Pa. Eatery Defying Mask Mandate Launches Suit At Officials

By Grace Dixon
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Law360 (September 24, 2020, 6:23 PM EDT) -- The Pittsburgh-area restaurant under regulatory fire to shut down for defying a statewide COVID-19 mask mandate shot back with a lawsuit of its own, claiming the rule has no scientific backing despite its attorney acknowledging Thursday that the eatery's complaint "probably overstated" information doubting facial coverings' efficacy.

The Crack'd Egg's lawsuit claims that mask mandates have no "rational or scientific basis," but the restaurant's attorney James Cooney, of the Law Offices of Robert O. Lampl, walked back that assertion in an interview with Law360, saying that epidemiologists appear to be split down the middle as to the efficacy of masks for preventing the spread of COVID-19.

"We probably overstated that," Cooney said. "I should have said there is conflicting scientific evidence on that proposition."

The Centers for Disease Control and Prevention and the World Health Organization recommend wearing masks in public settings around people who don't live in your household and when social distancing is not possible.

The Crack'd Egg filed the counter-suit against Allegheny County and its health department in Pennsylvania federal court Wednesday, accusing the state's governor of overstepping his authority when issuing statewide occupancy and face-covering orders and the county of enforcing invalid mandates.

"I believe the government is relying on businesses to do what they cannot ... require people to wear masks," Kimberly Waigand, owner of The Crack'd Egg, told Law360 in an email Friday. "I refuse to violate anyone's rights and will not discriminate against any person. It is not my business to know why they aren't wearing a mask."

The Allegheny County health department asked a Pennsylvania state judge a week earlier to shut down the family-owned restaurant for allegedly defying the state's mask mandate and ignoring county orders to shut down.

The restaurant accuses the county of failing to comply with the state's mandatory rule-making procedure, the Regulatory Review Act and the Commonwealth Attorneys Act when enforcing the mask order, adding that Gov. Tom Wolf's face-covering mandate was issued under an illegally extended state of emergency.

"It's as if he's the king," Cooney said. "He doesn't have to answer to the legislature, doesn't have to comply with the rulemaking authority and procedure in Pennsylvania."

Allegheny County reported receiving several complaints about The Crack'd Egg and observed food safety violations and COVID-19 protection measure violations on several occasions over the summer.

The Crack'd Egg continued to serve customers despite the health department's suspension of its permit to operate and orders that the restaurant close, the county alleged.

The health department's complaint cites posts on the Pittsburgh-area eatery's Facebook page that "blatantly advertised its deliberate intention to operate and actual operation in spite of the Permit Suspension Order."

This argument belied a violation of free speech on the county's part, Cooney told Law360.

Posts on the restaurant's Facebook page include expressions of distrust of the governor's handling of the pandemic, numerous advertisements following the Aug. 11 order to close and security camera footage purportedly of health department officials failing to social distance properly.

The Crack'd Egg's suit cited a recent Pennsylvania federal judge's ruling striking down emergency business closure and crowd size restrictions implemented by the governor in the spring to curb the spread of COVID-19. U.S. District Judge William Stickman IV ruled that the restrictions violated freedom of assembly and due process rights.

The restaurant also leveled claims that the orders violate the separation of powers doctrine and deprived the business of due process, the right to earn a living and equal protection under the law.

The complaint accuses the county of improperly serving the restaurant with its Sept. 16 complaint.

As of Thursday, there have been more than 6.9 million virus cases reported in the U.S. and more than 200,000 deaths, according to the CDC. Pennsylvania accounts for 152,544 of those cases, the agency's data shows.

A representative for Allegheny County declined to comment on Thursday.

The investors are represented by Robert O. Lampl, James R. Cooney, Ryan J. Cooney, Sy O. Lampl and Alexander L. Holmquist of the Law Office of Robert O. Lampl.

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 Amy Rowe.

Update: This story has been updated to include a comment from the owner of The Crack'd Egg. 

For a reprint of this article, please contact reprints@law360.com.

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