BBQ joint challenging COVID face-covering requirement loses mootness appeal

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A Bluffton barbecue joint seeking to set aside a health department order requiring the restaurant’s employees to comply with a face-covering requirement during the height of COVID did not convince the Court of Appeals of Indiana that its case wasn’t moot.

In August 2020, Yergy’s State Road BBQ got heated when its Bluffton restaurant was ordered to “immediately close and terminate violative operations.” The restaurant was accused of failing to comply with face-covering requirements for employees or with the required in-person dining limits imposed through various state public health and safety orders stemming from the coronavirus pandemic.

Specifically, Executive Order 20-32, issued by Gov. Eric Holcomb on June 6, 2020, provided that “all [restaurant] employees and staff sh[ould] wear face coverings” and that the capacity limit for a restaurant’s in-person dining was limited to 75% of a restaurant’s maximum capacity.

The order against Yergy’s, issued by the Wells County Health Department, also informed Yergy’s that it was required to close down for 24 hours. The restaurant would “be allowed to re-open after an inspection” by the county health department and a “signed statement by [Yergy] of [its] intent to comply” with the face-covering and capacity requirements.

Yergy’s petitioned for review of the order, and a county health department hearing panel upheld it. But the order was modified to remove the allegation that Yergy’s had violated the in-person dining capacity limit.

Yergy’s then filed suit in December 2020, seeking to vacate the health department’s order against it. It also sought declaratory and injunctive relief challenging the constitutionality of the state’s Emergency Management and Disaster Law as applied, and declaratory and injunctive relief challenging the governor’s executive orders as violating the EMDL.

The Wells Circuit Court ultimately declared the issue was moot, citing Executive Orders 21-09 and 21-12, which eliminated the mandate for face coverings for restaurant employees.

Affirming that decision, the COA noted that it is “undisputed” that there is no longer an executive order requiring restaurant employees to wear face coverings in Indiana.

“Thus, the basis of the issuance of the challenged Health Department Order no longer exists,” Judge Rudolph Pyle wrote. “Because there is ‘no effective relief [that] can be rendered’ to Yergy on its complaint, the trial court properly determined that the case was moot.”

Yergy’s also argued its case fell within the public interest exception to mootness because the governor could issue a future executive order that imposes further mandates on restaurants as part of the current pandemic, or could do so in response to a future pandemic.

“While the restrictions imposed in response to the Covid-19 pandemic certainly present extraordinary issues involving the limits of executive power during a health emergency, they are not issues, at least as applied to Yergy, that currently need to be resolved,” Pyle wrote. “The legal framework governing the review and issuance of emergency orders has changed.”

It therefore declined to apply the public interest exception or to issue an advisory opinion.

“Accordingly, we affirm the trial court’s determination that Yergy’s request for relief was moot and affirm the trial court’s order dismissing Yergy’s complaint,” the judge concluded.

The case is Yergy’s State Road BBQ, LLC v. Wells County Health Department; Eric Holcomb, in his official capacity of Governor of the State of Indiana; and State of Indiana, 21A-PL-2593.

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