IN THE ELEVENTH JUDICIAL CIRCUIT COURT, ST. CHARLES COUNTY STATE OF MISSOURL CIRCUIT JUDGE DIVISION GARFIELD AND LINCOLN, INC, d/b/a TONY’S ON MAIN, and ‘Cause No. DURST AND DENT, LLC, d/b/a SHAMROCK’S PUB AND GRILL, Plaintifts, Division: vs. ) ) ) ) ) ) i) ) ) ) } COUNTY OF ST, CHARLES, MISSOURI, ) Serve: Steve Khlmann, County Executive, ) 100.N. Third Street ) St. Charles, Missouri 63301 ) ) ) ) ) ) ) y) ) ) ) and CITY OF CHARLES, MISSOURI, Serve: Mayor Dan Borgmeyer 200 N, Second Strect St. Charles, Missouri 63301 and DEMETRIUS CIANCI CHAPMAN, in his capacity) as The Director of the Department of Public Health ) for St. Charles County, Missouri, ) Serve: 1650 Boones Lick Road ) St. Charles, Missouri 63301 ) ) Defendants. ) ‘VERIFIED PETITION FOR TEMPORARY RESTRAINING ORDER, PRELIMINARY INJUNCTION, PERMANENT INJUNCTION, DECLARATORY RELIEF, WRIT OF PROHIBITION AND DAMAGES COME NOW Plaintiffs and for their Verified Petition for Temporary Restraining Order, Preliminary Injunction, Permanent Injunetion, Declaratory Relief, Writ of Prohibition and Damages states as follows:PARTIES 1. Plaintiff Garfield and Lincoln, Inc. d/b/a Tony’s on Main (“Tony's”) is a Missouri corporation with its principal place of business in the City of St. Charles, Missouri which is located in St, Charles County, Missouri, 2. Plaintiff Durst and Dent, LLC d/b/a Shamrock’s Pub and Grill (“Shamrock’s”) is a Missouri limited liability company with its principal place of business located in the City of St. Peters, Missouri which is located in St. Charles County, Missouri. 3. Defendant County of St. Charles, Missouri (“the County”) is a political body operating under a charter form of government pursuant to the provisions of the Missouri Constitution. 4, Defendant City of St. Charfes, Missouri (“the City”) is a municipality located in the County of St. Charles, Missouri, 5. Defendant Demetrius Cianci Chapman (“Chapman”) is the Director of Public Health for the County of St. Charles, Missouri, BACKGROUND 6. On November 24, 2020, and after many months of taking no action to prevent the spread of Covid-19 in business establishments in St, Charles County, Missouri, the Director of the Department of Public Health, Demetrius C. Chapman, issued a bizarre and non-sensical “Public ‘Health Emergency Order” in which he immediately, and without notice, ordered bars, restaurants, and nightclubs which serve alcohol to close at 11:00 p.m. No other dining establishments or other retail businesses in St, Charles County are the subject of the Order, A eopy of the Order is attached as “Exhibit A”,KA In implementing the Order to stem this self-proclaimed, newly discovered “emergency,” Chapman relies, in part on §192.006 of the Revised Statutes of Missouri, which pertains only to the rulemaking authority of the Missouri Department of Health and Human Services, §192.200, which is no longer in effect, and §192.300, which pertains only to counties in the State of Missouri which have County Health Center Boards and County Commissions. St. Charles County has neither, Chapman also purports to rely on 19 Code of State Regulations §20-20.040 (“the C.8.R.”) as authority for his ability to execute the Order, 9. Assuming, arguendo, that Chapman has the authority to issue the Order pursuant to that Section of the C.S.R., there are certain obligations and duties that Chapman must undertake upon a report of a communicable disease, including, but not limited to: A) Inspecting premises which he has reasonable grounds to believe are conducive to the spread of the disease; B) Collecting samples of specimens that may be necessary to confirm the presence of the diseaso; ©) Making a complete epidemiological, environmental investigation and recording the findings on a communicable disease or exposure report form; and D) _ Notifying potentially exposed individuals of the risk or potential risk of the disease. 10. Upon information and belief, not only did Chapman fail in his obligations under the CSS.R,, but his premise that it s now necessary to close Plaintiffs” businesses at the magical hour of 11:00 pm. to stop the spread of Covid-19, while at the same time allowing restaurants such as Denny's or Waffle House to remain open twenty-four (24) houts a day because those establishments arguably do not facilitate the spread of Covid-19, is flawed, and has no factual or scientific basis, 11, Further, Chapman’s premise that all patts of St, Charles County are “experiencing large numbers of citizens ftom other jurisdictions patronizing St. Charles County bars and restaurants” is equally absurd and wholly unsubstantiated.12. That despite the plain language of the Order, the County believes that there should be ‘one exception thereto, Ameristar Casino, which is located in the City of St. Charles, Ameristar continues to sell aleohol on its gaming floor after 11:00 p.m, 13, The City, which:s without any legal authority to enforce a Health Order promulgated by the County', has done so, at times in draconian fashion, at Tony's and other establishments in the City, while at the same time, allowing Ameristar to freely operate. 14. Plaintiffs assert that the Order's real purpose was not to stop the spread of Covid-19, bbutto further a plan devised by the County and the City, under the guise of a Public Health Order, to prevent and discourage patrons from frequenting bars and restaurants on North Main Strest in the City of St. Charles. In doing so, Chapman and the County have caused, and will continue to cause, substantial economic harm to many other bars and establishments in St. Charles County, same of which have already been devastated by Covid-19. 15. Further, Shamrock’s is located in the City of St. Peters, which has its own health department, and which regulates the operations of bars and restaurants, 16. The St. Peters Health Department has not promulgated an “Emergency Order” mandating a closing time of 11:00 p.m. for establishments that serve alcohol. 17, Shamrock’s should not be subject to more restrictive conditions than those set forth by the City of St. Peters Health Department. COUNT L INJUNCTIVE RELIER 18. Plaintiffs restate and incorporate the allegations set forth in Paragraphs 1 through 17 as if fully set forth herein. + $200,010 ofthe Ordinance of the City of St, Charles provides that members ofthe St Cluarles City Police Department hhave authority to enforce laws ofthe City and the State of Missouri. There is ao mention of any power to enforce & Public Health Order issued by St. Charles County.19. ‘The actions of Defendants in promulgating and enforcing the Order will cause, and have caused, irreparable harm to Plaintiffs including, but not limited to: A) Loss of good will associated with the enforcement actions of the St. Charles Police Department; B) Loss of revenue; and ©) __ Loss of valuable personnel who will be terminated due to loss of revenue or who will resign due to loss of income, WHEREFORE, Plaintiff's request that this Court: A) Bnfer a temporary restraining order, preliminary and permaneat injunction preventing Defendants from enforcing the Order against Plaintiffs; B) Declare that the Order is unlawful, null and void; ©) Award Plaintiffs their costs and reasonable attomeys’ fees; and D) Award such other and further rolief as this Court doems just and proper. COUNT IL ‘PETITION FOR WRIT OF PROHIBITION AGAINST THE CITY OF ST, CHARLES 20, Plaintiffs restate and incorporate the allegations set forth in Paragraphs 1 through 19 as if fully set forth herein. 21. Asset forth above, the City of St. Charles has used, and continues to use, its Police Department to enforce the Order. 22, The use of the Police Department to enforce the Order is unlawful and beyond its authority. WHEREFORE, Plaintiff Garfield and Lincoln, Ine. seeks a Writ of Prohibition against the City of St. Charles, Missouri, whereby itis ordered to cease and desist from taking any action to enforce the Order, forits attomeys* fees incurred herein, and for such other and further relief.as this Court may deem just and proper.COUNT Il PETITION FOR REVIEW PURSUANT T0 536.150 RSMo. 23. Plaintiffs restate and incorporate the allegations set forth in Paragraphs 1 through 22 as if fully set forth herein, 24, §536.150 provides, in relevant patt, that a decision, such as the Order, “may be reversed by suit for injunction, certiorari, mandamus, prohibition or other ortier.” 25. Plaintiffs sock a determination that the Order is arbitrary, capricious, unreasonable and an abuse of diseretion, WHEREFORE, Plaintiffs seek a Judgment from this Court declaring that the Order is arbitrary, capricious, unreasonable and an abuse of discretion, that it declare the same null and void; that it award Plaintifts their reasonable attomey’s fees and for such other and further relief as this Court may deem just and proper COUNT IV VIOLATION OF PLAINTIFES’ RIGHTS OF EQUAL PROTECTION 26. Plaintiffs restate and incorporate the allegations set forth in Paragraphs 1 through 25. as if fully set forth herein, 27. The Equal Protection Clause of the Missouri Constitution (Article T, Section 2) provides “that all persons are created equal and are entitied to equal rights and opportunity under the law.” 28. ‘The Order is arbitrary, capricious, and unreasonable. 29, Furthermore, the Order singles out certain businesses, ie., only those businesses that desire to sell food and alcohol after 11:00 p.m. , while allowing businesses which sell only food to remain open after that hour, and also, by allowing Ameristar to remain open to sell alcohol on its gaming floor after 11:00 p.m.,, thereby giving it an unfair advantage over bars and restaurants which are forced to close at 11:00 p.m.30. The actions of Defendants in promulgating and enforcing the Order, violates Plaintiff's rights under the Missouri Constitution. WHEREFORE, Plaintiffs pray for actual damages against Defendants, jointly and severally, and for such other and further relief as this Court may deem just and proper. Respectfully submitted fy torr ©. iy DANIEL GOLDBERG, #36982 228.N. Main St. Charles, MO 63301 (636) 949-0010 (636) 949-8277 fax dgoldberg@228northmain,com‘GARFIELD AND LINCOLN, INC. STATE OF MISSOURT ) }ss. COUNTY OF & (HARES ) On this 2) bay of Decenalocr in the year 2020, before me, , @ Notary Public in and for said state, personally appeared pay Bex HMA BWAl Persians — ‘Of GARFIELD AND LINCOLN, INC, known to me to be the pelson who executed the within Petition on behalf of said corporation and that the facts contained therein are true and accurate to the best of his knowledge and belief and acknowledged that he executed the same ashis free act and deed. My Commission Expires: J2-2004 / Stal Notary Public sulin, Jere iy £5) Sonumision 12616018 Si Louls eReDurst AND Dent, LLC o STenature VOTGY Gare Title STATE OF MISSOURL +) )8s. COUNTY OF SY.CWAQIS) On this 21% day of Docent in tre year 2086 betore mo, jeauy, ‘a Notary Public in and for said state, personally appeared Ore fwnex ‘of DURSTANDDENT,LLC. knownto meto be the person wito executed the within Pelifion in behalf of said limited liability company facts contained therein are true and accurate to the best of his knowledge and belief and acknowledged that he ‘executed the same as his free act and deed, 912618058 St, Louis My Commission ExpiresBY ORDER OF THE DIRECTOR OF THE DEPARTMENT OF PUBLIC HEALTH. OF ST. CHARLES COUNTY, MISSOURI PUBLIC HEALTH EMERGENCY ORDER BARS, RESTAURANTS, AND NIGHTCLUBS November 24, 2020 WHEREAS, on March 13, 2020, a state of emergency was declared in St. Charles County relating to the immediate and significan tisk posed to the health, safety, and wellbeing ofthe people of St. Charles County ‘hat is presented by the SARS-CoV-2 virus, the disease which causes Navel Coronavirus 2019 (“COVID- 19") WHEREAS, Missouri Governor Mike Parson, in a release entitled “STATE OF MISSOURI PUBLIC HEALTH WARNING,” identified threo risk categories for counties experiencing an increase in COVID- 19 casos and made recommendations based on the level of risk; and WHEREAS, Governor Parson has defined the populations at greatest risk to bo those where the PCR testing positivity rte is 15% or above andthe seven (7) day case rate is 350 or above per 100,000, defining those ‘counties to be in the “EXTREME RISK” category and advising those counties to take steps to mit tigate the virus; and WHEREAS, as of November 23, 2020, St. Charles County falls within the category of “EXTREME. RISK;” and WHEREAS, the “Locel Government Advisory” in Governor Parson's release states that “What happens in ‘one county affects its neighbors;” and WHEREAS, elected officials in Illinols, St. Louis County, and the city of St. Louis have issued orders, the outcome of which is that all bars and restaurants in those jurisdictions are closed by 11 pan. and WHEREAS, St. Charles County is experienciag large numbers of eitizens from other jurisdictions patronizing St. Charles County bars, restaurants, and nightelubs without social distancing or taking other protective measures; and WHEREAS, Governor Parson advises Extreme Risk counties should take action to mitigate the risk and in doing so should recognize that no county is independent but is affected by its neighboring jurisdictions; and WHEREAS, such action is required to mitigate the risk arising from bars, restaurants, and nightclubs, NOW, THEREFORE, DEMETRIUS CIANCI CHAPMAN, DIRECTOR OF THE DEPARTMENT OF PUBLIC HEALTH OF ST. CHARLES COUNTY, MISSOURI AND THE LOCAL HEALTH AUTHORITY, by virtue of the authority vested by the Constitution and the Laws of the. ‘State of Missouri, and the Charter and Ordinances of the County of St. Charles, does ‘hereby issue the following Public Health Bmergency Order:+ Bars, Resturants, and Nightolubs shal close by 11:00 pm. Unies oxhervise set forth hereln, this oréer shall be effective, upon execution hereof, at 12:01 am on November 25, 2020, This order shall expire only upon further order, ‘This order is issued pursuant tothe following findings: ‘The St, Charles County Department of Public Health (“DP”) has been closely monitoring an conbreas of espiratory illness caused by COVID-19. Infections with COVID-19 have een ‘eported around the world, The firs consimed instance of person-to-person spread of the virus ‘nthe United States was reported on January 30, 2020; and COVID-19isconsidered an infectious, contagious communicable, nd dangerous discase for Papeses of $192.02, 192.139, & 193.300 RSMo, 19 CSR 20-20 020; and other state and local Jars; andt On March 13, 2020, Missouri Governor Michael L. Parson declared a Stato of Emergency in “Missouri to assist with the State's response to the COVID-19 pandemo; and ‘The Director ofthe DPH isthe "local health authority” pursuant to 19. ‘CSR 20-20.010(24) and ‘as ben delegated the mutbority to aston St. Charles County's behall for pubic heath Purposes; and CONTD-19hosplatzations ae rising rapidly in St. Charles County, andi i imperative that ‘adilonal mligation steeples be employed to contre the rpid community mutonisson ofthe ‘ins in ordorto prevent the health care system in St. Charles County fom being overwhelmed; and “This Orders entorized pursuant §§192.006, 192.200, and 192.300 ofthe Revised Statutes of Missouri; 19 CSR 20-20.040 aud 19 CSR 20-20.050 of the Rules ofthe. ‘Department of Health and Senior Service; and by certain Executive Orders, as may be further amended, Signed this 24® day of November, 2020, jie Healt St Charles County, MissouriTNACCORD: eS Steve Ehimann, Counly Executive St, Charles County, Missouri Lite Hila Brenda Hiinion, County Registrar