Update on Lawsuits Against the Governor and Mask Requirements

This week has been a whirlwind of activity. Let’s start at the beginning.

Lawsuit against the Governor to Allow Evictions for Failure to Pay 

A few weeks ago I mentioned that a group was contemplating filing a lawsuit against the Governor if things did not open up soon. That lawsuit was filed earlier this week in federal court in Northern Ky. The suit was filed by the Greater Cincinnati Northern Kentucky Apartment Association, and three apartment community owners.

The suit was filed against the Governor and the Circuit Court clerks in Boone, Kenton, and Campbell counties. Because the property owners did business in those counties, they only had legal standing to request relief in those counties. As a result, if the suit is successful, it would not lead to evictions being opened throughout the entire state – only in those three counties.

However, it is possible that other groups would join the suit in the near future – that could expand the reach of the relief in the suit beyond those three counties, potentially even to the entire state. 

So, as I’ve said before, if you’re interested, I’ll be glad to put you in touch with those who are moving this suit forward. Here's a link to the Lexington Herald-Leader article on the suit.   

Scott Circuit Judge Temporary Restraining Order against the Governor 

Many of you heard of a recent lawsuit filed by Evans Orchard against the Governor. Yesterday afternoon we got a bit of a jolt when Scott County Circuit Judge Brian Privett issued a Temporary Restraining Order against the Governor and other state government officials. The TRO had two parts.

First, it directs them to cease enforcement of any Executive Order directed at Evans Orchard or the 548 agritourism businesses registered with the Department of Agriculture. 

Second, it requires the Governor to follow three guidelines before issuing or enforcing any Executive Order based on a state of emergency. He must identify

1. the emergency that requires the order,
2. the location of the emergency, and
3. the name of the local emergency management agency that has determined that the emergency is beyond its capabilities.

This is an excellent ruling for those that care about the rule of law, as it ensures that executive officials won’t arbitrarily and needlessly issue statewide orders when local orders would suffice. The final effect of the order is far from clear, the Governor indicated that he would appeal it up to the state’s higher courts.

Here’s the question that I’m getting: does this mean that evictions for non-payment of rent will open up?

Unfortunately, no. Regardless of whether the state’s higher courts uphold this order, there is still another domino that would have to fall before evictions for nonpayment of rent are allowed. That domino is that the Kentucky Supreme Court would have to issue an order directing the state courts to accept eviction filings based on the failure to pay rent. 

Regardless of whether the Scott County ruling is upheld, I don’t expect it to open things up for evictions on a statewide basis. The Governor would simply have to identify COVID-19 as the emergency that prompted his order prohibiting evictions, identify counties where the virus had significant effects, and get the local emergency management agency to state that the virus was beyond their capabilities, which I expect many (if not most) of them to do. 

So, I’m glad to see another court pushing back against government overreach, but I don’t expect it to have any significant effect on the rental industry. But I do hope Evans Orchards can survive as a business. Here's a link to the WLEX article on the ruling - it has a copy of the actual Temporary Restraining Order. 

Executive Order Mandating Masks

As if that wasn’t enough, in his press conference yesterday, the Governor announced he was issuing a new Executive Order mandating that we wear masks in public. You can read the entire order here.  

The Executive Order was issued yesterday evening. You can read it in its entirety here. Masks are required when

1. Inside or waiting in line to enter any establishment in which it is difficult to maintain six feet of separation from people who are not members of your household (grocery stores, retail shops, hair salons, restaurants/bars, etc.)
2. When using public transportation
3. In outdoor spaces where you cannot maintain six feet of separation.

There are a number of exceptions to the rule.

1. Children under five years old
2. Those with disabilities or conditions that prohibit them from wearing a mask safely
3. The hearing impaired and those who communicate with them through lip-reading
4. Any worker that is prohibited by federal regulation from wearing a mask for safety reasons
5. Anyone seated and eating or drinking at a restaurant or bar
6. Anyone performing or receiving a service that requires removal of the mask to perform or receive the service
7. Anyone who needs to remove the mask for identity or security purposes
8. Anyone who is giving a speech or broadcast
9. Anyone in a swimming pool or other body of water
10. Anyone exercising in a gym where they can maintain six feet of separation
11. Anyone engaged in athletic practices or competitions
12. Any time when state or federal law prohibits wearing a mask

So, outside of these exceptions, property managers are directed to wear masks and require your tenants, applicants, vendors, and prospects to wear masks while using your indoor common areas.

And that’s all I’ll say about that.

Non-Payment of Rent Evictions

In closing, I have no idea when evictions for non-payment will open up. I’ll keep you updated on the status of the Northern KY lawsuit against the Governor. Until then, I encourage you to send letters to the Governor and your legislators. With each passing day, the number of evictions that will need to be filed later increases. So, if they want to prevent a flood of evictions, things need to open up sooner rather than later.

As I mentioned before, I have a draft letter that you can send to the Governor and your legislators. Shoot me an e-mail if you’re interested in using it. It’s a $100.00 deal.   

That’s all for today. Have a fantastic weekend.