IN THE COURT OF COMMON PLEAS
LAKE COUNTY, OHIO

GARAGE BAR WILLOUGHBY, LLC
37825 Vine Street
Willoughby, Ohio 44094
and
GENNCO VENDING CORP.,
316 Boyle Street
Akron, Ohio 44310
and
SHAFFER SERVICES, INC.,
1350 Oxley Road
Columbus, Ohio 43212
and
PICK’S ENTERPRISES, INC.
2600 Oneida Avenue
Dayton, Ohio 45414
and
THE CADILLAC MUSIC
CORPORATION
3950 Carnegie Avenue
Cleveland, Ohio 44115
and
MAX, INC.
3901 Superior Avenue
Cleveland, Ohio 44114
and
NEXGEN VENDING, LLC
2003 Dryden Road
Moraine, Ohio 45439,

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1

772372

Case No:
JUDGE
COMPLAINT: Action for Declaratory
Judgment and Injunctive Relief

 and
R&B AMUSEMENT CO., LLC,
2110 South 12th Street, South
Ironton, Ohio 45638,
and
ASSOCIATED VENDING, INC.
10305 Reading Road
Cincinnati, Ohio 45241
and
M&G SERVICES, INC.
845 Collar Price Road, SE
Brookfield, Ohio 44403,
and
GO FOR BROKE AMUSEMENT AND
GAMES, LLC,
108 Wood Street
Flushing, Ohio 43977
and
BREMER VENDING CO.
2806 West Sylvania
Toledo, Ohio 43613
and
LORAIN MUSIC COMPANY,
1174 Milan Avenue
Amherst, Ohio 44001
and
CLEARLY THE BEST, LLC
1120 Pennsylvania Avenue
East Liverpool, Ohio 43920
and

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2

772372

 PIONEER SERVICE, INC.
3726 Kessen Avenue
Cincinnati, Ohio 45211
and
J&S ELECTRONICS, INC.
P.O. Box 147
New Knoxville, Ohio 45871
and
CITY AMUSEMENT ENTERPRISE,
LLC,
1723 10th Street
Portsmouth, Ohio 45662
and
OHIO COIN MACHINE ASSOCIATION,
3757 Indianola Avenue
Columbus, Ohio 43214,
and
POELKING ENTERTAINMENT
NETWORK, INC.
8871 Kingsridge
Centerville, Ohio 45458,
and
SPARE TIME RECREATION, INC.
2216 South 3rd Street
Ironton, Ohio 45638,
Plaintiffs
v.
AMY ACTON, M.D., M.P.H, in her
official capacity as Director of the Ohio
Department of Health
246 N High Street
Columbus, Ohio 43215,
and

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3

772372

 )
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OHIO DEPARTMENT OF PUBLIC
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HEALTH
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246 N. High Street
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Columbus, OH 43215
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and
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LAKE COUNTY HEALTH DISTRICT
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37111 Euclid Ave.
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Willoughby, OH 44094
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and
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DAVID YOST
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State of Ohio Attorney General
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th
30 E. Broad St., 14 Floor
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Columbus, OH 43215
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Defendants.
)
___)

Plaintiffs in support of their Complaint for declaratory judgment and injunctive relief,
allege as follows:
Introduction
1.

This is an action for declaratory judgment and preliminary and permanent

injunction brought pursuant to Ohio Rev. Code Chapter 2721, Ohio Revised Code Chapter 2727,
Civ.R. 65, and arising from Defendants' unconstitutional order, which imperil Plaintiffs’ business
of leasing and/or providing games of amusement to bars, restaurants and bowling alleys and
likewise imperil the business of such bars, restaurants and bowling alleys.
2.

Through its order entitled “Responsible RestartOhio”, the Director of the Ohio

Department of Health has absolutely prohibited, under threat of criminal and civil reprisals, duly
licensed bar owners/operators, restaurant owners/operators and bowling alley owners/operators,

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 throughout the State of Ohio from allowing their patrons to engage in billiards, pinball games,
video games and arcade games provided by many of the Plaintiffs named herein. This order has
been issued by the Director of the Department of Health without any basis to support the
conclusion that the patrons of bars, restaurants and bowling alleys cannot safely participate in such
games.
3.

By prohibiting Plaintiffs' from conducting their various businesses through threats

of civil and criminal reprisals when, based upon Defendants' own statements, there is minimal
safety risk for the age segment of the population that typically frequents bars and bowling alleys,
Defendants have violated the rights of Plaintiffs, guaranteed by Art. I, §1, Art. I §2, Art. I §18, Art.
I §19 and Art. II §1 of the Ohio Constitution, to conduct their legitimate businesses.
4.

Defendants have made no showing that the games offered by Plaintiffs cannot be

conducted in a manner that complies with the spacing standards and sanitizing standards
recommended by Defendants. Finally, Defendants’ orders are even more constitutionally suspect
because Director of the Department of Health’s order exempts from its absolute prohibition, statesupported games of the Lottery Kiosks available in bars and bowling alleys.
4.

As a direct and proximate result of the unconstitutional order issued by the Director

of the Ohio Department of Health, together with enforcement efforts by local health departments,
all Plaintiffs face imminent risk of losing their businesses, their livelihoods and economic security,
of being criminally prosecuted and suffering irreparable harm to their rights as citizens in the State
of Ohio to be treated equally under the law, to receive due process and to be protected from the
arbitrary conduct of an unelected official in whom virtually all powers of government, legislative
and executive, have been singularly and unlawfully reposed.

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 5.

Due to Defendants’ unconstitutional order, mandate and decree, Plaintiffs will

suffer irreparable harm that must be enjoined to protect Plaintiffs’ constitutional right to be secure
in the possession of and use of their property.
6.

The Plaintiffs seek a preliminary injunction enjoining the Defendants from: (1)

relying solely on the authority in R.C. 3701.13 and R.C. 3701.352 to impose criminal, civil, or
equitable penalties on Plaintiffs so long as they adhere to the safety regulations expressly
articulated in Paragraphs 8, 16, 21(a), 21(b), and 21(c) of the Director’s Stay Safe Ohio Order;
(2) imposing criminal, civil, or equitable penalties that arise from orders that exceed the limits of
the authority granted by R.C. 3701.13 on Plaintiffs so long as they adhere to the safety regulations
expressly articulated in Paragraphs 8, 16, 21(a), 21(b0, and 21(c) of the Director’s Stay Safe Ohio
Order; (3) imposing criminal, civil, or equitable penalties on Plaintiffs so long as they adhere to
the safety regulations expressly articulated in Paragraphs 8, 16, 21(a), 21(b) and 21(c0 of the
Director’s Stay Safe Ohio Order; and/or (4) enjoin the enforcement of Paragraph 13(g) of the
Director’s Stay Safe Ohio Order.
The Parties
Plaintiffs
7.

Plaintiff GARAGE BAR WILLOUGHBY, LLC is an Ohio limited liability

company that engages in the bar and tavern business and provides its patrons the opportunity to
play billiards, pinball games, video games and arcade games, and is located in Lake County, Ohio.
8.

Plaintiff GENNCO VENDING CORP. is an Ohio corporation that engages in

the business of leasing and/or providing of pool tables, pinball games, video games and arcade
games, and is located in Lake County, Ohio. This Plaintiff leases and/or provides pool tables,
pinball games, video games and arcade games to bars owners/operators and bowling alley
owners/operators.
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 9.

Plaintiff SHAFFER SERVICES, INC. is an Ohio corporation that engages in the

business of leasing and/or providing pool tables, pinball games, video games and arcade games,
and is located in Franklin County, Ohio. This Plaintiff leases and/or provides pool tables, pinball
games, video games and arcade games to bars owners/operators and bowling alley
owners/operators.
10.

Plaintiff PICK’S ENTERPRISES, INC. is an Ohio corporation that engages in the

business of leasing and/or providing pool tables, pinball games, video games and arcade games,
and is located in Montgomery County, Ohio. This Plaintiff leases and/or provides pool tables,
pinball games, video games and arcade games to bars owners/operators and bowling alley
owners/operators.
11.

Plaintiff THE CADILLAC MUSIC CORPORATION is an Ohio corporation that

engages in the business of leasing and/or providing pool tables, pinball games, video games and
arcade games, and is located in Cuyahoga County, Ohio. This Plaintiff leases and/or provides pool
tables, pinball games, video games and arcade games to bars owners/operators and bowling alley
owners/operators.
12.

Plaintiff MAX, INC. is an Ohio corporation that engages in the business of leasing

and/or providing pool tables, pinball games, video games and arcade games, and is located in
Cuyahoga County, Ohio. This Plaintiff leases and/or provides pool tables, pinball games, video
games and arcade games to bars owners/operators and bowling alley owners/operators.
13.

Plaintiff NEXGEN VENDING, LLC is an Ohio limited liability company that

engages in the business of leasing and/or providing pool tables, pinball games, video games and
arcade games and is located in Montgomery County, Ohio. This Plaintiff leases and/or provides

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772372

 pool tables, pinball games, video games and arcade games to bars owners/operators and bowling
alley owners/operators.
14.

Plaintiff R&B AMUSEMENT CO., LLC is an Ohio limited liability company that

engages in the business of leasing and/or providing pool tables, pinball games, video games and
arcade games, and is located in Lawrence County, Ohio. This Plaintiff leases and/or provides pool
tables, pinball games, video games and arcade games to bars owners/operators and bowling alley
owners/operators.
15.

Plaintiff ASSOCIATED VENDING, INC. is an Ohio corporation that engages in

the business of leasing and/or providing pool tables, pinball games, video games and arcade games,
and is located in Hamilton County, Ohio. This Plaintiff leases and/or provides pool tables, pinball
games, video games and arcade games to bars owners/operators and bowling alley
owners/operators.
16.

Plaintiff M&G SERVICES, INC. is an Ohio corporation that engages in the

business of leasing and/or providing pool tables, pinball games, video games and arcade games,
and is located in Trumbull County, Ohio. This Plaintiff leases and/or provides pool tables, pinball
games, video games and arcade games to bars owners/operators and bowling alley
owners/operators.
17.

Plaintiff GO FOR BROKE AMUSEMENT AND GAMES, LLC is an Ohio limited

liability company, that engages in the business of leasing and/or providing pool tables, pinball
games, video games and arcade games, and is located in Belmont County, Ohio. This Plaintiff
leases and/or provides pool tables, pinball games, video games and arcade games to bars
owners/operators and bowling alley owners/operators.

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772372

 18.

Plaintiff BREMER VENDING, LLC is an Ohio limited liability company that

engages in the business of leasing and/or providing pool tables, pinball games, video games and
arcade games and is located in Lucas County, Ohio. This Plaintiff leases and/or provides pool
tables, pinball games, video games and arcade games to bars owners/operators and bowling alley
owners/operators.
19.

Plaintiff LORAIN MUSIC COMPANY is an Ohio limited liability company that

engages in the business of leasing and/or providing pool tables, pinball games, video games and
arcade games, and is located in Lorain County, Ohio. This Plaintiff leases and/or provides pool
tables, pinball games, video games and arcade games to bars owners/operators and bowling alley
owners/operators.
20.

Plaintiff CLEARLY THE BEST, LLC is an Ohio limited liability company, that

engages in the business of leasing and/or providing pool tables, pinball games, video games and
arcade games, and is located in Columbiana County, Ohio. This Plaintiff leases and/or provides
pool tables, pinball games, video games and arcade games to bars owners/operators and bowling
alley owners/operators.
21.

Plaintiff PIONEER SERVICE, INC. is an Ohio corporation that engages in the

business of leasing and/or providing pool tables, pinball games, video games and arcade games,
and is located in Hamilton County, Ohio. This Plaintiff leases and/or provides pool tables, pinball
games, video games and arcade games to bars owners/operators and bowling alley
owners/operators.
22.

Plaintiff J&S ELECTRONICS, INC. is an Ohio corporation that engages in the

business of leasing and/or providing pool tables, pinball games, video games and arcade games,
and is located in Auglaize County, Ohio. This Plaintiff leases and/or provides pool tables, pinball

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772372

 games, video games and arcade games to bars owners/operators and bowling alley
owners/operators.
23.

Plaintiff CITY AMUSEMENT ENTERPRISES, LLC is an Ohio limited liability

company that engages in the business of leasing and/or providing pool tables, pinball games, video
games and arcade games and is located in Scioto County, Ohio.

This Plaintiff leases and/or

provides pool tables, pinball games, video games and arcade games to bars owners/operators and
bowling alley owners/operators.
24.

Plaintiff, OHIO COIN MACHINE ASSOCIATION is a trade association that

supports and advocates for the interests of the Plaintiffs (listed above) that lease and/or provide
pool tables, pinball games, video games and arcade games to bars, bowling alleys and others.
25.

Plaintiff POELKING ENTERTAINMENT NETWORK, INC. is an Ohio

corporation, operating two (2) bowling alleys, both of which provide pool tables, pinball games,
video games and arcade games for the benefit of their patrons and both of which are located in
Montgomery County, Ohio.
26.

Plaintiff SPARE TIME RECREATION, INC. is an Ohio corporation, operating a

bowling alley and rolling skating rink, which provides pool tables, pinball games, video games
and arcade games, which is located in Lawrence County, Ohio.
Defendants
27.

Defendant AMY ACTON, M.D., M.D.H., has been at all times relevant hereto

the Director of the Ohio Department of Health.
28.

Defendant THE OHIO DEPARTMENT OF HEALTH, among its other

responsibilities, is entrusted with the duty of preventing and controlling the spread of infectious

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772372

 diseases and providing direction, support and coordination in promoting good health and assuring
quality care.
29.

Defendant LAKE COUNTY COMBINED GENERAL HEALTH DISTRICT is a

county health district organized under Ohio Rev. Code Chapter 3709, charged with enforcing the
Ohio Department of Health’s Orders and empowered to make its own orders.
30.

Defendants have undertaken and/or threatened to undertake specific action to

deprive Plaintiffs their constitutional rights by effectively prohibiting, under threats of criminal
reprisals, Plaintiff bar owners/operators, Plaintiff bowling alley owners/operators and others from
allowing their patrons to participate in billiards, pinball games, video games and arcade games
leased and/or provided to them by some of the Plaintiffs. The unlawful, concerted actions of
Defendants has impaired the rights of these Plaintiffs who lease and/or provide pool tables, pinball
games, video games and arcade games for amusement to duly licensed bars and bowling alleys by
threatening them with criminal penalties should they exercise their constitutional rights to use their
property.
31.

All Defendants are being sued in their official capacity.
Facts Common To All Claims

32.

Art. I, §1 of the Ohio Constitution provides:
All men are, by nature, free and independent, and have certain inalienable
rights, among which are those enjoying and defending life and liberty,
acquiring, possessing and protecting property, and obtaining happiness and
safety.

33.

Art. I, §2 of the Ohio Constitution provides:
All political power is inherent in the people. Government is instituted for their
equal protection and benefit, and have the right to alter, reform or abolish the
same, whenever they may deem it necessary; no special privileges or
immunities shall ever be granted, that may not be altered, revoked or repealed
by the General Assembly.
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772372

 34.

Art. I, §16 of the Ohio Constitution provides:
All courts shall be open, and every person, for an injury done him in his land,
goods, person, or reputation, shall have remedy by due course of law, and shall
have justice administered without denial or delay. Suits may be brought against
the state, in such courts and in such manner, as may be provided by law.

35.

Art. II, §1 of the Ohio Constitution provides:
The legislative power of the state shall be bested in a General Assembly
consisting of a senate and house of representatives but the people reserve to
themselves the power to propose to the General Assembly laws and
amendments to the constitution, and to adopt or reject the same at the polls on
a referendum vote as hereinafter provided. They also reserve the power to adopt
or reject any law, section of any law or any item in any law appropriating money
passed by the General Assembly, except as hereinafter provided; and
independent of the General Assembly to propose amendments to the
constitution and to adopt or reject the same at the polls. The limitations
expressed in the constitution, on the power of the General Assembly to enact
laws, shall be deemed limitations on the power of the people to enact laws.

36.

During March, 2020, the U.S. Government announced a state of emergency and

many of the fifty states, including the State of Ohio, followed suit due to the coronavirus pandemic.
Dr. Acton was thereafter given sweeping authority to address issues arising from the coronavirus
pandemic.
37.

Ohio Rev. Code § 3701.352 mandates that “[n]o person shall violate any rule

the director of health or department of health adopts or any order the director or department of
health issues under this chapter to prevent a threat to the public caused by a pandemic, epidemic,
or bioterrorism event.”
38.

On March 22, 2020, Dr. Acton, in her capacity as the Director of the Ohio

Department of Health, issued a Director’s Stay at Home Order, and in accord with and based upon
Executive Order 2020-01D signed by Governor Michael DeWine on March 9, 2020, ordering that

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 “non-essential businesses and operations must cease” and “effective at 11:59 pm on March 23,
2020, all persons are to stay at home or their place of residence unless they are engaged in Essential
Activities, Essential Governmental Functions, or to operate Essential Businesses and Operations
as set forth in this Order.”
39.

Rather than defining the category articulated as “Essential Businesses and

Operations,” the Director’s Stay at Home Order attempted to name “essential businesses and
operations” over the course of three pages and 25 paragraphs.
40.

While the standard of “essential” may arguably be clear, i.e., “necessary for

survival,” the Director’s Stay at Home Order included within the category of “essential”, inter
alia, liquor stores, marijuana dispensaries, dry cleaners, and the state lottery.
41.

Licensed bars, bowling alleys, restaurants 1 and companies like many of the

Plaintiffs in this action offering to lease and/or provide pool tables, pinball games, video games
and arcade games to bar owners/operators and bowling alley owners/operators did not make the
list of “essential businesses” within the Director’s Stay at Home Order although operations
which are clearly significant to the State of Ohio's revenues such as liquor stores, marijuana
dispensaries and the state lottery were all deemed "essential".
42.

On April 2, 2020, Dr. Acton renewed the Director’s Stay at Home Order, with the

issuance of the Amended Director’s Stay at Home Order.
43.

The Director’s Stay at Home Order was issued by Dr. Acton without enabling

legislation or administrative rulemaking.
44.

The Amended Director’s Stay at Home Order further provided for Dispute

Resolution” through a Dispute Resolution Commission that continues to the date of this filing.

1

Except those that offer “take-out”.
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772372

 45.

On April 30, 2020, AMY DR. ACTON renewed the Director’s Stay at Home

Order, with the issuance of the Director’s Stay Safe Ohio Order.
46.

A true and accurate copy of the Director’s Stay Safe Ohio Order is in Defendants’

possession and will be provided to the Court.
47.

The Director’s Stay Safe Ohio Order provides, inter alia, as follows:
a.

“All businesses and operations in the State, except as defined below, are
permitted to reopen within the State so long as all workplace safety
standards are met.” Page 1, ¶2.

48.

The Ohio Department of Health subsequently enacted rules and restrictions

affecting the re-opening of restaurants and bars:
The open congregate areas in restaurants and bars that are not necessary for the
preparation and service of food or beverages (billiards, card playing, pinball
games, video games, arcade games, dancing, and entertainment) shall remain
closed.
Pursuant to the "mandatory requirements" issued by the Department of Health is a prohibition
against allowing restaurants and bars/owners and others from allowing their patrons to engage in
billiards, card playing, pinball games, video games, arcade games, entertainment and “dancing”.
49.

This mandatory and absolute prohibition against allowing patrons at bars,

restaurants and bowling alleys issued by the Director of the Ohio Department of Health is
unconstitutional as applied to Plaintiffs who lease or provide pool tables, pinball games, video
games and arcade games, to these bars, restaurants and bowling alleys. It is also unconstitutional
as applied to those to whom games are leased and/or provided including, but not limited to, bar
owners, bowling alley operators and restaurant owners who provide those amusements to their
patrons.

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772372

 50.

This mandatory prohibition is also unconstitutional because the Director of Public

Health exempts from its scope State Lottery Kiosk games available within bars, restaurants and
bowling alleys. Patrons operate these Lottery Kiosk games in much the same manner as the
privately owned pinball games, video games and arcade games which have been absolutely
prohibited by the Director of the Department of Health.
51.

The absolute prohibitions enacted by the Director of the Department of Health

impose civil and criminal sanctions against those who allow patrons to place such games and
amusements and thus dramatically affects and impairs the ability of those Plaintiffs who lease or
provide such amusements to use and enjoy their property is guaranteed by the Ohio Constitution.
52.

The State’s own statistics, repeated and publicized on a daily, if not an hourly,

basis, instruct that the overwhelming number of deaths in Ohio (it is true of other states as well)
attributed to coronavirus are found in the age category of persons between the ages of 65-90.
Furthermore, over 55% of the coronavirus deaths in Ohio are reported to have occurred in
nursing homes. Few people between the ages of 70 to 80 or 90, or who are bound to nursing
homes, are found frequenting bars and bowling alleys. Fewer still are going to bars and playing
billiards, pinball games, video games or arcade games.
53.

Among its “Recommended Best Practices” in “Responsible RestartOhio”, the

Ohio Department of Health recommends that owners of businesses, including bar and restaurant
owners, should station someone at an entrance and exit door to encourage "at-risk" older
population to utilize alternative options rather than sitting in a bar. For years such employees
had the task of keeping "underage" persons out of bars and that practice met with universal
approbation by the citizens of the State of Ohio. Because of the peculiar risks imposed by the
coronavirus, there is no reason why these same practices cannot be reversed so that the obviously

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 at-risk population can be advised against entering a bar in the unlikely event that they actually
have any interest in doing so. In addition to the “Recommended Best Practices,” the Department
of Health has also issued certain mandatory requirements for customers and guests. Including
among these are the following:
•

Ask customers and guests not to enter if symptomatic;

•

Provide access to hand-washing methods while in the food service establishment, and
if possible, place approved hand-washing/sanitizing products in high contact areas;

•

Food service establishments offering dine-in service must take affirmative steps for the
customers to achieve safe social distancing guidelines.

These standards can be applied to restaurant and bar owners and bowling alley operators with
respect to patrons’ continued use of billiards, pinball machines, video games, and arcade games
so that Defendants’ interest in the protection of the patrons is satisfied.
Additionally, according to the Responsible Restart Ohio management requirements,
customers of bars and restaurants are to be provided access to handwashing opportunities and to
the establishment of places where sanitizers can be located. Plaintiffs are prepared to do these
things in a manner that allows the patrons to sanitize machines and billiard cues after they use
them. All concerns that the State of Ohio may have about the rules of "hand touching" and
distancing can be addressed in precisely in the manner that is satisfactory to Defendants.
First Cause of Action
Declaratory Judgment and injunctive Relief
(Violation Of Separation of Powers and Due Process Because Of Impermissible Delegation
Of Legislative Authority And/Or Vague Delegation)
54.

Plaintiffs hereby incorporate by reference the allegations contained in the

preceding paragraphs as if set forth fully herein.

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772372

 55.

Through enactment of Ohio Rev. Code § 3701.13, the Ohio General Assembly

delegated to the Ohio Department of Health, inter alia, “ultimate authority in matters of quarantine
and isolation.”
56.

In delegating “ultimate authority in matters of quarantine and isolation” to the Ohio

Department of Health, the Ohio General Assembly has delegated legislative authority without
intelligible standards.
57.

The due process and separation of powers concerns raised by the delegation of

“ultimate” legislative and executive authority to the Ohio Department of Health is aggravated by
the unilateral creation of strict liability crimes by the various orders issued by Dr. Acton.
58.

Absent applicable standards, the delegation of authority must be deemed void for

vagueness as allowing ad hoc decisions or giving unfettered discretion to an unelected
bureaucrat.
59.

A delegation of core legislative authority offends due process especially when made

to an unelected individual and is unaccompanied by discernible standards, such that the
delegate’s action cannot be measured against objective criteria.
60.

Ohio has always considered the right of property to be a fundamental right.

There can be no doubt that the bundle of venerable rights associated with property is strongly
protected in the Ohio Constitution and must be trod upon lightly, no matter how great the
emergency since the free use of property is guaranteed by Section 19, Article I of the Ohio
Constitution.
61.

The void delegation of legislative authority to an unelected member of the

Executive Branch both on its own and in combination with the various orders issued by Dr. Acton,
has violated, continues to violate, and will further violate Plaintiffs’ due process rights.

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 62.

Dr. Acton has conceded and repeatedly claimed that her generally-applicable

orders are legislative acts.
63.

Dr. Acton claims that the Ohio Department of Health may usurp the function of

the Ohio General Assembly by creating strict liability criminal penalties, i.e., disobedience with
any order issued by AMY DR. ACTON, including, without limitation, the Director’s Stay at Home
Order, the Amended Director’s Stay at Home Order, and the Director’s Stay Safe Ohio Order.
64.

One of two conclusions is necessarily true: either (i) the General Assembly’s

delegation of authority to the Ohio Department of Health in Ohio Rev. Code § 3701.13 is too broad
or vague; or (ii) the Ohio Department of Health’s exercise of the delegated authority is too broad.
Under either conclusion, the absolute prohibition against allowing a bar owner's patrons or a
bowling alley operator's patrons to participate in billiards, pinball games, video games and arcade
games as set forth in Responsible Restart Ohio and criminalizing the conduct of bar owners and
bowling alley operators is unconstitutional or unauthorized.
Second Cause of Action
Declaratory Judgment and Injunctive Relief
(Dr. Acton’s Orders Are Ultra Vires)
65.

Plaintiffs hereby incorporate by reference the allegations in the foregoing

paragraphs as if set forth fully herein.
66.

The orders at issue in this case were allegedly issued pursuant to Defendant Acton’s

authority under R.C. 3701.13.
67.

R.C. 3701.13 provides that: the department of health shall have supervision of all

matters relating to the preservation of the life and health of the people and have ultimate authority
in matters of quarantine and isolation, which it may declare and enforce, when neither exists, and
modify, relax, or abolish, when either has been established. (Emphasis added.)

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 68.

“Isolation” means the separation of an infected individual from other during the

period of disease communicability in such a way that prevents, as far as possible, the direct or
indirect conveyance of an infectious agent to those who are susceptible to infection or who may
spread the agent to others.” Ohio Adm. Code 3701-3-01(R).
69.

“Quarantine” means the restriction of the movements or activities of a well

individual or animal who has been exposed to a communicable disease during the period of
communicability of that disease and in such a manner that transmission of the disease may have
occurred. The duration of the quarantine ordered shall be equivalent to the usual incubation period
of the disease to which the susceptible person or animal was exposed.” Ohio Adm. Code 3701-301(W).
70.

The duration of the quarantine ordered shall be equivalent to the usual incubation

period of the disease to which the susceptible person was exposed. Ohio Adm. Code 3701-301(W). The incubation period can be up to 14 days, according to the department of health.
71.

The director has quarantined the entire population of the state of Ohio, for much

more than 14 days. The director has no statutory authority to close businesses, including the
plaintiffs, which she deems non-essential for a period exceeding two months. She has acted beyond
her authority in an impermissibly arbitrary, unreasonable, and oppressive manner.
Third Cause of Action
Declaratory Judgment and Injunctive Relief
(Equal Protection)
72.

Plaintiff incorporates by reference the allegations in the preceding paragraphs.

73.

Article I, §2 of the Ohio Constitution provides that “[a]ll political power is inherent

in the people. Government is instituted for their equal protection and benefit…”

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 74.

No classification may be arbitrary. Rather, the attempted classification must

always rest upon some difference which bears a reasonable and just relation to the act in respect
to which the classification is proposed, and can never be made arbitrarily and without any such
basis.
75.

Discrimination

of

an

unusual

character

especially

suggest[s]

careful

consideration to determine whether the classifications are obnoxious to the constitutional equal
protection provision.
76.

The Department of Health Restart Ohio guidelines specifically preclude bar

patrons from being permitted to participate in billiards, pinball games, video games and arcade
games in duly licensed bars and bowling alleys. At the same time, the State of Ohio permits the
same patrons to play lottery kiosk games and to engage in state supported lottery kiosk games.
There is no reasonable, justifiable differences between the activities involved in playing lottery
kiosk games and those activities that are absolutely precluded under the mandatory requirements
of the Restart Ohio provisions.
77.

In selectively singling out and prohibiting bar patrons, restaurant patrons and

bowling alley patrons from participating in billiards, pinball games, video games or arcade
games provided by private entities, rather than requiring recognized and approved safety
practices that, should the bar patron chose to participate in billiards, pinball games, video games
or arcade games, but allowing patrons to participate in the Lottery Kiosk games, the State has
failed to afford equal protection under its orders and statutes by precluding bars and bowling
alleys from allowing its patrons to participate in billiards, pinball games, video games or arcade
games provided by private businesses such as the Plaintiffs in this case.

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 78.

Plaintiffs are willing and able to abide by the safety regulations mandated by the

Director’s Stay Safe Ohio Order, including but not limited to ¶8 (requiring facial masks), ¶16
(requiring “Social Distancing Requirements”); ¶21(a) (requiring certain safety protocols of
“manufacturing, distribution, & construction” employers); ¶21(b) (requiring certain safety
protocols of “consumer, retail & services” employers); ¶21(c) (requiring certain safety protocols
of “general office environments” employers).
WHEREFORE, Plaintiffs pray for a declaration and a preliminary injunction against
Defendant Amy Acton in her official capacity as the Director of the Ohio Department of Health
and the Lake County General Health District, together with their officers, agents, servants,
employees and attorneys, and those persons or entities acting at their direction or behest, or in
active concert or participation with them, and who receive actual notice of this order, whether
by personal service or otherwise, including, without limitation, law enforcement officers,
prosecuting attorneys, and the attorney general, are hereby ENJOINED from imposing or
enforcing penalties solely for non-compliance with the director’s order against the businesses
listed in the Complaint, so long as they operate in accordance with all applicable safety
regulations, whether those in the state’s order, the state’s supplemental guidelines governing
businesses like those of the Plaintiffs in this case, or the Lake County General Health District,
together with attorney fees and costs.
AND
PLAINTIFFS pray for a declaration that the Director’s prohibition against patrons of bars,
restaurants and bowling alleys from playing amusement games provided by Plaintiffs
unconstitutionally impairs Plaintiffs’ property rights, in violation of separation of powers, due

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 process, and equal protection provisions of the Ohio Constitution, and damages, attorney fees
and costs.

/s/Orville L. Reed, III
Orville L. Reed, III (#0023522)
David W. Hilkert (#0023486)
Stark & Knoll Co., L.P.A.
3475 Ridgewood Rd.
Akron, Ohio 44333
Telephone:
(330) 572-0328
Fax:
(330) 572-0329
Email:
oreed@stark-knoll.com
dhilert@stark-knoll.com
Attorneys for Plaintiffs
99999.001-772372v1

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