Restaurant Sues Washington, DC Health Department After Being Closed for Violating COVID-19 Vaccine Mandate

Washington Mayor Muriel Bowser attends March for Our Lives 2022 in Washington on June 11, 2022. Paul Morigi/Getty Images for March For Our Lives

The owner of a restaurant shut down by Washington, D.C., officials for violating the city’s strict COVID-19 vaccine mandate sued the city on Oct. 13.

Eric Flannery owns The Big Board. Washington authorities in February ordered the restaurant to close, citing violations of food code regulations and Mayor Muriel Bowser’s requirements that venues only let in customers who presented proof of COVID-19 vaccination.

The D.C. Department of Health’s actions, including making the restaurant pay a re-opening fee, were unlawful because the District of Columbia’s Home Rule Act generally requires legislation enacted by the city be reviewed by Congress, according to Flannery’s lawsuit, filed in U.S. District Court for the District of Columbia.

Emergency legislation is exempted from the Home Rule, but only for 90 days.

“The Mayor’s rolling ‘emergency’ orders authorized by the D.C. Council’s successive emergency amendments make a mockery of this constitutional requirement. The repeated extension of emergency orders for months on end, authorized by the D.C. Council’s emergency legislation—which was not approved by Congress—have thwarted Congress’s reserved constitutional power under D.C. Code § 1–206.02(c)(1),” the lawsuit states.

“As a result, the Mayor’s Orders upon which the DC Health suspension and fines relied are ultra vires, and the suspension and the fines themselves, are ultra vires, null, and void.”

Bowser, a Democrat, issued emergency orders in March 2020 and they were repeatedly extended after authorization by the D.C. Council.

Bowser’s Dec. 20, 2021, order mandated masks in many indoor venues and another order said restaurants could not let in any people over age 12 unless the people presented proof of vaccination. Violations of those orders were cited in the shutdown order.

The vaccination requirement was lifted on Feb. 15 and the mask requirement was withdrawn on March 1.

Flannery wants the court to declare that the health agency’s actions were illegal in part because the legislative amendments and emergency order extensions violated the Home Rule Act and the power Congress is granted in the U.S. Constitution; that the actions exceeded the agency’s regulatory authority; and award damages, including the $100 reopening fee.

The D.C. Department of Health, the D.C. Mayor’s Office of Legal Counsel, and the mayor’s office did not respond to requests for comment.

“This case is not just about The Big Board,” Robert Alt, president and chief executive officer of The Buckeye Institute, which is representing Flannery, said in a statement. “It is about ensuring that government abides by the U.S. Constitution even during emergencies including global pandemics—perhaps especially then. We are a nation of laws, not of autocratic mayors, city councils, and government agencies.”