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COURT OF COMMON PLEAS
ERIE COUNTY, OHIO

LUV ADA S.WILSON
CLERK OF COURTS
2020 CV 0201
Binette, Roger E

LMV DEV SPE, LLC, DBA KALAHARI RESORTS
& CONVENTIONS
7000 Kalahari Drive
Sandusky, Ohio 44870
v.
AMY ACTON, in her official capacity
as Director of the Ohio Department of Health
246 N High Street
Columbus, Ohio 43215
and
ERIE COUNTY GENERAL HEALTH DISTRICT
420 Superior Street
Sandusky, Ohio 44870
Defendants.

Case No.
Judge

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
Motion for TRO in Hartman v. Acton
Exhibit 4: Defendant Amy Acton's
Interrogatory Responses.
Exhibit 5: Generally-Applicable Safety
Protocols
Exhibit 6: Affidavit of General Manager
Brian Shanie

Now comes Plaintiffs, and for 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, pursuant to

Ohio Rev. Code Chapter 2721 and Ohio Rev. Code 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 Ohioans' physical and mental health, all the

while having continuously overinflated the risk of harm to the general public.
3.

While the Ohio Department of Health and its Director, AMY ACTON, together with local health

departments, including the ERIE 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

criminalize and fine operation of safe amusement and water parks.
5.

Through various orders and fiat, 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.

However, Plaintiffs remain entitled to due process, equal protection, and a government that abides

by the doctrine of separation of powers with the attendant checks and balances.
7.

The various orders and fiat of the Director of the Ohio Department of Health, together with their

enforcement, violate 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 of the State of Ohio-without due process, equal protection, or just compensation and

irrespective of safe ty, and in violation of the doctrine of separation of powers.
8.

As a direct and proximate result of the 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 fines, 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 otherwise improve all remain impaired.
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.

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 PARTIES
11.

Plaintiff LMV DEV SPE, LLC is a Delaware limited liability company, operating a Kalahari

Resorts & Conventions located in Erie County, Ohio.
12.

More specifically, Plaintiffs Sandusky operation consists of 890 Guest Rooms & Suites 173,000-

square-foot indoor waterpark (over 4 acres), 77,000-square-foot outdoor waterpark, a convention center with
215,000 square feet of flexible meeting space for conventions and events, many dining options, including BLux Grill & Bar, Great Karoo Marketplace Buffet and Ivory Coast Restaurant, Safari Outdoor Adventure
Park, features zip lining, rope adventures, climbing walls, and an animal park.
13.

A substantially similar Kalahari Resorts & Conventions under common ownership located in

Wisconsin Dells, Wisconsin has been open and operating safely since May 27, 2020.
14.

Defendant AMY ACTON is, and has been at all times relevant to the facts at issue in this case, the

Director of the Ohio Department of Health.
15.

Defendant ERIE COUNTY 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.
16.

At all times relevant to the allegations in this Complaint, each and all of the acts of AMY ACTON

alleged herein were undertaken in conformity with the regulations, customs, usages, policies, and practices of
the State of Ohio and the Ohio Department of Health.
17.

The actions of AMY ACTON described herein were either outside the scope of her respective

office, or, if within the scope, undertaken in an arbitrary manner, grossly abusing the lawful powers of her
office.
18.

Defendants have personally undertaken and/or threaten to continue to personally undertake specific

action so as to deprive and/or violate the constitutional rights of the Plaintiffs.
19.

Defendant AMY ACTON is being sued herein in her official capacity.

-3-

 FACTS

20.

Ohio Rev. Code§ 3701.13 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."
21.

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."
22.

In tum, Ohio Rev. Code § 3701.99(C) provides that any violation of Ohio Rev. Code § 3701.352

constitutes a second-degree misdemeanor, thus, subjecting any person violating Ohio Rev. Code§ 3701.352
to up to 90 days in jail and a $750 fine, or both.
23.

On March 22, 2020, AMY ACTON, in her capacity as the Director of the Ohio Department of

Health, issued a Director 's Stay at Home Order, ordering that "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."
24.

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.
25.

While the standard of "essentiality" may initially appear clear, i. e., "necessary for survival," the

Director 's Stay at Home Order included within the category of "essential", inter a/ia, liquor, marijuana, dry
cleaners, and the state lottery.
26.

Amusement and Water Parks did not make the list of "essential businesses" within the Director 's

Stay at Home Order.

-4-

 27.

On April 2, 2020, AMY ACTON renewed the Director's Stay at Home Order, with the issuance of

the Amended Director's Stay at Home Order, which continued the closure of Ohio amusement and water
parks.
28.

On April 30, 2020 AMY ACTON renewed the Director 's Stay at Home Order, with the issuance

of the Director's Stay Safe Ohio Order, which continued the closure of Ohio amusement and water parks.
29.

At approximately midnight on May 29, 2020 AMY ACTON renewed the closure of Amusement

and Water Parks through issuance of Director's Order.
30.

Specifically, if9 of the Director's Order indicates "the following businesses and operations are to

remain closed until this Order is amended or rescinded: ... (d) ... All places of public amusement, whether
indoors or outdoors, including, but not limited to, locations with amusement rides, ... amusement parks,
water parks, ... "
31 .

The May 29, 2020 Director's Order, like those Orders before it, was issued by AMY ACTON

without enabling legislation or administrative rulemaking.
32.

The May 29, 2020 Director's Order "shall remain in full force and effect until 11 :59pm on July 1,

2020, unless the Director of the Ohio Department of Health rescinds or modifies this Order at a sooner time
and date." Director's Order, at p. 14.
33 .

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 of the second degree, which can include a fine of not more
than $750 or not more than 90 days in jail, or both."
34.

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. "
35.

A true and accurate copy of the May 29, 2020 Director's Order is attached hereto as Exhibit 1.

-5-

 36.

Pursuant to both past Orders and Ohio Rev. Code § 3701.56, Defendant ERIE COUNTY

GENERAL HEALTH DISTRICT maintains authority to enforce the criminalization of amusement park and
water park operations against Plaintiffs.
37.

The Director 's Stay Safe Ohio Order is unconstitutional as applied to Plaintiffs, who are owners

and operators of "amusement parks" and/or "water parks."
3 8.

Paragraph 9( d) of the Director 's Order is unconstitutional on its face, insofar as it forbids the

opening of "amusement parks" and/or "water parks" under safe circumstances.
39.

Prior to the expiration of the Director's Order, i.e., 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 R.C. 3701.352 and R.C.
3701.99.
40 .

Venue is proper within this County and division because (i) Plaintiffs are situated within this

county and the Defendants are regulating water parks and amusement parks, including Plaintiffs, within this
county; and (ii) all of the claims asserted by Plaintiffs arose within this county.
First Cause of Action
DECLARATORY JUDGMENT AND INJUNCTIVE RELIEF
Vagueness and Separation of Powers
Article I, Sections 1, 2, 16, 19 and 20 and Article II, Section 1 of the Ohio Constitution

41 .

Plaintiffs hereby incorporate by reference the allegations in the foregoing paragraphs as if set forth

fully herein.
42.

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."
43 .

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 an intelligible principle.

-6-

 44.

The vagueness concerns raised by the delegation of "ultimate 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.
45 .

"Without sufficient limitations, the delegation of authority can be deemed void for vagueness as

allowing ad hoc decisions or giving unfettered discretion." Biener v. Calio, 361 F.3d 206, 215-17 (3d Cir.
2004).
46.

"A delegation of legislative authority offends due process when it is made to an unaccountable

group of individuals and is unaccompanied by 'discernible standards,' such that the delegatee's action cannot
be 'measured for its fidelity to the legislative will.'" Ctr. for Powell Crossing, LLC v. City of Powell, Ohio,
173 F. Supp. 3d. 639, 675-79 (S.D. Ohio 2016).
47.

"To pass muster under the void-for-vagueness doctrine, Ohio law dictates an ordinance must

survive the tripartite analysis set forth in Grayned. The three aspects examined under Grayned are: (1) the
ordinance must provide fair warning 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." Viviano v. City of Sandusky, 2013-0hio-2813, 991 N.E.2d 1263 (6th Dist.
2013).
48.

"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 weight of other forces ." Norwood v.
Horney, 110 Ohio St.3d 353 , at 361-62 (2006) (internal citations omitted).
49.

And these "venerable rights associated with property" are not confined to the mere ownership of

property: "[t]he rights related to property, i.e., to acquire, use, enjoy, and dispose of property, are among the
most revered in our law and traditions." Norwood v. Horney, 110 Ohio St.3d 353 , at 361-62 (2006)

-7-

 50.

In sum, "the free use of property is guaranteed by Section 19, Article I of the Ohio Constitution."

State v. Cline, 125 N.E.2d 222, 69 Ohio Law Abs. 305.
51.

More specifically, Ohio businesses "have a constitutionally protected property interest" in freedom

"from unreasonable and arbitrary interference from the government." Mariemont Apartment Association v.
Village of Mariemont, 2007-0hio-173, at 140-42.
52.

In Norwood v. Horney, 2006-0hio-3799, at 1 83, the Ohio Supreme Court explained that "[i]f

arbitrary and discriminatory enforcement is to be prevented, laws must provide explicit standards for those
who apply them. A vague law impermissibly delegates basic policy matters to police [officers], judges, and
juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and
discriminatory application").
53.

"Though the degree of review for vagueness is not described with specificity, if the

enactment 'threatens to inhibit the exercise of constitutionally protected rights,' (such as property rights in
Ohio), a more stringent vagueness test is to be applied." Yoder v. City of Bowling Green, Ohio, No. 3:17 CV
2321, 2019 WL 415254, at 4-5 (N.D. Ohio Feb. 1, 2019), citing Norwood, 110 Ohio St.3d at 379.
54.

Because there is no means of exercising judicial review over any order issued by AMY ACTON

purportedly under the authority of Ohio Rev. Code § 3701.13, that delegation is impermissibly vague.
55.

The vague delegation, both on its own and in combination with the various orders issued by AMY

ACTON, has violated, continues to violate, and will further violate Plaintiffs' rights.
56.

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 Hartman v. Acton, Case No. 2:20cv-1952 (S.D. Ohio 2020), Memorandum in Opposition to Motion for TRO (Doc. 4, PageID#71, 79, 80 & 81
("the Amended Order is a legislative act of general application....
. .
") .
d ec1s10ns...

-8-

A State can make general policy

 57.

A true and accurate copy of the Memorandum in Opposition to Motion for TRO is attached hereto

as Exhibit 2.
58.

AMY ACTON and her attorneys have framed her as a policymaker, explaining that "Dr. Acton

weighed the danger from the spread of Covid-19 with the need of Ohioans to obtain necessary goods and
services." Memorandum in Opposition to Motion for TRO, at PageID#80.
59.

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 what those
restrictions may be . Memorandum in Opposition to Motion for TRO, at Page1D#83 .
60.

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, i. e., disobedience with
any order issued by AMY 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, and the May 29, 2020
Director 's Order.
61.

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

Director's Order, in criminalizing the operation of amusement parks and water parks, violates the separation
of powers guarantees to which Plaintiffs are entitled.
62 .

At the time of this filing, just one Ohio Court has adjudicated the merits of the Orders criminalizing

businesses issued by Director of the Ohio Department of Health.
63.

The aforesaid Court determined the criminal penalties flowing from such orders to be

impermissibly unconstitutional and otherwise unlawful. See Rock House Fitness, Inc. v. Acton, Case No.
20CV000631 (Lake Cty. C.P. 5-20-2020)(Decision attached).

-9-

 64.

In Rock House Fitness, the Court explained that "[t]he director has quarantined the entire people of

the state of Ohio, for much more than 14 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." Id., at ,r26, 31, 34.
65.

Further, the Rock House Fitness court rejected the notion that "one unelected individual could

exercise such unfettered power 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." Id., at ,r37. The Court then enjoined Director Acton and the local health department
"from imposing or enforcing penalties solely for noncompliance with the director's order." Id., at ,r37.
66.

In order 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 's Stay

at Home Order, the Amended Director's Stay at Home Order, the Director's Stay Safe Ohio 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.
67.

It is further appropriate and hereby requested that preliminary and permanent injunctions issue

prohibiting the Defendants from enforcing the Director's Stay at Home Order, the Amended Director 's Stay

at Home Order, the Director 's Stay Safe Ohio Order and/or the May 29, 2020 Director's Order against
Plaintiffs.
68.

It 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 who receive actual notice of the injunction, from engaging in any

- 10 -

 further official conduct that threatens, attempts to threaten, and/or actually interferes with Plaintiffs'
occupation and operation of their private property despite their disfavored identity.
Second Cause of Action
DECLARATORY JUDGMENT AND INJUNCTIVE RELIEF
Deprivation of Property Rights without Equal Protection and Due Process I Takings
Article I, Sections 1, 2, 16, 19 and 20 of the Ohio Constitution

69.

Plaintiffs hereby incorporate by reference the allegations in the foregoing paragraphs as if set forth

fully herein.
70.

"[T]he Ohio Constitution is more protective of private property rights than its federal counterpart

[and] the Ohio Supreme Court insists upon a more stringent Equal Protection analysis." Yoder v. City of
Bowling Green, Ohio, No. 3:17 CV 2321, 2019 WL 415254, at p. 4-5 (N.D. Ohio Feb. 1, 2019),

citing Norwood and Jeffrey S. Sutton, 51 Imperfect Solutions: States and the Making of American
Constitutional Law 198 (2018), at 16 ("Nothing compels the state courts to imitate federal interpretations of

the liberty and property guarantees in the U.S. Constitution when it comes to the rights guarantees in their
own constitutions").
71.

On Equal Protection and Due Process, Article I, Section 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 ... "
72.

In State v. Mole, 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 Equal 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, 2016-0hio-5124, ,i,i 14, citing
Arnold v. Cleveland, 67 Ohio St.3d 35, 42 (1993).

- 11 -

 Equal Protection and Substantive Due Process

73.

Nowhere is this "independent force" of Ohio's equal protection clause more relevant than with

protection ofprivate property rights, since those rights are "fundamental rights" in Ohio but not so pursuant
to federal constitutional precedent.
74.

A regulation of property violates the Ohio Constitution's guarantees of Due Process and Equal

Protection when it is "arbitrary," "unduly oppressive upon individuals," not "necessary for the public
welfare," or fails to substantially advance a legitimate interest through a substantial relationship to it. See

Direct Plumbing Supply v. City of Dayton, 138 Ohio St. 540 (1941); Olds v. Klotz, 131 Ohio St. 447, 451
(1936); City of Cincinnati v. Correll, 141 Ohio St. 535,539 (1943).
75.

Pursuant to the foregoing standards, the Ohio Supreme Court recently applied exacting scrutiny to

invalidate an Ottawa Hills zoning restriction, due to its "disparate treatment" of homeowners. Boice v.

Village of Ottawa Hills, 137 Ohio St.3d 412, 999 N.E.2d 649, 2013-0hio-4769 ,r,r17-19 (observing that
"there was disparate treatment of the 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 de minimus difference, and that
other similarly situated houses were "grandfathered in.").
76.

In State ex rel. Pizza v. Rezcallah, 84 Ohio St.3d 116, 702 N.E.2d 81, 1998-0hio-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 relationship to the
public health, morals and safety."
77.

"Ohio courts, interpreting the Ohio Constitution, apply something higher than rational basis review,

but less than strict scrutiny to cases involving property rights." Yoder v. City of Bowling Green, Ohio, No.
3:17 CV 2321, 2019 WL 415254, at 3-6 (N.D. Ohio Feb. 1, 2019)("[t]he 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

- 12 -

 type of relationship between those living together in a home, and as such, is both over- and under-inclusive
with respect to either of these 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 Norwoodv. Horney, 110 Ohio St.3d 353, 361-62 (2006); Mariemont Apartment Ass 'n v.

Village of Mariemont, 2007 WL 120727, at 7 (Ohio Ct. App.) (homeowners " have a constitutionally
protected property interest in running their residential leasing businesses free from unreasonable and
arbitrary interference from the government" under the Due Process Clause); State ex rel. Pizza v. Rezcallah,
84 Ohio St. 3d 116, 128 (1998); Boice v. Ottawa Hills, 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 came to permitting houses to be built on lots smaller than 35,000 square feet," a de

minimis 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 neighborhood!").
78.

No classification may be arbitrary: "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.' State v. Mole, 149 Ohio St.3d 215,
2016-0hio-5124 ,r,r12-29.
79.

"Discrimination of an unusual character especially suggest[s] careful consideration to determine

whether they are obnoxious to the constitutional provision." Id.
80.

Otherwise put, "classifications must have a reasonable basis and may not ' subject individuals to an

arbitrary exercise of power." Id., citing Conley v. Shearer, 64 Ohio St.3d 284, 288 (1992).
81.

"A statutory classification violates equal protection if it treats similarly situated individuals

differently based upon an illogical and arbitrary basis." Mariemont Apartment Association v. Village of

- 13 -

 Mariemont, 2007-0hio-173 , at ,i28, citing Adamsky v. Buckeye Local School Dist., 73 Ohio St.3d 360, at
362, 1995-0hio-298.
82.

The face of the May 29, 2020 Director's Order articulates no clear governmental interest, other

than the intimation that the Order is for the purpose of safety. See p. 1.
83.

The Director 's Stay Safe Ohio Order is overbroad, underinclusive, and untailored with respect to

the foregoing governmental interest.
84.

In selectively singling out and disfavoring several industries, including Ohio amusement parks and

water parks, on the basis of their identity, rather than their safety, the Director's Stay Safe Ohio Order fails to
provide any basis whatsoever for its disparate treatment.
85.

There is no basis in law or fact for the disparate treatment of amusement parks or water parks.

86.

The Director's Order fails to articulate any basis for disparate treatment of amusement parks or

water parks, with reference to the foregoing governmental interest or any governmental interest at all.
87.

Disparate prohibition of the operation of amusement parks and water parks is arbitrary.

88.

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 ,is (requiring facial masks), ,i16 (requiring "Social Distancing
Requirements"); ,i21 (a) (requiring certain safety protocols of "manufacturing, distribution, & construction"
employers); ,i2l(b) (requiring certain safety protocols of "consumer, retail & services" employers); ,i21(c)
(requiring certain safety protocols of "general office environments" employers).
89.

Plaintiffs are willing and able to abide by the safety regulations mandated by the May 29, 2020

Director 's Order, including but not limited to ,i2 ("Social Distancing Requirements"), ,i7 (requiring facial
coverings/masks), ,i1 J (requiring "Social Distancing Requirements"), ,i12 (identifying "general" safety
regulations for "businesses/employers"), ,i13 (requiring certain safety protocols of "manufacturing,
distribution, & construction" employers); ,i14 (requiring certain safety protocols of "consumer, retail &
services" employers); ,i1s (requiring certain safety protocols of "general office environments" employers).

- 14 -

 ----------------------------------------------------

90.

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 Exhibit 5.
91.

In addition, Plaintiffs are able to abide by all applicable mandatory "Responsible RestartOhio"

regulations proposed by the Travel and Tourism Committee.
92.

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.
93.

Unlike many retail establishments and other workplaces permitted to open, Plaintiffs' water parks

and amusement parks are able to carefully control access to their facilities through admissions policies.
94.

Unlike many retail establishments and other workplaces permitted to open, Plaintiffs' water parks

and amusement parks include exceptionally large multi-acre outdoor spaces capable of effectuating social
distancing.
95 .

Plaintiffs' facilities exceed 11 acres.

96.

There is no factor inherent in the operation of an amusement or water park that provides a unique

threat of spreading any particular pandemic above and beyond factors inherent in the operation of any other
permitted business.
Equal Protection and Procedural Due Process

97.

While the State has afforded a hearing on safety to some, it has afforded no such hearings to

Plaintiffs.
98.

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.
99.

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

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 of procedural due process is the fundamental requirement that an individual be given the opportunity to be
heard 'in a meaningful manner."' Howard v. Grinage, 82 F.3d 1343, 1349 (6th Cir. 1996), citing Loudermill

v. Cleveland Bd. ofEduc., 721 F.2d 550,563 (6th Cir.1983), afj'd, 470 U.S. 532 (1985).
100. Interests in operating a business or earning a living are more than sufficient to invoke procedural
due process guarantees. Johnson v. Morales, 946 F.3d 911 , 935-37 (6th Cir. 2020)("Johnson's interest in
her business license is enough to invoke due process protection").
101. "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 pre-deprivation hearing or a
post-deprivation hearing violated due process." United Pet Supply, Inc. v. City of Chattanooga, Tenn., 768
F.3d 464,488 (6th Cir. 2014).
102. Even when such property interests are deprived in an "emergency situation," government must
provide an "adequate post-deprivation process." United Pet Supply, 768 F.3d at 486.
103. These safeguards for liberty are so beyond objection that"[ n]o reasonable officer could believe that
revoking a permit to do business without providing any pre-deprivation or post-deprivation remedy [is]
constitutional." Id. , at 488.
104. Putting an Ohioan out of business without any opportunity for a hearing " is one of the rare
situations where the unconstitutionality of the application of a statute to a situation is plainly obvious" such
that "a clearly established right" is violated, and even qualified immunity is to be denied. Id. , at 489.
105. 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 manner." Armstrong v. Manzo, 380 U.S.
545, 552 (1965).
106. 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. Morales, 946 F.3d 911, at 923 (6th Cir.
2020).

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 107. Finally, 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 U.S. 67, at 84-85 (" [I]t is now well settled that a temporary, nonfinal deprivation of property is
nonetheless a ' deprivation' in the terms of the Fourteenth Amendment.").
108. "Due process of law requires that plaintiffs be afforded a prompt hearing before a neutral judicial
or administrative officer." Krimstock v. Kelly, 464 F.3d 246, 255 (2d Cir. 2006)(25 day delay for postdeprivation hearing unconstitutional); see also United States v. James Daniel Good Real Prop. , 510 U.S. 43,
56 (1993)("the Due Process Clause requires ... an opportunity for some kind of predeprivation or prompt
post-deprivation hearing at which some showing of the probable validity of the deprivation must be made").
109. Because "burden-shifting can be a problem of constitutional dimension in the civil context,"

Johnson v. Morales, 946 F.3d 911 , 916-40 (6th Cir. 2020), the Ohio Constitution requires, in this context,
that the State carry the burden of proving why any appealing amusement or water park must remain closed.
110. The Ohio Department of Health is required to supply Ohioans who own businesses it has closed
with a prompt hearing where the burden is on the Department to justify its decision mandated full closure of
those Ohioans' businesses, particularly when the May 29, 2020 Director 's Order closes just a handful of
businesses, i.e. those identified in Paragraph 9 on Page 4 of the Order.
111. The Ohio Department of Health is required to supply Ohioans who own businesses it has closed
with hardship relief, such as narrowing it closure order so as to permit limited safe operations.
112. The Ohio Department of Health has entirely ignored these clear and important safeguards m
imposing its "Orders" indefinitely closing Plaintiffs' businesses, even though the Orders have been renewed
and carried on for over two months at the time of this filing, and even though county health departments
alone have been privileged to receive hearings.

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 113. In an unknown and unknowable but not insignificant 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.
114. With each passing day and week that Plaintiffs' businesses remain closed, additional irreparable
harm is inflicted on the Plaintiffs' many employees and affiliates, surrounding businesses, and local
governments.
115. Neither the May 29, 2020 Director's Order nor any other law or rule entitles Plaintiffs or others to
any hearing where they can explain these factors to a neutral decisionmaker with the power to lift or amend
the closure of their business.
116. The Ohio Supreme Court has expressed that due process requires all inferences to be drawn in
favor of the Ohio property owner rather than against them.
117. Plaintiffs face irreparable harm in the form of permanent closure and failure of their business
and/or criminal, civil, and equitable penalties.
118. Plaintiffs have suffered and continues to suffer actual and nominal damages due to the State's
failure to supply a hearing, including but not limited to the total deprivation of all or nearly all gross business
revenue and personal financial harm.

Takings
119. Plaintiffs hereby incorporates by reference the allegations in the foregoing paragraphs as if set forth
fully herein.
120. 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.
121. The threatened imposition of fines on Plaintiffs or physical closure of Plaintiffs' property threatens
both impermissible takings and impermissible monetary exactions.

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 122. The State has forced Plaintiffs to bear a burden that should be borne by the public at large, rather
than by the few who businesses who remain subject to Defendants' forced closure.

Conclusion
123. Because Defendants claim in paragraph 1 of the Director's Order issued on May 29, 2020, that "if
the situation deteriorates additional targeted restrictions will need to be made," any permission to operate
issued to Plaintiffs by Defendants fails to moot Plaintiffs' claims.
124. 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 General Assembly nor an administrative rule enacted through
the Notice and Comment rulemaking procedures required by R.C. 119.
125. Nearly every prediction made by Defendants and their attorneys to justify their arbitrary
policymaking during the pandemic has been proven false.
126. Defendants' safety concerns regarding Plaintiffs' businesses are speculative; however, the harm to
Plaintiffs and their surrounding community is tangible, concrete, and ongoing.
127. 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 we're losing
more jobs, some permanently." She said many attractions depend on a short summer tourist season to
make

up

the

bulk

of

their

revenue.

See

Cleveland.com,

at

https://www.cleveland.com/business/2020/06/gov-mike-dewine-says-hell-reveal-thursday-when-zoosmuseums-and-amusement-parks-can-reopen.html.
PRAYER FOR RELIEF
WHEREFORE, Plaintiffs pray for judgment against Defendants, and that this Court:
(1) Declare that R.C. 3701.352 and R.C. 3701.99, when enforcing R.C. 3701.13 and 3701.56, and
the closure and criminalization of operations within the Director's Order pursuant thereto are
unconstitutional on their faces and as applied to Plaintiffs due to the statutes and the Director 's
Order: (i) failing to provide meaningful procedural due process (ii) failing to afford equal

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 protection of the law; (iii) violating the doctrine of separation of powers; and (iv) delegated
unfettered and unbridled vague power to unelected officials.
(2) Declare that the closure and criminalization 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.
(3) 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.
(4) Declare that Defendants' fines, threatened fines, and equitable action such as physical closure
taken against Plaintiffs effectuates impermissible takings.
(5) Issue a temporary restraining order, and a preliminary and permanent injunction, prohibiting
Defendants and Defendants' agents from enforcing the mandate within the Director 's Order that
safe amusement parks and water parks remain closed.
(6) 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.
(7) Enjoin Defendants from enforcing penalties for non-compliance with the Order closing the
following businesses listed in Paragraph 9(d) of the Director 's Order: "amusement parks," and
"water parks," so long as they operate in compliance with all applicable safety regulations,
whether those in the Director 's Order or the state's supplemental guidelines governing
businesses like those of the Plaintiffs in this case (because disparate treatment of these operations
is arbitrary, so long as those operations are safely conducted).
(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 R.C. 3701.99 for
disobedience of "any order" of the Ohio Department of Health with the sole unconfined limit that
the order be one "to prevent a threat to the public caused by a pandemic").
(9) Pursuant to Ohio Rev. Code § 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.

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 Respectfully submitted,

Isl Andrew R. Mayle
Andrew R. Mayle (0075622)
MayleLLC
PO Box263
Perrysburg, Ohio 43552
Tel: (419) 334-8377
AMayle@MayleLaw.com
Maurice A. Thompson (0078548)
1851 Center for Constitutional Law
122 E. Main Street
Columbus, Ohio 43215
(614) 340-9817
MThompson@OhioC onstitution. org
Christopher Finney (0038998)
Julie M. Gugino (0074471)
Finney Law Firm, LLC
4270 Ivy Pointe Boulevard, Suite 225
Cincinnati, Ohio 45245
(513) 943-6660
(513) 943-6669 (fax)
Chris @FinneyLawFirm.com
Julie@FinneyLawFirm.com

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