An Ohio Court of Common Pleas has ruled that a county health department cannot suspend a restaurant's food service operations license for employee face mask violations.
Savannah, Ohio's Cattlemans Restaurant had its business license temporarily suspended on July 15 after an Ashland County Health Department agent saw a cook and dishwasher not wearing a face mask in the restaurant kitchen.
Columbus, Ohio's 1851 Center for Constitutional Law filed a preliminary injunction
against the Ashland County Health Department and their order to immediately shut down the restaurant.
“The Ohio Constitution prevents administrative agencies from imagining new policies for suspending licenses and shutting down businesses,” said 1851 Center Executive Director Maurice Thompson at the time. “The State’s mask requirements remain largely symbolic and unenforceable.”
In a decision
granting a temporary restraining order against the health department's order suspending Cattlemans' business license (got that?), Judge Ronald Forsthoefel said the owners were “being denied their civil liberties, including the right to earn a living and operate a commercial enterprise, without due process of law.”
The court says health departments can only revoke a food service license without a hearing if there is an immediate danger (or if it violates Chapter 3717). But "if the State's Order recognizes exceptions to a blanket mask wearing rule and as such would not consider the lack of wearing a mask an immediate danger to the public health, then it begs the question as to whether the failure to wear a mask for any reason could ever constitute a basis for finding an immediate danger to the public health."
End result: Cattlemans Restaurant was allowed to reopen at 6 a.m. Saturday, July 25.
“We continue to view the State’s mask requirements, like all of the Orders of the Ohio Department of Health thus far, as unenforceable advice that may or may not be wise. Accordingly, we will continue to protect Ohioans when overreaching state or local health departments attempt to enforce these requirements,” 1851's Thompson said.
Ashland County Prosecuting Attorney Christopher Tunnell has said his office would no longer be representing the Board of Health.
“The Prosecuting Attorney has thoroughly reviewed the matter and is of the opinion that the suspension was contrary to law and that there are no defenses which would not be frivolous,” he said.
The court is attempting to schedule a hearing on or before July 31 with all parties' counsel.