More Novel Takings Cases Arising from Novel Coronavirus

by: Joseph Grather
21 May 2020

As States allow businesses to slowly re-open, some business owners intend to assert “takings” claims for the lost business caused by the State Order closures.  A barber in Sarasota Florida has retained counsel to file suit against the State.  According to the plaintiff’s lawyer, “The government took his property because they took the economic value of it….While they may not have built a public park on it, they did it for the benefit of public health, just like you would build a park, or a road might be built for the community. They should pay for that taking.”

Sounds a lot like the case already filed by the Federal of Licensed Beauticians against the State of California and reported here.

A bit closer to home, there’s the New Jersey gym owner who decided to flout Governor Murphy’s stay at home order, and open his business in an act of civil disobedience.  “This is much bigger than opening a gym,” the co-owner of Atilis Gym said Sunday before the 8 a.m. re-opening the next day. “Small businesses and individuals in this state are being absolutely strangled. The help is not there. We are absolutely decimating our economy doing this and we are destroying people’s lives.”

The reporter in this story took issue with the early opening, arguing that if every “non-essential” business disobeyed the Executive Order more lives would be lost.  But, how is a gym less essential than a “liquor store”?  I would hazard a guess that more people die every year from consumption of alcohol than from going to the gym.

It’s easy to see both sides of the coin, and it is clear that everyone is getting stir crazy from being cooped up at home while their businesses are withering on the vine.

No mention of “herd immunity” theory being tested in Sweden in the article.  The NY Times recently reported that 1 in 5 New Yorkers may have already had – and recovered from – the virus.  Absent a vaccine, this may be the hard way that we survive this pandemic.

No easy answers, and no easy cases for the judiciary coming in the near future.