Indiana BBQ restaurant sues governor, state over mask mandate

An Indiana restaurant that was shut down over the state’s mask mandate aimed at slowing the spread of the coronavirus is taking the issue to court, saying it was improperly closed for violating masking requirements and capacity limits.

Yergy’s State Road BBQ LLC in Bluffton, a town in Wells County about 40 minutes south of Fort Wayne, filed a suit Tuesday against the Wells County Health Department, Gov. Eric Holcomb and the state.

The lawsuit challenges Holcomb’s executive order requiring masks to be worn in restaurants around Indiana. It’s is one of the first lawsuits to be filed over Holcomb’s executive orders during the coronavirus pandemic.

Yergy’s contends the Wells County health order closing the restaurant was based on “improper Executive Orders” issued by the governor “outside the narrow scope of the Emergency Declaration Law.”

After several warnings, the Wells County Health Department required Yergy’s to shut down on Aug. 28. County health officials said the business received prior verbal and formal warnings following complaints about employees not wearing masks.

Yergy’s appealed that ruling to the county health board, which sided with the health department, The Journal Gazette reported.

The suit alleges the governor’s executive order is unconstitutional and caused “unjust injury to Yergy’s fundamental civil rights, liberty interests and property rights.”

The governor, the suit continues, does not have the authority to mandate mask-wearing without backing from the Legislature.

“(The order is) without legitimate legal footing and should be declared unenforceable and set aside,” the suit says.

The Republican governor’s use of executive orders that early on shut down many businesses deemed nonessential and now include the statewide mask mandate have faced complaints from many conservatives across the state and protests that he’s overstepped his authority.

Holcomb has issued 49 coronavirus-related executive orders since March under the state’s emergency law, which was largely drafted in 2003 following the 9/11 terrorist attacks. Some have suggested steps such as limiting any emergency action by the governor to 30 days without legislative support, arguing it was meant for temporary situations such as floods, tornadoes or terrorist actions, even though epidemics are included among the 29 situations specified in the law.

“We do our homework before we create executive orders,” Holcomb said in a statement regarding the lawsuit. “I’m confident in my authority to set in place requirements that save Hoosier lives.”

State lawmakers are expected to debate changes to the governor’s emergency powers once the full legislative session begins in January.

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37 thoughts on “Indiana BBQ restaurant sues governor, state over mask mandate

    1. I am amazed at how many idiots I see driving down the road by themselves wearing a mask. Pretty sure if you told them wearing. A size XXXS jock strap and clucking like a chicken helps, they would do it. Science!!

  1. Obviously an issue in many states that may end up before the US Supreme Court. I think this pandemic has been an eye opener for people like me that had no idea the broad range of powers the Governor has over our lives in the name of public health. I hope the legislature does review and tighten things up if they are as I suspect too vague and open. We are certainly testing the limits of what a government can require from it’s citizens.

    1. Exactly what I was thinking. These types of cases have the right combination of ingredients to turn into a big Supreme Court case about personal liberty vs. public health, etc. Will be interesting to follow.

    1. Sorry, they don’t work. That is the science. Washing and dis-infecting hands and avoiding large crowds, especially strangers, works better. Also if you know you are sick, isolate yourself.

    2. The social experiment has been successful in social conditioning the global population. If you don’t wear a mask you will kill your grandma. I will let God decide when grandma dies, pretty sure I don’t have that kind of power. The propaganda, deceit and the inflation of the numbers is nothing short of criminal by the CDC, State Board of health(s) and the controlled media narrative.

  2. Do the employees of this BBQ restaurant follow other health department and USDA requirements like wearing plastic gloves and hair nets, refrigeration, and cleanliness. Maybe they should be allowed to serve under cooked pork- can you believe the government requires pork is cooked to 145? Maybe this outfit in Bluffton doesn’t believe that either. Wow requiring a mask is such an infringement . Bunch of babies complaining about some easy to follow rules to save lives. Oh I forgot- COVID isn’t real and will just disappear.

    1. I heard it was going to disappear on November 6th, but here we are. The “hoax” reveal is a bit late…

    2. Kevin K, 1) All those other rules and regulations were passed by the legislature and gave very detailed instructions to the USDA or health departments–though I still have heartburn on federalism (USDA) and non-delegation. The Indiana Emergency Act basically only gives the authority to “Suspend the provisions of any regulatory statute prescribing the procedures for conduct of state business” (notice regulations on how state business is conducted), ” Prescribe routes, modes of transportation, and destinations in connection with evacuation”, and “Suspend or limit the sale, dispensing, or transportation of alcoholic beverages, explosives, and combustibles” (Ironic considering liquor stores were considered essential and that’s the one he can actually shut!) and 2) I’m pretty sure no matter the regulations a restaurant will do all in its power to make sure not give food poisoning to its customers.

    3. Eric M – if Curtis Hill had any sort of legal leg to stand on, you can bet he’d have taken a run at Holcomb’s actions on his way out the door to increase his standing for the Republican gubernatorial primary in 2024.

      As far as the BBQ restaurant, it also appears he’s claiming a religious exemption from masks… which makes as much sense as claiming that God told him to serve undercooked products, or that God told him handwashing is a sin.

      https://www.wane.com/news/local-news/support-for-bluffton-restaurant-continues-after-owner-stands-defiant-of-mask-mandate/

    4. Joe B., I’m confused. Curtis Hill did point out correctly the mask mandates were unenforceable since not passed by legislature. This is not a suit by the AG; the AG will end up defending the governor. I read the article and the suit; I did not see anything where the owner was claiming a religious exemption. God said not washing your hands is a sin, in Leviticus, but Christ also warned “Now you Pharisees clean the outside of the cup and of the platter; but inside of you, you are full of robbery and wickedness.”

      Also, seeing you comment regarding NZ, do you realize masks are only required on public transport there. And the use of public transport in New Zealand is low, by the way. Should we divide the United States into islands of about 5 million people each and require masks only on public transit? Sounds like that’s your suggestion.

      Preventable? How many celebs and pols who ostensibly are following all the rules have gotten it? Or is it because the 2-4.5% of that still exercise agency and don’t muzzle ourselves that are causing all those infections?

      https://delphi.cmu.edu/covidcast/?sensor=fb-survey-smoothed_wearing_mask&level=county&date=20201216&signalType=value&encoding=color&mode=overview&region=18057

    5. Try reading the owner’s Facebook page. The amount of times posts they’ve shared are marked as “false information” tells a story itself.

      You missed the point on New Zealand. They took what actions were needed to eradicate the virus and their economy is now flourishing. Yes, they only require masks on public transit now because they did the hard work up front. It took leadership and collective sacrifice, but they did it. They now have sporting events with the stands full of people.

      The United States did not have the same will – short term pain for long term gain – though eradication was possible. Hence, we have businesses closing left and right because there will be no economy recovery until the virus is under control, and simply too many people foolishly think it’s the restrictions, not the virus itself, which are hurting business. And we’ve got people needlessly dying and getting infections that will haunt them the rest of their lives.

      We just have to hunker down for a few more months and this will be over – all that’s needed is a real government assistance package and collective sacrifice. I’m amazed – in World War II, there were all kinds of rationing required upon people. We are at war with a virus, and all people nowadays are being asked to do is stay home and wear a mask when they go out and they can’t handle it.

    6. So now I have to read someone’s FB page to prove your point? “All borders and entry ports of New Zealand were closed to all non-residents on 19 March 2020, with returning citizens and residents being required to self-isolate. Since 10 April, all New Zealanders returning from overseas must go into two weeks of managed isolation.” US borders were closed by then as well. NZ did not require masks for those limited purposes until much later. Many/most states went into lockdown roughly same time. So what did NZ do differently? And NZ’s parliament passed laws, not just edicts from PM.

      https://www.kiwiblog.co.nz/2020/03/the_bills_passed_under_urgency.html

      And they went back to school and ended lockdowns earlier than most of US.

    7. Based on the nonsense you’re propagating, yes, I’d recommend you do a lot more reading, and to do that reading from better sources. And stop focusing on the HOW, focus on the WHAT, because you’re willfully dancing around the point because it’s not convenient to you.

      Post your cherry-picked quotes, New Zealand actually had a lockdown, far harder than any “lockdown” in the US. They eradicated the virus twice – twice because a few cases sprung up after a few months and they were able to wipe it out again without sending the entire country into draconian lockdown. They’re back enjoying life with very few, if any, restrictions and their primary concern appears to be that they’re dependent on tourism and those folks aren’t coming back for awhile.

      Meanwhile, we here in the US are whining about our “rights” and we have yet to have a lockdown that was long enough or hard enough. Cranks spouting disinformation or flat lies are, for some reason, even listened to at all as if they’ve got anything valuable to offer when they should be shushed and told to get lost. It’s a time for leadership and decisive action that might not be popular, but is needed. America did not have proper leadership for this time and we’ve paid the price dearly with our economy in tatters until the virus is under control.

      https://www.bbc.com/news/world-asia-53274085

  3. The emotions of anyone who fought from the bottom to survival is understood. The human condition causes resentments. Much of humanity lives in a “IT WILL NEVER HAPPEN TO ME” mindset.
    The proof is in the lives lost and the worsening of humanity.
    Its all a shame. As for me, at 71 I’ve been through a couple “it will never happen to me”. It sucks when it happens. We need to keep the faith and get through this. I too don’t feel ambulance chasing is the answer.

  4. The person speculating this will end up in the Supreme court might be surprised that these kinds of issues have gone to the supreme court before, and the court has resoundingly and consistently found in favor of public health officials as far back as the 1890’s. Not only is he ignorant of history, the law, and current scientific evidence, he is getting fleeced by a lawyer that is going to take his money to press a frivolous lawsuit.

    This law suit just echos the politicalization that the Trump Administration and the post-truth Republican party has created over the entire pandemic and wearing masks in particular.

    The real economic damage came from an unchecked Pandemic and this guy seems determined to to do his part to make sure it stays that way.

    1. Certainly the mask issue is not one worth fighting about and not before the courts. I was thinking more about the bigger issue of what business have been allowed to be open vs closed thereby picking business’s that have thrived and ones that have gone out of business. Can you honestly tell me that a Home Depot or Lowes with 300 people in it is safer than a small restaurant? I just think the arbitrarily applying of rules with no strong backing of science will certainly get tested in the courts and I think it’s wrong for the Governor to get to pick the winners and losers. I’m veering from the subject of this article and should have been more specific.

    2. To Jeff A. – yes, a Home Depot or Lowe’s with 300 people is safer than a small restaurant. Spreading infection depends on a lot of things, two of which are concentration of virus laden droplets and duration of exposure. Air in a large big box is much more diluted than a small restaurant and you are not likely to spend as much time in a big box store than eating a meal in a restaurant. Plus when eating, masks are not worn, which they would be (or should be) shopping in a big box store.

  5. I’m amazed as how many idiots think that having to wear a mask is so bad! You would think they’ve been told to wear a size XXXS jock strap indefinitely. Get over it people!

  6. They are perfectly right. There should have been a legislative process for this. We don’t live in the old Soviet Union or the present Communist China. In an emergency situation for very distinct and a stated time period (short) it could be considered but this is now approaching a year and there is no end in sight and governors the nation wide need to be held accountable. If necessary, some should go to jail. We spent a lot of American blood to make and keep this country relatively free only to see the second coming of Communism start its reign in this country. If real science supported these closures, lockdowns and mask wearing, there would be some fertile ground to stand on but there isn’t. The one country in the world that used sensible measures (Sweden) is doing as well or better than the ones that have gone bonkers on shutdowns. The states in our own country (Texas and Florida) that have been far more lax in their approach have done much better than the ones that once again have gone full bore with very stringent mask guidelines and lockdowns. Governors that have gone this direction should have to pay personally. That is the only way people in these powerful positions will think twice before trying to become Ghengis Khan.

    1. Out of curiosity, what do you think a governor’s role is? Do you think they should be able to declare states of emergency, or mobilize the national guard? I’m not saying I know any better, I’m just wondering. If they shouldn’t be doing any of those things, do states even need a governor to begin with?

      I do find these types of complaints interesting, politically. Our governor is Republican, and the majority of Republicans believe in more state executive powers (not less), and less national legislative powers (not more). Yet, most of the people complaining about masks, shutdowns, saying the virus isn’t real, etc. are overwhelmingly Republican, many voraciously attacking Democrats as they rail against things specifically associated with their own party and its platform.

    2. Governors are the Executive branch of government. In times of emergencies governors make short term decisions until the legislative body can establish a quorum. The legislative body, the representative of the elect can then determine policy that is appropriate. Governors should not have unlimited powers with no restraint. Fortunately for Governor Holcomb, he and Dept. of Health made unilateral decisions and the entire weight of the failed small business in Indiana falls on his shoulders. The problem with dictator power is that it is one size fits all. Absolute power corrupts absolutely and these power hungry bureaucrats become intoxicated on the power. As poverty levels rise nationwide, the government never miss a paycheck.

    3. Matt H that is a very interesting and debatable question regarding state vs. federal powers. The states and their governors have clearly exercised their power in this and the federal government seems to only have power regarding federal people, places and things. I hope it stays that way as I would hate for this to become a singular national issue. I can choose what state I want to live in and be governed by, but not so much my country and clearly we would be heatedly divided depending on where you live. I get it, people travel across state lines so it’s a debate worth having, but I think issues like health policy are better handled by each state so yes we do need governors, but clearly have to take a serious look a the power we grant them over our lives.

    4. Two words, Neil – New Zealand. Folks like you always ignore how New Zealand did because it’s inconvenient to show how the coronavirus could be eradicated – twice. Go read up on how they did it. It’s possible with leadership and listening to science instead of the cranks.

      https://www.theguardian.com/australia-news/2020/dec/19/new-zealand-shows-the-best-strategy-for-economic-recovery-is-successfully-managing-covid

      Social conditioning? is that when 3500 people in the US die DAILY from a preventable disease and we all become numb to the death count?

  7. Just lost dear friends to COVID-19, so no sympathy for this restaurant. We have continued to support restaurants that put their customers safety first by following guidelines.

    1. Sorry for your loss Rachel. After a long time of hardly knowing anyone who even had Covid I recently know of many people and their families with even a few deaths. I think once you know people who have died or have been personally affected that changes your attitude.

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