IN THE COURT OF COMMON WARREN COUNTY. OHIO KINGS ISLAND, LLC 6300 Kings Island Drive Mason. Ohio 45034 KINGS ISLAND COMPANY, Inc. 6300 Kings Island Drive Mason. Ohio 45034 AMY ACTON, in Iter of?cial capacity as Director oft/1e Ohio Department of Health 246 High Street Columbus. Ohio 43215 and WARREN COUNTY HEALTH DISTRICT 4l6 East Street Lebanon. OH 45036 Defendants. pastime f4 COURT uvl?ii 22:4 emu MO 2028 JUil -h Fi?i It: 20 ase N0. -, 300d? 3 5&3 5:2- 5:555. 23;: i g6 QDA VERIFIED COMPLAINT for DECLARATORY JUDGMENT AND IMMEDIATE INJUNCTIVE RELIEF Exhibit 1: Director ?s May 29, 2020 Order Closing Amusement and Water Parks Exhibit 2: Entry and Order in Rock House Fitness v. Acton Exhibit 3: Memorandum in Opposition to TRO in Hartman v. Acton Exhibit 4: Defendant Amy Acton ?s lnterrogatori' Responses. Exhibit 5: Safety Protocols Exhibit 6: Af?davit of'llrlilre Koontz Exhibit 7: City (if/Mason Resolution 2020-3 No? comes Plaintiffs. and for their (?omplaint for Declaratory .ludgment and Injuncti\e Relief. allege as follons: INTRODUCTION I. This is an action for declarator) judgment. and preliminary and permanent injunction. pursuant to Ohio RCV. Code Chapter 272l and Ohio RCV. (.?ode Chapter 2727. arising from Defendants? unconstitutional official conduct. policies. practices. regulations. restrictions. threats. intimidation. and/or harassment. 2. Defendants continue to obstruct rather than advance ()hioans' ph} sieal and mental health. all the having continuously o\ erintlated the risk ol?harm to the general public. .3. While the Ohio Department of Health and its Director. AMY ACTON. together \yith local health departments. including the WARREN COUNTY GENERAL HEALTH DISTRICT. maintain latitude to enforce regulations that ameliorate the effects of a pandemic. that latitude remains subject to limitations imposed by both the Ohio Constitution. 4. The Ohio Department of Health. its Director. and county health departments claim the authority to crirninalize and fine operation ofs_a?e amusement and \xater parks. 5. Through various orders and frat. the Director of the Ohio Department of Health has arbitrarily criminalized all safe amusement and water park operations. without providing any process. venue. or judicial review to determine whether these Ohioans' businesses are in fact safe enough to warrant operation. 6. Ho? e\ er. Plaintiffs remain entitled to due process. equal protection. and a government that abides by the doctrine of separation of powers ith the attendant checks and balances. 7. The various orders and frat of the Director of the Ohio Department of Health. together with their enforcement. \iolate those fundamental rights through the arbitrary imposition of excessive strict liability. together with criminal. civil. and equitable sanctions unilaterally created by just one unelected individual within the bureaucracy ofthe State of Ohio ithout due. process. equal protection. or just compensation and irrespective and in violation ofthe doctrine of separation of powers. 8. As a direct and proximate result ofthe unconstitutional conduct. policies. practices. regulations. restrictions. threats. intimidation. and/or harassment of the Director of the Ohio Department of Health. together with enforcement efforts by local health departments Plaintiffs (as well as many others) face an imminent risk of criminal prosecution and extensive daily tines. and/or the decimation of their businesses. livelihoods. and economic security. as well as continued irreparable harm to their rights. 9. Further. the employees that Plaintiffs employ. the taxes that they pay to local governments. and the lives that their businesses othem ise improve all remain impaired. L) 10. This harm may only be remedied by a ruling from this Court. and Defendants must be immediately and permanently enjoined from imposing criminal. civil. or equitable sanctions on the safe operation of Ohio amusement and water parks including Plaintiffs. PARTIES l. KINGS ISLAND. l.l.C is a Delaware limited Liability Company that owns the assets of Kings Island Amusement Park in Warren County. Ohio. l2. KINGS ISLAND Company. lne. is a Delau are corporation that operates Kings Island Amusement Park in Warren County. Ohio. 13. Kings Island is a combination amusement and water park operated on a 330 acres footprint. 14. Kings lsland is one of the most attended regional amusement parks in North America. The park features a children?s area that has been consistently named one of the "Best Kids? Area in the World" by Amusement Today. 15. The Parks market area includes Cincinnati. Dayton and Columbus. Ohio in addition to markets in adjacent states. 16. Plaintiffs. together ith Cedar Point. employs approximately 570 full-time employees. l7. During the operating season. Plaintiffs employ. together with Cedar Point. in aggregate approximately l0.00() seasonal and part?time employees. many of whom are high school and college students. 18. Plaintiffs parks operate seasonally. Defendant AMY ACTON is. and has been at all times relevant to the facts at issue in this case. the Director ofthe Ohio Department of Health. 20. Defendant WARREN COUNTY (jliNliRAl. DISTRICT is a county health district organized under Ohio Rey. Code Chapter 370?). charged with enforcing the Ohio Department of Health?s Orders and empmyered to make its own orders. 2 1. At all times relevant to the allegations in this Complaint. each and all ofthe acts ACTON alleged herein ere undertaken in conformity ith the regulations. customs. usages. policies. and practices of the State othio and the Ohio Department of ll ?alth. 22. The actions of AMY ACTON described herein were either outside the scope of her respective office. or. if the scope. undertaken in an arbitrary manner. grossly abusing the lanful poners of her office. [9 Defendants have personally undertaken and/or ?aten to continue to personally undertake specific action so as to deprive and/or violate the rights ofthe Plaintiffs. 24. Defendant AMY ACTON is being sued herein in her official capacity. FACTS 25. Ohio Rev. Code 370l.l3 delegates to the Director of the Ohio Department of Health. amongst other things. ?ultimate authority in matters of quarantine and isolation" and authority ?to make special orders." 26. Ohio Rev. Code 370l .352 mandates that "[nlo 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." 27. In turn. Ohio Rev. Code provides that any violation othio Rev. Code 370l .352 constitutes a second-degree misdemeanor. thus. subjecting any person violating Ohio Rev. Code 370l .352 to up to 90 days in jail and a $750 line. or both. 28. On March 22. 2020. AMY in her capacity as the Director of the Ohio Department of Health. issued a Direc/ur 's Slur at Home Order. ordering that "non-essential businesses and operations must cease" and "effective at ll: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." 29. Rather than defining the category articulated as "Essential Businesses and Operations." the Director Star at Home Order attempted to name "essential businesses and operations" over the course of three pages and 25 paragraphs. 30. While the standard of ?essentiality" may initially appear clear. ?necessary for survival." the Director Slur at Home Order included within the category of ?essential". inter u/iu. liquor. marijuana. dry cleaners. and the state lottery. 31. Amusement and Water Parks did not make the list of ?essential businesses" within the Direelor's Slay a] Home Order. 32. On April 2. 2020. AMY ACTON renewed the Director Star ul Home Order. with the issuance of the Amended Director ?5 Stay ul Home Order. which continued the closure of Ohio amusement and water parks. 33. On April 30. 2020 AMY ACTON renewed the Star at Home Order. with the issuance ofthe Direelor 's Slay Safe ()liio ()ru?er. which continued the closure othio amusement and water parks. 34. At approximately midnight on May 29. 2020 AMY ACTON renewed the closure of Amusement and Water Parks through issuance of1)ireelor ?s Order. 35. Specifically. of the Director's ()rt/er indicates ?the following businesses and operations are to remain closed until this Order is amended or rescindedAll places of public amusement. whether indoors or outdoors. including. but not limited to. locations with amusement rides. . . . amusement parks. water parks. . . 36. The May 29. 2020 Direc/or's ()ru?er. like those Orders before it. as issued by AMY ACTON without enabling legislation or administratiye rulemaking. 37. The May 29. 2020 Director Order ?shall remain in full force and effect until 1 1:59pm on July 1. 2020. unless the Director ofthe Ohio Department of Health reseinds or modi?es this Order at a sooner time and date." Direc?lor Order. at p. 14. 38. To enforce the May 29. 2020 Order. the Ohio Department of Health and its enforcement agents rely upon Ohio Rev. Code 3701.352 to punish any violation of?any order the director of or department of health issues" with subjection to "a misdemeanor ofthe second degree. which can include a fine of not more than $750 or not more than 90 days in jail. or both." 39. To enforce the May 29. 2020 Order. the Ohio Department of Health and its enforcement agents rely upon Ohio Rev. Code 3701.56 for the proposition that ?boards of health of a general or city health district . . . shall enforce quarantine and isolation orders. 40. A true and accurate copy ofthe May 29. 2020 Director Order is attached hereto as Exhibit 1. 41. Pursuant to both past Orders and Ohio Rev. Code 3701.56. Defendant WARREN COUNTY GENERAL HEALTH DISTRICT maintains authority to enforce the criminalization ofamusement park and water park operations against Plaintiffs. 42. The Director's Slur Sgt/e ()lu'o Order is unconstitutional as applied to Plaintiffs. who are owners and operators of"amusement parks? and/or ?water parks." 43. Paragraph 9(d) of the [)ircclur's' Order is unconstitutional on its face. insofar as it forbids the opening of "amusement parks? and/or "water parks? under safe circumstances. 44. Prior to the expiration of the Direc/ur's prior to July 1. 2020. Plaintiffs desire and intend to reopen their businesses thereby subjecting Plaintiffs and their agents to the immediate risk of criminal. civil. and equitable sanctions. pursuant to the penalties articulated in RC. 3701.352 and RC. 3701.99. 45. Venue is proper within this County and division because Plaintiffs are situated within this county and the Defendants are regulating water parks and amusement parks. including Plaintiffs. within this county: and (ii) all ofthe claims asserted by Plaintiffs arose within this county. .6. First Cause of Action DECLARATORY JUDGMENT AND INJUNCTIVE RELIEF Vogneness and Separation of "Powers Article 1, Sections 1, 2, l6, 19 am] 20 and Article II, Section 1 oft/1e Ohio Constitution 46. Plaintiffs hereby incorporate by reference the allegations in the loregoing paragraphs as if set forth fully herein. 47. Through enactment of Ohio Rey. Code 3701.13. the Ohio (ieneral Assembly delegated to the Ohio Department of Health. inter u/ia. ?ultimate authority in matters ofquarantine and isolation." 48. In delegating ?ultimate authority in matters of quarantine and isolation" to the Ohio Department of Health. the Ohio General Assembly has delegated legislative authority Vs ithout an intelligible principle. 49. The \-?agueness concerns raised by the delegation ol"?u1timat authority" to the Ohio Department of Health is aggravated by the unilateral creation of strict liability crimes by the various orders issued by AMY ACTON. 50. "Without suf?cient limitations. the delegation of authority can be deemed \oid for \agueness as alloyying ad hoc decisions or giying unfettered discretion." Bier/er v. 361 F.3d 206. 215-17 (3d (fir. 2004). Li] delegation of legislative authority offends due process when it is made to an unaccountable group of indiy'iduals and is unaccompanied by ?discernible standards.? such that the delegatee's action cannot be 'measured for its fidelity to the legislative ('Ir.for l?on?e/l Crossing, r. ofl?ou?ell. Ohio. 173 F. Supp. 3d. 639. 675?79 (8.1). Ohio 2016). 52. "To pass muster under the \roid?lor?vagueness doctrine. Ohio law dictates an ordinance must sury'iye the tripartite analysis set forth in (inn/zed. The three aspects examined under are: (1) the ordinance must provide fair \yarning to the ordinary citizen of what conduct is proscribed. (2) the ordinance must preclude arbitrary. capricious. and discriminatory enforcement. and (3) the ordinance must not impinge constitutionally protected rights." Viviana v. ('itj' ofSum/nskv. 99l 1263 (6th Dist. 53. ?Ohio has always considered the right of property to be afnna?utnentu/ 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 no matter how great the ?eight of other forces." Norwood v. Horne): 1 l0 Ohio St.3d 353. at 361-62 (2006) (internal citations omitted). 54. And these "venerable rights associated with property? are not confined to the mere ownership of property: ?[tlhe rights related to property. to acquire, use, erg/or. and dispose or? property. are among the most revered in our law and traditions.? Noru'oou? r. Homer. 1 10 Ohio St.3d 353. at 361-62 (2006) 55. In sum. ?the free use of property is guaranteed by Section 19. Article I ot?the Ohio Constitution." State v. (Vine. I25 222. 69 Ohio law Abs. 305. 56. More speci?cally. Ohio businesses ?have a constitutionally protected property interest" in freedom "from unreasonable and arbitrary interference from the government." Apartment Association v. Village 2007-Ohio? 73. at 740-42. LII In Noru?om/ Homer. 2006?Ohio?3799. at ?ll 83. the Ohio Supreme Court explained that arbitrary and discriminatory enlor?cement is to be prevented. laws must provide explicit standards for those who apply them. A vague lavv impermissibly delegates basic policy matters to police oflicers]. judges. and juries for resolution on an ad hoc and subjective basis. with the attendant dangers of arbitrary and discriminatory application?). 58. "Though the degree ol? review for vagueness is not described with speci?city. if the enactment ?threatens to inhibit the exercise of constitutionally protected rights.? (such as property rights in Ohio). 3 more stringent vagueness test is to be applied." l?ot/er v. of'Bow/t'ng Green. Ohio2019 WI- 415254. 2114-5 (ND. Ohio lieb. l. 20l9). citing Noru?tmd. l0 Ohio St.3d at 379. 59. Because there is no means of exercising judicial review o\ er any order issued by" AMY ACTON purportedly under the authority ol? Ohio Rev. Code 370 . 3. that delegation is impermissibly vague. 60. The vague delegation. both on its on and in combination with the various orders issued by AMY ACTON. has violated. continues to violate. and will further violate l?laintiffs? rights. 6l. AMY ACTON has already conceded. and in fact repeatedly claimed that "Dr. Acton?s generally? applicable orders are legislative acts." and ?general policy decisions." See Hurt/nun r. Acton. Case No. 2:20- cv-l952 (SD. Ohio 2020). tllemorundzt/n in Opposition to Motion/or TRO (Doc. 4. PagelD#7l. 79. 80 81 (?the Amended Order is a legislative act of general A State can make general policy 62. A true and accurate copy of the Memorandum in Opposition to tllU/livlt?ft?? TRO is attached hereto as Exhibit 2. 63. AMY ACTON and her attorneys have framed her as a policymaker. explaining that ?Dr. Acton weighed the danger from the spread of Covid?IQ with the need of Ohioans to obtain necessary goods and services." tllemorondum in Opposition to Motionfor 7RO. at 64. AMY ACTON and her attorneys have claimed that all Ohio businesses ?take their business- operation rights subject to those restrictions" that may be imposed by Acton. no matter \y hat those restrictions may be. tllemorom/um in Opposition to Motion/or at Pagell)#83. 65. AMY ACTON and her attorneys have claimed that the Ohio Department of Health may usurp the function of the Ohio General Assembly by creating strict liability criminal penalties. disobedience with any order issued by AMY ACTON. including. without limitation. the Director Stay at Home Order. the Alttended Director Stay at Home Order. and the Director Stay Safe O/tio Order. and the May 29. 2020 Director Order. 66. One of two conclusions is necessarily true: either 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 Direclor Order. in criminalizing the operation ofamusement parks and water parks. violates the separation of powers guarantees to which Plaintiffs are entitled. 67. At the time ofthis filing. just one Ohio Court has adjudicated the merits ofthe Orders criminalizing businesses issued by Director ofthe Ohio Department of ?alth. 68. The aforesaid Court determined the criminal penalties flowing from such orders to be impermissibly unconstitutional and othernise unlawful. Sec Roe/r Home Filness. Inc. v. Acton. Case No. (Lake Cty. C.P. attached). 69. In Rock House Fitness. the Court explained that ?ltlhe director has quarantined the entire people of the state of Ohio. for much more than l4 days. The director has no statutory authority to close all businesses . . . She has acted in an impermissibly arbitrary. unreasonable. and oppressive manner and without any procedural safeguards . . . Fundamental liberties to own and use property and earn a living are at stake and are violated [Acton?s] actions . . . and there is no administrative appeal process within the department of health regulation for this taking." 1d. at 1:26. 3 l. 34. 70. Further. the Rock House Fitness court rejected the notion that "one unelected individual could exercise such unfettered povver to force everyone to obey impermissibly. vague. arbitrary. and unreasonable rules that the Director devised and revised. modified and reversed. whenever and as she pleases. without any legislative guidance." at 173 7. The Court then enjoined Director Acton and the local health department ?from imposing or enforcing penalties solelv for noncompliance with the director?s orderorder to prevent the continued violation of Plaintiffs? constitutional rights by Defendants. it is appropriate and proper that a declaratory judgment be issued. declaring unconstitutional the Director 3' Stay a! Home Order. the Amended Director Slay Home the Dirac/0r 's Slut 8'qu 01in Order. and/or the May 29. 2020 Director?s Order. as such orders are imposed pursuant to vague and unfettered enforcement authority that creates the crime of operating an amusement park or water park and violates the doctrine of separation of powers. 72. It is further appropriate and hereby requested that preliminary and permanent injunctions issue prohibiting the Defendants from enforcing the Director Stay at Home Order. the Amended Director Star at Home Order. the Director 's Stay sit/t) ()ltio ()rder and/or the May 29. 2020 Director 's ()rder against Plaintiffs. 73. 1t is further appropriate and hereby requested that preliminary and permanent injunctions issue enjoining Defendants and their officers. agents. servants. employees. and attorneys. and those persons in active concert or participation with them \y ho receive actual notice of the injunction. from engaging in any further of?cial conduct that threatens. attempts to threaten. and/or actually interferes with Plaintiffs? occupation and operation ofthcir private property despite their disfavored identity. Second Cause of Action DECLARATORY JUDGMENT AND INJUNCTIVE RELIEF Deprivation ofPropertr Rights wit/tout Equal Protection and Due Process Takings Article 1, Sections 1, 2, 16, 9 and 20 oft/1e Ohio Constitution 74. Plaintiffs hereby incorporate by reference the allegations in the foregoing paragraphs as if set forth fully herein. 75. "[T]he ()hio Constitution is more protective of private property rights than its federal counterpart [and] the ()hio Supreme Court insists upon a more stringent Equal Protection analysis." l?oder v. (?in of Bowling Green. Ohio. No. 3:17 CV 2321. 2019 WL 415254. at p. 4-5 (ND. Ohio Feb. 1. 2019). citing Noru?ood and Jeffrey S. Sutton. 5] Imperfect Solutions: States and the Making of American (?onstitutiona/ Law [98 (2018). at 16 ("Nothing compels the state courts to imitate federal interpretations of the liberty and property guarantees in the 11.8. (.?onstitution when it comes to the rights guarantees in their own constitutions"). 76. On Equal Protection and Due Process. Article I. Section 2 of the Ohio (,?onstitution provides that ?[ajll political power is inherent in the people. Government is instituted for their equal protection and 77. In State v. .llole. the Ohio Supreme Court indicated that the Ohio Constitution's equal protection guarantees can be applied to provide greater protection than their federal counterparts: ?Although this court previously recognized that the liqual Protection Clauses of the United States Constitution and the Ohio Constitution are substantively equivalent and that the same review is required, we also have made clear that the Ohio Constitution is a document of independent force." State v. Mole. 14. citing Arno/(l Cleveland. Ohio St.3d 35. ?42 (l993). Equal Protection and Substantive Due Process 78. here is this ?independent force" of Ohio?s equal protection clause more relevant than with protection o/prirute property rights. since those rights are ?fundamental rights" in Ohio but not so pursuant to federal constitutional precedent. 79. A regulation of property violates the Ohio Constitution?s guarantees of Due Process and Equal Protection ?hen it is "arbitrary" ?unduly upon individuals." not "necessary for the public \xelfare." or fails to .sulxs'tuntiu/li? advance a legitimate interest through a .s'ztbs'tuntizt/ relations/tip to it. See Direct Plum/ting Supply ('in 138 Ohio St. 540 l94l ()lu?s r. lx'lotz. l3l Ohio St. 447. 451 (1936): ('iti' oft 'inei/tmzti ('orrell. l4] Ohio St. 535. 53?) (1943). 80. Pursuant to the foregoing standards. the Ohio Supreme Court recentl} applied exacting scrutiny to invalidate an Ottaua llills zoning restriction. due to its ?disparate treatment" of homeowners. Boiee r. of Ottawa Hills. 137 Ohio St.3d 4l2. 990 N.li.2d 20l3?Ohio?4769 ?Mll7?l9 (observing that ?there as disparate treatment ofthe residents in the Village when it came to permitting houses to be built on lots smaller than 35.000 square feet." that the land use at issue involved a (le difference. and that other similarly situated houses ere ?grandfathered 81. In Slate ex rel. Pizza r. 84 Ohio St.3d 116. 702 N.li.2d 81. 1998-Ohio?313. the Ohio Supreme Court explained that ?the free use of property guaranteed by the Ohio Constitution can be invaded by an exercise of the police power only when the restriction thereof bears a substantial relations/zip to the public health. morals and safety." 82. "Ohio courts. interpreting the Ohio (,?onstitution. apply something higher than rational basis review. but less than strict scrutiny to cases involving property rights." l?uc/el? r. o/?erliizg Green. Ohio. N0. 3:17 CV 2321. 2019 WL 41525?1. at 3?6 (N1). ()hio Feb. 1. dwelling limit is impermissibly arbitrary. oppressive. and untailored . . .Within the regulations. the City claims to be effectuating a governmental interest in limiting population density. But the City?s dwelling limit only focuses on the type of relationship between those living together in a home. and as such. is both over? and under-inclusive with respect to either ofthese interests. The Court thus concludes the dwelling limit is an ?unreasonable and arbitrary" restriction on the issue of property. and does not bear a ?substantial relationship" to its avowed goals"). citing l?z?umet?. 1 10 Ohio St.3d 353. 361?62 (2006): illuricnmn/ Aparlmenl Ass '12 v. l/'1'//uge of 2007 WI. 120727. at 7 (Ohio Ct. App.) (homeowners ?have a constitutionally protected property interest in running their residential l?asing businesses free from unreasonable and arbitrary interference from the government" under the Due Process Clause); State ex rel. Pizza r. Raoul/uh. 84 Ohio St. 3d 116. 128 (1998); Buiu' r. ()Ilmt'u Hi/ls. 137 Ohio St. 3d 412. 416?17 (2013) (invalidating zoning regulation requiring lots of a certain size because of ?disparate treatment of the residents in the village when it catne to permitting houses to be built on lots smaller than 35.000 square feet." aa?c mini/His difference between prohibited and permitted. and other similarly situated houses were ?grandfathered in" . . . "It was clearly arbitrary for the village to single this lot out for a denial of the grandfathering-in treatment enjoyed by similar lots in the same 83. No classification may be arbitrary: "the attempted classi?cation ?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 \xithout any such basis.? Slate v. Mole. I49 Ohio St.3d 215. 2016-Ohio?5124 2-29. 84. ?Discrimination of an unusual character especially careful consideration to determine whether they are obnoxious to the constitutional provision." Id. 85. Othem ise put. ?classifications must have a reasonable basis and may not ?subject individuals to an arbitrary exercise of power." 1d,. citing (Ton/er v. Shearer. 64 Ohio St.3d 284. 288 I992). 86. statutory classification violates equal protection if it treats similarly situated individuals differently based upon an illogical and arbitrary basis." Apurlmem Assoeiulion v. Village of illuriemonl. 2007?Ohio-l73. at 1l28. citing Adams/(v v. Bile/(eve Loeu/ School DisL, 73 Ohio St.3d 360. at 362. 1995-Ohio-298. 87. The face of the May 29. 2020 Diree/or's ()ru?er articulates no clear governmental interest. other than the intimation that the Order is for the purpose ofsafety. See p. l. 88. The Director Slur safe ()lzio Order is overln?oad. underinclusive. and untailored with respect to the foregoing governmental interest. 89. In selectively singling out and distavoi'ing several industries. including Ohio amusement parks and water parks. on the basis oftheir iu?enIi/?v. rather than their .S?tll/t?lot?. the Director '5 Slay Safe ()hio ()ru?er fails to provide any basis whatsoever for its disparate treatment. 90. There is no basis in law or fact for the disparate treatment ofamusement parks or water parks. The Director?s ()rder fails to articulate any basis for disparate treatment of amusement parks or water parks. ith reference to the foregoing governmental interest or any governmental interest at all. 92. Disparate prohibition ofthe operation of amusement parks and ater parks is arbitrary. 93. Plaintiffs are willing and able to abide by the safety regulations mandated by the Direelor's Slot stat? ()Izio ()rder. including but not limited to 18 (requiring facial masks). W6 (requiring ?Social Distancing Requirements"): ?;l2l(a) (requiring certain safety protocols of ?manufacturing. distribution. construction? employers): $21(b) (requiring certain safety protocols of ?consumer. retail services" employers): (requiring certain safety protocols of?genera office employers). 94. Plaintiffs are \xilling and able to abide by the safety regulations mandated by the May 29. 2020 Direclo/?s Order. including but not limited to ?lZ ("Social Distancing Requirements"). $7 (requiring facial coverings/masks). ?l'll (requiring "Social Distancing Requirements"). ?ill2 (identifying ?general" safety regulations for ?ll3 (requiring certain safety protocols of ?manufacturing. distribution. construction" employers); (requiring certain safety protocols of "consumer. retail services" employers): {$15 (requiring certain safety protocols of?general office eiwironments" employers). 95. In addition. Plaintiffs are able to abide by all applicable mandatory "Responsible RestartOhio" regulations regarding "Local and Public Pools and Aquatic Centers." ?Canoe Liveries and Recreational Paddling." ?Restaurants and Bars." and ?Day Spas." See Exhibil 5. 96. In addition. Plaintiffs are able to abide by all applicable mandatory ?Responsible RestartOhio" regulations proposed by the lime] and Tourism Committee. 97. Unlike many retail establishments and other workplaces permitted to open. Plaintiffs? water parks and amusement parks are accessible only to those who have previously purchased tickets. 98. Unlike many retail establishments and other workplaces permitted to open. Plaintiffs? \yater parks and amusement parks are able to carefully control access to their facilities through admissions policies. 99. Unlike many retail establishments and other workplaces permitted to open. Plaintiffs' \yater parks and amusement parks include exceptionally large multi?acre outdoor spaces capable of effectuating social distancing. 100. Plaintiffs? facilities exceed 300 acres. 10]. Plaintiff are able to operate on a "timed ticketing" reseryations?only basis. 102. There is no factor inherent in the operation of an amusement or water park that provides a unique threat of spreading any particular pandemic abov?, and beyond factors inherent in the operation of any other permitted business Equal Protection and Procedural Due Process 103. While the State has afforded a hearing on safety to some. it has afforded no such hearings to Plaintiffs. 104. A procedural due process limitation. unlike its substantive counterpart. does not require that the government refrain from making a substantive choice to infringe upon a person?s life. liberty. or property interest. It simply requires that the government provide ?due process? before or after making such a decision. 105. The goal is to minimize the risk of substantive error. to assure fairness in the decision?making process. and to assure that the individual affected has a participatory role in the process. The touchstone ofprocedural due process is the fundamental requirement that an individual be given the opportunity to be heard ?in a meaningful manner.? Hoimro? r. (irinug'c. 82 15.3d 1343. 1349 (6th Cir. 1996). citing Louder/Hill r. of?ine. 721 15.2d 550. 563 (6th (1111983). 470 11.8. 532 (1985). 106. Interests in operating a business or earning a living are more than sufficient to invoke procedural due process guarantees. Johnson v. Mom/es. 946 13.3(1 91 1. 93537 (6th Cir. interest in her business license is enough to invoke due process protection"). 107. "There is no dispute that never providing an opportunity to challenge a permit revocation violates due process. Thus. the revocation of [the right to remain in business] without a pie-deprivation hearing or a post-deprivation hearing violated due process." (VII/led l?c/ Sup/Mr. Inc. v. ('171? o/t'lmllunoogu. Term. 768 F.3d 464. 488 (61h Cir. 2014). 108. Even when such property interests are deprived in an ?emergency situation." government must provide an "adequate post-deprhation process." Uni/ed l?el 768 l?.3d at 486. ~16- 109. These safeguards for liberty are so beyond objection that "Injo reasonable officer could believe that revoking a permit to do business without prtwiding any pre-deprivation or post-deprivation remedy [is] constitutional." Id. at 488. 110. Putting an Ohioan out of business without any opportunity for a hearing ?is one of the rare situations where the unconstitutionality ofthe application ofa statute to a situation is plainly obvious" such that "a clearly established right? is violated. and even qualified immunity is to be denied. at 489. 1 1 1. The fundamental requirement of due process is the opportunity to be heard and it is an ?opportunity which must be granted at a meaningful time and in a meaningful v. Munzo. 380 US. 545. 552 (1965). 112. Further. even when the "the government has a substantial interest in ensuring the safety of its citizens." a postdeprivation hearing is still required. See Johnson v. Mom/es; 946 F.3d 91 1. at 923 (6th Cir. 2020). 113. Fina/(v. in requiring a postdeprivation hearing. at least with respect to the decimation of one?s business and livelihood. it matters not that the deprivation may be only ?temporary" in nature. Fuentes v. Shevin. 407 US. 67. at 84?85 is now well settled that a temporary. nonlinal deprivation of property is nonetheless a ?deprivatimf in the terms ofthe Fourteenth Amendment"). 1 14. "Due process of law requires that plaintiffs be afforded a prompt hearing before a neutral judicial or adn'tinistrative officer." Krimstock v. Kai/l): 464 15.3d 246. 255 (2d Cir. 2006)(25 day delay for post? deprivation hearing unconstitutional): see also United States v. James Daniel Real Prop. 510 US. 43. 56 (1993 )("the Due Process Clause requires an opportunity for some kind of predeprivation or prompt post-deprivation hearing at hieh some showing ofthe probable validity ofthe deprivation must be made"). 115. Because ?burden-shifting can be a problem of constitutional dimension in the civil context." Johnson v. Mom/es. 946 F.3d 91 1. 91640 (61h Cir. 2020). the Ohio Constitution requires. in this context. that the State carry the burden of proving why any appealing water or amusement park must remain closed. -17- l6. The Ohio Department of Health is required to supply ()hioans who own businesses it has closed with a prompt hearing where the burden is on the Department tojustify its decision mandated full closure of those Ohioans? businesses. particularly when the May 29. 2020 Director '5 Order closes just a handful of businesses. i.e. those identi?ed in Paragraph 9 on Page 4 ofthe Order. 17. The Ohio Department of Health is required to supply (.)hioans who own businesses it has closed with hardship relief. such as narrowing it closure order so as to permit limited safe operations. 118. The Ohio Department of Health has entirely ignored these clear and important safeguards in imposing its "Orders? inde?nitely closing Plaintiffs? businesses. even though the Orders have been renewed and carried on for oyer two months at the time of this ?ling. and eyen though county health departments alone have been privileged to receive hearings. 19. In an unknown and unknow able but not insigni?cant number of cases. such as Plaintiffs? case. the Ohio Department of Health would be unable to justify forbidding Plaintiffs from reopening on. at minimum. a limited basis on the same safety terms as other open businesses. l20. With each passing day and week that Plaintiffs? businesses remain closed. additional irreparable harm is in?icted on the Plaintiffs? many employees and af?liates. surrounding businesses. and local goyernnients. 12l. Neither the May 29. 2020 Direct/(21' Order nor any other law or rule entitles Plaintiffs or others to any hearing where they can explain these factors to a neutral deeisionmaker with the power to lift or amend the closure oftheir business. 122. The Ohio Supreme Court has expressed that due process requires all inferences to be drawn in favor oft/2e properly owner I?ullzel? against them. 123. Plaintiffs face irreparable harm in the form of permanent closure and failure of their business and/or criminal. ci\'il. and equitable penalties. -13- 12?1. Plaintiffs have suffered and continues to suffer actual and nominal damages due to the State's failure to supply a hearing. including not limited to the total deprivation ofall or nearly all gross business revenue and personal ?nancial harm. Takings 125. Plaintiffs hereby incorporates by reference the allegations in the foregoing paragraphs as if set forth fully herein. 126. The ongoing closure of Plaintiffs? operations. through unequal. unilateral. and unexplained administrative action with no end date. has taken Plaintiffs? property without due process or just compensation. 127. The threatened imposition of lines on Plaintiffs or physical closure of Plaintiffs" property threatens both impermissible takings and impermissible monetary exactions. 128. The State has forced Plaintiffs to bear a burden that should be borne by the public at large. rather than by the few ho businesses \xho remain subject to Defendants? forced closure. Conclusion 129. Because Defendants claim in paragraph 1 ofthe Orr/er issued on May 29. 2020. that ?if the situation deteriorates additional targeted restrictions \in1 need to be made." any permission to operate issued to Plaintiffs by Defendants fails to moot Plaintiffs? claims. 130. The Director's Order is entitled to no deference and no presumption of constitutionality. because it is neither a statute duly enacted by the Ohio (ieneral Assembly nor an administrative rule enacted through the Notice and Comment rulemaking procedures required by 1 19. 131. Nearly eyery prediction made by Defendants and their attorneys to justify their arbitrary policy making during the pandemic has been proven false. 132. Defendants safety concerns regarding Plaintiffs? businesses are speculative: however. the harm to Plaintiffs and their surrounding community is tangible. concrete. and ongoing. l33. In addressing the closure of Plaintiffs businesses. "every day counts." said Melinda Huntley". executive director of the Ohio Travel Association. in an interview last week. ?Every day were losing more jobs. make some permanently She said many attractions depend on a short summer tourist season to up the bulk of their revenue. See Cle\ eland.eom. at hit/2s: Clerc/(Incl. com museuIns-uIId-t(m PRAYER FOR RELIEF WHEREFORE. Plaintiffs pray- for judgment against Defendants, and that this Court: (1) (3) (5) (6) (7) Declare that RC. 370L352 and RC. 3701.99. when enforcing and 370l.56. and the closure and eriminalization of operations within the Direc'lor?s ()m?er pursuant thereto are unconstitutional on their faces and as applied to Plaintiffs due to the statutes and the Director '5 Order: failing to provide meaningful procedural due process (ii) failing to afford equal protection of the law: violating the doctrine of separation of powers: and (iv) delegated unfettered and unbridled vague power to unelected officials. Declare that the closure and criminz-ilization of ?amusement parks and "water parks." within the Director's Order. is unconstitutional as applied to Plaintiffs~ businesses. so long as those businesses operate safely. Declare that the Director of the Ohio Department of Health has exceeded the statutory limits of her authority in closing water parks and amusement parks. Declare that Defendants lines. threatened lines. and equitable action such as physical closure taken against Plaintiffs effectuates impermissible takings. lssue a temporary restraining order. and a preliminary and permanent injunction. prohibiting Defendants and Defendants? agents from enforcing the mandate within the that safe amusement parks and water parks remain closed. Issue a preliminary and permanent injunction prohibiting Defendants from enforcing or relying on the mandate closing amusement parks and water parks so as to prosecute. fine. imprison. or otherwise punish or sanction Plaintiffs or others who operate safely. Enjoin Defendants from enforcing penalties for non?compliance with the Order closing the following businesses listed in Paragraph 9(d) ofthe "amusement parks." and ?water parks." so long as they operate in compliance with all applicable safety regulations. whether those in the Order or the state?s supplemental guidelines governing businesses like those ofthe Plaintiffs in this case (because disparate treatment ofthese operations is arbitrary. so long as those operations are safely conducted). ~20- (8) Enjoin Defendants from imposing penalties predicated solely on non-compliance with the Order (because R.C. 3701.352 is impermissibly vague and violates separation of powers. insofar as it authorized criminal penalties and the other severe sanctions articulated in 370l.99 for disobedience of"any order" ol?thc Ohio Department ol?llealth with the sole uncon?ned limit that the order be one ?to prevent a threat to the public caused by a pandemic"). (9) Pursuant to Ohio Rev. ("ode 2335.39 (?the Equal Access to Justice Act"). and other applicable law. award Plaintiff its costs. actual damages. nominal damages and expenses incurred in bringing this action. including reasonable attorneys fees: and (10) Grant such other and further relief as the Court deems equitable. just. and proper. ff Tm. f/ Respectfully submittedy/ cw (j?llclij?lsmher Finney (0038998) 7) Julie M. (iugino (007447l) Finney Law Firm. LLC 4270 lvy Pointe Boulevard. Suite 225 (,?incinnatL Ohio 45245 (513) 943-6660 (5 3) 943-6669 (fax) 'llris Maurice A. ?l?hompson (0078548) I 85 Center for Constitutional Law I22 E. Main Street Columbus. Ohio 43215 (614)340-9817 )lu'u( '(msliimion. org 'ounse/ ochc?on/ Andrew R. Mayle (0075622) Mayle PO Box 263 Ohio 43552 Tel: (4l9) 334-8377