Some small businesses sue against state virus restrictions

Supporting Small Businesses

SACRAMENTO, Calif. (KTXL) — Small businesses have directly been affected by COVID-19 restrictions and some have decided to fight back against the state’s restrictions, making different legal arguments in dozens of lawsuits against Governor Gavin Newsom.

When the pandemic started last year, 58 Degrees & Holding Co. owner Ognian Gavrilov says his midtown restaurant began to struggle just as many other businesses did. He said due to this, he had to let go of some of his employees.

A few months later, the governor announced that restaurants in certain counties could reopen for takeout or outdoor dining, but this still had an impact on restaurants.

“Now you’re affected by the weather because if it’s raining nobody, wants to be outside,” Gavrliov said.

Shortly after, restaurants were ordered to close yet again for outdoor dining and could only be open for takeout or delivery to help prevent COVID-19 cases from rising.

“When he went overboard with the ICU capacity issue, that’s when I go, ‘OK, enough is enough. We got to stop this or at least try to,'” said Gavrilov.

Gavrilov is also a managing partner of a law firm. He decided to take legal action against Governor Newsom in federal court. Gavrilov’s legal argument is that the state cannot deprive any person the right to run their business without due process of law under the 14th Amendment of the U.S. Constitution.

“If the governor is going to make decisions, these decisions better be based on constitutional parameters and on science and we contended this was neither,” he said.

Luke Wake an attorney at the Pacific Legal Foundation also is taking action against the COVID-19 restrictions.

Wake is representing two clients pro bono. One of the clients is Ghost Golf in Fresno, which has been closed for almost a year because the mini-golf course is indoors.

“People could be spaced out so that you would never get within 6 feet of each other but, unfortunately, they’re totally closed,” Wake said.

Wake’s legal argument is that many of the COVID-19 restrictions which came from the governor’s office didn’t go through the California State Legislature, which he believes means they’re unconstitutional. 

“In our constitutional system, the lawmaking power is invested exclusively in the legislature. The governor — the executive branch — is prohibited from making the laws but, nonetheless, for almost a year now, that’s precisely what the governor has done,” he said. 

Wake says this argument has worked in other states.

“The Michigan Supreme Court recently issued a decision on holding exactly what we think the courts should say here, which is that it’s unconstitutional for the legislature to just write a blank check to the executive branch to do whatever it wants,” he told FOX40.

Gavrilov said he dropped his lawsuit when restaurants were allowed to reopen for outdoor dining in Sacramento County mid-January.

“And that made the lawsuit moot, because we wanted him to at least pretend to use actual evidence,” said Gavrilov. 

When the rest of the state’s stay-at-home order lifted, Gavrilov doesn’t believe his lawsuit was the sole reason for the change, but he does believe it helped.

“Because we were the first lawsuit of this kind, we went to federal court and we weren’t asking for money or anything like that,” he said. “We just asked for our constitutional rights back because the issue with just government in general whenever they take power, they’re not in the habit of giving it back.”

In those two cases, the court agreed with the state’s position that the public health orders were lawful and denied the request for an injunction.

Wake says he is appealing that decision.

“The state continues to vigorously defend the public health orders against legal challenges, staying laser-focused on protecting California’s health and safety within the legal authorities available to us,” the governor’s office said in a statement to FOX40.

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