Penn. Pool Store Alleges State’s Waiver Policy for Non-Life-Sustaining Businesses to Remain Open Is Unconstitutional [UPDATE]
Last Updated on October 8, 2021
Paradise Concepts, Inc. v. Wolf et al.
Filed: May 5, 2020 ◆§ 2:20-cv-02161
A Pennsylvania pool store alleges the state's waiver policy allowing some non-life-sustaining businesses to remain open during the pandemic is unconstitutional.
Pennsylvania
Case Updates
October 8, 2021 – Ruling Entered in Defendants’ Favor
The judge overseeing the case detailed on this page has ruled in the defendants’ favor after finding that the court no longer has jurisdiction over the matter because the waiver program at issue has ended.
U.S. District Judge R. Barclay Surrick noted in an October 5 memo that the Eleventh Amendment to the U.S. Constitution bars private parties from suing state officials in federal court, with some exceptions, including when the case requests injunctive or declaratory relief for “ongoing violations of federal law.”
Because the waiver program at issue in the lawsuit is no longer in place and “will not return,” there is no “ongoing” dispute between the plaintiff and defendants, the memo stated.
“There is no ongoing conduct by the Defendants to be enjoined, and any dispute that might have existed between the parties no longer presents a live case or controversy,” Judge Surrick wrote.
The judge went on to state that although the plaintiff argued that Pennsylvania could reimplement the waiver program “at any time,” evidence demonstrates that the program was “an emergency system put into place during desperate times and will not be instituted again, even if the pandemic persists or worsens.”
Moreover, if a new waiver program is ever implemented and the plaintiff is affected by it, the business “could then bring a separate complaint to challenge those separate actions,” the judge concluded.
Pennsylvania Governor Thomas Wolf is among the defendants in a proposed class action filed by a swimming pool store that alleges the state’s waiver policy allowing some non-life-sustaining businesses to remain open during the COVID-19 pandemic despite government orders is unconstitutional.
As the plaintiff tells it, Pennsylvania’s waiver policy violates the U.S. Constitution in that it was applied in a “patently arbitrary manner,” as some businesses were granted waivers while other’s “nearly identical” applications were denied without explanation.
According to the lawsuit, Governor Wolf and Secretary of the Pennsylvania Department of Health Rachel Levine issued respective March 19 orders shuttering all non-life-sustaining businesses. Though the orders stated that such businesses increased the risk of transmission and community spread of COVID-19, non-life-sustaining outfits such as the plaintiff were allowed to apply for waivers through the state’s Department of Community and Economic Development headed by Dennis M. Davin, the case says. If granted a waiver, a non-life-sustaining business would be allowed to operate during the pandemic, per the suit.
Nearly 7,000 waivers were granted out of 42,000 applications, including one for Governor Wolf’s family business, Wolf Home Products, the complaint says. On April 3, however, Governor Wolf “abruptly” shut down the waiver policy with numerous applications left pending, the lawsuit states.
According to the case, the “team of professionals” the state said would review each waiver request has never been disclosed.
The plaintiff business immediately complied with Pennsylvania’s closure mandate—and remains closed—yet learned that two competitors had applied for and were granted waivers while its own application was denied without explanation, according to the lawsuit. The business argues Pennsylvania’s waiver policy is unconstitutional under the Fifth and Fourteenth Amendments in that it was applied arbitrarily and without uniform guidelines. Further, the case charges the policy, as well as the press release announcing such, lacked “any uniform standards, rules, regulations or guidelines” against which waiver requests were judged.
“Instead defendants have kept those rules—to the extent they exist—secret,” the suit says.
Moreover, Pennsylvania’s waiver policy is unlawful given it oversteps what the case calls due process’s “constitutional cousin,” the Fourteenth Amendment’s equal protection clause. The plaintiff asserts that its business is “like its competitors in all relevant aspects,” serving the same customers, running similar retail operations and residing within the same area, yet its waiver claim was “inexplicably denied.”
“The equal protection clause does not permit state officials to give special treatment to certain non-life sustaining businesses which is different from the treatment given to all other so-called non-life sustaining businesses,” the plaintiff contests.
ClassAction.org’s coverage of COVID-19 litigation can be found here and over on our Newswire.
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