EXCLUSIVE — A restaurant in Washington, D.C., that was shut down due to repeated violations of the district’s vaccine and mask mandates has filed a civil lawsuit against the D.C. Department of Health, arguing the department exceeded its authority by issuing the restrictions in the first place.
The Big Board, a specialty burger shop and pub, is arguing that the department overstepped its bounds by mandating vaccine and mask requirements earlier this year that the restaurant owners say were used to strip the restaurant of its ability to serve patrons. Despite the lack of “evidence of actual viral transmission,” the city government shut Big Board’s doors for several weeks, even after the city’s vaccine mandate expired, the lawsuit argues.
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The Big Board was dragged into the political fight in January after D.C. Mayor Muriel Bowser enacted an emergency order that enforced a vaccine mandate for businesses to follow, requiring employees to verify patrons’ vaccination statuses before allowing them to enter.
The pub is the first and only establishment in Washington to lose its liquor license or be shut down for violating Bowser’s mandates. Within a week of the vaccine mandate going into effect, the bar racked up a number of verbal and written warnings, as well as hefty fines, for not requiring patrons to show proof of vaccination before entering. Just over a week later, the D.C. Health Department issued a closure notice citing multiple code violations not related to the COVID-19 mandates.
Bowser later announced the vaccine mandate would be lifted on Feb. 15, just one month after it was instituted across the city. However, the restaurant remained closed until April after it was considered to be fully compliant with the city’s mandates.
Now, Big Board owner Eric Flannery is suing the health department and Laquandra Nesbitt, the former director of the D.C. Department of Health, over arguments the department overstepped its bounds by issuing the closure notice to the restaurant through the emergency order.
“The government does not have unlimited authority. I really think this is about that principle of, ‘Hey, you have to abide by the laws.’ And they were clearly sidesweeping and … not following the proper procedures,” Eric Flannery, owner of the Big Board, told the Washington Examiner. “For me, it’s more important than somebody who might believe that it was the right thing to do. You have to follow the rule of law in the United States.”
The lawsuit questions the city’s use of the Home Rule Act to enact the emergency legislation to enforce the vaccine mandate, which allowed city lawmakers to implement the mandate without any oversight from Congress.
The Home Rule Act allows the local D.C. government to operate with a sense of autonomy when passing legislation. Under the rule, the city is permitted to pass laws through the city council with the caveat that each law is subject to congressional approval before being approved, putting the district under the control of Congress for each of its local mandates.
However, local lawmakers are permitted to pass emergency legislation that is effective for up to 90 days without congressional approval. Washington lawmakers passed its vaccine mandate for local businesses under this emergency rule, prompting arguments from Big Board that it violated the U.S. Constitution.
“The Mayor’s inconsistent orders on these issues demonstrate the lack of any realistic public health threat from the alleged violations at the Big Board,” the lawsuit stated. “Upon information and belief, there was no actual evidence or legal authority to support the idea that basic restaurant and food safety requirements necessitated proof of vaccination of a generally transmissible disease.”
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The district’s vaccine mandate prompted pushback from several Republicans at the time, who vowed they would seek to revoke the D.C. Home Rule should the GOP win control of Congress in November.
The lawsuit seeks unspecified damages from the city to pay for any and all punitive damages, according to court filings. The suit also seeks to challenge the city’s authority to enact emergency orders, arguing the vaccine mandate “violated the District of Columbia’s Home Rule Act and thwarted Congress’s reserved constitutional power.”
“The principles are more than that,” said Robert Alt, president and CEO of the Buckeye Institute and the lawyer representing Flannery in court.
“We are seeking a declaration that the underlying orders were unlawful. … Yes, the pandemic according to Biden is now officially in the rearview mirror, but what happens the next time there’s an emergency?” Alt asked. “I do think there would be an opportunity here for a D.C. committee to exercise oversight what happened in this case.”
