Five bars and restaurants allege in a proposed class action that the coronavirus pandemic-related shutdown orders set by Hawaii Governor David Ige, Attorney General Clare E. Connors and Honolulu Mayor Kirk Caldwell have traipsed into unconstitutional territory as the city and county’s bar and nightlife industry remains locked down more than 225 days after a state of emergency was first declared on March 5, 2020.
According to the plaintiffs, the defendants have acted unconstitutionally in allowing bars and nightlife venues to remain open and continue operating everywhere in Hawaii except on the island of Oahu.
The 41-page lawsuit seeks declaratory and injunctive relief for what the plaintiffs allege are violations of the Fifth and Fourteenth Amendments of the United States Constitution, as well as the Hawaii Small Business Bill of Rights and State Constitution.
The proposed class includes all bars and venues that hold a Class 2, 5, 6, 10, 11, 12, 13, 14, 15, 16, 17 or 18 liquor license, as defined by the Rules of the Liquor Commission of the City and County of Honolulu, and who’ve been shut down by Governor Ige’s proclamations and Mayor Caldwell’s executive orders since March 18, 2020.
“The putative Class continues to be shut down as of the date of this Complaint with no reasonable expectation of reopening in the near future,” the suit adds.
As a result of executive orders and proclamations issued by Governor Ige and Mayor Caldwell, the plaintiffs and other similarly situated bar and nightlife establishments have, with the exception of a brief period between June 19 and July 29, been forced to shut down since March 20 due to the COVID-19 crisis, according to the complaint. The plaintiffs argue that although theirs and proposed class members’ COVID-19 safety protocols are “sufficiently similar” to businesses that were allowed to remain open since March, such as Target, Walmart and Home Depot, a craterous rift exists in the reasoning behind why some entities have been allowed to continue to operate while others have been shuttered.
“There was a list of businesses that were allowed to remain open for on-premises operations and that classification was neither reasonable nor rational, but rather random and unsupported by data, and therefore a denial of due process,” the plaintiffs charge.
According to the complaint, Hawaii and Honolulu have allowed on-premises shopping at businesses deemed essential, dating back to March 20 with the exception of June 19 to July 29, when restrictions were briefly eased. Throughout that timeframe, restaurants, which were deemed essential, were permitted to remain open, though limited to take-out and delivery for weeks, the suit says.
The issue, according to the plaintiffs, is that the defendants’ executive orders and proclamations provide no pre- or post-deprivation remedy with regard to the definition of an “essential” business or the determination of whether proposed class members can open with the same health-related protocols as the “essential” businesses statewide. According to the lawsuit, the plaintiffs and similarly situated bars and restaurants have undergone neither health inspections nor analysis “to see if they meet the same health standards as allowed for essential businesses.”
In all, the lawsuit alleges Hawaii and the county and city of Honolulu “continue to govern capriciously and arbitrarily by allowing bars and nightlife venues to open and operate everywhere in the state, subject to adherence to CDC guidance, except for Oahu.”
The plaintiffs stress urgency, arguing in the case that “[i]t is now late October and Defendants have no anticipated end-date to their emergency interventions.” The lawsuit outright contends that there exists “no rationale that supports the decision to keep bars and nightlife venues closed.”
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