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Lawyers argue constitutionality of Gov. closure orders

WHEELING — A federal judge in Wheeling will decide within a week if Gov. Jim Justice’s executive orders that forced Monongalia County bars to close and continue to restrict their operation are constitutional.

The hearing was part of the ongoing lawsuit filed by a dozen Monongalia County businesses against Justice, the Alcohol Beverage Control Administration Commissioner, Morgantown and its interim city manager.

After listening to over two hours of arguments, Judge John Bailey said he would issue his ruling within a week and there was a lot to think about.
Multiple downtown bar owners and County Health Officer and executive director of the Monongalia County Health Department Dr. Lee Smith testified at the hearing.

Eleven of the 12 plaintiffs attended the hearing.

Three testified about their financial difficulties since the forced closures before Bailey said he understood the point being made — that all the plaintiffs suffered economically, some worse than others

Some bars have already lost their location.

Christopher Hare, owner of The Annex, testified he was evicted and owes $36,000 in back rent.

Ben Hogan, an attorney representing Justice and Frederic Wooton, the ABCA commissioner, said he disagreed that the orders caused the “irreparable harm” that is needed to grant the injunction.

He said several bars were able to pivot and change their business model so it’s not clear if any harm was caused by the orders or by a failure on the part of the businesses to act.

Not every bar can change their business model.

Similar to The Annex, the draw of Whisper Night Club and Lounge is live DJ and dancing, owner Adam Ereditario said.

Whisper does not have a kitchen it’s not practical for the business to purchase the equipment and train the staff that would be needed, Ereditario said.
The other part of the argument made by Martin Sheehan, who represents the bars, is that the local health department already has the authority it needs to regulate the businesses, if needed.

Smith was asked several questions regarding the powers and scope of enforcement of a county health officer by Sheehan.

Attorneys representing the defendants mostly asked questions about the COVID-19 cases in Monongalia County and how they linked to downtown bars in previous incidents.

Hogan said invalidating all of the governor’s executive orders would tie his hands when it came to being able to respond to the pandemic.

However, the issue is not a West Virginia issue, but a Monongalia County issue and beyond that, a Morgantown issue, Tom Kupec, an attorney for the plaintiffs said.

The governor’s own bars at the Greenbrier are still open, Kupec said. As are those in Kanawha County, which has more cases than Monongalia. The bars in Cabell County, the home of Marshall University, were also allowed to remain open.

How would a DJ behind a screen with a facemask make COVID-19 worse in Monongalia County, but not in another county, Kupec asked.

“To say bars is the root of all evil in Monongalia County and nowhere else is against the Equal Protections Act,” Kupec said.

Hogan said no place in the state is like Morgantown and even if the plaintiffs are being treated differently, they are not a suspect class.