Tigges v. Northam

• Decision Date: 21 July 2020
• Docket Number: Civil Action No. 3:20-cv-410
• Citation: 473 F.Supp.3d 559
• Court: U.S. District Court — Eastern District of Virginia
• Parties: Jon B. TIGGES, Plaintiff, v. Ralph S. NORTHAM, Governor, Commonwealth of Virginia, et al., Defendants.

473 F.Supp.3d 559

Jon B. TIGGES, Plaintiff,

v.Ralph S. NORTHAM, Governor, Commonwealth of Virginia, et al., Defendants.

Civil Action No. 3:20-cv-410

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

Signed July 21, 2020

John Chapman Petersen, David Lee Amos, Chap Peterson & Associates, PLC, Fairfax, VA, for Plaintiff.

Michelle Shane Kallen, Toby Jay Heytens, Office of the Attorney General, Richmond, VA, for Defendants.

MEMORANDUM ORDER

John A. Gibney, Jr., United States District Judge

This matter comes before the Court on the plaintiff's motion for a preliminary injunction. (Dk. No. 7.) The Court held a hearing on the motion on July 20, 2020. For the reasons set forth below, the Court will deny the motion.

I. FINDINGS OF FACT

Pursuant to Federal Rule of Civil Procedure 65, the Court finds the following facts:

Virginia's Response to COVID-19

1. In late 2019, a novel coronavirus appeared in Wuhan, Hubei Province, China. The virus quickly spread from China to other parts of the world. On February 11, 2020, the World Health Organization ("WHO") named the disease caused by the virus COVID-19. On March 11, 2020. the WHO declared COVID-19 a pandemic.¹

2. COVID-19 spreads when an infected person transmits the virus through respiratory droplets. An infected person without any symptoms can spread the virus to another person. The virus, therefore, spreads easily from person-to-person. Currently, no vaccine exists to protect against infection from COVID-19.²

3. Public health officials recommend the following measures to prevent the spread of COVID-19: wearing a face covering over the nose and mouth, maintaining a physical distance of six feet between people who do not live in the same household, and avoiding in-person gatherings of people who do not live in the same household.

4. On March 7, 2020, the Virginia Department of Health reported the first confirmed case of COVID-19 in the Commonwealth of Virginia.³

5. In response to the outbreak of COVID-19, Governor Ralph S. Northam declared a state of emergency in Virginia on March 12, 2020.⁴

6. Over the course of the following weeks, Governor Northam issued a series of Executive Orders designed to slow the spread of COVID-19 in Virginia. On March 23, 2020, Governor Northam issued Executive Order No. 53 (the "Phase Zero Order"). Among other restrictions, the Phase Zero Order prohibited all public and private in-person gatherings of ten or more individuals. The Order further closed "all dining and congregation areas in restaurants, dining establishments, food courts, breweries, microbreweries, distilleries, wineries, tasting rooms, and farmers markets." The above establishments, however, could "offer delivery and take-out services." Thus, effective March 24, 2020, the Commonwealth entered into "Phase Zero."⁵

7. On March 30, 2020, Governor Northam issued Executive Order No. 55 (the "Temporary Stay at Home Order"). Subject to certain exceptions, the Order required "[a]ll individuals in Virginia to remain at their place of residence." Additionally, the Order extended the restrictions set forth in Executive Order No. 53 until June 10, 2020. The Order took effect on March 30, 2020.⁶

8. On May 8, 2020, Governor Northam and State Health Commissioner M. Norman Oliver issued Executive Order No. 61 and Order of Public Health Emergency Three (the "Phase Two Order"), which eased some of the restrictions set forth in Executive Order Nos. 53 and 55. Subject to certain requirements, the Order allowed dining establishments such as restaurants and wineries to begin dine-in service in outdoor areas. The occupancy of those establishments could not exceed 50 percent "of the lowest occupancy load on the certificate of occupancy." The Order also required dining establishments to position tables six feet apart from other tables and required "employees working in customer-facing areas" to "wear face coverings over their nose and mouth at all times." Businesses that could not adhere to the restrictions were required to close. The Order continued the prohibition of all public and private in-person gatherings of more than ten people. Thus, effective May 15, 2020, most of the Commonwealth entered into "Phase One."⁷

9. Because certain jurisdictions continued to experience higher positivity rates than other localities, Governor Northam allowed local officials to request to remain in "Phase Zero." On May 9, 2020, local officials from the Northern Virginia region, including Loudoun County, made such a request. On May 12, 2020, Governor Northam and Commissioner Oliver issued Executive Order No. 62 and Order of Public Health Emergency Four. That Order explained that the Northern Virginia region "face[d] unique challenges when compared to the rest of the Commonwealth," noting that the region was "substantially higher than the rest of the Commonwealth in percentage of positive tests for COVID-19." Accordingly, the Order delayed the Northern Virginia region from entering into "Phase One" until May 28, 2020. Thus, effective May 15, 2020, the Northern Virginia region remained in "Phase Zero."⁸

10. The Northern Virginia region entered into "Phase One" on May 29, 2020.

11. On May 26, 2020, Governor Northam and Commissioner Oliver issued Executive Order No. 63 and Order of Public Health Emergency Five (the "Face Covering Order"). With certain exceptions, the Order requires "[a]ll patrons in the Commonwealth aged ten and over" to cover their mouth and nose with a face covering, as described and recommended by the CDC" when "when entering, exiting, traveling through, and spending time inside" certain establishments. The Order applies to patrons visiting dining establishments, including wineries. Adults who fail to comply with the face covering requirement are subject to criminal prosecution for committing a Class I misdemeanor pursuant to Va. Code § 32.1-27. Additionally, Commissioner Oliver may seek injunctive relief in circuit court to enforce the Order pursuant to Va. Code § 32.1-27. Executive Order No. 63 remains in effect.

12. On June 2, 2020, Governor Northam and Commissioner Oliver issued Executive Order No. 65 and Order of Public Health Emergency Six (the "Phase Two Order"). Subject to certain requirements, the Order allowed dining establishments such as restaurants and wineries to seat parties of fifty patrons or fewer. The Order also prohibited all public and private in-person gatherings of more than fifty people. Thus, effective June 5, 2020, most of the Commonwealth entered into "Phase Two."⁹

13. On June 2, 2020, Governor Northam and Commissioner Oliver issued Third Amended Executive Order No. 61 and Order of Public Health Emergency Three. Under that Order, the Northern Virginia region, including Loudoun County, and the City of Richmond remained in "Phase One."

14. The entire Commonwealth, including the Northern Virginia region, entered into "Phase Two" on June 12, 2020.¹⁰

15. The Temporary Stay at Home Order expired on June 4, 2020.

16. The Phase Zero Order and the Phase One Order expired on June 12, 2020.

17. The Phase Two Order expired on June 30, 2020.

18. On June 30, 2020, Governor Northam and Commissioner Oliver issued Executive Order No. 67 and Order of Public Health Emergency Seven (the "Phase Three Order"). Subject to certain requirements, the Order allows dining establishments such as restaurants and wineries to have indoor and outdoor service. Among other restrictions, the Order requires dining establishments to separate all parties by six feet and requires "[e]mployees working in customer-facing areas" to "wear face coverings over their nose and mouth at all times." Businesses that cannot comply with the requirements must close. The Order prohibits all public and private in-person gatherings of more than 250 individuals. Private bookings for events cannot exceed 250 individuals.

19. Additionally, the Phase Three Order lists certain requirements for religious services, including that "[i]ndividuals ... must be at least six feet apart when seated and must practice proper physical distancing at all times." The Order further requires the "mark[ing] [of] seating and common areas where attendees may congregate in six-foot increments to maintain physical distancing between persons who are not Family members." The Order defines "Family members" as "blood relations, adopted, step, and foster relations, as well as all individuals residing in the same household."

20. The Phase Three Order grants the Virginia Department of Health the authority to enforce the restrictions. Willful failure to comply with the Order amounts to a Class I misdemeanor pursuant to Va. Code § 32.1-27. Commissioner Oliver may seek injunctive relief in circuit court to enforce the Order pursuant to Va. Code § 32.1-27. Finally, the Order grants enforcement authority to the appropriate state agency with regulatory authority over the business. Thus, effective July 1, 2020, the entire Commonwealth entered into "Phase Three." The Phase Three Order remains in effect.

21. Of the Executive Orders and Orders of Public Health Emergency at issue here, only the Face Covering Order and the Phase Three Order remain in effect.

22. As of July 20, 2020, the Virginia Department of Health has reported 78,375 cases of COVID-19. 7,201 people have been hospitalized. 2,031 people have died. The Virginia Department of Health has reported 4,670 cases of COVID-19 in Loudoun County, where 317 people have been hospitalized and 103 people have died.¹¹

The Plaintiff's Business

23. The plaintiff, Jon B. Tigges, owns Zion Springs, LLC ("Zion Springs"), "a licensed farm winery in Loudoun County." (Compl. ¶ 9.) Loudoun County is located within the Northern Virginia region as defined in the Executive Orders and Orders of Public Health Emergency described above.

24. At Zion Springs, Tigges sells "packages" for weddings and receptions at a fixed price. (Id. ¶ 10.) A "package" typically "includes meals and beverages, photography, event planning, design, entertainment,...