Lighthouse Fellowship Church v. Northam

• Citation: 458 F.Supp.3d 418
• Decision Date: 01 May 2020
• Docket Number: Civil No. 2:20cv204
• Parties: LIGHTHOUSE FELLOWSHIP CHURCH, Plaintiff, v. Ralph NORTHAM, in his official capacity as Governor of the Commonwealth of Virginia, Defendant.
• Court: U.S. District Court — Eastern District of Virginia

458 F.Supp.3d 418

LIGHTHOUSE FELLOWSHIP CHURCH, Plaintiff,

v.Ralph NORTHAM, in his official capacity as Governor of the Commonwealth of Virginia, Defendant.

Civil No. 2:20cv204

United States District Court, E.D. Virginia, Norfolk Division.

Signed May 1, 2020

Daniel J. Schmid, Liberty Counsel, Orlando, FL, for Plaintiff.

Jessica Merry Samuels, Toby Jay Heytens, Jacqueline Cook Hedblom, Office of the Attorney General, Richmond, VA, for Defendant.

ORDER

Arenda L. Wright Allen, United States District Judge

Pending before the Court is Plaintiff's Emergency Motion for a Temporary Restraining Order and Preliminary Injunction. ECF No. 3. For the following reasons, the Motion (ECF No. 3) is DENIED . The Court has determined that no hearing is necessary to decide this Motion because the facts and arguments are adequately presented in the Verified Complaint, the exhibits to the Verified Complaint, and the briefing on Plaintiff's Motion.

I. BACKGROUND

In January 2020, China identified a novel coronavirus causing a pneumonia-like illness. Sui-Lee Wee and Donald G. McNeil, Jr., China Identifies New Virus Causing Pneumonialike Illness , N.Y. TIMES (Jan. 8, 2020), https://www.nytimes.com/2020/01/08/health/china-pneumonia-outbreak-virus.html. Less than three months later, on March 11, 2020, the World Health Organization ("WHO") declared the novel coronavirus a pandemic. See WHO Director-General's opening remarks at the media briefing on COVID-19 – 11, March 2020 (March 11, 2020), https://www.who.int/dg/speeches/detail/who-director-general-s-opening-remarks-at-the-media-briefing-on-covid-19---11-march-2020. The WHO "called ... for countries to take urgent and aggressive action ...." Id. The WHO advised that "[a]ll countries must strike a fine balance between protecting health, minimizing economic and social disruption, and respecting human rights.... This is not just a public health crisis, it is a crisis that will touch every sector – so every sector and every individual must be involved in the fight.... [C]ountries must take a whole-of-government, whole-of-society approach, built around comprehensive strategy to prevent infections, save lives and minimize impact." Id.

Despite the WHO's urging that all countries take swift and aggressive action to halt the spread of the novel coronavirus, it spread quickly across the United States. See Centers for Disease Control and Prevention ("CDC"), Situation Summary (April 19, 2020), https://www.cdc.gov/coronavirus/2019-ncov/cases-updates/summary.html. To date, over three million people worldwide have been diagnosed as infected with the novel coronavirus. See Johns Hopkins Medical Center: Coronavirus Resource Center, COVID-19 Map (last visited May 1, 2020), https://coronavirus.jhu.edu/map.html. Nearly one third (i.e. , over one million) of those diagnoses are in the United States. Id. Over two hundred thousand people have died worldwide. Id. More than one-quarter of those deaths (i.e. , sixty-three thousand) have occurred in the United States.¹ Id. There is currently no vaccine for the novel coronavirus, and it remains unlikely that one will be developed in the coming months. See Knvul Sheikh & Katie Thomas, More Coronavirus Vaccines and Treatments Move Towards Human Trials , N.Y. TIMES (Apr. 8, 2020), https://www.nytimes.com/2020/04/08/health/coronavirus-vaccines.html.

The CDC has announced that the novel coronavirus ("COVID-19") is spread primarily through in-person interactions, either "[b]etween people who are in close contact with one another" or "[t]hrough respiratory droplets produced when an infected person coughs

, sneezes or talks." See CDC, How COVID-19 Spreads (last updated Apr. 13, 2020), https://www.cdc.gov/corona-virus/2019-ncov/prevent-getting-sick/how-covid-spreads.html. It can be spread by people who are not showing symptoms and do not know they are infected with the virus. Id. The virus can travel up to thirteen feet through the air, and can live on surfaces, including shoes, for long periods of time. See Zhen-Dong Guo, et al., Aerosol and Surface Distribution of Severe Acute Respiratory Syndrome Coronavirus 2 in Hospital Wards, Wuhan, China, 2020 , 26 Emerging Infectious Diseases 7 (2020), https://doi.org/10.3201/eid2607.200885.

Consistent with this information, the CDC currently recommends that everyone practice social distancing. See CDC, How COVID-19 Spreads (last updated Apr. 13, 2020), https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/how-covid-spreads.html. Social distancing requires staying at least six feet away from other people and "avoid[ing] large and small gatherings." See CDC, What is Social Distancing? (last updated Apr. 4, 2020), https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/social-distancing.html.

At the end of March 2020, the President of the United States and the CDC issued guidance intended to slow the spread of this deadly pandemic in the United States. See The President's Coronavirus Guidelines for America, 30 Days to Slow the Spread (March 31, 2020), https://www.whitehouse.gov/wp-content/uploads/2020/03/03.16.20_coronavirus-guiance_8.5x11_315PM.pdf. The CDC and President recommend that all people avoid social gatherings of more than ten people; work and attend school from home whenever possible; avoid eating or drinking at bars, restaurants, and food courts; avoid discretionary travel, shopping or social visits; and practice good hygiene. Id. The Guidance advises "Governors of states with evidence of community transmission [to] close schools, ... bars, restaurants, food courts, gyms, and other indoor and outdoor venues where groups of people congregate ...." Id.

Taking the recommendations of both the WHO and CDC under consideration, the Governor of Virginia issued Executive Order 53 suspending "all public and private in person gatherings of more than 10 individuals" through June 10, 2020. Executive Order 53, Ex. B to Mot. for TRO, ECF No. 1-3. The Order closed schools for the remainder of the school year and closed "all dining and congregation areas in restaurants, dining establishments, food courts, breweries, microbreweries, distilleries, wineries, tasting rooms, and farmers markets ...." Id. It closed "all public access to recreational and entertainment businesses" including "[t]heaters, performing arts centers, concert venues, museums, and other indoor entertainment centers; [f]itness centers, gymnasiums, recreation centers, indoor sports facilities, and indoor exercise facilities; [b]eauty salons, barbershops, spas, massage parlors, tanning salons, tattoo shops ...; [r]acetracks and historic horse racing facilities; and [b]owling alleys, skating rinks, arcades, amusement parks, trampoline parks, fairs, arts and craft facilities, aquariums, zoos, escape rooms, indoor shooting ranges, public and private social clubs, and all other places of indoor public amusement." Id.

Executive Order 53 identified some exceptions from these restrictions. "Essential retail businesses may remain open during normal business hours." Id. The Order defines essential businesses as "[g]rocery stores, pharmacies, and other retailers that sell food and beverage products or pharmacy products, including dollar stores, and department stores with grocery or pharmacy operations; [m]edical, laboratory, and vision supply retailers; [e]lectronic retailers that sell or service cell phones, computers, tablets, and other communications technology; [a]utomotive parts, accessories, and tire retailers as well as automotive repair facilities; [h]ome improvement, hardware, building material, and building supply retailers; [l]awn and garden equipment retailers; [b]eer, wine, and liquor stores; [r]etail functions of gas stations and convenience stores; [r]etail located within healthcare facilities; [b]anks and other financial institutions with retail functions; [p]et and feed stores; [p]rinting and office supply stores; and [l]aundromats and dry cleaners." Id.

The Order permits other "brick and mortar retail businesses" to remain open if they "limit all in person shopping to no more than [ten] patrons per establishment" and "adhere to ... proper social distancing requirements ...." Id. The Order permits "business operations offering professional rather than retail services to remain open," but directs that "they should utilize teleworking as much as possible. Where telework is not feasible, such business[es] must adhere to social distancing recommendations, enhanced sanitization practices on common surfaces, and apply the relevant workplace guidance from state and federal authorities." Id.

On March 30, 2020, the Governor supplemented Executive Order 53 with Executive Order 55, directing "[a]ll individuals in Virginia [to] remain at their place of residence," subject to certain exceptions. Ex. C to Mot. for TRO, ECF No. 1-4. These exceptions are: "[o]btaining food, beverages, goods, or services as permitted in Executive Order 53; [s]eeking medical attention, essential social services, governmental services, assistance from law enforcement, or emergency services; [t]aking care of other individuals, animals, or visiting the home of a family member; [t]raveling required by court order to facilitate child custody, visitation, or childcare; [e]ngaging in outdoor activity, including exercise, provided individuals comply with social distancing requirements; [t]raveling to and from one's residence, place of worship, or work; [t]raveling to and from an educational institution; [v]olunteering with organizations that provide charitable or social services; and [l]eaving one's residence due to a reasonable fear for health or safety, at the direction of law enforcement, or at the direction of another government agency." Id.

Executive Order 55 reiterated that "[a]ll public and private in-person gatherings of more than ten individuals are prohibited. This includes parties, celebrations, religious, or other social events, whether they occur indoor or outdoor. This restriction does...