E-FILED 2020 AUG 28 1:36 PM POLK - CLERK OF DISTRICT COURT

IN THE IOWA DISTRICT COURT FOR POLK COUNTY
RILEY DRIVE ENTERTAINMENT I, INC.
dba TONIC BAR; RILEY DRIVE
ENTERTAINMENT XVI, INC. dba SAINTS
PUB + PATIO WAUKEE,
PETITION, REQUEST FOR
DECLARATORY JUDGMENT,
REQUEST FOR TEMPORARY AND
PERMANENT INJUNCTIVE RELIEF,
AND REQUEST FOR EXPEDITED
HEARING

Plaintiffs,
v.
GOVERNOR KIMBERLY K. REYNOLDS,
in her official capacity as Governor of the
State of Iowa; IOWA DEPARTMENT OF
PUBLIC HEALTH,
Defendants.

Plaintiffs, Riley Drive Entertainment I, Inc. d/b/a Tonic Bar, and Riley Drive Entertainment
XVI, Inc. d/b/a Saints Pub + Patio Waukee, by and through their attorneys Billy J. Mallory and
Daniel P. Kresowik of Brick Gentry, P.C., pursuant to Rules 1.1501 et. seq., 1.1101, and 1.1102 of
the Iowa Rules of Civil Procedure, submit the following Petition, Request for Declaratory
Judgment, Request for Temporary and Permanent Injunctive Relief, and Request for Expedited
Hearing.
PARTIES AND JURISDICTION
1.

Plaintiff Riley Drive Entertainment I, Inc. d/b/a Tonic Bar (“RDE I”) is an Iowa

corporation.
2.

Plaintiff Riley Drive Entertainment XVI, Inc. d/b/a Saints Pub + Patio Waukee

(“RDE XVI”) is an Iowa corporation.
3.

Defendant Kimberly K. Reynolds (“Governor Reynolds”) is an individual and the

duly-elected Governor of the State of Iowa.
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4.

Defendant Iowa Department of Public Health (“IDPH”) is a state administrative

agency responsible for, among other duties, exercising “general supervision over the public health.”
Iowa Code § 135.11.
5.

This Petition seeks declaratory and injunctive relief to prevent Defendants’

violations of the laws of the State of Iowa, including Plaintiffs’ rights, privileges and immunities
under the Constitution of the State of Iowa.
6.

This Court has jurisdiction and the power to issue injunctions pursuant to Rules

1.1505, 1.1506, 1.1101, and 1.1102 of the Iowa Rules of Civil Procedure.
7.

Venue is proper in the Iowa District Court for Polk County, as the conduct

complained of herein occurred within, and at least one Plaintiff and Defendants are residents of, or
have their principal place of business in, or are doing business in Polk County, Iowa.
BACKGROUND
8.

Plaintiffs incorporate the foregoing paragraphs as if fully set forth herein.

9.

RDE I owns and operates Tonic Bar at 5535 Mills Civic Parkway, West Des Moines,

Polk County, Iowa (“Tonic Bar”).
10.

RDE XVI owns and operates Saint Pub + Patio Waukee at 87 NE Carefree Lane,

Waukee, Dallas County, Iowa (“Saints Pub Waukee”).
11.

Tonic Bar and Saints Pub Waukee are licensed to sell and serve alcoholic beverages

pursuant to Iowa Code Chapter 123.
12.

On August 27, 2020, Governor Reynolds issued a “Proclamation of Disaster

Emergency” (“August 27th Proclamation”).
13.

A true and accurate copy of the August 27th Proclamation is attached as Exhibit 1.

14.

The August 27th Proclamation was purportedly issued pursuant to “the Iowa

Constitution, Art. IV, §§ 1, 8 and Iowa Code §§ 29C.6(1), 135.140(6), and 135.144.” Ex. 1 at p. 1.
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15.

Section 2(A) of the August 27th Proclamation includes a mandate that “[a]ll bars,

taverns, wineries, breweries, distilleries, night clubs, and other establishments that sell alcoholic
beverages for consumption on their premises, shall be closed to the general public, except as
permitted in this section” (the “Order of Closure”). Ex. 1 at p. 2.
16.

Section 2(A)(3) purports to exempt “[a]n establishment that prepares and serves

food, the sale of which results in at least half of the establishment’s monthly revenues” from the
Order of Closure, “provided that the establishment complies with all requirements for restaurants
in paragraph B of this section” (collectively, “Exempt Establishments”). Id.
17.

Establishments referenced in the Order of Closure which do not qualify as Exempt

Establishments are hereinafter referred to as “Non-Exempt Establishments.”
18.

The inalienable rights clause of the Iowa Constitution provides that “[a]ll men and

women are, by nature, free and equal, and have certain inalienable rights--among which are those
of enjoying and defending life and liberty, acquiring, possessing and protecting property, and
pursuing and obtaining safety and happiness.” Iowa Const. art. I, § 1.
19.

The Order of Closure was issued in violation of the Iowa Constitution, and Iowa

Code Sections 29C.6(1), 135.140(6), and 135.144.
The Order of Closure is Not Justified By Facts
20.

Iowa law requires that a “proclamation shall be in writing, indicate the area affected

and the facts upon which it is based, be signed by the governor, and be filed with the secretary of
state.” Iowa Code § 29C.6 (emphasis added).
21.

As the purported “facts upon which it is based,” the August 27th Proclamation cites

various declarations and issuances from over 150 days ago. Ex. 1 at p. 1.
22.

The only recent statement is the conclusory allegation that “the continued spread of

COVID-19 in the state of Iowa, especially in Black Hawk, Dallas, Johnson, Linn, Polk, and Story
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counties warrants taking additional reasonable measures to reduce the transmission of COVID-19.”
Id.
23.

In contravention of Iowa law, Defendants have not set forth facts justifying the

imposition of the Order of Closure.
24.

As a result of the failure to set forth specific facts justifying the imposition of the

Order of Closure, the Order of Closure is void and unenforceable as a matter of law.
There is No “Public Health Disaster” in Polk County and Dallas County as
Defined under Iowa Law
25.

Iowa Code Section 135.144 permits the IDPH, in conjunction with Governor

Reynolds, to take a variety of potential actions if “a public health disaster exists.” Iowa Code
§135.144.
26.

Under Iowa law:

‘Public health disaster,’ means a state of disaster emergency proclaimed by the
governor in consultation with the department pursuant to section 29C.6 for a
disaster which specifically involves an imminent threat of an illness or health
condition that meets any of the following conditions . . .
b. Poses a high probability of any of the following:
(1) A large number of deaths in the affected population.
(2) A large number of serious or long-term disabilities in the affected population.
(3) Widespread exposure to an infectious or toxic agent that poses a significant risk
of substantial future harm to a large number of the affected population.
(4) Short-term or long-term physical or behavioral health consequences to a large
number of the affected population.
Iowa Code § 135.140 (emphasis added).
27.

Defendants have again entirely failed to set forth specific facts establishing the

existence of a public health disaster in Polk and Dallas County, Iowa.
28.

Not only have Defendants procedurally failed to do so—which renders the Order of

Closure invalid—but Defendants also cannot substantively demonstrate that COVID-19 poses a
“high probability” of any of the four enumerated categories in Polk or Dallas County, Iowa.
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29.

By all accounts, COVID-19 has only been affecting humans for less than one year.

30.

The first diagnosis of COVID-19 in Iowa occurred less than six months ago.

31.

The State of Iowa has reported that, as of earlier this week, a total of 59,710

individuals in Iowa had been diagnosed with COVID-19.
32.

Defendants do not have statistics to show the percentage of the affected population

that has “serious or long-term disabilities” due to COVID-19 from which Defendants can project a
high probability of a large number of serious or long-term disabilities in the affected population.
33.

Defendants also cannot demonstrate that COVID-19 poses a “high probability” of a

widespread exposure to an infectious or toxic agent that poses a “significant risk of substantial
future harm” to a “large number” of the affected population.
34.

Defendants cannot demonstrate that COVID-19 poses a “high probability” of short-

term or long-term “physical or behavioral health consequences” to a “large number” of the affected
population.
35.

At her August 27, 2020 press conference, Governor Reynolds essentially admitted

there is no imminent threat, stating “[w]hile we aren’t seeing the impact reflected in hospitalization
numbers we're concerned that it will start to impact the staffing in our health care systems, and
potentially our schools….”
The Order of Closure is Not a “Reasonable Measure”
36.

The August 27th Proclamation was purportedly issued pursuant to, in part, Iowa

Code Subsection 135.144(3). Ex. 1 at p. 1, §2.
37.

Iowa Code Subsection 135.144(3) permits the IDPH, in conjunction with the

governor, to “[t]ake reasonable measures as necessary to prevent the transmission of infectious
disease and to ensure that all cases of communicable disease are properly identified, controlled,
and treated.” Iowa Code §135.144(3) (emphasis added).
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38.

Instead of attempting to ensure that “all” cases of COVID-19 are “controlled,” the

Order of Closure improperly attempts to limit individual’s potential exposure in six counties solely
if those people would have, absent the Order of Closure, frequented what has now been deemed a
Non-Exempt Establishment.
39.

The purported distinctions in the Order of Closure between Exempt and Non-

Exempt Establishments are not reasonable.
40.

Section 2(B)(1) of the August 27th Proclamation not only permits, but now actively

requires an establishment serving alcoholic beverages to “prepare and serve food to all customers.”
Ex. 1 at p. 1, §2(B)(1) (emphasis added).
41.

By including this requirement, when compared to an identical Non-Exempt

Establishment, Governor Reynolds and the IDPH have indisputably substantially increased the
potential for an individual to both contract and spread COVID-19 at an Exempt Establishment.
42.

At its core, the only distinction between Exempt and Non-Exempt Establishments

under the Order of Closure is an establishment’s monthly revenues from the sale of alcoholic
beverages for consumption on the premises. Ex. 1 at p. 2. §2(A).
43.

If an establishment does not sell alcoholic beverages for consumption on the

premises, it is automatically designated as an Exempt Establishment.
44.

If an establishment that sells alcoholic beverages for consumption on its premises

does not also both prepare and serve food, it is automatically designated as a Non-Exempt
Establishment.
45.

A distinction based on the sale of alcoholic beverages for consumption on the

premises is nonsensical, arbitrary, and capricious.

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46.

There is no evidence that the mere fact alcohol is being sold for consumption on

premises increases an individual’s risk of contracting or passing away from COVID-19, or
somehow increases the severity of COVID-19 in an infected individual.
47.

There is no evidence that consumption of alcohol at an establishment either increases

an individual’s risk of contracting or passing away from COVID-19, or somehow increases the
severity of COVID-19 in an infected individual.
48.

There is no evidence that COVID-19 is somehow more likely to be transferred on

alcoholic beverage containers than on beverage containers containing non-alcoholic beverages.
The Lack of Notice to Affected Establishments is Patently Unreasonable.
49.

The public was provided with notice of the August 27th Proclamation late in the

morning of Thursday, August 27, 2020.
50.

However, by its terms, the Order of Closure went into effect mere hours later, at

5:00 p.m.
51.

Establishments which were subject to the Order of Closure had already had to

prepare for and secure staffing for the evening of August 27, 2020, and the following days and
weeks.
52.

Establishments which were subject to the Order of Closure had already had to

prepare for and secure food, beverages, and supplies for the evening of August 27, 2020, and the
following days and weeks.
53.

However, under the Order of Closure, these establishments were no longer able to

secure income in what has already been an unprecedentedly difficult year for the bar and restaurant
industry.
54.

Much of this food and some of the beverages will now go to waste if the Order of

Closure is upheld.
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55.

Further, employees and independent contractors who were scheduled to provide

goods and/or services to the establishments and their customers are now unable to earn money in
what has already been an extremely difficult year for them.
56.

There is absolutely no legitimate reason for the mere hours of notice provided prior

to implementation of the Order of Closure.
There is No Rational Basis for the Application of the Order of Closure to
Dallas and Polk Counties
57.

The application of the Order of Closure to Dallas County and Polk County is not

reasonable.1
58.

The Governor’s stated basis for imposing the Order of Closure is a spike in positive

tests for COVID-19 in Johnson and Story County.
59.

While Johnson County and Story County have recently experienced a spike in cases,

the same is almost assuredly due to the return of students to the University of Iowa and the Iowa
State University of Science and Technology, respectively.
60.

Governor Reynolds does not assert, and has not provided any evidence, that Dallas

County and Polk County have experienced a similar spike.
61.

There is also absolutely no rational basis for utilizing a spike (the cause of which

has been identified) in COVID-19 cases in two counties, as justification for the imposition of the
Order of Closure in other counties, including Dallas County and Polk County.
62.

At her August 27th press conference, Governor Reynolds further posited that “it is

imperative that we implement some immediate steps to slow the spread among young adults in our
state.”

1

Among other issues, there are multiple other counties in Iowa with a higher percentage of positive COVID-19 cases
by age group than some of the six restricted Counties.

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63.

This assertion entirely fails to provide any rational support for prohibiting a

restaurant in Waukee from serving alcohol at 10:30 pm.
The Order of Closure is Not “Necessary”
64.

“The word necessary means ‘indispensably requisite: that cannot be otherwise

without preventing the purpose intended.’” A. Wolf & Son v. Indep. Sch. Dist. of Pleasant Valley
Twp., 1 N.W. 695, 697 (Iowa 1879) (emphasis added); see also Iowa R. Civ. P. 1.234 (entitled
“Necessary parties,” and referencing “definition of indispensable party”).
65.

Defendants cannot demonstrate that the unconstitutional Order of Closure is, by any

means, “indispensable,” or that the spread of COVID-19 in Iowa cannot be prevented other than by
making an arbitrary distinction based on whether or not a liquid served at an establishment contains
alcohol.
66.

To the contrary, on August 1, 2020, over 300 physicians and advanced practice

providers urged Governor Reynolds to require individuals to wear masks in public places.2
67.

Notably, the August 27th Proclamation does not contain any requirement for the

wearing of masks.
68.

The Order of Closure is not necessary.

WHEREFORE, Plaintiffs respectfully request that this Court grant them the requests for
relief set forth in the Common Request for Relief, below.
COUNT I –DECLARATORY JUDGMENT
69.

Plaintiffs incorporate all other paragraphs of this Petition as if fully set forth herein.

70.

The Order of Closure is unconstitutional, exceeds Governor Reynolds’ authority,

and was issued in violation of the laws of the State of Iowa.

2

https://www.weareiowa.com/article/news/health/coronavirus/iowa-doctors-medical-professionals-mask-mandategovernor-gov-kim-reynolds-state-capitol-building-press-conference-coronavirus-covid-19/524-35effad1-9548-4148989b-7af93806bd41 (last accessed August 27, 2020).

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71.

This action seeks a judicial determination of issues, rights and liabilities embodied

in an actual and present controversy between the parties involving the validity and application of
the Order of Closure.
WHEREFORE, Plaintiffs respectfully request that this Court grant them the requests for
relief set forth in the Common Request for Relief, below.
COUNT II – VIOLATION OF PLAINTIFFS’ RIGHT TO EQUAL PROTECTION AND
DUE PROCESS
72.

Plaintiffs incorporate all other paragraphs of this Petition as if fully set forth herein.

73.

The Order of Closure wrongfully and unconstitutionally treats Plaintiffs differently

from other similarly-situated establishments in Dallas and Polk County, Iowa.
74.

There is no rational basis for the Order of Closure’s treatment of Plaintiffs in a

manner disparate to its treatment of other similarly-situated establishments in Dallas and Polk
County.
75.

The Order of Closure wrongfully and unconstitutionally treats Plaintiffs differently

from other similarly-situated establishments in other counties in Iowa.
76.

There is no rational basis for the Order of Closure’s treatment of Plaintiffs in a

manner disparate to its treatment of other similarly-situated establishments in other counties in
Iowa.
77.

The Order of Closure deprives Plaintiffs of their right to equal protection under the

Iowa Constitution.
WHEREFORE, Plaintiffs respectfully request that this Court grant them the requests for
relief set forth in the Common Request for Relief, below.
COUNT III – TEMPORARY AND PERMANENT INJUNCTIVE RELIEF
78.

Plaintiffs incorporate all other paragraphs of this Petition as if fully set forth herein.
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79.

Plaintiffs would be greatly and/or irreparably harmed if the Order of Closure is

enforced.
80.

Plaintiffs will not be able to maintain their businesses if the Order of Closure is

enforced.
81.

An injunction is necessary to preserve the status quo.

82.

Money damages would not provide Plaintiffs an adequate remedy.

83.

Plaintiffs have a likelihood of success on the merits.

84.

The public interest clearly weighs in favor of intervening on behalf of Plaintiffs and

“protecting the public from the dangers to liberty which lurk in insidious encroachment by [persons]
of zeal.” Doctor John’s, Inc. v. City of Sioux City, Iowa, 305 F. Supp.2d 1022, 1042 (N.D. Iowa
2004).
85.

Plaintiffs are entitled to preliminary and permanent injunctive relief which includes

enjoining Defendants or Defendants’ agents from implementing or enforcing the Order of Closure.
86.

Plaintiffs incorporate by reference the Affidavit of Scott Anderson. See Ex. 2.

87.

No petition for the same relief, or part thereof, has been previously presented to and

refused by any court or justice.
WHEREFORE, Plaintiffs respectfully request that this Court grant them the requests for
relief set forth in the Common Request for Relief, below.
COMMON REQUEST FOR RELIEF
WHEREFORE, Plaintiffs respectfully request that the Court enter an order:
A.

Holding that the Order of Closure is void and of no force and effect, and prohibiting

Defendants from enforcing the Order of Closure;
B.

In the alternative, holding that the Order of Closure is void and of no force and effect

with respect to Non-Exempt Establishments;
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C.

In the alternative, holding that the Order of Closure is void and of no force and effect

with respect to Exempt Establishments;
D.

In the alternative, holding that the Order of Closure is void and of no force and effect

with respect to Plaintiffs and similarly situated Non-Exempt Establishments or Exempt
Establishments;
E.

In the alternative, holding that the Order of Closure is void and of no force and effect

with respect to Plaintiffs and similarly situated Exempt or Non-Exempt Establishments in Polk
County and Dallas County, Iowa;
F.

In the alternative, holding that the August 27th Proclamation is void and of no force

and effect with respect to Plaintiffs;
G.

Entering a temporary injunction prohibiting Defendants from implementing or

enforcing the Order of Closure, whether directly or indirectly, against any or all of the foregoing
Exempt or Non-Exempt Establishments;
H.

Enter a permanent injunction prohibiting Defendants from implementing or

enforcing the Order of Closure, whether directly or indirectly, against any or all of the foregoing
Exempt or Non-Exempt Establishments;
I.

Awarding Plaintiffs their reasonable attorney fees; and

J.

Awarding Plaintiffs such additional and further relief as the Court deems just and

appropriate.

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Respectfully submitted,
BRICK GENTRY P.C.
By: /s/ Billy J. Mallory
Billy J. Mallory (AT0004934)
Daniel P. Kresowik (AT0008910)
6701 Westown Parkway, Suite 100
West Des Moines, IA 50266
Telephone: (5l5) 274-l450
Facsimile: (5l5) 274-l488
Email: billy.mallory@brickgentrylaw.com
Email: dan.kresowik@brickgentrylaw.com
ATTORNEYS FOR PLAINTIFFS

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