IN THE FAYETTE CIRCUIT COURT

FAYETTE COUNTY, KENTUCKY

20-CI-3566

Electronically Filed
LEXINGTON-FAYETTE URBAN
COUNTY HEALTH DEPARTMENT PLAINTIFF
v.
ANDREW COOPERRIDER DEFENDANTS
and
DEANS DINER LIMITED
LIABILITY COMPANY a/k/a
BREWED
DEFENDANTS’ OPPOSITION TO PLAINTIFFS’ MOTION FOR TEMPORARY
RESTRAINING ORDER AND TEMPORARY INJUNCTION, WITH AFFIDAVIT OF
ANDREW COOPERRIDER IN SUPPORT
Defendants Andrew Cooperrider (“Cooperrider”), and Deans Diner Limited Liability

Company a/k/a Brewed (“Brewed”), by and through Counsel, respond to the Plaintiffs’ Motion

for Temporary Restraining Order and Temporary Injunction.

I. Facts

On November 24, 2020, Lexington-Fayette Urban County Health Department

(“LFCHD”) inspector and environmentalist Karen Sanders conducted a non-routine inspection

and search of “Brewed,” a food service entity operated by Defendants located at 124 Malabu

Drive, Lexington, Kentucky, 40503. (Affidavit Cooperrider). It was non-routine because it was

prompted by news media reports that Cooperrider was allegedly continuing to operate in

contravention of the Governor’s Executive Orders. Id. Sanders informed Cooperrider that she

had received information that he was non-compliant, which was the basis for her visit. Id.

Cooperrider did not consent for Sanders to enter or inspect, and Sanders did not have a warrant.

Id.

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 Sanders warrantless search led her to observe customers who were dining indoors.

(Affidavit Sanders). LFCHD Environmental Health Coordinator Denny “Skip” Castleman

(“Castleman”) arrived at the Brewed location after Sanders requested him to do so, and he called

law enforcement, revealing a primary law enforcement purpose, and he also entered without a

warrant, observing the same customers dining indoors. (Affidavit Castleman).

Sanders and Castleman also claimed violations of the Governor’s facemask executive

order/regulation, because they saw customers standing without masking. (Affidavit

Castleman/Affidavit Sanders). But Cooperrider has a sign posted to his premises which requires

all customers to wear masks, except those who have a disability or physical or mental condition

that prohibits them from being able to do so, and that same signage notes that the business

assumes that customers who fail to wear a mask are exempt under Paragraph 4(b) of the

Governor’s Executive Order 2020-586. (Affidavit Cooperrider). Neither Sanders, nor

Castleman, checked with any customers to see if they had a valid exemption from the order. Id.

II. Law and Argument

A. Standard of Review

Kentucky law supports the entry of temporary injunctive relief when:

1. A substantial question is raised by the movant as to its success on the merits of its claims;

2. The movant’s rights are being or will be violated, resulting in immediate and irreparable

injury; and

3. the equitable considerations in the case weigh in favor of granting injunctive relief.

See CR 65.03; 65.04; Maupin v. Stansbury, 575 S.W.2d 695, 697-700 (Ky. App. 1978).

B. There are open questions as to whether or not these Defendants have violated
any order, and equally open questions as to whether or not the Governor’s
Executive Order violates Section 2 of the Kentucky Constitution, militating
against an injunction

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 1. There are open questions regarding violations of the Governor’s Executive Order

The Plaintiffs contend that Defendants have violated Executive Order 2020-968. While

that Executive Order does prohibit restaurants from indoor service, it also explicitly permits

event venues to continue to operate with not more than 25 people per room. As Mr.

Cooperrider’s affidavit makes clear, his facility is used to host events, and at no time has he had

more than 25 people in the room. (Affidavit Cooperrider). Clearly, the Executive Order is, at

best, ambiguous.

Kentucky case law has long recognized that when there is an ambiguity or conflict in a

penal statute, or, in this case, penal executive order, the "rule of lenity" is applicable. See,

Boulder v. Commonwealth, Ky., 610 S.W.2d 615 (1980). In Commonwealth v. Colonial Stores,

Ky., 350 S.W.2d 465, 467 (1961), Kentucky’s highest court stated that doubts about the meaning

of a penal statute should be resolved “in favor of lenity and against a construction that would

produce extremely harsh or incongruous results or impose punishment totally disproportionate to

the gravity of the offenses.” Id.

Because the Executive Order does not define what is a restaurant, and what is an event

space, and Mr. Cooperrider hosts events at his facility, those rules must apply. As he has

complied with those requirements, there can be no violation.

2. There are open questions regarding whether the Governor’s Executive Order
violates Section 2 of the Kentucky Constitution

Section 2 of the Kentucky Constitution establishes that: “Absolute and arbitrary power

over the lives, liberty and property of freemen exists nowhere in a republic, not even in the

largest majority.”

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 The Executive Order here is arbitrary and capricious in that it permits outdoor dining,

defined as being a tent, but prohibits any indoor dining, even if doors are opened that provide

adequate ventilation. Adult strip clubs remain open to patrons, serving drinks. There is no

science, nor scientific studies, that would justify this conclusion or outcome.

It is well-established that "the action of the government may not arbitrarily invade liberty

or property rights under the guise of police regulation." Bond Bros. v. Louisville & Jefferson

County Metropolitan Sewer Dist., 307 Ky. 689, 696, 211 S.W.2d 867 (1948). In Sanitation Dist.

of Jefferson County v. Louisville, 308 Ky. 368, 213 S.W.2d 995 (1948), Section 2 was explained

as “the affirmance of fundamental principles recognized throughout the federal and state

constitutions and sanctioned by the laws of all free people.” Thus, “[m]ost of these principles are

expressed in the various bills of right, but they are to be found also in the historical development

of constitutional government from despotism.” Id. “So it may be said that whatever is contrary

to democratic ideals, customs and maxims is arbitrary.” Id. “Likewise, whatever is essentially

unjust and unequal or exceeds the reasonable and legitimate interests of the people is arbitrary.”

Id. “Section 2 of the Constitution is a curb on the legislative as well as on any other public body

or public officer in the assertion or attempted exercise of political power.” Id.

Not surprisingly, Section 2 claims arise in the event of government ordered business

closures, Foster v. Goodpaster, 290 Ky. 410, 416, 161 S.W.2d 626 (1942). In Foster, the Court

concluded that a closure order to a theater violated Section 2, because the order was to close

“unconditionally, without an opportunity to the owners or lessees to remedy the defects or

hazards complained of, and despite their willingness and ability to do so, and in the face of a

history of long continued operation under similar conditions without injury to anyone, is, in the

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absence of an emergency or imminent peril, the exercise of arbitrary power in clear violation of

Section 2 of the Constitution of this State.” Foster is equally applicable here.

Ashland v. Heck's, Inc., 407 S.W.2d 421 (Ky. 1966), involved, as here, discrimination

against businesses by categorizations as “essential” and “non-essential.” Kentucky’s highest

court concluded that such disparate treatment of similarly situated businesses violated not only

the federal equal protection clause, but Section 2 of Kentucky’s Constitution as well.

Next, in Jackson v. Murray-Reed-Slone & Co., 297 Ky. 1, 178 S.W.2d 847 (1944),

Kentucky’s highest court undertook an analysis of a city ordinance that prohibited business

operations in the late-night hours. The Jackson Court began with the unremarkable observation

that under the Kentucky Constitution, in "no event may a city impose unnecessary restrictions

upon lawful and harmless occupations under the guise of protecting the public interest." That

Court concluded this analysis by holding that “[t]he business of the restaurant involved in the

instant case has no potential influences detrimental to public morals, but it is a useful and

necessary business properly operated and we are unable to see how the closing of it between

midnight and 4 a. m. would affect the health, morals, safety or welfare of the citizens of

Jackson.” Likewise, in City of Lexington v. Motel Developers, Inc., 465 S.W.2d 253, 257-258

(Ky. 1971) the Kentucky Supreme Court concluded that “a legislative body may not, without

some rational basis, select a certain type of business enterprise and impose upon it a substantially

heavier” burden “than that imposed upon other businesses which fall within the same general

classification.” See also Jahr v. City of Radcliff, 503 S.W.2d 743, 744-745 (Ky. 1973)

(reaffirming holding of Motel Developers).

The classifications here are no less arbitrary than in the foregoing cases. There is no

evidence put forward by the Plaintiffs that would tend to suggest that a well-ventilated building

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could not serve customers safely. Commonwealth Natural Res. & Envtl. Prot. Cabinet v. Kentec

Coal Co., 177 S.W.3d 718 (2005) (invalidating regulation in light of disparate treatment). That

is particularly the case, where, as here, the Commonwealth has permitted a variety of other

businesses to operate, such as strip clubs, where people are in close proximity, and drinks are

served.

3. A violation of an Executive Order is not the kind of matter that can be enforced
by local health departments by way of injunction under KRS 212.245

Under KRS 212.245(6), the local health department can direct and order “compliance

with applicable public health laws of this state and all regulations of the Cabinet for Health and

Family Services or the county board of health.” But the executive order is not a law, and it is not

a regulation of the Cabinet for Health and Family Services. When interpreting a statute, "[r]esort

must be had first to the words, which are decisive if they are clear." Commonwealth v.

Gaitherwright, 70 S.W.3d 411, 414 (Ky. 2002).

As for an injunction, the same statute, KRS 212.245(6), provides: “any health officer may

institute and maintain mandatory or prohibitory injunction proceedings in the appropriate Circuit

Courts of this state to abate nuisances that are or may be a menace to the health of the people of

the state or community, and to compel compliance with the public health laws of this state and

the rules and regulations of the Cabinet for Health and Family Services and the county board of

health and the orders described in this section or in KRS 212.210.”

There is not a scintilla of evidence presented that the facility in question is a nuisance or

is a menace to the health of the people of the state or community. That then leaves us to the last

part of the statute. It should be noted that the law that gave rise to the Governor’s executive

order was not and is not a public health law, but was instead a general grant of emergency

powers for an entire host of potential emergencies. KRS 39A.010.

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 Again, the executive order is not a law, and it is not a regulation of the Cabinet for Health

and Family Services. To reach that conclusion, "[r]esort must be had first to the words, which

are decisive if they are clear." Gaitherwright, 70 S.W.3d 411, 414.1 These Executive Orders are

not enforceable under KRS 212.245(6).

4. The entirety of the evidence obtained by Plaintiff must be suppressed, because it

was obtained without a valid administrative warrant

The United States Supreme Court has recently addressed the need for inspectors to have a

warrant to inspect a business premises. City of Los Angeles v. Patel, 576 U.S. 409 (2015). Patel

dealt with an inspection of hotels by city officers. Id. at 412-413. The Court first observed that

the search in question was an “administrative searc[h].” Id. at 420, citing Camara v. Municipal

Court of City and County of San Francisco, 387 U. S. 523, 534 (1967). Thus, “absent consent,

exigent circumstances, or the like, in order for an administrative search to be constitutional, the

subject of the search must be afforded an opportunity to obtain precompliance review before a

neutral decisionmaker.” Id. Nor is there any valid argument that food and beverage facilities are

closely regulated, with the Supreme Court in Patel recognizing that only a narrow subset of

facilities can be considered within that doctrine. Id. at 424-425.

Suppression of all evidence is therefore warranted. Jacob v. Killian, 437 Fed. Appx. 460

(6th Cir. 2011) (finding code enforcement officer required administrative warrant, and a

constitutional violation occurred as a result of a warrantless search); Eng'g & Mfg. Servs., LLC v.

Ashton, 387 Fed. Appx. 575 (6th Cir. 2010) (for a routine search to be permissible, there must a

neutral plan that is being implemented which does not involve human input); Reich v. Manganas

Painting Co. (In re Establishment Inspection of Manganas Painting Co.), 104 F.3d 801 (6th Cir.

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That does not leave the Commonwealth or state without authority: KRS 39A.190 provides for
the arrest of violators of the Governor’s executive orders issued pursuant to KRS 39A.
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1997) (suppression of evidence is warranted in an administrative context, or in an action for

injunctive relief, where the evidence was obtained in violation of the Fourth Amendment).

“To enforce the Fourth Amendment's prohibition against 'unreasonable searches and

seizures,' this Court has at times required courts to exclude evidence obtained by unconstitutional

police conduct." Utah v. Strieff, 136 S. Ct. 2056, 2059 (2016). This exclusionary rule justifies a

court's suppression of "both the primary evidence obtained as a direct result of an illegal search

or seizure and, relevant here, evidence later discovered and found to be derivative of an

illegality, the so-called 'fruit of the poisonous tree.'" Id. at 2061 (quoting Segura v. United States,

468 U.S. 796, 804 (1984) (internal quotation marks omitted)).

C. The movant’s rights are not being violated.

Because there are open questions as to whether or not the Plaintiff’s rights are being

violated, open questions as to whether or not there were violations of the orders in question, and

equally open questions as to whether or not the Governor’s Executive Order violates Section 2 of

the Kentucky Constitution, this militates against the granting of an injunction; however, if the

Defendants’ business is shut down, they will be irreparably harmed.

D. Equitable considerations weigh against granting the requested relief

As Mr. Cooperrider’s affidavit makes clear, shuttering his business will result in its

permanent closure; it will also result in laying off his employees, and, coupled with failures in

the state’s unemployment system, their homelessness, which leads to the spread of COVID-19 in

the community. (Affidavit Cooperrider). Literally, this business is on its last legs. If forced to

close, the closure will be permanent. Compare that with the equities on the other side. There is

no evidence that we are aware of, that businesses that comply with sanitation and social

distancing requirements post any sort of threat to the community spread of COVID-19.

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 E. A substantial surety should be required to protect these Defendants’ interests if
any injunction is issued

Under C.R. 65.05, no restraining order or temporary injunction may issue, “except upon

the giving of a bond by the applicant, with surety, in such sum … for the payment of such costs

and damages as may be incurred or suffered by any person who is found to have been wrongfully

restrained or enjoined.”

As Mr. Cooperrider’s affidavit makes clear, he will lose his entire business if he cannot

continue to operate, at a cost of approximately $20,000 gross revenue per week. We submit that,

under these circumstances, a bond of at least $160,000 (2 months’ worth of revenues to complete

appellate review) should be required.

Respectfully submitted,

/s/ Christopher Wiest___________

Christopher Wiest (KBA 90725)
Chris Wiest, Atty at Law, PLLC
25 Town Center Blvd, Suite 104
Crestview Hills, KY 41017
859/486-6850 (v)
513/257-1895 (c)
859/495-0803 (f)
chris@cwiestlaw.com
Counsel for Defendants

CERTIFICATE OF SERVICE

I certify that I have served a copy of the foregoing upon Counsel for the Plaintiff, by filing same

with the Courtnet system, which will provide notice, and by ordinary U.S. mail, this 29 day of

November, 2020.

/s/ Christopher Wiest___________

Christopher Wiest (KBA 90725)

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Christopher Wiest, Notary Public
#612589
Expiration: 11/19/2022