May 21, 2020 9:55:38 AM
The owner of a local tanning salon has filed a federal lawsuit against the city of Columbus for forcing it to close for 51 days to prevent the spread of COVID-19.
Golden Glow Tanning Salon, located on Highway 45 North, was named as the plaintiff in the case filed in federal court in Aberdeen on Wednesday. Local businessman Steve Pyle owns the salon.
The complaint alleges city officials violated the business' Fourth, Fifth and 14th Amendment rights by passing an ordinance that forced it to close without paying compensation for lost income and without giving Pyle or other representatives from the business the opportunity to prove the salon would not be a danger to public health. The suit requests a jury trial to determine damages, including loss of income as a result of the city closing it "without regard to whether local conditions warranted the extreme measure of closing any business or whether closing tanning businesses would diminish any risk of Covid-19."
On March 21, Columbus City Council passed an ordinance closing certain "nonessential" businesses, including tanning salons, "because of the likelihood of close person-to-person contact, which increases dramatically the likelihood of the spread of infectious disease." Violators faced a $1,000 fine and up to 90 days imprisonment.
In April, Gov. Tate Reeves issued executive orders identifying essential and nonessential businesses -- though the complaint claims tanning salons are not specifically identified in either list -- and closing the nonessential businesses until May 11, when they were allowed to reopen under certain restrictions.
As a result of the ordinance, Golden Glow remained closed from March 21 to May 11.
The suit claims the city "aided and abetted the governor of Mississippi to promulgate and enforce policies which violated plaintiff's constitutional rights."
Tupelo attorney Jim Waide, who represents the business, said city officials went a step further than the state by closing Golden Glow because the governor never identified tanning salons as either essential or nonessential businesses. It was city officials who claimed tanning salons were nonessential in the city ordinance.
Moreover, Waide said, tanning salons would not have necessarily contributed to the spread of the virus because of the limited number of customers in the business at one time.
"The state criteria (for closing businesses) related to the number of people that would be in one place at one time," he said. "Tanning salons didn't qualify. You have one customer in there at a time. And there was no ... opportunity for the tanning salon to meet with the (city) and say, 'We didn't meet this criteria.'"
Last week, Waide filed a separate lawsuit against the city of Starkville on behalf of the Starkville Athletic Club fitness gym, which was also closed for several weeks after the city's board of aldermen passed an ordinance closing nonessential businesses.
In both cases, Waide has argued that closing the businesses constitutes the "taking" of private property for "public use, without compensation." However, he said because Starkville's ordinance closed only businesses the governor listed as essential, rather than adding tanning salons or other businesses like Columbus, Columbus is on "more hazardous ground" than Starkville.
Waide said the pandemic has created a "novel issue" in which the rights of private business owners are coming into conflict with what local governments argue are public safety issues in a state of emergency. However, he pointed out history has not looked kindly on previous cases when governments infringed on individual rights in the name of public safety, using the internment of Japanese Americans during World War II as an example. At the time, the United States Supreme Court ruled the internment camps did not violate the Constitution because it was believed those of Japanese descent were a threat to Americans.
"In retrospect, every legal scholar in the world has said that was a really unfortunate misapplication of the constitution," he said.
He said the pandemic is not going to go away, and that this could remain an issue months from now if cases and deaths continue to increase or have a sudden surge.
"It'd be one thing if the government took steps to reasonably regulate businesses," he said. "But when they come in and just ... close a business and decide that, 'this business is a particular danger and we're closing it,' I think there's a constitutional issue, especially so for Columbus since they didn't follow what the state had done."
City Attorney Jeff Turnage said he had not yet been served with the complaint Wednesday and declined to comment about the matter when reached by The Dispatch.
"We look forward to vigorously defending the case," he said in a message to The Dispatch delivered via City Public Information Officer Joe Dillon.
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