Kentucky farm chief sues Beshear over his COVID-19 business restrictions
Kentucky Agriculture Commissioner Ryan Quarles and a Central Kentucky apple orchard with a playground and wedding area sued Gov. Andy Beshear Monday over his orders restricting businesses during the COVID-19 pandemic.
In a 20-page lawsuit filed in Scott Circuit Court in Georgetown, Quarles and Evans Orchard and Cider Mill allege Beshear’s numerous orders “restrict the rights and liberties of members of the public — all in violation of the state Constitution and Administrative Procedures Act” by selective, haphazard and unresponsive enforcement.
The Kentucky Administrative Procedure Act is the law governing procedures for state administrative agencies to propose and issue regulations. The lawsuit claims the Beshear administration should have issued its business restrictions through administrative regulations that could be reviewed by the public and state legislature.
It is asking the court to declare Beshear’s “numerous orders, policies, procedures and other forms of action restricting the rights of members of the public” during the coronavirus pandemic to be unconstitutional and declare then null, void and unenforceable. It is also asking for a permanent injunction to stop the business restrictions.
It is not clear if Quarles wants all of Beshear’s business restrictions removed. When asked, he declined to provide clarification.
Other defendants named in the suit include Health and Family Services Secretary Eric Friedlander, state Public Health Commissioner Steven Stack, WEDCO District Health Department director Crystal Miller, and their agencies.
The lawsuit notes Beshear’s various orders since he declared a state of emergency on March 6, including June 16 and June 22 orders providing guidelines for gatherings of up to 50 people.
The practical effect of those two orders is that the orchard will be unable to host weddings and other events at its barn and playground at a profit, according to the lawsuit.
The enforcement of the orders has been selective, the suit said. It said Beshear, Secretary Friedlander, Commissioner Stack and local health departments in May and June failed to enforce a March 19 executive order prohibiting mass gatherings in Louisville, Frankfort and other Kentucky cities.
The lawsuit also said it got “ill-informed” advice from WEDCO, the local health district.
The actions of the defendants, the suit said, have caused “substantial financial and operational hardships” for the orchard.
Beshear spokeswoman Crystal Staley said all similar businesses must follow the same rules in order to keep the public safe during the coronavirus pandemic.
“At a time when states to our south are reporting over 8,000 new COVID-19 cases each day, the parties bringing this lawsuit want to eliminate the public health guidance and requirements that are keeping Kentuckians safe,” she said. “All businesses have to follow the same rules and guidance for outdoor weddings and other activities.”
Staley added: “We are confident in the legality of these rules, and have identified numerous legal issues with the suit, including that it was filed in the wrong place. If the parties here won and the virus spread because the facility was not following proper guidance, it could threaten the reopening of our economy and public schools.”
Quarles said the orders “have significantly burdened small businesses.”
“For agritourism businesses across the state, peak season is approaching in September and October. Our farm families need answers now,” he said.
Quarles said the executive order governing the state’s public health crisis has been in place for more than 100 days without legislative or public input.
“Allowing insight is the best form of government. This suit is not about challenging Centers for Disease and Prevention guidelines; it’s about process,” he said.
Jenny Evans, with the orchard, said measures taken by the business included reducing capacity to allow for social distancing, requiring customers and employees to wear face masks, and doubling down on efforts to sanitize frequently touched surfaces.
She said Evans Orchard has worked with the local health department in Scott County to comply with the orders for public facing business and outdoor attractions.
But Evans said she is not getting clear direction on exactly what to do.
As a result of these “burdens,” she said, Evans Orchard has experienced major financial losses. “So long as certain executive orders remain in place, Evans Orchard will be unable to operate the playground and event venue profitably for the remainder of the calendar year,” she said.
Joe Bilby, attorney for the state Department of Agriculture, said the Administrative Practices Act “sets up important guardrails” that ensure the public can participate in the policy-making process.
“In an emergency, the law allows the government to promulgate a regulation that takes effect immediately, but it also preserves everyone’s right to participate in the notice-and-comment process. Allowing everyone to be heard makes the policy results better for all of us,” Bilby said. “For more than 100 days now, the governor has imposed extraordinary restrictions on Kentuckians’ liberties without following the procedure required by law. It’s time for that to stop.”
This story was originally published June 29, 2020 at 1:41 PM.
