COMMONWEALTH OF KENTUCKY

EAB1C949-414E-4F11-A5D6-5836A8EBB943 : 000001 of 000080

BOONE CIRCUIT COURT
FIRST DIVISION
CIVIL ACTION NO. 20-CI-00678
Electronically Filed

FLORENCE SPEEDWAY, INC., ET AL. PLAINTIFFS

and

COMMONWEALTH OF KENTUCKY, INTERVENING PLAINTIFF

ex rel. ATTORNEY GENERAL DAVID CAMERON

v. NOTICE-MOTION-ORDER

NORTHERN KENTUCKY INDEPENDENT DEFENDANTS

HEALTH DISTRICT, ET AL.

NOTICE

Please take notice and be advised that plaintiff Ridgeway Properties, LLC, d/b/a Beans

Café & Bakery, and Intervening Plaintiff Deans Diner, LLC d/b/a Brewed shall be heard on the

following motion and tender the attached Order on March 16, 2021, at 9:00 a.m., or as soon

thereafter as counsel can be heard.

PLAINTIFFS’ MOTION FOR LEAVE OF COURT TO FILE THEIR THIRD

AMENDED/INTERVENING AND SUPPLEMENTAL VERIFIED COMPLAINT FOR
DECLARATORY AND INJUNCTIVE RELIEF AGAINST DEFENDANTS AND
MOTION TO INTERVENE BY DEANS DINER, LLC d/b/a BREWED

Plaintiff Ridgeway Properties, LLC, d/b/a Beans Café & Bakery, by and through counsel,

and proposed Intervening Plaintiff, Deans Diner, LLC d/b/a Brewed respectfully move for leave

of Court to file their tendered Third Amended/Intervening Verified Class Action Complaint for

Declaratory and Injunctive Relief (the “Third Amended Complaint”) against Defendants. Deans

Diner, LLC d/b/a Brewed seeks to intervene. This motion is premised upon C.R. 15.01, C.R.

15.04 and other applicable law.

 The purpose for the filing of the Third Amended/Intervening Complaint is: (1) to address

EAB1C949-414E-4F11-A5D6-5836A8EBB943 : 000002 of 000080

new and/or supplemental orders and regulations issued by the state defendants that supersede the

prior orders issued by the state defendants; (2) to address an entirely new body of law enacted on

an emergency basis by the Kentucky General Assembly; and (3) to withdraw two of the

Plaintiffs, Florence Speedway, Inc. and Little Links to Learning, who wish to withdraw.

It is well established that a claimant should be granted leave to file an amend pleading

when justice so requires. C.R. 15.01; Ashland Oil & Refining Co. v. Philips, 404 S.W.2d 449,

450-451 (Ky. 1966). That is especially true here where superseding events have given rise to

this amendment. C.R. 15.04. That is especially true here where recently enacted and operative

legislation has drastically changed the situation.

As for intervention, C.R. 24.01 provides:

Upon timely application anyone shall be permitted to intervene in an action (a) when a
statute confers an unconditional right to intervene, or (b) when the applicant claims an
interest relating to the property or transaction which is the subject of the action and is so
situated that the disposition of the action may as a practical matter impair or impede the
applicant's ability to protect that interest, unless that interest is adequately represented by
existing parties.

In order to intervene, the party's interest relating to the transaction must be a "present

substantial interest in the subject matter of the lawsuit," rather than an expectancy or contingent

interest. Gayner v. Packaging Service Corp. of Ky., Ky. App., 636 S.W.2d 658, 659 (1982).

Deans Diner, LLC, like Ridgeway Properties, LLC, are challenging the same orders, on

substantially the same facts, and wish to participate in this matter.

Additionally, the filing of an amended complaint serves to supersede the original

complaint. Faller v. Goess-Saurau, 490 S.W.3d 363, 366 (Ky. App. 2015).

A proposed Order granting the relief requested hereby is tendered contemporaneously

herewith.

2
 Respectfully submitted,

EAB1C949-414E-4F11-A5D6-5836A8EBB943 : 000003 of 000080

/s/Christopher Wiest________
Christopher Wiest (KBA #90725)
25 Town Center Blvd, STE 104
Crestview Hills, KY 41017
513-257-1895 (v)
chris@cwiestlaw.com
Attorney for Plaintiffs

/s/Thomas Bruns_____________
Thomas Bruns (KBA #84985)
Lucinda C. Shirooni (KBA #82669)
4750 Ashwood Drive, STE 200
Cincinnati, OH 45241
tbruns@bcvalaw.com
Co-Counsel for Plaintiffs

CERTIFICATE OF SERVICE

I certify that on this 11th day of March, 2021, I electronically filed a true and correct copy
of the foregoing with the Clerk of Court by using the Kentucky Court of Justice eFiling website,
which will send a notice of electronic filing and a link to the document to those attorneys listed
below. I further rely on Section 11(1) of the eFiling Rules of the Court of Justice that provides
that transmission of a hyperlink to the electronic document constitutes service under C.R. 5 and
served by electronic mail.

/s/ Christopher Wiest_______________

Christopher Wiest

3
 COMMONWEALTH OF KENTUCKY

EAB1C949-414E-4F11-A5D6-5836A8EBB943 : 000004 of 000080

BOONE CIRCUIT COURT
FIRST DIVISION
CIVIL ACTION NO. 20-CI-00678
Electronically Filed
Ridgeway Properties, LLC d/b/a
Beans Café & Bakery
21 Taft Highway
Dry Ridge, KY 41035

And

Deans Diner, LLC d/b/a Brewed

124 Malabu Dr
Lexington, KY 40503

Plaintiff/Intervening Plaintiff

On behalf of themselves, and others similarly situated

(class certification sought under C.R. 23)

v.

Northern Kentucky Independent Health District

8001 Veterans Memorial Dr
Florence, KY 41042

Dr. Lynne Saddler, M.D.

District Director of Health
Northern Kentucky Independent Health District
8001 Veterans Memorial Dr
Florence, KY 41042
In her official capacity only

Hon. Andrew Beshear

Governor, Commonwealth of Kentucky
700 Capitol Ave, Suite 100
Frankfort, KY 40601
In his official capacity only

Kentucky Cabinet for Health and Family Services

275 E. Main Street
Frankfort, KY 40621

Eric Friedlander
Secretary, KY Cabinet for Health and Family Services

1
275 E. Main Street

EAB1C949-414E-4F11-A5D6-5836A8EBB943 : 000005 of 000080

Frankfort, KY 40621
In his official capacity only

Steven Stack, M.D.

Commissioner for Public Health
275 E. Main Street
Frankfort, KY 40621
In his official capacity only

Defendants

Also Serve:

Hon. Daniel Cameron

Kentucky Attorney General
700 Capitol Ave., STE 118
Frankfort, KY 40601-34481

PLAINTIFFS THIRD AMENDED/INTERVENING AND SUPPLEMENTAL VERIFIED

CLASS ACTION COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Parties

1. Plaintiff Ridgeway Properties, LLC d/b/a Beans Café & Bakery (“Beans Café”) operates

a restaurant, café and bakery, at two locations, the first in Boone County, Kentucky, at

2091 N Bend Rd, Hebron, KY 41048 and the second at 21 Taft Highway, Dry Ridge, KY

41035 and is located in Grant County, Kentucky.

2. Deans Diner, LLC d/b/a Brewed (“Brewed”), operates a coffee shop, restaurant, and also

sells alcohol at 124 Malabu Dr., Lexington, KY 40503, which, at times, has doubled as

an event venue.

3. Defendant, Northern Kentucky Independent Health District (NKIHD), is a duly

authorized local health district which, among other things, enforces public health orders

in Northern Kentucky, including in Boone, Kenton, Campbell, and Grant counties,

1
The Kentucky Attorney General is served pursuant to K.R.S. 418.075, but is not made a party.
2
 pursuant to KRS Chapter 212, including those specific statutory provisions challenged in

EAB1C949-414E-4F11-A5D6-5836A8EBB943 : 000006 of 000080

this case.

4. Defendant Lynne Saddler, M.D. is the District Director of Health of the Northern

Kentucky Independent Health District. Dr. Saddler is charged with enforcing and does

enforce the public health orders in Northern Kentucky, including in Boone, Kenton,

Campbell, and Grant counties, pursuant to KRS Chapter 212, including those specific

statutory provisions challenged in this case.

5. Defendant Hon. Andrew Beshear is the duly elected Governor of Kentucky. He is only

sued in his official capacity. He issued, or authorized the issuance of, the Challenged

Orders in this case, and he is responsible for their enforcement.

6. Defendant, Kentucky Cabinet for Health and Family Services (“Cabinet”), is the Cabinet

empowered under K.R.S. 194A.010 for “operating the public health … programs in the

Commonwealth.” It is through the authority delegated to the Cabinet that the Challenged

Orders are enforced and/or promulgated in this case.

7. Defendant Eric Friedlander is the acting Secretary of the Cabinet for Health and Family

Services, and is only sued in his official capacity. He issued, or authorized the issuance

of the Challenged Orders in this case, and he is responsible for their enforcement.

8. Defendant Dr. Steven Stack, M.D. is the commissioner for the Kentucky Department of

Public Health, and is only sued in his official capacity. He issued, or authorized the

issuance of the Challenged Orders in this case, and he is responsible for their

enforcement.

3
 Venue

EAB1C949-414E-4F11-A5D6-5836A8EBB943 : 000007 of 000080

9. Venue is proper in this Court under K.R.S. 452.405, because the primary harm has

occurred in Boone County, and under K.R.S. 452.400 and K.R.S. 452.460, because a

Defendant resides in this County and one of the primary enforcers of the challenged

orders, the Northern Kentucky Independent Health District, is located in this County. 2

Kentucky’s COVID-19 Response Actions, Litigation in this Court, and litigation in the
Kentucky Supreme Court

10. On March 6, 2020, Governor Andrew Beshear issued a state of emergency Executive

Order 2020-215. Among other things, this Order declared an emergency for COVID-19

in and for Kentucky. See Exhibit 1, hereto.

11. Throughout March, 2020, the Governor and/or his designees, specifically Cabinet for

Health and Family Services Secretary Eric Friedlander and Dr. Steven Stack, M.D.,

Kentucky Commissioner of Public Health, issued a number of orders to persons and

businesses concerning COVID-19.

12. Throughout the spring, summer, and fall, of 2020, the Governor and/or his designees

issued, changed, and modified numerous orders related to COVID-19.

13. This action was originally filed June 16, 2020.

14. This Court entered a temporary injunction against a number of the Governor’s challenged

orders on July 20, 2020.

15. The Kentucky Supreme Court reversed on November 12, 2020, in Beshear v. Acree, 2020

Ky. LEXIS 405, --- S.W.3d --- (2020) (“Acree”). Acree first held that the Governor used

the powers granted to him by the legislature. Id. at *3-*4. It next held that the General

2
This action is also properly venued in this Circuit under 2021 RS HB3.
https://apps.legislature.ky.gov/record/21rs/hb3.html
4
 Assembly lawfully delegated emergency powers to the Governor. Id. at *4. And the

EAB1C949-414E-4F11-A5D6-5836A8EBB943 : 000008 of 000080

Court found significant that “the General Assembly, in 2020 Senate Bill 150, recognized

the Governor's use of the KRS Chapter 39A emergency powers, directed him to declare

in writing when the COVID-19 emergency "has ceased" and further provided: ‘In the

event no such declaration is made by the Governor on or before the first day of the next

regular session . . . the General Assembly may make the determination.’" Id.

16. Acree also determined that the Governor could act through executive orders and need not

promulgate regulations because KRS 39A.180 superseded the requirements of KRS

Chapter 13A. Id. at *5-*6.

17. The Supreme Court in Acree observed that it entered a stay on this Court’s injunction:

“Noting the need for a clear and consistent statewide public health policy, the Court

recognized that the Kentucky legislature has expressly given the Governor broad

executive powers in a public health emergency.” Id. at *30. One does not give power to

another if that person has it already.

18. The Supreme Court also recognized that “Our first responsibility is to determine what the

legislature intended by examining carefully the laws enacted.” Id. at *39. The Supreme

Court was explicit that: “Also, factually significant for present purposes, as discussed

below, the General Assembly itself in 2020 Senate Bill 150 explicitly recognized the

Governor's emergency declaration and provided that the Governor ‘shall declare’ when

the state of emergency ceases, and if the declared emergency had not ceased ‘on or before

the first day of the next regular session of the General Assembly, the General Assembly

may make the determination.’" Id. at fn.28.

5
 19. The Governor, in litigating Acree, observed that KRS 39A "recognizes, defines, and

EAB1C949-414E-4F11-A5D6-5836A8EBB943 : 000009 of 000080

constrains" executive authority to direct an emergency response. Id. at *48. In disposing

of the Constitutional issues, the Court observed that "[a] constitutional infringement must

be 'clear, complete and unmistakable' in order to render the statute unconstitutional."

citing Caneyville Volunteer Fire Dep't v. Green's Motorcycle Salvage, Inc., 286 S.W.3d

790, 806 (Ky. 2009).

20. Much emphasis was placed by the Court on the enactment of 2020 SB 150, which

approved of the Governor’s use of executive orders to respond to COVID-19. Id. at *53.

21. The Kentucky Supreme Court in Acree recognized that the Court was not adjudicating

whether or not the exercise of powers by the Governor was legislative because:

“Fortunately, the need to definitively label the powers necessary to steer the
Commonwealth through an emergency as either solely executive or solely legislative is
largely obviated by KRS Chapter 39A, ‘Statewide Emergency Management Programs,’
which reflects a cooperative approach between the two branches. Plaintiffs and the
Attorney General insist that the statute is in large part unconstitutional, however, because
it grants the Governor legislative authority in violation of the nondelegation doctrine.”3

22. The Acree Court also stated: “We acknowledge, of course, that making laws for the

Commonwealth is the prerogative of the legislature.” Id.

23. One of the important and critical factors and features addressed by the Kentucky

Supreme Court, and critical to upholding it, was the ability of “legislative amendment or

revocation of the emergency powers granted the Governor.” Id. at *63.

Kentucky Legislative Response and Current Restrictions

3
This also recognized that any part of the opinion that discussed whether the Governor had any
implicit powers was, at best, dicta. It is well-settled that our courts should "refrain from reaching
constitutional issues when other, non-constitutional grounds can be relied upon." Baker v.
Fletcher, 204 S.W.3d 589, 597-98 (Ky. 2006); Davis v. Commonwealth, 365 S.W.3d 920, 922
n.3 (Ky. 2012) (discussing dicta).
6
 24. The General Assembly convened on January 5, 2021. It took immediate action to

EAB1C949-414E-4F11-A5D6-5836A8EBB943 : 000010 of 000080

address, through its elected representatives, and by overwhelming legislative majorities,

excesses and abuses in the Governor’s COVID-19 response.

21 RS SB 1

25. First, the General Assembly passed, on January 9, 2021, 21 RS SB1.4 21 RS SB1

drastically modified KRS 39A. See, also, Exhibit 2.

26. Importantly, 21 RS SB1, at Section 2, placed 30-day limitations (unless extended with the

approval of the General Assembly) on orders that place “restrictions on the in-person

meeting or places restrictions on the functioning of the following: … (b) Private

businesses or nonprofit organizations.” It also provided “the Governor shall not declare a

new emergency or continue to implement any of the powers enumerated in this chapter

based upon the same or substantially similar facts and circumstances as the original

declaration or implementation without the prior approval of the General Assembly.”

27. Section 4 of 21 RS SB1 repealed existing language of that section, and provided that:

“The Governor may suspend a statute by executive order when an emergency is declared

under KRS Chapter 39A if: 1. The statute is specifically enumerated by the Governor in

the executive order; and 2. The executive order specifying the suspension is approved by

the Attorney General in writing.” It also placed important limitations on the statutes the

Governor can suspend: (3) Notwithstanding subsection (2) of this section, the Governor

shall not suspend any laws in KRS Chapters 39A to 39F, KRS Chapter 13A, KRS

446.350, 527.020, 11 311.710 to 311.820, or any other statutes related to abortion.”

4
https://apps.legislature.ky.gov/recorddocuments/bill/21RS/sb1/bill.pdf
7
 28. Recognizing the devastation and irreparable harm that Governor Beshear was causing to

EAB1C949-414E-4F11-A5D6-5836A8EBB943 : 000011 of 000080

the Commonwealth and its citizens, Kentucky’s elected representatives included, in

Section 11 of 21 RS SB1, an emergency clause, causing the legislation to take immediate

effect on its passage: “Whereas the impact of the state of emergency declared in response

to COVID-19 on Kentucky’s citizens and businesses is of the utmost importance, an

emergency is declared to exist, and this Act takes effect upon its passage and approval

by the Governor or upon its otherwise becoming law.”

29. The Governor vetoed 21 RS SB1 on January 19, 2021, and the General Assembly, for its

part, overrode those vetoes on February 2, 2021 by overwhelming margins: in the House

of Representatives by a vote of 69-20 and a vote in the Kentucky Senate of 29-8.5

21 RS HB 1

30. Recognizing that 21 RS SB1 might not go far enough to provided long-awaited, and

critical relief to Kentucky businesses, the General Assembly, on January 9, 2021, passed

21 RS HB1.6 See, also, Exhibit 3.

31. Section 1 of 21 RS HB 1 provided, in relevant part:

Notwithstanding any state law, administrative regulation, executive order, or executive

directive to the contrary, during the current state of emergency declared by the Governor
in response to COVID-19 or any future state of emergency related to any virus or disease,
including but not limited to any mutated strain of the current COVID-19 virus, until
January 31, 2022:

(1)(a)Any business …may remain open and fully operational for in-person services so
long as it adopts an operating plan that:

1. Meets or exceeds all applicable guidance issued by the Centers for Disease
Control and Prevention or by the executive branch, whichever is least restrictive;

5
With the emergency clause, and notwithstanding the Governor’s veto, the legislation took
immediate effect. Commissioners of Sinking Fund v. George, 104 Ky. 260, 270-272 (1898).
6
https://apps.legislature.ky.gov/recorddocuments/bill/21RS/hb1/bill.pdf (last visited 3/10/2021).
8
 2. Details how the business… will foster the safety of employees, customers,

EAB1C949-414E-4F11-A5D6-5836A8EBB943 : 000012 of 000080

attendees and patrons, including social distancing requirements; and

3.Is posted in a conspicuous place on the main entrance door of the physical
location of the business, for-profit or not-for-profit organization, local government,
association, or school or school district, whether public, private, or religiously affiliated,
and on the Web site of the business, for-profit or not-for-profit organization, local
government, association, or school or school district, whether public, private,
or religiously affiliated, if one exists; …

(c) No state or local agency shall enforce restrictions related to the state of emergency
impacting the ability of the entities listed in this subsection to remain open and fully
operational for in-person services that exceed current applicable guidelines issued by the
Centers for Disease Control and Prevention or the executive branch, whichever is least
restrictive.

32. And, recognizing the devastation and irreparable harm that Governor Beshear was

causing to the Commonwealth and its citizens, Kentucky’s elected representatives

included, in Section 2 of 21 RS HB1, an emergency clause, causing the legislation to take

immediate effect on its passage: Whereas the economic impact of the state of emergency

declared in response to COVID-19 on Kentucky's citizens and businesses is of the utmost

importance, an emergency is declared to exist, and this Act takes effect upon its passage

and approval by the Governor or upon its otherwise becoming a law.”

33. The Governor vetoed 21 RS HB1 on January 19, 2021, and the General Assembly, for its

part, overrode those vetoes on February 2, 2021 by overwhelming margins: in the House

of Representatives by a vote of 72-22 and a vote in the Kentucky Senate of 29-8.7

21 RS SB 2

34. Further, recognizing ongoing abuses by the Executive Branch of the administrative

regulation process, the General Assembly, on January 9, 2021, passed 21 RS SB2.8

7
With the emergency clause, and notwithstanding the Governor’s veto, the legislation took
immediate effect. Commissioners of Sinking Fund v. George, 104 Ky. 260, 270-272 (1898).
8
https://apps.legislature.ky.gov/record/21rs/sb2.html (last visited 3/10/2021).
9
 35. In relevant part, Section 4, (8)(a) 3, required that documentary evidence be submitted

EAB1C949-414E-4F11-A5D6-5836A8EBB943 : 000013 of 000080

justifying the finding of an emergency in accordance with subsection (1) of this section to

the back of the emergency regulation (or, if larger, be submitted on CD or disk).

36. In relevant part, Section 22 of 21 RS SB2, limits administrative regulations to 30 days

that limit the in-person meeting or functioning of a private business, and requires that the

penalty, and due process rights be set forth in any such administrative regulation.9

37. Section 25 of 21 RS SB2 contains an emergency clause, causing the legislation to take

immediate effect on its passage: “Whereas, ensuring that Kentucky citizens have

adequate access to the administrative regulation process is a compelling and immediate

need, an emergency is declared to exist, and this Act takes effect upon its passage and

approval by the Governor or upon its otherwise becoming a law.”

38. The Governor vetoed 21 RS SB2 on January 19, 2021, and the General Assembly, for its

part, overrode those vetoes on February 2, 2021 by overwhelming margins: in the House

of Representatives by a vote of 69-20 and a vote in the Kentucky Senate of 31-6.10

COVID-19 trends in the Commonwealth

39. COVID-19 trends in the Commonwealth are on the decline:

9
https://apps.legislature.ky.gov/recorddocuments/bill/21RS/sb2/bill.pdf (last visited 3/10/2021).
10
https://apps.legislature.ky.gov/record/21rs/sb2.html (last visited 3/10/2021).
10
 EAB1C949-414E-4F11-A5D6-5836A8EBB943 : 000014 of 000080
Kentucky COVID Case Counts
120
100
80
60
40
20
0
1/1/2021 1/8/2021 1/15/2021 1/22/2021 1/29/2021 2/5/2021 2/12/2021 2/19/2021 2/26/2021 3/5/2021

Statewide Overall Incedence Jefferson County Fayette County

Kenton County Boone County Warren County

40. In point of fact, since January 1, 2021, the seven-day average of COVID-19 cases in

Boone County fell from 54.1 cases per 100,000 population, on January 1, 2021, to 14.9

cases per 100,000 population on March 9, 2021.

41. The statewide incident rate has fallen from 81.4 cases per 100,000 in early January, 2021,

to 14.34 cases per 100,000 population on March 9, 2021.

42. In part, this is because the Commonwealth is actively vaccinating adults for COVID-19;

in fact, 881,477 adults have received the vaccination, which is approximately 29% of

adults in the Commonwealth.11

Currently applicable restrictions

43. Several restrictions, the Governor contends, are currently applicable. First, Executive

Order 2020-1034 was issued on December 11, 2020, and is contained at Exhibit 4. It

incorporated Healthy at Work Guidance.

11
https://govstatus.egov.com/ky-covid-vaccine (last visited 3/11/2021).
11
 44. Second, current Healthy at Work Guidance,12 incorporated by operation of the Executive

EAB1C949-414E-4F11-A5D6-5836A8EBB943 : 000015 of 000080

order, is attached at Exhibit 5. In relevant part, it requires these Plaintiffs to: (1)

discontinue service at 11:00 p.m. and close by 12:00 p.m.; (2) limit customers to 60% of

the maximum permitted occupancy or the greatest number that permits individuals not

from the same household to maintain six (6) feet of space between each other with that

level of occupancy; (3) Ensure, pursuant to Executive Order 2020-586 and 902 KAR

2010E,13 which are attached to this document, that all customers, vendors, contractors,

and any other member of the public who enters the premises wear a face covering so long

as they are not subject to any of the exemptions listed in the Executive Order; (4)

Restaurants and bars who fail to follow these requirements of the Executive Order will be

subject to a fine and may also be subject to an order from a local health department or the

Labor Cabinet requiring immediate closure.

45. Executive Order 2020-586, the Governor contends, is also applicable, which is attached

at Exhibit 6. It was issued on July 9, 2020, and has been renewed repeatedly

approximately every 30 days thereafter, most recently in Executive Order 2021-134 on

February 26, 2021, attached at Exhibit 7.

46. 902 KAR 2:211E is the current mask regulation, which the Governor claims is also still

in force. In relevant part, it requires face coverings to be worn by anyone inside a “8.

Restaurant or bar, if not seated and consuming food or beverage.” It contains an

exemption for anyone “(e) Seated and actively consuming food or drink at a restaurant,

bar, or other establishment that offers food or beverage service.”

12
We use the term “Guidance” loosely, because these are fully enforceable restrictions.
13
This appears to be a typographical error and instead should refer to 902 KAR 2:211E.
12
47. The Section 4, (8)(a) 3 of 21 RS SB2 statement has not been complied with in the

EAB1C949-414E-4F11-A5D6-5836A8EBB943 : 000016 of 000080

issuance of 902 KAR 2:211E.

48. 902 KAR 2:211E was filed and in force as of January 5, 2021, contains a fine schedule,

and the ability to revoke the license of anyone not complying, but does not contain due

process rights required by 21 RS SB2.

49. Collectively, the “Guidance” (which are really requirements) for restaurants and bars, as

well as the Executive Orders on masking and mask regulation, are denoted as the

“Challenged Orders and Regulations.”

The Franklin Circuit Court Action

50. Governor Beshear has taken the public position that he need not comply with House Bill

1, Senate Bill 1, or Senate Bill 2, and has evinced an intention not to comply with them.

He has issued directives to other governmental bodies, including the Labor Cabinet and

local Health Departments, to continue to enforce his mandates, and they have and are

doing so.

51. To that end, he has filed a lawsuit against the Attorney General, Senate President, LRC,

and House Speaker, to have these pieces of legislation declared unconstitutional in the

Franklin Circuit Court.

52. However, he has not sought class certification, nor has class status been granted. And

none of these Plaintiffs are parties to that matter.

53. None of the Defendants named in that action enforce the challenged statutes – ironically,

only Governor Beshear enforces those statutes.

13
 54. As a consequence, the Franklin Circuit Court action, and orders it issues, are nullities as a

EAB1C949-414E-4F11-A5D6-5836A8EBB943 : 000017 of 000080

matter of law.14

55. Nor can any such orders be binding to non-parties to that case, such as these Plaintiffs,

under ancient bedrock Kentucky law.15

The Plaintiffs

56. In November, 2020, Beans declined to adhere to the Governor’s orders related to

COVID-19, that directed restaurants to cease in person dining.

57. As a consequence of this failure to comply, personnel from the Northern Kentucky

Independent Health District, at the direction of Dr. Saddler, the Governor, and Secretary

Friedlander, caused the food license of Beans to be revoked at both the Hebron,

Kentucky, and Dry Ridge Kentucky, locations.

14
Commonwealth v. Hughes, 873 S.W.2d 828, 830 (1994) (“This Court has repeatedly reaffirmed
the proposition that it has no jurisdiction to decide issues which do not derive from an actual case
or controversy,” citing Ky. Const. § 110); In Re; Constitutionality of House Bill No. 222, Ky.,
262 Ky. 437, 90 S.W.2d 692 (1936) ("Power to render advisory opinions conflicts with
Kentucky Constitution Section 110 and thus cannot be exercised by the Court"); Philpot v.
Patton, Ky., 837 S.W.2d 491, 493 (1992), ("our courts do not function to give advisory opinions,
even on important public issues, unless there is an actual case or controversy.").

“A restraining order granting injunctive relief against the enforcement of a statute or ordinance is
to be directed against the acts of those specific public officials charged with enforcing the statute
to enjoin their threatened enforcement.” Akers v. Floyd County Fiscal Court, Ky., 556 S.W.2d
146 (1977); Commonwealth v. Mountain Truckers Ass'n, Inc., 683 S.W.2d 260, 263 (Ky.App.
1984). The Franklin Circuit Court’s actions in directing an injunction against legislation, rather
than officials that enforce it, raises significant and troubling constitutional questions involving
the separation of powers. Morgan v. Getter, 441 S.W.3d 94, 99 (2014); Delahanty v.
Commonwealth, 558 S.W.3d 489, 506 (Ky. App. 2018).
15
Singleton v. Singleton, 47 Ky. 340 (1848); Combs v. Jones, 244 Ky. 512 (1932).

14
58. When the company again refused to comply, Dr. Saddler and others referred the matters

EAB1C949-414E-4F11-A5D6-5836A8EBB943 : 000018 of 000080

to the Boone and Grant County Attorneys, who criminally charged Beans’ owner,

Richard Hayhoe, with operating a restaurant without a food license.

59. Ultimately, the situation resolved itself, Hayhoe agreed to comply with lawful regulations

issued by the state, and the charges were dropped and license restored.

60. Nevertheless, having faced past enforcement, Hayhoe and Beans reasonably fears

additional enforcement actions should he fail to adhere to the Governor’s restrictions, but

adhere to the law as set forth in 2021 RS SB1, 2021 RS HB1, and/or 2021 RS SB2, even

though he is complying with current Kentucky law.

61. Beans has prepared a Plan, consistent and compliant with 2021 RS House Bill 1. That

plan does not require operating at 60% capacity or 6-foot distancing, nor does it contain

mandatory mask-wearing requirements, but it does meet or exceed all applicable

guidance by the CDC. The Plan has been posted as required by 2021 RS House Bill 1.

62. Beans has also been cited by the Northern Kentucky Independent Health District for non-

compliance with the mask mandate; it has been unable to challenge that citation, even

though it believes it did not fail to comply, because no process has been given to make

the challenge.

63. But for the challenged regulations and orders, Beans would increase capacity, and cease

compliance with the masking order and regulation.

64. All of these issues, and the Governor’s continued enforcement of mandates that he has

been prohibited by statute from enforcing, affect the business negatively, and risks the

continuation of the business.

15
65. In November, 2020, Brewed declined to adhere to the Governor’s orders related to

EAB1C949-414E-4F11-A5D6-5836A8EBB943 : 000019 of 000080

COVID-19, that directed restaurants to cease in person dining.

66. As a consequence of this failure to comply, the local health department revoked his

permit, and ultimately sought and obtained a temporary injunction against the business.

67. The Kentucky Alcoholic Beverage Control Commission also revoked Brewed’s ABC

license, then restored it, but the business currently faces a enforcement action, all due to

non-compliance with the Governor’s COVID-19 edicts.

68. Nevertheless, having faced past enforcement, Cooperrider and Brewed reasonably fears

additional enforcement actions should he fail to adhere to the Governor’s restrictions, but

adhere to the law as set forth in 2021 RS SB1, 2021 RS HB1, and/or 2021 RS SB2, even

though he is complying with current Kentucky law.

69. Brewed has prepared a Plan, consistent with House Bill 1. That plan does not require

operating at 60% capacity or 6-foot distancing, nor does it contain mandatory mask-

wearing requirements, nor does it limit hours of operation, but it does meet or exceed all

applicable guidance by the CDC. The Plan has been posted as required by 2021 RS

House Bill 1.

70. Brewed has also been cited by its health department for non-compliance with the mask

mandate; it has been unable to challenge that citation, even though it believes it did not

fail to comply, because no process has been given to make the challenge.

71. But for the challenged regulations and orders, Brewed would increase capacity, increase

hours of operation to later than 11:00 p.m. for service (to midnight, and close at 1:00

a.m.), and cease compliance with the masking order and regulation.

16
72. All of these issues, and the Governor’s continued enforcement of mandates that he has

EAB1C949-414E-4F11-A5D6-5836A8EBB943 : 000020 of 000080

been prohibited by statute from enforcing, affect the business negatively, and risks the

continuation of the business.

73. Collectively, these requirements, in Exhibits 1 through 5 are designated as the

“Challenged Orders.” None of these orders went through the K.R.S. Chapter 13A

procedures for rulemaking, even though Chapter 13A provides for emergency

procedures; K.R.S. Chapter 13A provides important procedural due process protections

for the public. Id.

74. For the avoidance of all doubt, Dr. Saddler, and the NKIHD have actively been involved

in enforcing the Challenged Orders and the Masking Regulation, as explained herein,

including pushing the matter so far as to have the Beans Café owner criminally cited.

75. The Challenged Orders and Regulations cause substantial hardship to Plaintiffs who have

been adversely affected thereby.

76. The Challenged Orders and Regulations create serious problems for the Plaintiffs,

threaten to, and actually do, impair their business goodwill, which has been built up over

substantial periods of time, and have pushed the Plaintiffs to the brink of bankruptcy and

loss of business.

Class Action Allegations

77. Plaintiffs reincorporate the preceding Paragraphs as if fully written herein.

78. The actions and violations herein complained of affect millions of Kentuckians.

79. Kentuckians are suffering an unemployment rate exceeding 40% in part due to the

Challenged Orders and Regulations.

17
80. Pursuant to C.R. 23.01: (a) the class is so numerous that joinder of all members is

EAB1C949-414E-4F11-A5D6-5836A8EBB943 : 000021 of 000080

impracticable, (b) there are questions of law or fact common to the class, (c) the claims or

defenses of the representative parties are typical of the claims or defenses of the class,

and (d) the representative parties will fairly and adequately protect the interests of the

class.

81. Pursuant to C.R. 23.02: (a) The prosecution of separate actions by or against individual

members of the class would create a risk of (i) inconsistent or varying adjudications with

respect to individual members of the class which would establish incompatible standards

of conduct for the party opposing the class, or, (ii) adjudications with respect to

individual members of the class which would as a practical matter be dispositive of the

interests of the other members not parties to the adjudications or substantially impair or

impede their ability to protect their interests; or (b) the party opposing the class has acted

or refused to act on grounds generally applicable to the class, thereby making appropriate

final injunctive relief or corresponding declaratory relief with respect to the class as a

whole.

82. Plaintiffs seek a Plaintiff class certification of any and all businesses within the

Commonwealth who are impacted by these or any other Challenged Order, with subclass

certification of each Plaintiff or group of Plaintiffs within an industry affected by a

particular Challenged Order, who have been adversely impacted by such Challenged

Order.

The Challenged Orders and Emergency Regulations are now illegal under 2021 RS
SB1, 2021 RS HB1, and/or 2021 RS SB2 and KRS Chapter 13A

83. As noted above, Governor Beshear has continued his mandates on businesses in the

Challenged Orders and Regulations, beyond the 30-day limitation contained in Section 2

18
 of 21 RS SB1. To be clear: the General Assembly has not extended the orders contained

EAB1C949-414E-4F11-A5D6-5836A8EBB943 : 000022 of 000080

in the Challenged Orders and Regulations, as required by 21 RS SB1, and thus they have

expired under that legislation.

84. The Challenged Orders and Emergency Regulations at issue also constitute a suspension

of Kentucky statutes, in contravention of Section 4 of 21 RS SB1, governing the

restaurant industry, specifically those found at KRS 217.127 concerning the requirement

to issue mandates on this industry by regulation. The Kentucky Attorney General has not

given his consent in writing to any such statutory suspension as required by 21 RS SB1.

85. Governor Beshear has demonstrated his belief that 2021 RS HB1, 2021 RS SB1, and

2021 RS SB2, are collectively not applicable to him and that he need not comply with

them, threatening enforcement for businesses that comply with its mandates (such as

these Plaintiffs) rather than his mandates in the Challenged Orders and Regulations; this

is illegal.

86. Next, 902 KAR 2:211E violates Section 4, (8) (a) 3 of 21 RS SB2 statement has not been

complied with in the issuance of 902 KAR 2:211E because the statement required by that

section has not been complied with, and 902 KAR 2:211E was filed and in force as of

January 5, 2021, is still purportedly in effect despite exceeding the 30-day limitation in

2021 RS SB2, and does not contain due process rights required by 21 RS SB2. The

regulation is thus invalid.

87. Further, the Challenged Orders and Regulations contravene KRS Chapter 13A and are

thus illegal. Bowling v. Ky. Dep't of Corr., 301 S.W.3d 478 (Ky. 2009); Kordenbrock v.

Oliver, 2016 Ky. App. Unpub. LEXIS 79 (Ky. App. 2016)

19
 The Challenged Orders and Emergency Regulations are illegal because they contain

EAB1C949-414E-4F11-A5D6-5836A8EBB943 : 000023 of 000080

no process, and thus violate the due process guaranties 2021 RS SB2, and Section 2 of
the Kentucky Constitution

88. Because the Challenged Orders and Emergency Regulations have no ability for a citizen

to challenge citations issued under them, and, indeed, these Plaintiffs have received

citations that they have been unable to challenge under the mask mandate, but wish to,

they violate Section 2 of the Kentucky Constitution. Franklin v. Natural Resources and

Environmental Protection Cabinet, 799 S.W.2d 1 (Ky. 1990).

The Challenged Orders and Emergency Regulations are illegal because the
Governor cannot suspend statutes any longer without the consent of the Attorney
General, which has not been given, and any attempts to do so thus violates
Kentucky Constitution § 15

89. As plead above, the Governor contends that he retains the ability to suspend statutes.

90. Section 15 of the Kentucky Constitution provides: “No power to suspend laws shall be

exercised unless by the General Assembly or its authority.” The Orders at issue

constitute a suspension of Kentucky statutes governing the regulated industries,

specifically K.R.S. 217.015, et. seq. (restaurants).

91. No provision cited as justification by the Governor or his designees for the Challenged

Orders including, without limitation, K.R.S. Chapter 39A, authorizes the suspension of

these statutes or the superseding of them. The Challenged Orders are thus violative of

Section 15 of the Kentucky Constitution. Baker v. Fletcher, 204 S.W.3d 589, 2006 Ky.

LEXIS 153 (Ky. 2006) (Governor does not have power to suspend statutes, even in an

emergency).

92. The Kentucky Supreme Court has repeatedly recognized that this power rests with the

General Assembly, and it alone can determine when, whether, and upon what conditions

the power to suspend statutes can be exercised. Commonwealth ex rel. Beshear v. Bevin,

20
 575 S.W.3d 673, 679-680 (2019). Indeed, absent statutory authority, the Governor has

EAB1C949-414E-4F11-A5D6-5836A8EBB943 : 000024 of 000080

no “implicit” authority to suspend statutes. Baker v. Fletcher, 204 S.W.3d 589 (2006);

Beshear v. Haydon Bridge Co., 304 S.W.3d 682 (2010); Fletcher v. Office of the AG. ex

rel. Stumbo, 163 S.W.3d 852 (2005). The Supreme Court in Fletcher went so far as to

recognize that the “suspension of statutes by a Governor is also antithetical to the

constitutional duty to ‘take care that the laws be faithfully executed." Id. at 872.

93. The Governor thus has no power, absent compliance with the statutory requirements, to

suspend statutes.

Claims – Count I – Declaratory and Injunctive Relief – KRS Chapter 418

94. Plaintiffs reincorporates the foregoing paragraphs as if full written herein.

95. Plaintiffs seek declaratory and injunctive relief that require Governor Beshear to comply

with 2021 RS SB1, 2021 RS SB2, and 2021 RS HB1, and preclude him from issuing or

enforcing orders or regulations in contravention of those sections.

96. Further, Plaintiffs seek declaratory and injunctive relief that the Challenged Orders and

Regulations be declared null and void and of no further legal effect, and that require the

Governor to recognize the authority and comply with 2021 RS SB1, 2021 RS HB1, and

2021 RS SB2.

Injunctive Relief should be granted

97. Plaintiffs have been, and continue to be, irreparably harmed.

98. The business Plaintiffs are and continue to be irreparably harmed in that they cannot do

business and comply with the requirements, without operating at a loss.

21
 99. They continue to operate with reasonable safety precautions, and neither the public, nor

EAB1C949-414E-4F11-A5D6-5836A8EBB943 : 000025 of 000080

third parties, will be harmed by the issuance of an injunction, since similar activities are

permitted to other similarly situated businesses.

WHEREFORE, Plaintiffs demand:

x Declaratory relief, that the Challenged Orders and Emergency Regulations are invalid

under 2021 RS SB1, 2021 RS HB1, and/or 2021 RS SB2 and an injunction prohibiting

enforcement of same; and

x Such other relief as this Court may find just and proper.

Respectfully submitted,

/s/Christopher Wiest________
Christopher Wiest (KBA 90725)
25 Town Center Blvd, STE 104
Crestview Hills, KY 41017
513-257-1895 (v)
chris@cwiestlaw.com
Trial Attorney for Plaintiff

/s/Thomas Bruns
Thomas Bruns (KBA 84985)
4750 Ashwood Drive, STE 200
Cincinnati, OH 45241
tbruns@bcvalaw.com
Co-Counsel for the Plaintiff

CERTIFICATE OF SERVICE

I certify that I have served a copy of the foregoing upon all Counsel of Record, this 11 day of

March, 2021, by electronic mail and CourtNet filing by NEF.

/s/Christopher Wiest________
Christopher Wiest (KBA 90725)

22
EAB1C949-414E-4F11-A5D6-5836A8EBB943 : 000026 of 000080
EAB1C949-414E-4F11-A5D6-5836A8EBB943 : 000027 of 000080
EAB1C949-414E-4F11-A5D6-5836A8EBB943 : 000028 of 000080
EAB1C949-414E-4F11-A5D6-5836A8EBB943 : 000029 of 000080
EAB1C949-414E-4F11-A5D6-5836A8EBB943 : 000030 of 000080
EAB1C949-414E-4F11-A5D6-5836A8EBB943 : 000031 of 000080
EAB1C949-414E-4F11-A5D6-5836A8EBB943 : 000032 of 000080
EAB1C949-414E-4F11-A5D6-5836A8EBB943 : 000033 of 000080
EAB1C949-414E-4F11-A5D6-5836A8EBB943 : 000034 of 000080
EAB1C949-414E-4F11-A5D6-5836A8EBB943 : 000035 of 000080
EAB1C949-414E-4F11-A5D6-5836A8EBB943 : 000036 of 000080
EAB1C949-414E-4F11-A5D6-5836A8EBB943 : 000037 of 000080
EAB1C949-414E-4F11-A5D6-5836A8EBB943 : 000038 of 000080
EAB1C949-414E-4F11-A5D6-5836A8EBB943 : 000039 of 000080
EAB1C949-414E-4F11-A5D6-5836A8EBB943 : 000040 of 000080
EAB1C949-414E-4F11-A5D6-5836A8EBB943 : 000041 of 000080
EAB1C949-414E-4F11-A5D6-5836A8EBB943 : 000042 of 000080
EAB1C949-414E-4F11-A5D6-5836A8EBB943 : 000043 of 000080
EAB1C949-414E-4F11-A5D6-5836A8EBB943 : 000044 of 000080
EAB1C949-414E-4F11-A5D6-5836A8EBB943 : 000045 of 000080
EAB1C949-414E-4F11-A5D6-5836A8EBB943 : 000046 of 000080
EAB1C949-414E-4F11-A5D6-5836A8EBB943 : 000047 of 000080
EAB1C949-414E-4F11-A5D6-5836A8EBB943 : 000048 of 000080
EAB1C949-414E-4F11-A5D6-5836A8EBB943 : 000049 of 000080
EAB1C949-414E-4F11-A5D6-5836A8EBB943 : 000050 of 000080
EAB1C949-414E-4F11-A5D6-5836A8EBB943 : 000051 of 000080
EAB1C949-414E-4F11-A5D6-5836A8EBB943 : 000052 of 000080
EAB1C949-414E-4F11-A5D6-5836A8EBB943 : 000053 of 000080
EAB1C949-414E-4F11-A5D6-5836A8EBB943 : 000054 of 000080
EAB1C949-414E-4F11-A5D6-5836A8EBB943 : 000055 of 000080
EAB1C949-414E-4F11-A5D6-5836A8EBB943 : 000056 of 000080
EAB1C949-414E-4F11-A5D6-5836A8EBB943 : 000057 of 000080
EAB1C949-414E-4F11-A5D6-5836A8EBB943 : 000058 of 000080
EAB1C949-414E-4F11-A5D6-5836A8EBB943 : 000059 of 000080
EAB1C949-414E-4F11-A5D6-5836A8EBB943 : 000060 of 000080
 EAB1C949-414E-4F11-A5D6-5836A8EBB943 : 000061 of 000080
VERSION 5.ϱ – Effective DĂƌĐŚ ϱ, 202ϭ

Requirements for Restaurants and Bars

In addition to the Healthy at Work Minimum Requirements, restaurants and bars
must meet the requirements below to reopen and remain open.

For purposes of these requirements:

• A “restaurant” is an entity that stores, prepares, serves, vends food directly to the consumer or
otherwise provides food for human consumption, and must hold a food service permit in good
standing and has table seating.

• A “bar” is an entity that stores, prepares, serves, vends alcohol directly to the consumer for on-site
human consumption and must hold a service permit in good standing. 1

Social Distancing Requirements

Restaurants and bars must:

• REQUIRE THAT ALL CUSTOMERS BE SEATED AND SERVED AT TABLES OR BOOTHS.

• Discontinue bar seating and bar service.

• Discontinue dine-in food and drink service by 11:00 p.m. local prevailing time.

• Close no later than 12:00 a.m. local prevailing time, except for drive-thru, carry-out and delivery
services.

• Limit the number of customers present inside any given establishment to ϲϬ% of the maximum
permitted occupancy or the greatest number that permits individuals not from the same household to
maintain six (6) feet of space between each other with that level of occupancy. For booth seating only,
restaurants may install non-porous physical barriers (e.g., plexiglass shields) between booths to
permit usage of sequential booths unable to be separated by six (6) feet so long as the barrier
effectively separates the opposite sides of the barrier.

• Establishments that choose to have outdoor seating may do so without those customers counting
against the ϲϬ% occupancy limit so long as those customers remain seated and at least six (6) feet of
space is maintained between customers at different tables. If an establishment uses a tent, at least
ϲϬ% of the tent perimeter (e.g., 2 sides of a square tent) must remain completely open at all times
and six (6) feet of space must be maintained between customers at different tables. If an
establishment uses a tent with fewer than ϲϬ% of the perimeter (e.g., for a square tent, fewer than 2
sides) completely open, that tent is considered interior space and is subject to the ϲϬ% capacity
limitation noted above.

• Prohibit customer traffic in the bar or restaurant except for the purposes of entry, exit, and restroom

1
These definitions and requirements also apply to any portion of a facility that serves food or alcohol to the public,
including, but not limited to, breweries, distilleries, and wineries.
 EAB1C949-414E-4F11-A5D6-5836A8EBB943 : 000062 of 000080
traffic.

• Revise floor plans for seating areas, redesigning seating arrangement to maximize the ability to social
distance to the greatest extent practicable.

• Require employees who operate equipment or vehicles to limit, to the greatest extent practicable,
the number of employees riding in the vehicle together. If riding in separate vehicles is not practicable
then employees should maximize social distancing and wear face coverings in the vehicle. Thorough
cleaning and disinfecting vehicles after each trip are required.

Restaurants and bars should:

• Provide food and beverage service via curbside, takeout, and delivery services to the greatest extent
practicable, to minimize the number of persons within the establishment and the contacts between
them.

• Consider using a reservations-only business model or call-ahead seating to better space households
and individuals.

• Establish a system for limiting entry and tracking occupancy numbers. Once a restaurant has reached
its capacity, it should permit a new customer inside only after previous customers have left the
premises on a one-to-one basis.

• Establish a safe means for customers to await entry, such as asking customers to remain in their car
and notifying them via phone when they are able to enter the restaurant or demarking spots six (6)
feet apart where customers can safely stand without congregating.

• Limit party size to ten (10) people or fewer. Persons not living within the same household should not
be permitted to sit at the same table.

• Maximize use of outdoor seating while still maintaining six (6) feet of space between customers seated
at different tables.

• Promote social distancing by limiting customer movement through the restaurant to the greatest
extent practicable. Establishments should inform customers they may travel to entries, exits, and the
restroom, unless circumstances (e.g. health and safety) require otherwise. Restaurants/bars should,
to the greatest extent practicable, modify the establishment’s traffic flow to minimize contacts.

• Modify internal traffic flow to minimize contacts between employees and customers.

• Demarcate six feet of distance between customers and employees, to the greatest extent practicable,
except at the moment of payment and/or exchange of food and drink.

• Implement contactless payment options, pickup, and delivery to the greatest extent practicable.
Establishments should, to the greatest extent practicable, enable receipts to be completed
electronically by using e-signature technology or create a procedure whereby restaurant employees
can complete the receipt for the customer within the customer’s view.

• Close children’s play areas.

 EAB1C949-414E-4F11-A5D6-5836A8EBB943 : 000063 of 000080
• Provide services and conduct business via phone or Internet to the greatest extent practicable. Any
employees able to perform their job duties via telework (e.g., accounting staff) should continue to
telework.
Cleaning and Disinfecting Requirements
Restaurants and bars must:

• Ensure workstations and seating areas are properly cleaned and ventilated.

• Require employees to frequently wash their hands or use hand sanitizer, which should be provided
by the establishment.

• Ensure cleaning and sanitation of frequently touched surfaces with appropriate disinfectants. Areas
with frequently touched surfaces or items, include all seating, table-tops, and other table-top items,
door handles, phones, pens, and keypads. Appropriate disinfectants include EPA registered household
disinfectants, diluted household bleach solution, and alcohol solutions containing at least 60% alcohol.
Establishments must establish a cleaning and disinfecting process that follows CDC guidelines when
any individual is identified, suspected, or confirmed as a COVID-19 case.

• Sanitize restrooms frequently.

• Ensure employees wipe down their workstations/cash registers with disinfectant at the end of their
shift or whenever they stop using their workstations/cash register for a significant period of time.

• Ensure disinfecting wipes or other disinfectant are available near shared equipment (e.g., in kitchen,
wait stations, and host stations).

Restaurants and bars should:

• Encourage customers to use hand sanitizer prior to dining and immediately following their meal.

• Ensure employees do not use cleaning procedures that could aerosolize infectious particles. This
includes, but is not limited to, avoiding dry sweeping or use of high-pressure streams of air, water, or
cleaning chemicals.

Personal Protective Equipment (PPE) Requirements

Restaurants and bars must:

• Ensure, pursuant to Executive Order 2020-586 and 902 KAR 2010E, which are attached to this
document, that all customers, vendors, contractors, and any other member of the public who enters
the premises wear a face covering so long as they are not subject to any of the exemptions listed in the
Executive Order.

• Inform any person attempting to enter the restaurant or bar without a face covering of the requirement
to wear a face covering. If the individual refuses and is not subject to any of the exemptions listed in
the Executive Order, the individual must not be permitted entry onto the premises.

• Instruct any person who was previously wearing a face covering and removed it while on the premises
and not subject to any of the exemptions listed in the Executive Order (e.g., individuals are permitted
 EAB1C949-414E-4F11-A5D6-5836A8EBB943 : 000064 of 000080
to remove face coverings when seated and actively consuming food or beverages) to put the face
covering back on. If the individual refuses to do so, the restaurant or bar must not provide them service
and must ask them to leave.

• Restaurants and bars who fail to follow these requirements of the Executive Order will be subject to a
fine and may also be subject to an order from a local health department or the Labor Cabinet requiring
immediate closure.
• Require employees to use face coverings whenever they are near other employees or customers so
long as such use does not jeopardize the employees’ health or safety. Employers should provide
appropriate face coverings at no cost to employees and provide instruction on proper use of them.

• Ensure employees wear face coverings for any interactions with customers, co-workers, or while in
common travel areas of the business (e.g., aisles, hallways, loading docks, breakrooms, bathrooms,
entries and exits). Employees are not required to wear face coverings while alone in personal offices,
while more than six (6) feet from any other individual, or if doing so would pose a serious threat to
their health or safety.

• Ensure employees wash their hands with soap and water and/or use hand sanitizer frequently after
any direct contact with customers and when engaging in high touch activities.

• Ensure, to the greatest extent practicable, that employees use gloves, along with any PPE normally
used for routine tasks, when cleaning equipment, workspaces, and high-touch areas of the business.

Restaurants and bars should:

• Train employees to properly dispose of, disinfect, inspect for damage, maintain, and be aware of the
limitations of PPE.

Training and Safety Requirements

Restaurants and bars must:

• Post signs at entrance that no one with fever or symptoms of COVID-19 is permitted in the
establishment.

• Place conspicuous signs at entrances and throughout the restaurant alerting staff and customers to
required occupancy limits, six feet of physical distance, the requirement to wear face coverings, and
good hygiene practices.

• Post signs and take steps to discourage singing and shouting which have been shown to increase the
risk of COVID-19 transmission. If the establishment has live entertainers, the performers may sing and
speak loudly as long as they are socially distanced from all other occupants of the establishment while
they are engaged in these activities.

• Discontinue self-service drink stations to the greatest extent practicable. If an establishment cannot
discontinue self-service drink stations, it must: a) frequently clean and sanitize the stations, b) prohibit
customers from bringing their own cup, glass, or mug, c) prohibit refills unless a new cup, glass, or
mug is provided to the customer for each refill, and d) remove any unwrapped or non- disposable
 EAB1C949-414E-4F11-A5D6-5836A8EBB943 : 000065 of 000080
items (e.g. straws or utensils), as well as fruit (e.g. lemons), sweeteners, creamers, and any condiment
containers that are not in single-use, disposable packages.

• Discontinue use of salad bars and other buffet style dining to the greatest extent practicable. If an
establishment cannot discontinue buffet style dining, the restaurant must ensure that employees
provide buffet service. Restaurants must not permit customer self-service. Restaurants providing
buffet service should ensure appropriate sneeze guards are in-place and that employees are equipped
with gloves and other PPE as appropriate.

Restaurants and bars should:

• Provide hand sanitizer, handwashing facilities, and tissues in convenient locations to the greatest
extent practicable.

• Restrict access to common areas, to the greatest extent practicable, to maximize social distancing and
reduce congregating. Common areas include, but are not limited to, break rooms, waiting areas, and
open areas in bars.

• Install floor decals, when practicable, in cashier and queuing areas to establish safe waiting distance.

• Limit the number of individuals in restrooms to ensure proper social distancing and ensure that
frequently touched surfaces are appropriately disinfected (e.g., doorknobs and handles).

• Stock “grab and go” coolers to more reduced levels to minimize excess touching of items.

• Use disposable menus, napkins, tablecloths, disposable utensils, and condiments to the greatest
extent practicable. Establishments may use linens such as cloth hampers, cloth napkins, tablecloths,
wiping cloths, and work garments including cloth gloves, in dining establishments consistent with
Food service regulations 4-801.11 and 4-802.11. Linens, cloth gloves, and cloth napkins are to be
laundered between uses to prevent the transfer of pathogenic microorganisms between foods or to
food-contact surfaces.

• Discourage employees from sharing workstations and other work- related items and utensils (e.g.,
pens and aprons), to the greatest extent practicable.

• Remind third-party delivery drivers and any suppliers of the social distancing requirements.

• Establish procedures for disinfecting tabletops, seating, and dining ware (plates, bowls, and utensils).

• Implement, to the extent possible, hours when service can be more safely provided to customers at
higher risk for severe illness per CDC guidelines.

• Inform employees they may identify and communicate potential improvements and/or concerns,
without fear of retribution, to reduce risk of exposure at the workplace. Education and training should
be communicated in a language understood by the individual receiving the education and training.
EAB1C949-414E-4F11-A5D6-5836A8EBB943 : 000066 of 000080
EAB1C949-414E-4F11-A5D6-5836A8EBB943 : 000067 of 000080
EAB1C949-414E-4F11-A5D6-5836A8EBB943 : 000068 of 000080
EAB1C949-414E-4F11-A5D6-5836A8EBB943 : 000069 of 000080
EAB1C949-414E-4F11-A5D6-5836A8EBB943 : 000070 of 000080
EAB1C949-414E-4F11-A5D6-5836A8EBB943 : 000071 of 000080
EAB1C949-414E-4F11-A5D6-5836A8EBB943 : 000072 of 000080
EAB1C949-414E-4F11-A5D6-5836A8EBB943 : 000073 of 000080
EAB1C949-414E-4F11-A5D6-5836A8EBB943 : 000074 of 000080
EAB1C949-414E-4F11-A5D6-5836A8EBB943 : 000075 of 000080
EAB1C949-414E-4F11-A5D6-5836A8EBB943 : 000076 of 000080
EAB1C949-414E-4F11-A5D6-5836A8EBB943 : 000077 of 000080
 EAB1C949-414E-4F11-A5D6-5836A8EBB943 : 000078 of 000080
Subscribed and sworn before me this 10 day of March, 2021.
 EAB1C949-414E-4F11-A5D6-5836A8EBB943 : 000079 of 000080
Kenton

11

Christopher Wiest, Notary Public

#612589
Expiration: 11/19/2022
 COMMONWEALTH OF KENTUCKY

EAB1C949-414E-4F11-A5D6-5836A8EBB943 : 000080 of 000080

BOONE CIRCUIT COURT
FIRST DIVISION
CIVIL ACTION NO. 20-CI-00678
Electronically Filed

FLORENCE SPEEDWAY, INC., ET AL. PLAINTIFFS

and

COMMONWEALTH OF KENTUCKY, INTERVENING PLAINTIFF

ex rel. ATTORNEY GENERAL DAVID CAMERON

v.

NORTHERN KENTUCKY INDEPENDENT DEFENDANTS

HEALTH DISTRICT, ET AL.

ORDER ON MOTION TO AMEND/SUPPLEMENT AND INTERVENE

The Court, being fully apprised, GRANTS the Plaintiff and Intervening Plaintiff’s
Motion to file the Third Amended/Intervening and Supplemental Complaint.

IT IS SO ORDERED:

_________________________