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Ashland County restaurant owner's decision to go mask-less upheld by judge

Ashland County restaurant owner's decision to go mask-less upheld by judge
Posted at 5:15 PM, Apr 07, 2021
and last updated 2021-04-07 18:31:18-04

SAVANNAH, Ohio — The debate over the lawfulness of health department-ordered mask mandates continues to be a hot button issue for Ohioans.

An Ashland County restaurant owner is celebrating after her decision to go mask-less inside her business was upheld by a judge.

Mandy Close has owned Cattlemans Restaurant in Savannah since 2013.

Close said after the "Dine Safe Ohio Order" was issued by former Ohio Department of Health Director Amy Acton last year, she put signs in her windows informing customers that she would not be wearing a mask while serving them because of health issues.

“Medically, I can't wear one,” Close said.

According to Close, she didn’t require her employees to wear masks either. When asked whether she minded that her employees didn’t wear them, she responded, “I guess I’m not real sure how to answer that — I can’t ask somebody to do something that if they tell me that they can’t and then I cannot expect…”

She said the signs she placed in the windows tipped off the Ashland County Health Department last July, which then served her a cease and desist order and revoked her food service license for violating the order.

Close hired the 1851 Center for Constitutional Law to represent her and filed a lawsuit against ACHD seeking a permanent injunction against their orders.

A judge granted Close a temporary restraining order against the cease and desist, and reinstated her license while the case was being litigated.

During a bench trial in September, ACHD agreed to stop all action against Close and Cattlemans, and yesterday Ashland County Judge Ronald Forsthoefel dismissed the case because of that. The dismissal allows Close to continue operating Cattlemans as she has been -- mask-less.

“Under current circumstances, Plaintiffs are operating as they were prior to the cease-and-desist order and should not be subject to any further enforcement action,” Forsthoefel said. "As the position of this court has been made known, any further attempt to enforce Ohio Department of Health orders relating to COVID-19 mask restrictions, will likely result in further restraint of any such attempt."

In his ruling, Forsthoefel said, Ohio law “grants no authority to the director of the Ohio Department of Health to issue or enforce mandatory mask, social distancing, or other similar type orders since there is no stated or implied authority in R.C. 3701.13 which authorizes any action to prevent the spread of contagious or infectious disease.”

He also said ODH only has ultimate authority in matters of quarantine and isolation.

“The 'Dine Safe Ohio Order' in this case fails to accomplish anything scientifically demonstrable, or otherwise corroborated with empirical data, to prevent the spread of contagious or infectious disease even if that purpose were authorized by R.C. 3701.13,” Forsthoefel said.

Case Western Reserve University Law and Bioethics professor Sharona Hoffman disagrees with that ruling and said local health departments are empowered by law to issue orders.

“That's their job. That's what we pay taxes for in order to be protected. And so if an establishment does not comply with those orders, I think that's a violation of law on their part,” Hoffman said.

She said just because this was the outcome for Cattlemans doesn’t mean it's guaranteed to happen elsewhere.

“I believe the health department is empowered to issue orders, but there's always a chance you're going to win, it depends on the judge. Different judges are going to be sympathetic to different views and make different decisions,” Hoffman said.

“This is not the only challenge of its kind. Some have been upheld. Some have been reversed,” Hoffman said. “Because this was dismissed. It sets no precedent. But just because a judge in one location decides something, it's not the Supreme Court. It's not binding on most other jurisdictions.”

As for Close, even though the case was technically dismissed, she’s counting it as a win.

“Regardless of where you stand on the mask issue, or the mask mandate, this is a big win for small businesses in Ohio,” Close said. “This is a big win for all of us as citizens in the state of Ohio, so I’m very pleased with the outcome as you can tell.”

News 5 reached out to the Ashland County Department of Health for a statement, but they said they don’t have staff on board to do so.

Heather Reffett, the former health commissioner who issued that order against Cattlemans last year, was terminated from AHCD in November.

Jade Jarvis is a reporter at News 5 Cleveland. Follow her on Facebook, Twitter, and Instagram.

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