Two business owners have filed suit in federal court against the City of Hattiesburg and Mayor Toby Barker for lost income after being forced to close their business during the COVID-19 pandemic.
According to documents from the United States District Court in Hattiesburg, Charles Bradford Ramey and Hebert Taylor Ramey, owners of Updown Trampoline Park on South 41st Avenue, claim their constitutional rights were violated when the business shut down under state and local executive orders.
The suit, which was filed May 22 by Petal attorneys Mary Lee Holmes and Cory Ferraez, states that Barker made operation of the business a "crime," although the owners were fully willing and able to comply with social distancing and other pandemic guidelines.
"The Rameys envisioned 2020 to be Updown Trampoline's best year since its opening," the claim states. "Unfortunately, almost halfway through the year and due to defendant's overreaching response to COVID-19, the Rameys’ dreams for 2020 have been a nightmare."
The suit makes note that throughout March and April, Gov. Tate Reeves issued several executive orders regarding which businesses were deemed essential and non-essential, at first allowing only essential businesses to remain open before relaxing restrictions on other businesses.
Gymnasiums and amusement venues were not among those deemed essential.
The suit states that although the governor's orders took the Rameys' property by forcing the business to close, the governor and the state are immune from suit for damages in federal court under the 11th Amendment. That amendment protects government entities or officers acting in their official capacity from being sued over the performance of their duties.
The suit states the governor did not send any law enforcement official to Forrest or Lamar counties to enforce those orders. However, on March 21, Barker issued an executive order providing for a fine not exceeding $1,000 or imprisonment not exceeding 90 days for the violation of any of its ordinances related to "emergencies."
Because of that, the suit states, the operation of any business considered nonessential was made a crime.
"Defendants made the operation of plaintiff's business a crime, even though plaintiffs can fully comply with social distancing and other guidelines recommended by the government of the United States," the suit reads. "And plaintiff has shut down its 'amusement' portion of its facility and have only allowed customers to use the trampoline area."
The suit also says the owners of the trampoline park have taken great lengths to ensure all Centers for Disease Control and personal protective equipment protocols. That includes allowing customer access to only the "gym" functions of the business; having no open games, arcades, foam pits, or laser tag; checking employee temperatures several times a day; checking temperatures of customers; sanitizing all equipment; and requiring all employees to wear masks.
The suit claims that the city is allowing similar businesses, "without question, interruption, or citation," to fully operate throughout Hattiesburg, and gyms and other dance studios were allowed to open while the trampoline park was still ordered to close its doors.
"Plaintiffs have suffered a permanent loss of property in the form of income in the amount that they would have earned had defendant city and Barker not caused the closing of their business," the document states. "Further, plaintiffs have been issued citations by the Hattiesburg Police Department which carry fines and potential imprisonment.
"Plaintiffs will suffer a future loss of income and loss of value because the city and Barker's action creates the false perception in the public that the gymnasium is an unusually dangerous business, such that it is one of the few businesses which are closed for reasons of public safety."
The closing of the business and "taking and damaging of the property" violates the Fifth and Sixth amendments, according to the suit.
The Rameys are requesting relief in the form of actual damages for lost income and loss of value of their business, as well as reasonable attorneys' fees. In addition, it is requested that the court set a hearing for arguments and testimony to enjoin defendants from harassing, attempting to close, or actually closing Updown Trampoline in the future without providing just compensation and notice and opportunity to be heard regarding whether the business should be closed.
"Defendant's ordinances are applied arbitrarily and fail to define or distinguish what constitutes gyms, recreational facilities, entertainment centers," the document states. "For example, restaurants such as McDonald's have play areas that are not accessible to the public but it is permitted to remain open to serve food and beverages to the public.
"Similarly, plaintiffs request the court find that Updown Trampoline falls within the definition of a gym to permit the business to remain open."
