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Law360 (February 3, 2021, 9:42 PM EST ) Lodging owners and related entities in ski resort town Mammoth Lakes have urged a California federal court to prevent Gov. Gavin Newsom and other government officials from enforcing a slew of COVID-19-related orders, saying the measures violate their rights under the U.S. Constitution.
Short-term lodging owners Cindy and Timothy Abshire and Alan and Monica Butts — along with lodging manager Nomadness Corp. and the Mammoth Lakes Business Coalition — on Monday sued Newsom, California Attorney General Xavier Becerra, state and Mono County public health officers and Mammoth Lakes town officials, claiming they have violated the Fifth and Fourteenth Amendments and the Commerce Clause.
California government representatives' coronavirus orders issued since March 20 are based on arbitrary and irrational classifications in violation of the right to equal protection guaranteed by the Fourteenth Amendment, according to the lodging owners.
The orders also interfere with private property investments without compensation and have thus realized uncompensated takings in violation of the Fifth Amendment, the owners said. Further, they said, the Commerce Clause prohibits California officials from exercising sovereign authority that excessively burdens interstate commerce.
"The orders and restrictions are based on arbitrary classifications of activities as 'essential' or 'non-essential' that are not rationally related to promoting public health, promote the interests of favored groups without reference to the impact of the activities in question on the transmission of COVID-19, and shift the burden of the response to COVID19 to a limited class of persons and businesses," the lodging owners said in their Monday complaint.
The lodging owners asserted that the governments' restrictions have caused negative outcomes rather than protecting public health, saying that lower childhood vaccination rates, worsening cardiovascular disease outcomes and fewer cancer screenings are just some of the factors that will lead to higher mortality rates in California.
On a local level, lodging and dining establishments are suffering economically due to the ever-changing orders in the town of Mammoth Lakes and elsewhere in Mono County on the eastern edge of California along the Sierra Nevada mountain range, according to the lawsuit.
As one example of the changing orders and allegedly unfair restrictions on lodging owners, the suit pointed to a Dec. 23 joint meeting of the Board of Supervisors of Mono County and the Town Council of Mammoth Lakes. Numerous elected officials at the meeting claimed that visitors to the Mammoth Mountain Ski Resort were defying the state's stay-at-home orders by lodging in the nearby town of Bishop and then traveling during the day to ski at the resort, which remains open during the shutdown.
Following that charged meeting, the Town of Mammoth Lakes' finance director sent an email Jan. 8 to the "Lodging Community" and reiterated the town's restriction on lodging at limits of 30% of capacity for hotels and 10 rental days per month for privately owned property units, according to the suit.
But the town changed course on Jan. 25 and posted a news flash on its website stating that Mono County public health orders for lodgings issued previously on Dec. 5 and revised on Jan. 9 were no longer in effect and that hotel capacity limits were raised to 60% and private units were allowed up to 18 rental days per month.
"Defendants' violations of plaintiffs' fundamental rights have inflicted substantial financial losses upon plaintiffs, unreasonably infringed upon plaintiffs' liberty interests, resulted in uncompensated takings, and will result in irreparable harm to plaintiffs if enforcement of the orders and restrictions at issue in this matter is not enjoined," the suit said.
The lodging owners seek a court injunction to stop the enforcement of Newsom's emergency orders and the state and Mono County public health officers' orders. They also seek a judicial declaration that the orders violate their constitutional rights.
Representatives for Abshire and California government officials did not immediately respond Wednesday to requests for comment.
Abshire is represented by Steven C. Bailey and Martha E. Romero of Bailey & Romero.
Counsel information for the California government was unavailable Wednesday.
The case is Abshire et al v. Newsom et al., case number 1:21-at-00074, in the U.S. District Court for the Eastern District of California.
--Editing by Peter Rozovsky.
Correction: A previous version of this article misnamed the plaintiffs in the Mammoth Lakes suit. The error has been corrected.
For a reprint of this article, please contact reprints@law360.com.
