The owner of Assembly Sports Club in Somerville yesterday sued Gov. Baker over the state's continued ban on health clubs, arguing the ban deprives it of its Fifth and Fourteenth Amendment rights and besides, Baker's just wrong because, as everybody knows, fitness clubs are too "essential," or at least as essential as the big-box stores Baker let stay open, except that it's even worse than that because all businesses are essential in our free-enterprise system.
The suit, filed in US District Court in Boston, joins a similar suit filed earlier this month by same attorney for the owner of gyms in Danvers, Chelmsford, Lowell and Springfield.
In the Assembly suit, owner World Gym, Inc. charges the ban, issued in March as Covid-19 spread rapidly through the state, was essentially a seizure of its property without recompense or right of appeal - and asks who the hell Charlie Baker is to order businesses to just close their doors through his "arbitrary, capricious, irrational and abusive" emergency declarations.
At a minimum, Plaintiff avers that it should have been able to decide for itself whether or not to "shut down," if its businesses / business model was not properly equipped to deal with the health and safety guidelines as issued by the Federal and State Governments in connection with the COVID-19 crisis. ...
Plaintiff avers that ALL businesses in the Commonwealth of Massachusetts are “Essential” to the health, welfare, and well-being of its citizens, and that the general health outcome sought through the passage of these Orders and Emergency Directives (i.e., lowering the curve of COVID-19) could be accomplished through less restrictive means.
World Gym says that the enforced shutdown has turned it into an unusable, unsellable shell of a company: It had to lay off 33 workers and can no longer collect roughly $140,000 a month in fees from members - even though its landlord still wants its monthly $47,000 rent.
Defendant's Orders and Emergency Directives mandated that because Plaintiff was a "Non-Essential Businesses", it was required to "shut down" and cease all operations as a means to help curb the spread of COVID-19. Such a mandate completely and unconstitutionally deprived Plaintiff of all economically beneficial use of its businesses without just compensation.
While the "police power" is inherent in a sovereign government and is reserved for the States in the Tenth Amendment to the U.S. Constitution, it is not without constitutional limits. ...
The Orders and Emergency Directives issued by the defendant, Governor Baker, effectively amount to an impermissible "partial" or "complete" taking in violation of the Takings Clause of the Fifth Amendment to the U.S. Constitution in that the prohibition of Plaintiffs' operation of their "Non-Essential Business" constitutes a regulatory taking of private property, for public purpose, without providing just compensation therefore.
The Orders and Emergency Directives violate the Takings Clause of the Fifth Amendment in that the complete prohibition of the business operations of "Non-Essential Businesses" constitutes an irrational, arbitrary, and capricious law bearing no rational basis to any valid government interest.
The notion that the government-ordered shutdown of "Non-Essential Businesses" (such as Plaintiff's) is absolutely necessary in curbing the spread of COVID-19 constitutes an unconstitutional infringement on Plaintiff's civil rights and liberties to operate in a free-market economy.
Also, Baker illegally used a Civil Defense law aimed at unrest following a Russian attack or a natural disaster to declare his state of emergency, and please, the complaint continues, a virus is "not an attack, sabotage, or hostile action that could justify the declaration of a Civil Defense State of Emergency."
Because his orders are being made pursuant to a statute designed to defend against foreign invaders and civil unrest in the wake of cataclysms, violations of his orders are null and void.
World Gym then cites the situation in Wisconsin, where the Republican-dominated legislature and supreme court overturned similar orders by the Democratic governor and said Baker is also usurping the legislature's role.
The company wants a judge to order Baker to let it open immediately and to award it appropriate damages, penalties and lawyer's fees.