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Law360 (December 11, 2020, 7:30 PM EST ) A Pennsylvania federal judge should not let a Pittsburgh-area restaurant that flouted the statewide COVID-19 mask mandate continue with its suit over being shut down, Allegheny County and its health department urged Friday.
The Crack'd Egg sued the county and the Allegheny County Health Department in September, claiming the rule had no "rational or scientific basis" for preventing the spread of COVID-19 and cited due process and equal protection violations.
But Allegheny County and the ACHD shot back, saying that all the restaurant had to do for its permit to be reinstated was comply with the facial covering mandate.
"Plaintiff TCE has not and cannot plead facts sufficient to sustain an equal protection violation solely based on the ACHD's suspension of TCE's health permit for its willful violation of the state's mask order," the county and health department wrote in their brief in support of a motion to dismiss.
"Plaintiff TCE has not plead how it has been treated differently from other similarly situated people. Plaintiff TCE has not plead any constitutional right that has been violated," they added.
The ACHD received multiple complaints about the family-owned "American" restaurant not following COVID-19 regulations starting in late June, and officials responded by visiting the eatery various times to provide The Crack'd Egg with guidance while inspecting the place.
After the complaints continued and five department visits spanning June to August, the ACHD shut down the establishment over "continued non-compliance and imminent danger to public health," but the restaurant still continued serving customers — the county and agency said The Crack'd Egg even concealed and removed the closure placard the ACHD had placed.
This alleged act led to a complaint filed in state court against the eatery, and this suit is a response to the government's legal pursuit.
Sy O. Lampl of Robert O. Lampl Law Office, counsel for The Crack'd Egg, told Law360 that he disagrees with the Friday filings and that his client did nothing wrong, since the governor's "unconstitutional" order was not an official rule or edict.
"In Pennsylvania, you have a constitutional right to operate a business — the governor, who has at best applied this inconsistently, does not have the right to declare himself a dictator or a king," Lampl told Law360 in a phone interview, acknowledging that it may be hyperbole but that the governor and health department don't care about small businesses.
"He does not decide that he feels something is unsafe, so he can tell us how everyone has to live their lives, irrespective of what constitutional safeguards are out there," he added.
Representatives for Allegheny County and the ACHD did not respond to requests for comment.
The Crack'd Egg is represented by James R. Cooney, Sy O. Lampl, Robert O. Lampl, Alexander L. Holmquist and Ryan J. Cooney of Robert O. Lampl Law Office.
Allegheny County and the Allegheny County Health Department are represented in-house by Frances M. Liebenguth. The heath department is additionally represented in-house by Vijyalakshmi Patel.
The case is The Cracked Egg LLC v. The County of Allegheny et al., case number 2:20-cv-01434, in the U.S. District Court for the Western District of Pennsylvania.
--Editing by Orlando Lorenzo.
For a reprint of this article, please contact reprints@law360.com.
