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.