Ashland, Ohio – A judge ruled that the Director of the Ohio Department of Health (ODH) does not have the authority to issue mask mandates, social distancing or other types of mandates since Ohio law does not give the agency such stated or implied authority.
Ashland County Common Pleas Judge Ronald P. Forsthoefel wrote that the ODH only has ultimate authority in matters of isolation and quarantine – matters the legislature defined in Senate Bill 22, the law enacted when the General Assembly overrode Ohio Governor Mike DeWine’s veto of the bill last month.
The case Forsthoefel judged involved Cattlemans Restaurant and the Ashland County Health Department – the latter which issued a cease and desist order against the restaurant for an alleged violation of the COVID-related Dine Safe Order.
The restaurant sued the county health department, at which time Judge Forsthoefel issued a temporary restraining order precluding the department from revoking the restaurant’s food service license and imposing penalties for alleged order violations.
The decision released Tuesday is a follow-up to the temporary injunction from last year and creates a permanent record and precedent in Ashland County. However, since the plaintiffs didn’t join the Ohio Attorney General in the case, and because the cease and desist order was withdrawn by the health department and the agency committed to no further enforcement, Judge Forsthoefel did not issue a declaratory judgment.
What the decision means for restaurants, bars, businesses, and Ohioans outside Ashland County is that the decision establishes precedent and is a building block on which future plaintiffs could construct their cases, an Ohio government attorney told The Ohio Star.
Cattlemans was represented by Maurice Thompson, Director of the 1851 Center for Constitutional Law (1851 Center). “The Court’s Order is further evidence that no statute permits Ohio agencies to overregulate all Ohioans over an extended period of time, and that if one did, it would be a violation of the Ohio Constitution’s separation of powers,” said Thompson. “The decision provides a roadmap for elected officials in other counties, who ultimately maintain the power to protect their citizens from the State’s arbitrary and continuous administrative overreach, since virtually all enforcement of these orders is undertaken locally.”
Thompson continued, “The Court’s reasoning arises while addressing procedural, jurisdictional, and timing issues in a case that ultimately resulted in an injunction forbidding the county’s health department from suspending food service operations licenses in response to restaurant employees not wearing masks.”
Forsthoefel wrote about two other cases the 1851 Center filed in other parts of the state involving COVID-related orders – Lake and Erie Counties. The judge acknowledged decisions delivered by the courts in those cases regarding the unconstitutional nature of COVID-related orders but wrote that he is “more inclined to agree with the Erie County Common Pleas Court” that ruled the ODH Director has “no authority…to issue or enforce mandatory mask, social distancing, or other similar type orders.”
The Ashland County judge went on to rule that the orders in question in both counties – and the Dine Safe Order contested in Ashland County – “fail to accomplish anything scientifically demonstrable, or otherwise corroborated with empirical data, to prevent the spread of contagious or infectious disease even if that purpose were authorized by R.C. 3701.13.”
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