Hamilton County is suing a local company for its refusal to obey a county “directive’ ordering people in public to wear muzzles on their chins.
By David Tulis / NoogaRadio 92.7 FM
The suit with health department plaintiffs Dr. Paul Hendricks and Becky Barnes targets Ernie Sanders in Ed’s Supply Co. on the presumed grounds that there is a lawfully declared epidemic and on the presumed grounds that the company falls under the department’s properly evoked police powers.
The filing demands the business be closed if its owners don’t enforce the chin diaper mandate of July 10.
The authority for the lawsuit is presumed, but not actual, and it fails to state a claim upon which relief may be granted. Neither state government nor the department have obeyed state law with legal groundwork for claims such as these made Tuesday in Hamilton County chancery court. No power exists in the health law for Dr. Hendricks to issue directives.
The lawsuit comes in violation of the bedrock clean hands doctrine that forbids a malefactor from claiming protection and justice from a court.
Suit sees ‘dreaded’ disease
The six-page petition recounts the story of CV-19 much as the press has done, focusing on effects of the virus, not its origins and cause.
Since January, 2020, these United States of America have experienced the introduction and spread of COVID- 19, which is a highly -contagious and deadly pandemic that has claimed the lives of in excess of one hundred eighty thousand ( 180,000) individuals, to date, and in excess of one thousand six hundred and nine ( 1, 609) lives within the State of Tennessee. The presence of said dreaded virus has caused the President of these United States, the governors of every state herein, including the Governor of the State of Tennessee, to issue states of emergency, declarations, and orders that have altered the way of life for their respective citizens in conducting of what was thought of as “normal” personal, family, and business affairs, including requiring and/or recommending social -distancing ( for individuals to maintain a distance of no less than six (6) feet from other individuals), the frequent washing of hands, and the wearing of facial coverings ( masks) to prevent the transmittal of said virus among the general populace. (emphasis added)
The department of health lists the condition “Coronavirus disease (COVID‐19) caused by SARS-CoV‐2 (positive by any method)” on its 2020 reported disease list. https://www.tn.gov/content/dam/tn/health/documents/reportable-diseases/2020_List_For_Healthcare_Providers.pdf
The suit produces a copy of a complaint log filed by “anonymous” July 17 and hand-written forms filled out indicating calls and visits by county staffers seeking to enforce the mask rule. “Majority of customers and employees not wearing masks in establishment,” one report says. “Went over directive with Josh Sanders,” the owner’s son and the manager. The documents are administrative, and not sworn.
A notice form letter is dated July 29. It cites Tenn. Code Ann. § 68-2-102, a single sentence that declares violation of “a county board of health regulation” a misdemeanor. Criminally, the most damage to the business is a F$50 fine or 30 days in jail. Civilly, the notice says, notice gives grounds for lawsuit.
County attorney Rheubin Taylor sent a demand letter Aug. 12. “By this letter, we do hereby notify you that unless you immediately comply with said Directive No. 1, legal proceedings will be instituted against you and your business for said failure. Tennessee law provides that violations of said directive could result in fines and injunctions.”
Grounds for lawsuit?
The suit opens the county to a countersuit alleging oppression, harassment and coercion. The county is interfering with property rights and the rights of liberty by asserting powers that have not been lawfully evoked at the beginning of the purported health crisis.
That would have been done by the finding of a local case of a disease identified by Dr. Hendricks and presented to the state health department’s Dr. Lisa Piercey, commissioner.
One may wonder why such requirements, with such specific tests to be met by officials. The law requires certain steps be made to certify and declare a disease as contagious to protect the rights of the people and their constitutionally guaranteed liberties.
Without such requirements for certification of disease, officials get a green light to do whatever they will in a purported health emergency. Without certifications of cause in law, they are free to wreck lives and suppress the economy under the cry, “The sky is falling — the sky is falling.” If the law imposes no limits, governors and local mayors are free to act arbitrarily and capriciously against and upon the people.
Exactly as they have done since March. The rejection of black-letter law has, indeed, brought personal and business ruin to hundreds of thousands of Tennesseans who are permanently, irrevocably and substantially injured by state action under color of law, with Gov. Bill Lee liable for the losses.
Officials have ignored the requirements in the law for the establishment of an epidemic. They have rejected their duties under the health statute at Tenn. Code Ann. § Title 68, the quarantine provisions, which allow use of police powers such as those evidenced by enforcement action against the Sanders family, but only under due process owed to the citizen.
That rule is here:
§ 68-5-104. Isolation or quarantine
It is the duty of the local health authorities, on receipt of a report of a case, or suspected case, of disease declared to be communicable, contagious, or one which has been declared by the commissioner of health to be subject to isolation or quarantine, to confirm or establish the diagnosis, to determine the source or cause of the disease and to take such steps as may be necessary to isolate or quarantine the case or premise upon which the case, cause or source may be found.
Gov. Lee has made no declaration of the disease nor of its communicability. Neither has Dr. Hendricks. Nor have they declared it subject “to isolation or quarantine,” according to my open records requests and demand letters.
Perhaps the Lee administration has failed to obey this law with its requirements to protect due process rights of the people because he would rather operate without constraint under Title 58, the emergency statute, and run his public health and safety theater on seven words and a period (those words being “with the force and effect of law).
The duties of diagnosis and determination of source or cause are absent anywhere in Tennessee, it appears.
The lack rises perhaps from the inability of science and medicine to know the novel Wuhan virus and to determine its means of transmission. The virus — best identified as SARS-coV-2 — apparently is so murky as to its nature that governors across the U.S. are unable to meet their statutory duty to make declaration upon substance of the condition or of that which Tennessee law calls the “contagious principle” of the disease (mode of transmission).
Laws cited in complaint
The lawsuit cites 104 (just mentioned above). It also cites the law allowing the commissioner in Nashville to declare a quarantine but with “the least inconvenience to commerce and travel,” a provision Gov. Lee and Dr. Hendricks boldly disobeyed.
(a) The commissioner has the power to:
(1) Declare quarantine whenever, in the commissioner’s judgment, the welfare of the public requires it; and
(2) Prescribe such rules and regulations as may be deemed proper for the prevention of the introduction of yellow fever, cholera and other epidemic diseases into the state.
(b)(1) Whenever yellow fever, cholera, smallpox or other epidemic diseases appear in any locality within the state, and information thereof is brought to the knowledge of the department, the commissioner shall prepare and carry into effect such rules and regulations as, in the commissioner’s judgment, will, with the least inconvenience to commerce and travel, prevent the spread of the disease.
(2) Whenever the commissioner determines that an influenza outbreak may pose a threat of an epidemic, the commissioner shall prepare and carry into effect rules and regulations that, in the commissioner’s judgment, will, with the least inconvenience to commerce and travel, prevent the spread of the disease. (emphasis added)
Tenn. Code Ann. § 68-1-201
Officials disobey this law in what is either a mass tort or a crime (Tenn. Code Ann. § 39-16-403, official oppression) in that they direct police quarantine power upon the healthy generally — as those workers and customers at Ed’s Supply — and not upon the sick specifically.
Gov. Lee shut down the state economy April 2 with an executive order, in entire disregard of his duty to preserve property, preserve life, promote commerce and protect the right of travel and communications.
The lawsuit also cites the statute giving limited powers to county health officers.
§ 68-2-609. Orders; county health officers
The county health officer is empowered to order:
(1) The quarantine of any place or person, if the county health officer finds that quarantine is necessary to protect the public health from an epidemic;
(2) The closure of any public establishment, facility or building if the county health officer finds unsanitary conditions of such a nature and extent to significantly threaten the public health; or
(3) The closure of any public establishment, facility or building, if the county health officer is otherwise authorized by law to take that action.
Tenn. Code Ann. § 68-2-609
The quarantine power is useable after an epidemeological finding of a person with contagion, or property infected — if indeed property is known as a mode of transmission. In Title 68, the rights of the people are preserved in that the law requires notice and hearing to that person on the fact of whether that person has a disease.
The duties of the governor and department are evident in definitions in 18 pages of department rules: https://publications.tnsosfiles.com/rules/1200/1200-14/1200-14-01.20191013.pdf
➤ Communicable disease — An illness due to an infectious agent or its toxic products which is transmitted directly or indirectly to a well person from an infected person or animal, or through the agency of an intermediate animal host, vector, or inanimate environment. (emphasis added)
➤ Contamination – The presence of a pathogenic agent on a body surface on or in an inanimate article or substance. (emphasis added)
➤ Infectious Agent – A viable pathogen capable of producing infection or disease.
➤ Reportable disease – Any disease which is communicable, contagious, subject to isolation or quarantine, or epidemic, and required by the Commissioner to be reported in the List. (emphasis added)
Allegations that healthy people sick
The claims by the health department, in keeping with the state’s whole CV-19 project, applies police power against those without alleging they are sick, or proving they are sick.
The language is violent, threatening and without legal authority.
The Respondents’ continued refusal to abide by Directive No. 1 poses an immediate threat to the health and safety of those persons working and/or going about the Respondents’ business in that individuals who may knowingly and/or unknowingly be infected with the COVID-19 virus may spread same due to not being properly masked and being within six (6) feet of others; and such conduct by the Respondents may cause said virus to further spread throughout the Hamilton County and surrounding communities, thereby further endangering the health of persons therein. (emphasis added)
Such description of people who’ve not been alleged individually and epidemiological to be sick with an active culture of SARS–CoV‐2 is slanderous, fraudulent and coercive, grounds for tort damages on several grounds, starting with the statutory obligation of the commissioner to fight the disease “with the least inconvenience to commerce and travel.”
The county has no authority to shut down a business on fears and suppositions, on “dread,” the word used in the complaint. It acts only on known agents, on known circumstances and diseases, on people shown to be ill, or who are reasonably suspected to be ill. A lawsuit on proper grounds would allege a disease, an infectious agent and point fingers at specific sick people under quarantine power.
Law doesn’t operate on “may cause” disease and shut down arbitrarily a lawful business operation. The law operates on specific conditions among specific people, and if those people are not known to be ill, there is no authority to use threat under police powers.
Degringolade
