. at ¶72. Collectively, these requirements, in Exhibits 1 through

5 are designated as the “Challenged Orders.” Id. at ¶73. None of these orders went through the

K.R.S. Chapter 13A procedures for rulemaking, even though Chapter 13A provides for

emergency procedures; K.R.S. Chapter 13A provides important procedural due process

protections for the public. Id.

16
 For the avoidance of all doubt, Dr. Saddler, and the NKIHD have actively been involved

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in enforcing the Challenged Orders and the Masking Regulation, as explained herein, including

pushing the matter so far as to have the Beans Café owner criminally cited. Id. at ¶74.

The Challenged Orders and Regulations cause substantial hardship to Plaintiffs who have

been adversely affected thereby. Id. at ¶75. The Challenged Orders and Regulations create

serious problems for the Plaintiffs, threaten to, and actually do, impair their business goodwill,

which has been built up over substantial periods of time, and have pushed the Plaintiffs to the

brink of bankruptcy and loss of business. Id. at ¶76.

As noted above, Governor Beshear has continued his mandates on businesses in the

Challenged Orders and Regulations, beyond the 30-day limitation contained in Section 2 of 21

RS SB1. Id. at ¶83. To be clear: the General Assembly has not extended the orders contained in

the Challenged Orders and Regulations, as required by 21 RS SB1, and thus they have expired

under that legislation. Id.

The Challenged Orders and Emergency Regulations at issue also constitute a suspension

of Kentucky statutes, in contravention of Section 4 of 21 RS SB1, governing the restaurant

industry, specifically those found at KRS 217.127 concerning the requirement to issue mandates

on this industry by regulation. Id. at ¶84. The Kentucky Attorney General has not given his

consent in writing to any such statutory suspension as required by 21 RS SB1. Id.

Governor Beshear has demonstrated his belief that 2021 RS HB1, 2021 RS SB1, and

2021 RS SB2, are collectively not applicable to him and that he need not comply with them,

threatening enforcement for businesses that comply with its mandates (such as these Plaintiffs)

rather than his mandates in the Challenged Orders and Regulations; this is illegal. Id. at ¶85.

17
 Next, 902 KAR 2:211E violates Section 4, (8) (a) 3 of 21 RS SB2 statement has not been

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complied with in the issuance of 902 KAR 2:211E because the statement required by that section

has not been complied with, and 902 KAR 2:211E was filed and in force as of January 5, 2021,

is still purportedly in effect despite exceeding the 30-day limitation in 2021 RS SB2, and does

not contain due process rights required by 21 RS SB2. Id. at ¶86. The regulation is thus invalid.

Id.

II. LAW AND ARGUMENT

A. INJUNCTION STANDARD

C.R. 65.04 provides, in relevant part, that “A temporary injunction may be granted during

the pendency of an action on motion if it is clearly shown by verified complaint, affidavit, or

other evidence that the movant's rights are being or will be violated by an adverse party and the

movant will suffer immediate and irreparable injury, loss, or damage pending a final judgment in

the action, or the acts of the adverse party will tend to render such final judgment ineffectual.”

In Kentucky, to establish entitlement to an injunction order a party must show harm to his

rights. Morrow v. City of Louisville, Ky., 249 S.W.2d 721 (1952). While the nature of this right

may be, and usually is, disputed, it is clear that some substantial claim to a personal right must be

alleged. Maupin v. Stansbury, 575 S.W.2d 695 (1978)

CR 65.04 further requires a clear showing that these rights will be immediately impaired.

Id. "In addition to the above substantive aspects of CR 65.04, various equitable considerations

must also be evaluated. For example, in any temporary injunctive relief situation the relative

benefits and detriments should be weighed." Kentucky High School Athletic Association v.

Hopkins, 552 S.W.2d 685 (1977). Obviously, this entails a consideration of whether the public

18
interest will be harmed by the issuance of the injunction or whether its effect will merely be to

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maintain the status quo.

Thus, “the sufficiency of a verified complaint to support a temporary injunction should be

evaluated by a balance-of-the-hardships test. That rule, well recognized in the federal system,

provides that if the complaint shows a probability of irreparable injury and the equities are in

favor of issuance, it is sufficient if the complaint raises a serious question warranting a trial on

the merits. Id., see, generally, Louisville Cycle & Supply Co., Inc. v. Baach, Ky., 535 S.W.2d 230

(1976).

Thus, "the trial court should determine whether plaintiff has complied with CR 65.04 by

showing irreparable injury. This is a mandatory prerequisite to the issuance of any injunction."

Maupin, 575 S.W.2d 695. "Secondly, the trial court should weigh the various equities involved.

Although not an exclusive list, the court should consider such things as possible detriment to the

public interest, harm to the defendant, and whether the injunction will merely preserve the status

quo." Id. "Finally, the complaint should be evaluated to see whether a substantial question has

been presented. If the party requesting relief has shown a probability of irreparable injury,

presented a substantial question as to the merits, and the equities are in favor of issuance, the

temporary injunction should be awarded. However, the actual overall merits of the case are not

to be addressed in CR 65.04 motions." Id. "Unless a trial court has abused its discretion in

applying the above standards, we will not set aside its decision on a CR 65.07 review." Id.

B. PLAINTIFF HAS SHOWN A LIKLIHOOD OF SUCCESS ON THE

MERITS

1. 2021 RS SB1, 2021 RS HB1, and 2021 RS SB2 are the law of the land and the
Governor cannot ignore them

19
 Plaintiffs have established a likelihood of success on the merits. Statutes in Kentucky

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enjoy a strong presumption of constitutionality. Caneyville Volunteer Fire Dep't v. Green's

Motorcycle Salvage, Inc., 286 S.W.3d 790 (2009). Indeed, so strong is the presumption that the

Kentucky Supreme Court has explained that the presumption must be overcome beyond a

reasonable doubt because it is critical to defer to the "voice of the people as expressed through

the legislative department of government." Id. at 806. Thus, a “constitutional infringement must

be ‘clear, complete and unmistakable’ in order to render the statute unconstitutional.” Id.

Setting forth the emergency, and presupposing that there is a rational basis for such a

declaration, courts will uphold the declaration, and the legislation will take immediate effect.

Zuckerman v. Bevin, 565 S.W.3d 580, 604 (2018). Such is the case here: Section 11 of SB1

indicates that COVID-19 response, and its impact on Kentucky citizens, requires immediate

action. See Enrolled SB1, Section 11, attached hereto.18

That emergency declaration in all three statutes also represent substantial deference on

the question of irreparable harm and the balance of the hardships. The people’s representatives

have spoken, and by overwhelming majorities, that these statutes need to take effect

immediately, and be adhered to. “[T]he legislature's power to pass laws, especially laws in the

interest of public safety and welfare, is an essential attribute of government. Thus, we must

always accord great deference to the legislature's exercise of these so-called 'police powers,'

unless to do so would 'clearly offend [ ] the limitations and prohibitions of the constitution.”

18
One of the arguments that Governor Beshear makes in his attack on SB1 is that it does not take
immediate effect because he vetoed it. That argument is foreclosed by over 120 years of case
law. Commissioners of Sinking Fund v. George, 104 Ky. 260, 270-272 (1898) (concluding that
by reading both Section 55 and Section 88 together, a bill that contains an emergency clause
takes immediate effect, a Governor’s veto notwithstanding).

20
See Posey v. Commonwealth, 185 S.W.3d 170, 175 (Ky. 2006). Indeed, the Court’s “duty is to

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ascertain and give effect to the intent of the General Assembly.” Beckham v. Board of Educ.,

873 S.W.2d 575, 577 (1994).

The General Assembly has, in no uncertain terms, set forth its findings of irreparable

harm and the need for these statutes to take immediate effect. To hold otherwise is to ignore the

"voice of the people as expressed through the legislative department of government," which,

should not be ignored by Courts. Caneyville Volunteer Fire Dep't, 286 S.W.3d 790, 806.

2. The Challenged Orders violate Section 15, of the Kentucky Constitution

Section 15 of the Kentucky Constitution provides: “No power to suspend laws shall be

exercised unless by the General Assembly or its authority.” The Orders at issue constitute a

suspension of Kentucky statutes governing the regulated industries, specifically K.R.S. 217.015,

et. seq. (restaurants).

No provision cited as justification by the Governor or his designees for the Challenged

Orders including, without limitation, K.R.S. Chapter 39A, authorizes the suspension of these

statutes or the superseding of them. The Challenged Orders are thus violative of Section 15 of

the Kentucky Constitution. Baker v. Fletcher, 204 S.W.3d 589, 2006 Ky. LEXIS 153 (Ky. 2006)

(Governor does not have power to suspend statutes, even in an emergency).

The Kentucky Supreme Court has repeatedly recognized that this power rests with the

General Assembly, and it alone can determine when, whether, and upon what conditions the

power to suspend statutes can be exercised. Commonwealth ex rel. Beshear v. Bevin, 575

S.W.3d 673, 679-680 (2019). Indeed, absent statutory authority, the Governor has no “implicit”

authority to suspend statutes. Baker v. Fletcher, 204 S.W.3d 589 (2006); Beshear v. Haydon

Bridge Co., 304 S.W.3d 682 (2010); Fletcher v. Office of the AG. ex rel. Stumbo, 163 S.W.3d

21
852 (2005). The Supreme Court in Fletcher went so far as to recognize that the “suspension of

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statutes by a Governor is also antithetical to the constitutional duty to ‘take care that the laws be

faithfully executed." Id. at 872.

3. The Challenged Orders violate KRS Chapter 13A

Under Kentucky law, K.R.S. Chapter 13A, and its various provisions, require that

administrative regulations be promulgated by the executive branch if it involves a “statement of

general applicability promulgated by an administrative body that implements, interprets, or

prescribes law or policy, or describes the organization, procedure, or practice requirements of

any administrative body.” Without question the Challenged Orders are just such a

pronouncement and promulgation.

K.R.S. Chapter 13A, specifically K.R.S. 13A.190, governs emergency administrative

regulations. K.R.S. Chapter 13A also provides important due process rights concerning the

issuance of regulations. "These statutes, indeed all of the statutes of KRS Chapter 13A, were

designed to prevent administrative agencies from abusing their authority. Should any agency fail

to abide by these preventive safeguards, it is the judiciary's role to remedy the failure." Baker v.

Commonwealth, 2007 Ky. App. Unpub. LEXIS 1 (Ky. App. 2007).

K.R.S. 214.020 does give the Cabinet certain powers to establish quarantines and issue

orders, but these must be done as the “adopt[ion] and enforce[ment]” of “such rules and

regulations” as to “quarantine and isolation.” Again, no regulations have been issued. The

Challenged Orders have not been issued in accordance with K.R.S. Chapter 13A, and thus are

invalid.

The Challenged Orders constitute regulations under K.R.S. Chapter 13A – as they are

fully enforceable rules. And, there is no question that Defendants failed to follow the

22
requirements of K.R.S. Chapter 13A in issuing them, particularly given the law amendments in

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2021 RS SB1 and 2021 RS SB2. They are thus illegal. Bowling v. Ky. Dep't of Corr., 301

S.W.3d 478 (Ky. 2009); Kordenbrock v. Oliver, 2016 Ky. App. Unpub. LEXIS 79 (Ky. App.

2016).

4. Injunctive Relief should be granted

Plaintiffs have been, and continue to be, irreparably harmed. The business Plaintiffs are

and continue to be irreparably harmed in that they cannot do business and comply with the

requirements, without operating at a loss. The General Assembly has specifically recognized the

irreparable harm at issue. These businesses continue to operate with reasonable safety

precautions, and neither the public, nor third parties, will be harmed by the issuance of an

injunction, since similar activities are permitted to other similarly situated businesses.

III. CONCLUSION

The General Assembly has spoken. The Executive ignores the law in response. The

Courts must step in.

Respectfully submitted,

/s/Christopher Wiest________
Christopher Wiest (KBA 90725)
25 Town Center Blvd, STE 104
Crestview Hills, KY 41017
513-257-1895 (v)
chris@cwiestlaw.com
Trial Attorney for Plaintiffs

/s/Thomas Bruns
Thomas Bruns (KBA 84985)
4750 Ashwood Drive, STE 200
Cincinnati, OH 45241
tbruns@bcvalaw.com
Co-Counsel for the Plaintiffs

23
 NOTICE OF HEARING

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Please take notice and be advised that plaintiff Ridgeway Properties, LLC, d/b/a Beans
Café & Bakery, and Intervening Plaintiff Deans Diner, LLC d/b/a Brewed shall be heard on the
following motion and tender the attached Order on March 16, 2021, at 9:00 a.m., or as soon
thereafter as counsel can be heard.

/s/Christopher Wiest________
Christopher Wiest (KBA 90725)

24
 CERTIFICATE OF SERVICE

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I certify that on this 11th day of March, 2021, I electronically filed a true and correct copy
of the foregoing with the Clerk of Court by using the Kentucky Court of Justice eFiling website,
which will send a notice of electronic filing and a link to the document to those attorneys listed
below. I further rely on Section 11(1) of the eFiling Rules of the Court of Justice that provides
that transmission of a hyperlink to the electronic document constitutes service under C.R. 5 and
served by electronic mail.

/s/ Christopher Wiest_______________

Christopher Wiest

25
 COMMONWEALTH OF KENTUCKY

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BOONE CIRCUIT COURT
FIRST DIVISION
CIVIL ACTION NO. 20-CI-00678
Electronically Filed

FLORENCE SPEEDWAY, INC., ET AL. PLAINTIFFS

and

COMMONWEALTH OF KENTUCKY, INTERVENING PLAINTIFF

ex rel. ATTORNEY GENERAL DAVID CAMERON

v.

NORTHERN KENTUCKY INDEPENDENT DEFENDANTS

HEALTH DISTRICT, ET AL.

ORDER ON TEMPORARY INJUNCTION/TEMPORARY RESTRAINING ORDER

The Court, being fully apprised, GRANTS the Plaintiff and Intervening Plaintiff’s
Motion for Restraining Order/Temporary Injunction.
The Governor and other Defendants are directed and enjoined to comply with 2021 RS
SB1, 2021 RS HB1, and 2021 RS SB2.

IT IS SO ORDERED:

_________________________