Kentucky Official Claims Covid Orders Are Unfair to Agritourism Sector

(CN) — The Republican head of Kentucky’s Department of Agriculture sued Democratic Governor Andy Beshear on Monday, claiming executive orders he issued during the Covid-19 pandemic are unconstitutional and have damaged the state’s agritourism industry.

Ryan Quarles, currently serving his second term as the Bluegrass State’s commissioner of agriculture, filed suit in Scott County Circuit Court alongside Evans Orchard and Cider Mill LLC, a fruit farm that generates a share of its income through agritourism.

Kentucky Gov. Andy Beshear walks through the state’s Emergency Operations Center in Frankfort on May 3, 2020. (Ryan C. Hermens/Lexington Herald-Leader via AP)

The orchard hosts weddings and other gatherings at a large event barn and usually has daily visitors at its barnyard playing area, which generated more than $266,000 in ticket revenue last year, according to the lawsuit.

The suit details Beshear’s response to the Covid-19 pandemic, including the declaration of a state of emergency in March and the passage of numerous executive orders that shuttered businesses temporarily to slow the spread of the respiratory disease caused by the new coronavirus.

The commonwealth has since eased the restrictions and allowed the majority of retail shops and restaurants to reopen under a set of strict guidelines, but Quarles took issue with the regulations aimed at outdoor event facilities.

On June 22, Beshear issued an executive order with guidelines for gatherings of up to 50 people that included a restriction on the sharing of “food, drink, containers, napkins or utensils.”

Quarles says this constraint effectively prevents the Evans Orchard and similar facilities from hosting weddings or using their outdoor facilities without fear of prosecution.

The commissioner also claims the state’s enforcement of the policies has been “haphazard,” and alluded to the  failure to limit crowd sizes during recent Black Lives Matter protests around the state.

“For instance,” the complaint states, “during certain mass gatherings that occurred in Louisville, Frankfort, and in other communities across the commonwealth in May and June 2020, Governor Beshear … and local health departments failed to enforce the March 19 executive order prohibiting mass gatherings.”

Beshear’s office said in a statement that it is “confident in the legality of these rules” and has “identified numerous legal issues with the suit, including that it was filed in the wrong place.”

“If the parties here won and the virus spread because the facility was not following proper guidance, it could threaten the reopening of our economy and public schools,” the statement said.

The governor’s office also noted all businesses must follow the same rules for outdoor activities.  

“At a time when states to our south are reporting over 8,000 new Covid-19 cases each day, the parties bringing this lawsuit want to eliminate the public health guidance and requirements that are keeping Kentuckians safe,” it said.

The lawsuit states that the orchard developed an operational plan that complied with the state’s guidelines but never received any meaningful response from the WEDCO District Health Department, the local agency tasked with implementing Governor Beshear’s reopening directives in Scott County.

According to the complaint, Evans Orchard intended to have additional staffing to maintain spacing between customers and regularly sanitize surfaces throughout the day, and would also strive to keep attendance below 100 individuals at any given time.

In response, the health department allegedly told the orchard it would be allowed to admit a maximum of 10 individuals into its 96,000 square foot facility until June 29, when up to 50 patrons would be allowed.

“We want to do what is right to protect everyone,” Jenny Evans of Evans Orchard said in a statement. “However, the reality of these orders, and the way they have been issued and enforced, have set our dreams back for years. I pray our community understands that we take these actions today to protect everything we’ve invested into our small family farm.”

The suit claims Beshear’s orders violate not only the Kentucky Constitution, but also the Administrative Procedure Act, or APA, and failed to “give adequate notice to the public” regarding the impact they would have on operations around the state.

Quarles says the orders violated Kentucky law because they failed to give cost estimates, did not allow public input during their development, and were not brought before members of the legislature before they were enacted by the governor.

“Because the executive orders do not comply with the requirements of the APA yet purport to limit the rights, liberties, and freedoms guaranteed by the Constitution of the United States, the Constitution of Kentucky, and various statutes and regulations, the executive orders are null, void, and unenforceable” the complaint states.  

Quarles and the Evans Orchard and Cider Mill seek a judgment declaring the orders void, as well as a permanent injunction preventing their enforcement.

Quarles is represented by Joseph Bilby from the Kentucky Department of Agriculture, while Evans Orchard is represented by attorney Jason Obermeyer from Georgetown, Kentucky.

In a statement, Quarles said the family-owned Evans Orchard has “suffered immense financial losses due to restrictions issued by the governor during the state of emergency.”

“While the orders may be well-intentioned, they violate the Administrative Procedures Act, which contains significant protections for input from the public and the General Assembly during the rulemaking process,” he said.

Also named as defendants in the suit are Eric Friedlander, secretary of the Cabinet for Health and Family Services; Steven Stack, commissioner of the Kentucky Department for Public Health; and Crystal Miller, director of public health for the WEDCO District Health Department.

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