Helbachs Café, LLC v. City of Madison
| Decision Date | 16 November 2021 |
| Docket Number | 20-cv-758-wmc |
| Parties | HELBACHS CAFÉ, LLC, Plaintiff, v. CITY OF MADISON, County of Dane, Janel Heinrich, Marci Paulsen and Bonnie Koenig, Defendants. |
| Court | U.S. District Court — Western District of Wisconsin |
Brent Eisberner, Levine Lyon LLP, Madison, WI, Joseph W. Voiland, Cedarburg, WI, for Plaintiff.
Sadie Ramona Zurfluh, Remzy Bitar, Municipal Law and Litigation Group, S.C., Waukesha, WI, for Defendants.
Plaintiff Helbachs Café, LLC ("Helbachs"), a coffeeshop operating in Madison, Wisconsin, brought this civil rights action under 42 U.S.C. § 1983 against the City of Madison, Dane County, Madison Assistant City Attorney Marci Paulsen, and Public Health Madison & Dane County ("PHMDC") employees Janel Heinrich and Bonnie Koenig, all in their official capacities. Specifically, Helbachs asserts that during the summer of 2020, defendants violated its rights under the First Amendment and Fourteenth Amendment by enforcing Dane County Emergency Order #8 ("the Order"), which required masks be worn in indoor, public and commercial spaces and that businesses post signs requiring the wearing of masks in response to the COVID-19 pandemic. Helbachs further claims that (1) the issuance of the Order exceeded the power of PHMDC; (2) the Order was enforced without providing sufficient notice; and (3) the Order violates the non-delegation doctrine.
Before the court are the parties’ cross motions for summary judgment. (Dkt. ##16, 30.) The court finds plaintiff Helbachs has failed to put forth sufficient evidence from which a reasonable jury could find any violation of its rights were the result of a policy, custom or practice, or other action satisfying the requirements of Monell v. Department of Social Services , 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). The court further finds that Helbachs federal constitutional claims fail for other, independent reasons. For reasons explained in greater detail below, therefore, the court will grant defendants’ motion for summary judgment on all federal claims, while declining to exercise supplemental jurisdiction on plaintiff's remaining state law claims.
Plaintiff Helbachs is a limited liability company formed in 2016 and authorized to conduct business in the state of Wisconsin. Nathan Helbach is its chief executive officer, and Casey Helbach, Nathan's father, is the company's chief financial officer. The café itself is managed by Casey, Melissa Helbach, Nathan's mother, and Joshua Helbach, Nathan's brother. These four Helbachs comprise the LLC's entire membership.2
In July of 2020, during the incidents that form the basis of this lawsuit, Helbachs Café operated out of a location at 1824 Parmenter Street in Middleton, although it currently operates at 410 D'Onofrio Drive in Madison. The court takes judicial notice that both of these addresses are located in Dane County, Wisconsin.
As previously noted, the named defendants consist of two government entities -- the City of Madison and Dane County -- and three individuals -- Madison Assistant City Attorney Marci Paulsen and PHMDC employees Janel Heinrich and Bonnie Koenig. All three of the individual defendants were named in their official capacity.
In March of 2020, a then novel strain of coronavirus, now commonly referred to as COVID-19, began to spread throughout the United States. The epidemiology of COVID-19 suggested that the disease spreads through close contact with infected persons, including airborne transmissions via respiratory droplets created by activities such as sneezing, coughing, speaking and breathing. In response, Wisconsin Governor Tony Evers declared a public health emergency in the State of Wisconsin on March 12, 2020. Instituting several, statewide emergency health orders aimed at curbing infection rates, including a statewide mandate that masks be worn in public and commercial spaces.
On April 1, 2020, however, the Wisconsin Supreme Court invalidated a number of these health orders, including the statewide mask mandate. In response to this and other rulings striking down statewide emergency health orders, many Wisconsin counties and municipalities began enacting their own local health orders. Among those, PHMDC Emergency Order #8 was enacted on July 7, 2020, and applied to all persons in Dane County. (Heinrich Aff., Ex. 9 (dkt. #34-9).) That Order stated that face coverings were required effective July 13, 2020, "In any enclosed building where other people, except for members of the person's own household or living unit, could be present." (Id. ) The Order also included specific directives to businesses, including limiting capacity to 50%, adhering to the "PHMDC requirements" listed on its website, and posting PHMDC's "Workplace Requirements for Employers and Workers" guidance document in a prominent location for employees to see. (Id. )3
If persons in Dane County observed what they believed to be a violation of any PHMDC health order by a commercial business, they were encouraged to lodge a complaint by telephone or email. Upon receipt of a complaint against a business, PHMDC's policy was first to reach out to the business, provide education regarding the requirements of the health orders, and attempt to obtain voluntary compliance. If PHMDC received a second complaint, however, its policy was to have someone from the City Attorney's office follow up with that business to discuss the importance of its compliance. Moreover, receipt of a third complaint generally resulted in a citation, and receipt of any subsequent complaints could result in an onsite visit by PHMDC officials. Finally, if these officials observed continued violations of a health order, the matter is referred to the City Attorney's office for prosecution.
On July 13, 2020, the day that PHMDC Emergency Order #8 went into effect, Casey Helbach posted a sign on the front door of the café stating, Casey did not confer with any other members of Helbachs Café, LLC before making and posting the sign. Moreover, the sign was on the door for approximately thirty minutes before Casey took it down, again without input from any other LLC member. Nevertheless, as fate would have it, a patron took a photo of the sign during the short time that the sign was up, then posted it to social media, which garnered thousands of reactions, comments and shares, as well as commentary from local and national media.
Beginning midday on July 13, PHMDC also began receiving complaints regarding Helbachs’ noncompliance with the Emergency Order, eventually totaling over 150. Plaintiff disputes the characterization of these calls and emails as "complaints" -- at least to the extent that persons lodging the complaints were not speaking from first-hand knowledge, but rather from what they saw on social media -- but the parties agree that PHMDC was contacted over 150 times regarding the café’s lack of compliance with Emergency Order #8. Moreover, due to the sheer volume of these contacts, PHMDC sent two employees, Bonnie Koenig and Molly Budlong, to Helbachs for a compliance check on July 14. Koenig and Budlong observed that café employees were not wearing masks, and they further noted that neither the "Masks Required" sign nor the "Workplace Requirements for Employers and Workers" sign was posted in the café. On this initial occasion, however, Koenig and Budlong only observed the café, choosing not to make contact with a manager or any of its employees.
Later that same day, Koenig attempted to call the café, as well as Casey personally, to provide education on the requirements of Emergency Order #8, leaving voicemails at both phone numbers. Koenig also emailed Helbachs to convey the same information. The next day, July 15, having received no reply to either of her calls or the follow-up email, and with PHMDC itself receiving more calls and emails regarding Helbachs, Koenig returned to the café with City of Madison Assistant City Attorney Marci Paulsen and spoke with Casey. Both Koenig and Paulsen attempted to educate Casey on the importance of following the provisions of Emergency Order #8. However, Casey told Koenig and Paulsen that he not only had no intention of complying, but would not require employees or patrons to wear masks, nor would he post either of the required signs. Casey further admits Helbachs "did nothing" in response to Koenig and Paulsen's requests that the café comply with Emergency Order #8, and Helbachs continued operating the café without requiring masks for employees or patrons and without posting the required signage.
On July 16, PHMDC sent an email to all businesses in its listserv, including Helbachs, reminding them that Emergency Order #8 required them to post the "Mask Required" signage for workers or patrons. This email was received and opened byjosh@helbachscoffee.com.
On July 20, 2020, PHMDC received a complaint from a Kathryn Vellon, who claimed that an employee at Helbachs asked her to remove her mask while in the café. Assistant City Attorney Paulsen spoke with Vellon to verify her complaint. While plaintiff purports to dispute whether the investigation conducted into the incident with Vellon was thorough enough, there is no dispute that Paulsen spoke with Vellon regarding her complaint. Based on this complaint, and in accordance with PHMDC policy for businesses receiving three or more complaints, Paulsen next authorized a citation for violation of Section 1(e)(i)(1) of Emergency Order #8. The space on the citation marked "Description of Violation" reads, "Asking an individual to remove her face covering in violation of Emergency Order #8 Sec. 1(e)(i)(1)." (Paulsen Aff., Ex. 3 (dkt. #33-3).)
On July 21, Paulsen and Budlong once again visited Helbachs, and they again...
To continue reading
Request your trial