Case 2:20-cv-00351 Document 1 Filed 05/14/20 Page 1 of 20 PageID 1 UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA FORT MYERS DIVISION PATTY CUMMINGS, Plaintiff, v. CASE NO.: RON DESANTIS, in his official capacity as the GOVERNOR of the State of Florida, and LEE COUNTY, a political subdivision of the State of Florida, Defendants. VERIFIED COMPLAINT FOR EMERGENCY INJUNCTIVE RELIEF AND DECLARATORY JUDGMENT Plaintiff PATTY CUMMINGS hereby sues the Defendants, Ron DeSantis, in his of?cial capacity as the Governor of the State of Florida, and Lee County. Florida (collectively ?Defendants") and alleges as follows: NATURE OF THE ACTION 1. This action challenges the constitutionality of Executive Orders 20-71 and 20-112 issued by Governor Ron DeSantis, which have ordered privately-owned ?[g]yms and fitness centers" to ?remain closed.? These Executive Orders, together with the actions of the Lee County Board of County Commissioners and the Lee County Manager making the Executive Orders applicable in Lee County (collectively ?Executive Orders?), violate the United States Constitution and Florida Constitution. 2. The Executive Orders are unconstitutional because they violate the Non- Delegation and Separation of Powers Doctrines. By issuing the Executive Orders LECHNER LAW Case 2:20-cv-00351 Document 1 Filed 05/14/20 Page 2 of 20 PageID 2 which purport to order privately-owned ?[g]yms and fitness centers" to ?remain closed? upon threat of criminal prosecution and imprisonment (pursuant to Fla. Stat. 252.50), the Governor displaced the law-making powers reserved to the legislative branch, which may not delegate lawmaking powers to other branches. Thus, all Executive Orders and actions of the Lee County Board of County Commissioners and the Lee County Manager making the Executive Orders applicable in Lee County should be declared constitutionally void. 3. The Executive Orders are unconstitutional because they violate the Due Process Clauses of the Fourteenth Amendment of the US. Constitution and Art. 1 29 of the Florida Constitution, which reads: ?No person shall be deprived of life, liberty or property without due process of The due process clauses protect the individual against the arbitrary and unreasonable exercise of governmental power. Noel v. State, 191 So. 3d 370, 373 (Fla. 2016). The Executive Orders are arbitrary and unreasonable and not backed by a compelling state interest or any facts proving such an interest. The original justification for closing ?[g]yms and fitness centers" was President Donald J. Trump?s March 16, 2020 "15 Days to Slow the Spread? guidance, which was intended to ?flatten the curve" so that health care facilities would not be ovenNhelmed by a sudden influx of patients. Two months later, that justi?cation no longer exists. Indeed, on April 16, 2020, the White House released ?Guidelines for Opening Up America Again" (the ?Guidelines"), which expressly declared that should reopen during Phase 1 of the reopening process. 4. The Executive Orders are unconstitutional because they violate Art. 1 Case 2:20-cv-00351 Document 1 Filed 05/14/20 Page 3 of 20 PagelD 3 2 of the Florida Constitution and the Equal Protection Clause of the Fourteenth Amendment of the US. Constitution, which provides that State shall . . . deny to any person . . . the equal protection of the laws.? US. Const. amend. XIV, 1. The Executive Orders place unique burdens on one industry or business sector, namely ?[g]yms and ?tness centers.? There is no rational basis for depriving and fitness center owners and employees of the right to earn a living while almost all other businesses open to the public, such as Wal-Marts and liquor stores, are permitted to remain open. Executive Order 20-71 declares that ?the State Surgeon General has advised me that and fitness centers are establishments that attract gatherings of more than 10 people and are more susceptible for spreading However, ?gyms and fitness centers? is an overly broad classification that includes a multitude of types and sizes of establishments including health studios and personal trainers, all of which are as capable as any other businesses of implementing social distancing policies and practices. In fact, Plaintiff operates a health studio which holds small group classes of less than 10 people, thus the Surgeon General?s advice is inapplicable to her business. 5. The Executive Orders are unconstitutional because they constitute a regulatory taking of property in violation of the Takings Clause of the Fifth Amendment to the US. Constitution and Art. X, 6 of the Florida Constitution, both of which provide that private property shall not be taken for public use without just compensation. Regulations imposed by the government, including public health and safety regulations, amount to a taking, where, although there is no physical appropriation, the Case 2:20-cv-00351 Document 1 Filed 05/14/20 Page 4 of 20 PageID 4 regulation is ?so onerous that its effect is tantamount to a direct appropriation or ouster?and that such ?regulatory takings' may be compensable under the Fifth Amendment." Lingle v. Chevron U. SA. Inc., 544 US. 528, 537 (2005). The Executive Orders have completely interfered with the distinct and reasonable investment-backed expectations of ?gyms and fitness centers?; which were arbitrarily and unreasonably designated non-essential businesses. Thus, the government-mandated shutdowns imposed by the Executive Orders constitute unconstitutional regulatory takings, for which Plaintiff is entitled to just compensation. JUREDICTION, VENUE AND PARTIES 6. This Complaint alleges that Defendants have violated Plaintiff?s rights protected by the United States Constitution. Accordingly, this Court has subject-matter jurisdiction under the Supremacy Clause of the United States Constitution, Art. VI, Clause 2, and 28 U.S.C. ??1331 and 1343(a)(3). Plaintiff seek declaratory and equitable relief under 28 U.S.C. 2201 and 42 U.S.C. 1983, and the award of attorneys? fees pursuant to 42 U.S.C. 1988(b). 7. Venue is proper in this Court because all facts material to all claims set forth herein occurred in Lee County, Florida. 8. At all times material, Plaintiff is and was a citizen of Florida. Plaintiff is an owner and operator of the following ?gyms and fitness centers" subject to the Executive Orders in Lee County: . Patty?s Enterprises, LLC, d/b/a P2 Personal Training 0 Astra-Durance, LLC Case 2:20-cv-00351 Document 1 Filed 05/14/20 Page 5 of 20 PagelD 5 9. Defendant, RON DESANTIS, in his of?cial capacity as Governor of the State of Florida, is a proper Defendant in this action because he issued Executive Orders 20-71 and 20-112 on March 20, 2020 and April 29, 2020, respectively, which have ordered privately-owned ?[g]yms and fitness centers" to ?remain closed," thereby depriving Plaintiff and other similarly situated and ?tness center owners and operators of their rights guaranteed by the US. Constitution and the Florida Constitution. 10. Defendant Lee County is a political subdivision of the State of Florida and is a proper Defendant in this action because, on March 17, 2020, it declared a "State of Local Emergency," and took actions pursuant to the purported state of emergency making the Executive Orders applicable in Lee County, thereby depriving Plaintiff of her rights guaranteed by the US. Constitution and the Florida Constitution. GENERAL ALLEGATIONS 11. On March 20, 2020, Governor DeSantis issued Executive Order 20-71, in which he "order[ed] the closure of gymnasiums and fitness centers within the State of Florida." [Section 3] Excluded from the closure order were gymnasiums and fitness centers which "are an amenity of a residential building," ?interior to any fire or police stations, ?located inside any single?occupant of?ce building,? or ?amenities of hotels which have a capacity of 10 persons or less." Nevertheless, other or ?tness centers with a capacity of 10 persons or less were required to close, despite not implicating the Surgeon General?s concerns. 12. On April 16, 2020, the White House released "Guidelines for Opening Up Case 2:20-cv-00351 Document 1 Filed 05/14/20 Page 6 of 20 PagelD 6 America Again? (the ?Guidelines?), a publication that included a three-phased approach to opening the country during the response to and based on the advice of public health experts. Guidelines for Opening Up America Again, The White House (4-16-2020). The Guidelines unambiguously express that, during Phase One of the re-opening process, can open if they adhere to strict physical distancing and sanitation protocols.? Id. (emphasis supplied). During Phase 2, can remain open if they adhere to strict physical distancing and sanitation protocols." During Phase 3, can remain open if they adhere to standard sanitation protocols.? Id. 13. On April 29, 2020, Governor DeSantis issued Executive Order 20-112, which permitted many businesses to open under a ?phased approach" but ignoring the Guidelines and the advice of public health experts upon which it was based ordered privately-owned ?[g]yms and fitness centers? to ?remain closed." An sheet? released by the Governor?s office released along with the executive order contained the question: "When can we expect Phase Two to start?" The answer given is: ?Once the governor determines it is suitable to continue reopening and after fully considering medical data in consultation with state health officials.? 14. Meanwhile, on March 17, 2020, Lee County declared a ?State of Local Emergency," and took actions pursuant to the purported state of emergency making the Executive Orders applicable in Lee County. On May 1, 2020, Lee County Manager Roger Desjarlais signed an order providing a temporary policy for additional outdoor seating at restaurants so business owners can expand outdoor seating while Case 2:20-cv-00351 Document 1 Filed 05/14/20 Page 7 of 20 PageID 7 maintaining Centers for Disease Control social distancing, but refused to take any similar action for or ?tness centers. IMPACT OF THE EXECUTIVE ORDERS 15. Plaintiff is a business owner who is personally and negatively affected by the Executive Orders. As a result of the Executive Orders, Plaintiff has been forced to shutter her businesses. 16. The Governor?s unilateral declaration that ?gyms and ?tness centers? remain closed is arbitrary and unreasonable. Physical fitness is essential. According to Mayo Clinic, regular exercise can help you control your weight, reduce your risk of heart disease and certain cancers, and strengthen your bones and muscles.1 The Department of Health and Human Services recommends that healthy adults include aerobic activity and strength training in their fitness plans, specifically: At least 150 minutes of moderate aerobic activity or 75 minutes of vigorous aerobic activity a week, or an equivalent combination of moderate and vigorous aerobic activity. 17. The Executive Orders have a deleterious impact on the community at large. Plaintiff owns and operates the businesses P2 Personal Training and Astro- Durance Bungee Systems. Her profession is one that works in tandem with chiropractors and doctors who recommend their patients get physical exercise for overall health and rehabilitation. Plaintiff has clients of all ages who suffer from cerebral palsy, arthritis, MS, and other autoimmune disorders and need the bungee training provided by Plaintiff to exercise, as Plaintiff?s technique allows them to gain 1 Case 2:20-cv-00351 Document 1 Filed 05/14/20 Page 8 of 20 PagelD 8 the exercise they cannot get on their own without the bungee assistance. Many of Plaintiff?s clients have joint problems and many have had knee and hip replacement, sciatica issues, heart disease, weight loss, back pain issues and many are elderly who rely on physical assisted exercise that Plaintiff provides for their health. 18. Plaintiff has suffered and continues to suffer harm as a result of the unconstitutional Executive Orders. Plaintiff is unable to perform her profession in her studio, nor is she able to hold training classes for Astro-Durance Bungee Systems for those wanting to learn how to use Bungee Systems in personal and group training. Plaintiff's business Astro-Durance Bungee Systems is closed down and unable to service clients or distribute. Her sources of income have been stopped and her savings has been spent trying to keep a temporary situation of closure from becoming permanent, and the delay of opening up has created undue hardship on her ability to provide for her family. Plaintiff is at risk of losing all of her business investments and her home. 19. Through the Executive Orders, the State of Florida and Lee County has mandated that Plaintiff close her businesses as "nonessential," as a direct result of which Plaintiff has suffered a financial loss of great magnitude at no fault of her own. Funds purportedly were made available by the federal government to provide for small businesses who were forced to shut down and to extend payrolls, and to provide unemployment, however Plaintiff?s businesses have not received appropriations to do this. Moreover, as Governor DeSantis admitted this past week, Florida's unemployment system is broken and the people have not been able to receive their Case 2:20-cv-00351 Document 1 Filed 05/14/20 Page 9 of 20 PagelD 9 unemployment because of the system not working. 20. In addition, after two months of small businesses being mandated to close, Lee County does not have a plan in place to help small businesses that were deemed ?nonessential.? On Monday, May 11, 2020, Lee County held a meeting to figure out what to do with the Act" monies received, and they were not sure how long it would take to put a plan in place. County officials appeared more concerned with the ?shelter in place? rules and using money for that then they were for providing fast relief for small businesses who were shut down and many who had already closed permanently. 21. When ?gyms and fitness centers? open up (at the sole discretion of the executive branch and local of?cials), if they do not close, they are still responsible for all of their unpaid bills and many, like Plaintiff, have not received the assistance promised. 22. During this time, due to Plaintiff's Constitutional rights being infringed, her business was forced to close or face arrest, or loss of license to operate. As a result, Plaintiff is now behind in her bills and has suffered undue stress. Further, the news of the state opening, but not opening (even after President Trump declared that would open as part of Phase 1), adds more stress and financial suffering. It is as though some businesses have been selected to be sacrificed, without any rational basis or reasoned determination. 23. On May 7, 2020, Beth Evans, Chief of the Florida Department of Agriculture and Consumer Services? Bureau of Compliance sent a letter to Florida?s Case 2:20-cv-00351 Document 1 Filed 05/14/20 Page 10 of 20 PageID 10 Health Studio Owners and Operators," declaring that gymnasiums and fitness centers must remain closed and stating ?it is unclear when gymnasiums and fitness centers will be allowed to re-open." 24. Small businesses are the backbone of America and the Governor and Lee County, through the Executive Orders, are breaking the backs of many of them with their mandates to close and reopen with a myriad of restrictions and lack of funding. STANDALDS FOR INJUNCTM 25. To obtain a preliminary injunction, Plaintiff must show (1) there is a substantial likelihood of success on the merits, (2) irreparable injury will be suffered unless the injunction issues, (3) the threatened injury to. the movant outweighs whatever damage the proposed injunction may cause the opposing party, and (4) the injunction, if issued, would not be adverse to the public interest. Siege! v. LePore, 234 F.3d 1163, 1176 (11th Cir. 2000); McDonalds?s Corp. v. Robertson. 147 F.3d 1301, 1306 (11th Cir. 1998). All four elements are shown and proved below. 26. Unless an injunction is issued, Plaintiff will suffer irreparable harm because her Constitutional rights are being violated. Worse, Plaintiff will be arrested, ?ned and potentially imprisoned if she does not comply with the unconstitutional mandate (pursuant to Fla. Stat. 252.50). There is a significant likelihood of irreparable harm to Plaintiff and all owners and operators of "gyms and fitness centers," including health studios, personal trainers and related business who are now out of business, resulting from enforcement of the Executive Orders. 10 Case 2:20-cv-00351 Document 1 Filed 05/14/20 Page 11 of 20 PageID 11 27. Plaintiff lacks an adequate remedy at law. No other remedy exists to protect Plaintiff?s Constitutional rights which are being infringed upon by the government. The executive branch has both made and is enforcing the laws it unilaterally created, undermining the very checks and balances the Constitution was designed to create. The deprivation of Plaintiff?s rights cannot be remedied by money or any judgment other than an injunction. 28. Plaintiff has a very high likelihood of success on the merits. As shown herein, the Executive Orders are unconstitutional and invalid. Plaintiff has clearly suffered damages as a result of the unconstitutional Executive Orders. When a criminal statute or ordinance is invalid, and its enforcement will result in injury to, or destruction of, property or personal rights, equity may intervene. Deeb v. Stoutamire, 53 So. 2d 873 (Fla. 1951 Metropolitan Dade County v. Florida Processing 00., 218 So. 2d 474 (Fla. 3d DCA 1969). Injunctive remedy is appropriate to restrain the enforcement of an invalid law. Daniel v. Williams, 189 So. 2d 640 (Fla. 2d DCA 1966); Board of Com ?rs of State Institutions v. Tallahassee Bank Trust Co., 100 So. 2d 67 (Fla. 1st DCA. 1958). The injury may consist in the infringement of a property right. See Louisville 8. NR. Co. v. Railroad Com'rs, 58 So. 543 (1912). It may also exist in the right to earn a livelihood and continue in one's employment. Watson v. Centro Espanol de Tampa, 30 So. 2d 288 (1947). 29. A temporary injunction of the Executive Orders will serve the public interest. The citizens of Lee County are burdened by the overreach of the executive branch and local government not seen before in the history of Florida. The Executive 11 Case 2:20-cv-00351 Document 1 Filed 05/14/20 Page 12 of 20 PageID 12 Orders violate Plaintiff's and the public?s fundamental Constitutional rights. The public has a strong interest in protecting their rights. In contrast, opening and ?tness centers at this time will not negatively affect the public interest, as expressed in the White House's April 16, 2020 "Guidelines for Opening Up America Again" which declared that, based upon the advice of medical professionals, should be permitted to reopen. 30. Plaintiff has been required to retain the undersigned counsel to represent her in this action and is obligated to pay them a reasonable fee for their services. COUNT I Non-Delegation and Separation of Powers Under Fla. Const. 31. Plaintiff hereby incorporates by reference the allegations contained in Paragraphs 1 to 30 as if fully restated herein. 32. "The State Constitution contemplates the separation of powers within state government among the legislative, executive, and judicial branches of the government." Fla. Stat. 2002(1). Article 1 of the Florida Constitution provides, in relevant part: ?The legislative power of the state shall be vested in a legislature of the State of (the ?Non?Delegation and Separation of Powers Doctrines?). Article sets forth in detail - the requisite steps that must be followed to pass laws in the State of Florida, none of which were followed here. Article 6 provides that "[e]very law shall embrace but one subject and matter properly connected therewith, and the subject shall be brie?y expressed in the title," which the Executive Orders fail to do. 12 Case 2:20-cv-00351 Document 1 Filed 05/14/20 Page 13 of 20 PageID 13 33. The Executive Orders are unconstitutional because they violate the Non- Delegation and Separation of Powers Doctrines. By issuing the Executive Orders which purport to order privately-owned "[g]yms and fitness centers? to "remain closed? under threat of criminal prosecution and imprisonment (pursuant to Fla. Stat. 252.50), the Governor displaced the law-making powers reserved to the legislative branch, which may not delegate lawmaking powers to other branches. 34. The Governor lacks the constitutional authority to issue executive orders that have the force of law and which create crimes that could result in imprisonment, as this falls squarely within the law-making authority of the Legislature. However, pursuant to Fla. Stat. 252.50, violation of the Executive Orders purports to be a second-degree misdemeanor subject to criminal prosecution and imprisonment. 35. The Governor, by issuing the Executive Orders that create crimes and purport to have the force of law, infringed upon the law-making authority of the legislative branch. Accordingly, the Executive Orders and actions of the Lee County Board of County Commissioners and the Lee County Manager making the Executive Orders applicable in Lee County should be declared constitutionally void. COUNT ll ?ue Process (U.S. Const. Amend. XIV: Art. 1 29 of the Fla. Const: 5 1983) DEFENDANTS) 36. Plaintiff hereby incorporates by reference the allegations contained in Paragraphs 1 to 30 as if fully restated herein. The Executive Orders are unconstitutional because they violate the Due Process Clauses of the Fourteenth Amendment of the US. Constitution and Art. 1 13 Case 2:20-cv-00351 Document 1 Filed 05/14/20 Page 14 of 20 PageID 14 29 of the Florida Constitution, which reads: ?No person shall be deprived of life, liberty or property without due process of The due process clauses protect the individual against the arbitrary and unreasonable exercise of governmental power. Noel v. State, 191 So. 3d 370, 373 (Fla. 2016). 38. Defendants, acting under color of Florida law, have caused, and will continue to cause, Plaintiff to be deprived of her property without due process of law in violation of the Due Process Clause of the Fourteenth Amendment of the Constitution. 39. The Executive Orders are arbitrary and unreasonable and not backed by a compelling state interest or any facts proving such an interest. The original justification for closing "[g]yms and fitness centers? was President Donald J. Trump?s March 16, 2020 "15 Days to Slow the Spread? guidance, which was intended to "?atten the curve? so that health care facilities would not be ovenrvhelmed by a sudden in?ux of patients. Two months later, thatjusti?cation no longer exists. 40. The Executive Orders are irrational. They fail to serve any of the goals that they purport to seek to achieve. Among other things, the Executive Orders are in direct conflict with the White House?s April 16, 2020 "Guidelines for Opening Up America Again? which declared that, based upon the advice of medical professionals, should be permitted to reopen. Further, the Executive Orders have a deleterious impact on the community at large by ultimately preventing citizens, including patients who require physical exercise as part of their rehabilitation plans, from obtaining the physical exercise they need. Furthermore, alternatives to the 14 Case 2:20-cv-00351 Document 1 Filed 05/14/20 Page 15 of 20 PageID 15 Executive Orders are available that are more narrowly tailored to the goals claimed to underlie the Executive Orders, such as the program set forth in the White House Guidelines, which allow to ?open if they adhere to strict physical distancing and sanitation protocols." In short, the Executive Orders serve no legitimate government purpose. 41. Separately, without rational basis or an adequately developed record for determining that a serious public emergency requiring the closure of ?gyms and fitness centers? continues to exist? or even de?ning what, precisely, the emergency entails the Governor re?exively renewed the Executive Orders on April 24, 2020, in direct contradiction to the White House?s Guidance, and with no information regarding when ?gyms and fitness centers" might be allowed to reopen. 42. Defendants? rationale for the need to close "gyms and fitness centers" has shifted over time. Defendants have variouslyjustified the need to close "gyms and fitness centers? by citing the President?s March 16, 2020 ?1 5 Days to Slow the Spread" guidance, which was intended to ?flatten the curve? so that health care facilities would not be ovenrvhelmed by a sudden in?ux of patients. Two months later, that justification no longer exists. Indeed, on April 16, 2020, the White House released ?Guidelines for Opening Up America Again? (the ?Guidelines?), which expressly declared that should reopen during Phase 1 of the reopening process. The Executive Orders are not a rational means of addressing any of the declared ends. 43. Defendants? continuing declaration of an emergency and renewal of the Executive Orders without a rational basis for doing so deprives Plaintiff and other 15 Case 2:20-cv-00351 Document 1 Filed 05/14/20 Page 16 of 20 PageID 16 similarly situated owners and operators of ?gyms and fitness centers" of fundamental property rights without the benefit of Due Process required by the U.S. and Florida Constitutions. Defendants? actions are arbitrary and are not rationally related to any legitimate government purpose. 44. In addition, the Executive Orders' destruction of business owners? fundamental property rights warrants strict scrutiny. Defendants cannot demonstrate that a compelling state interest is furthered by the Executive Orders? closure of ?gyms and fitness centers,? nor can they demonstrate that the Executive Orders are narrowly tailored to address any compelling state interest. 45. Absent injunctive and declaratory relief, Plaintiff will suffer irreparable harm caused by the deprivation of her Constitutional rights. COUNT Ill Equal Protection (U.S. Const. Amends. and Art. 1 {i 2 of the Fla. $13.0. 1983} (BOTH 46. Plaintiff hereby incorporates by reference the allegations contained in Paragraphs 1 to 30 as if fully restated herein. 47. The Executive Orders are unconstitutional because they violate Art. 1 2 of the Florida Constitution and the Equal Protection Clause of the Fourteenth Amendment of the U.S. Constitution, which provides that State shall . . . deny to any person . . . the equal protection of the laws." U.S. Const. amend. XIV, 1. 48. The Executive Orders place unique burdens on one industry or business sector, namely ?[g]yms and ?tness centers.? 49. There is no rational basis for depriving and fitness center owners 16 Case 2:20-cv-00351 Document 1 Filed 05/14/20 Page 17 of 20 PagelD 17 and employees of the right to earn a living while almost all other businesses open to the public, such as Wal-Marts and liquor stores, are permitted to remain open. 50. Executive Order 20-71 declares that ?the State Surgeon General has advised me that and fitness centers are establishments that attract gatherings of more than 10 people and are more susceptible for spreading However, owners and employees of and fitness centers are just as capable as any other businesses of implementing social distancing and sanitation policies and practices. 51. Moreover, ?gyms and fitness centers" is an overly broad classification that includes a multitude of types and sizes of establishments, including small health studios and personal trainers, which do not implicate the Surgeon General?s concerns which originally served as justification for the Executive Orders. 52. Indeed, Plaintiff operates a health studio which holds small group classes of less than 10 people, thus the justification underlying the Executive Orders is inapplicable to her business. 53. Absent injunctive and declaratory relief, Plaintiff will suffer irreparable harm caused by the deprivation of her Constitutional rights COUNT IV Regulatory Taking (U.S. Const. Amends. and Art. X. 6 6 of t_he Fla. Const.:42 U.S.C. 1983} (BOTH DEFENDANTS) 54. Plaintiff hereby incorporates by reference the allegations contained in Paragraphs 1 to 30 as if fully restated herein. 55. Defendants, acting under color of Florida law, have caused, and will continue to cause, Plaintiff to be deprived of their property without just compensation 17 Case 2:20-cv-00351 Document 1 Filed 05/14/20 Page 18 of 20 PageID 18 in violation of the Takings Clause of the U.S. and Florida Constitutions. 56. The Executive Orders are unconstitutional because they constitute a regulatory taking of property in violation of the Takings Clause of the Fifth Amendment to the U.S. Constitution and Art. X, 6 of the Florida Constitution, both of which provide that private property shall not be taken for public use without just compensation. 57. Regulations imposed by the government, including public health and safety regulations, amount to a taking, where, although there is no physical appropriation, the regulation is ?so onerous that its effect is tantamount to a direct appropriation or ouster?and that such ?regulatory takings' may be compensable under the Fifth Amendment.? Lingle v. Chevron U.S.A. Inc., 544 US. 528, 537 (2005). 58. The Executive Orders have completely interfered with the distinct and reasonable investment-backed expectations of ?gyms and ?tness centers"; which were arbitrarily and unreasonably designated non-essential businesses and forced to close indefinitely. 59. The Executive Orders, among other things, deprive property owners of a reasonable market return on their investment, devalue their properties, and upset their investment-backed expectations. The character of Defendants' actions? issuing Executive Orders providing for the public welfare at the expense of a subset of private property owners together with the extensive and negative economic impact of the Executive Orders, renders them facially unconstitutional as a regulatory taking. 60. Thus, the government-mandated shutdowns imposed by the Executive Orders constitute unconstitutional regulatory takings, for which Plaintiff is entitled to 18 Case 2:20-cv-00351 Document 1 Filed 05/14/20 Page 19 of 20 PageID 19 just compensation. 61. Absent declaratory or injunctive relief, Plaintiff will suffer irreparable harm caused by the deprivation of her Constitutional rights. PRAYER FOR RELIEF WHEREFORE, Plaintiff requests that the Court: A. Declare the Executive Orders to be void as a violation of the Separation of Powers; B. Enjoin the application and enforcement of the Executive Orders as a violation of the Separation of Powers; C. Declare the Executive Orders to be an unlawful violation of Due Process; D. Enjoin the application and enforcement of the Executive Orders as a violation of Due Process; E. Declare the Executive Orders to be an unlawful violation of Equal Protection; F. Enjoin the application and enforcement of the Executive Orders as a violation of Equal Protection; G. Declare that the Executive Orders effect a regulatory taking of private property for public use that requires the payment of just compensation; H. Enjoin the application and enforcement of the Executive Orders as an unlawful regulatory taking of private property; I. Award Plaintiff just compensation for the unlawful deprivation of her property in violation of the Takings Clause of the U.S. and Florida Constitutions, 19 Case 2:20-cv-00351 Document 1 Filed 05/14/20 Page 20 of 20 PageID 20 including but not limited to reasonable market return on her investment, business losses incurred, devaluation of her preperties and business, lost future earnings, lost investment-backed expectations, and interest. J. Award Plaintiff her reasonable fees, costs, expenses and disbursements, including attorneys' fees, associated with this action; and K. Grant Plaintiff such other relief as may be just and proper. VERIFICATION l, Patty Cummings, declare under penalty of perjury pursuant the laws of the DATED this 14th day of May, 2020. Respectfully submitted, Isl Jav P. Lechner Jay P. Lechner, Esq. Florida Bar No.: 0504351 LECHNER LAW Jay P. Lechner, P.A. Fifth Third Center 201 E. Kennedy Blvd., Suite 412 Tampa, Florida 33602 Telephone: (813) 842-7071 Facsimile: (813) 225-1392 jplechn@jaylechner.com shelley@jaylechner.com Attorneys for Plaintiff 20