STATE OF MISSOURI ) ess CITY OF ST. LOUIS ) | NOV:23 2020 mie TULL n N° JUDICIAL CIRCUIT TWENTY-SECOND JUDICIAL CIRCUIT 228 ere eeiece tears CIRCUIT CLERK'S OFFICE | - . By. DEPUTY WHEELHOUSE20, LLC, et al., | Plaintiffs, | vs. | Division 19 CITY OF ST. LOUIS, et al., ) ) 7 ) Case No. 2022-cc10352 i ) ) ) Defendants. ) RD! | The Court has before it Plaintiffs Wheelhouse20, LLC and StartBar30, LLC’s Motion for Temporary Restraining Order. This motion was heard on the morning of November 23rd, 2020. All parties appeared by and through counsel. The parties were given | the full and fair opportunity to present their arguments, call ahd cross-examine witnesses, and offer evidence to the Cour The Court now rules as follows. In their Verified Petition filed on November 20, 2020, Plaintiffs seek administrative review under Section 536.010 RSMo, a stay under Section 536.120 RSMo, injunctive relief, and ive for declaratory judgment. Plaintiffs plead in the altern: relief under Section 536.150 RSMo. Plaintiffs seek relief from the November 16, 2020 Order of the City of St. Louis Director of Health, Defendant de. Fredrick sohols. This order xeqvired agPlaintiffs to immediately close their establishments until November 30, 2020 unless ordered otherwise for violations of Health Commissioner's Order No. 8, requiring social distancing, and Order No. 11 requiring the use of face coverings or masks ubder certain conditions. In their motion for temporary rbstraining order, Plaintiffs request that the Court stay or preclude the enforcement of this Order. | A trial court is authorized to issue three types of orders gganting relief in an injunction proceeding: (1) a temporary restraining order, (2) a preliminary injunction, and (3) a pprmanent injunction. St. towis Concessions, Inc. v. City of St. uous, 926 5.W.2d 495, 497 (Mo. App. E.D. 1996). The primary purpose of a temporary restraining order is “to preserve the status quo and prevent irreparable injury to the plaintiff ! pending disposition of the case on the merits.” Walker v. Hanke, 982 S.W.2d 925, 933 (Mo. App. W.D. 1999). Injunctive relief is discretionary and is granted to prevent likely irreparable harm. Burney v. McLaughlin, 63 S.W.3d 223, 234 (Mo. App. S.D. 2001). Rule 92.02(a) states that the a trial court shall not grant a| temporary restraining order unless “the party seeking relief | ! demonstrates that immediate and irreparable injury, loss, or i damage will result in the absence of relief.”“[W]here the Missouri and federal rules are essentially the same, federal precedents constitute persuasive, although not binding, authority.” Hemme v. Bharti, 163 8.W.3d $93, 597 (Mo. bane 2006). Rule 92.02 is substantially the same as federal rule 65(b). “In determining whether to issue a temporary restraining okder, the Court must consider four factors: (1) the threat of ifreparable harm to the movant; (2) the potential harm to the i nonmoving party should an injunction issue; (3) the likelihood of success on the merits; and (4) the public interest.” 401 s. 18th St., LLC v. O'Loughlin, No. 4:20-cv-00583 SRC (E.D. Mo. May i 4) 2020) (citing Dataphase Sys., Inc. v. C.L, Sys., Inc., 640 Fi.2d 109, 113 (8th Cir. 1981). “The burden of proving these erequisites is entirely on the party seeking injunctive ector of Revenue v | 7 | rplief.” Id. See also State ex re I bert, 925 S.W.2d 838, 839 (Mo. banc 1996). Plaintiffs argue that the temporary restraining order must be granted as they will suffer irreparable harm in the absence of injunctive relief, have a substantial likelihood of evailing on the merits and because granting them such relief | is in the public interest. i | Dr. Echols testified under oath at the hearing in this matter. The Court finds that his testimony was credible. Several exhibits were admitted into evidence as supported by his | 3 itestimony. Plaintiffs cross examined Dr. Echols at the hearing and presented evidence to the Court as a part of this cross examination. | Plaintiffs concede in their pleadings that the United States and the City of St. Louis are currently in the midst of a | global pandemic caused by the COVID-19. Plaintiffs further speese that COVID-19 is an infectious, communicable disease. | On May 11, 2020, Dr. Echols issued Health Commissioner’ s Order No. 8 that sets forth guidelines and standards relating to the reopening of the city. Order No. @ atates that it is being ' atopted in order to: A. provide requirements and guidance for individual behavior; B. allow certain businesses to continue operating conditioned on compliance with general and business-specific operating standards and guidance included in, . and attached to this Order; conditioned on compliance with general and business-specific operating standards and guidance included in, and attached to this Order; | C. allow certain other business to reopen ' i i | | D. allow exceptions to this Order No. 8 as / [the Director of Health] may specifically | designate; | | E. continue to prohibit certain other | businesses from operating until a future point | in time after continued monitoring and | analysis of the Benchmarks and subject to the 4issuance of a future Order of the Health i Commissioner; and F, inform the public and businesses that the City and the Department of Health will continue to monitor the status of the Benchmarks and anticipate updating the standards and guidance to individuals and businesses. Administrative Order Number @ was accompanied by Phase I standards and guidance for individuals and businesses. Guidance to businesses included practicing social distancing, monitoring employee health, using protective equipment including a fabric ace cover, and washing and sanitizing hands and wiping down requently touched surfaces with EPA approved disinfectants. | Dr. Echols issued Health Commissioner’s Order No. 11 on July 2, 2020. Order No. 11 provides in pertinent part that all dividuals age 9 and older in the City are “required to wear face coverings when inside public facilities, public transportation vessels and outside when social distancing is not CO ———— exception for individuals “who are seated in a restaurant or bar and are actively engaged in consuming food or drink while adequately distanced from other patrons.” After review of the record before the Court, the Court \ Finds that Plaintiffs have failed to meet their burden. the |court finds that Plaintiffs have presented no evidence that Would support a finding that immediate and irreparable injury, tbss, or damage will result in the absence of relief. The sole support in the record for such a finding are conclusory Further, the Court is not persuaded that Plaintiffs would a successful on the merits or that the grant of injunctive relief is in the public interest here. It appears from the record that Defendants are implementing the temporary emergency measures in Health Commissioner's Orders No. 8 and 11 to protect the health and safety of the citizens of the City of st. Louis th an attempt to prevent the spread of the COvID-19 virus. ‘The Court finds that the enforcement of these orders is in the public's interest. THEREFORE, IT TS ORDERED AND DECREED that Plaintiffs i ! | Wheelhouse20, LLC and StartBar30, LLC's Motion for Temporary t Restraining Order is hereby denied. i$0 ORDERE! Christopher WGraugh, Judge Dated: November 23, 2020