IN THE DISTRICT COURT OF OKLAHOMA COUNTY STATE OF OKLAHOMA, FILED IN DistRIcT ce OKLAHOMA county? ‘Venom 64, Inc. d/b/a Western Nights, ) an Oklahoma Corporation; ) NOV 24 2029 Glenn’s Roadhouse, LLC d/b/a Roadhouse ) RICK WARRE) Bar & Grill, an Oklahoma Limited ) 199 COURT LER Liability Company; ) _—_ Six Shooter Saloon, LLC d/b/a Six Shooter, ) Saloon, an Oklahoma Limited Liability Company;) Brent Barnett, an individual; ) Kari Rehl, an individual; Lacy Gilworth, an individual; and Augustin Ramon, an individual; Plaintiffs. vs. City of Oldahoma City, David Holt, in his official capacity as Mayor of Oklahoma City; and Wade Gourley, in his official capacity as Chief of Police of the City of Oklahoma City; Defendants. PLAINTIFFS’ MOTION FOR TEMPORARY RESTRAINING ORDER AND/OR TEMPORARY INJUNCTION AND MEMORANDUM OF LAW IN SUPPORT Page 1 of 18Pursuant to 12 O.S. § 1381 et seq., Plaintiffs move for a temporary restraining order and/or a temporary injunction to enjoin enforcement of the City of Oklahoma City’s Proclamation dated November 19, 2020 (the Proclamation), which went into effect on November 19, 2020. INTRODUCTION John Adams warned: “But a Constitution of Government once changed from Freedom, can never be restored. Liberty once lost is lost forever.” Plaintiffs bring this action because they reasonably fear that the draconian encroachments on their freedoms and the egregious violation of Oklahoma law set forth in this Motion will, unfortunately, become the “new norm.” It has been said that all tyranny needs to gain a foothold is for people of good conscience to remain silent. This case seeks to protect and vindicate fundamental liberties that citizens of Oklahoma enjoy free from government interference. These liberties are not conferred or granted by government to then be rescinded at the will and whims of government officials. ‘These God-given liberties are possessed by the people, and they are guaranteed against government interference by the United States Constitution, which is the supreme law of the land, and by the Oklahoma Constitution. ‘The COVID-19 pandemic has swept across this country. In the interest of public safety, local governments are doing things that they believe will protect people. While public safety 1 JOHN ADAMS TO ABIGAIL ADAMS, 1 JULY 1775, https://founders.archives.gov/documents/Adams/04-01-02-0160 (last visited Nov. 22, 2020). Page 2 of 18is paramount, the Oklahoma Constitution, U.S. Constitution, and Oklahoma law must still be honored. A virus does not give mayors a blank check to write whatever proclamation he or she wants. ‘The Mayor of Oklahoma City, Davit Holt, has trampled on numerous rights and acted ultra vires through his incorrect interpretation of the OKlahoma Riot Control and Prevention Act (RCPA) and Oklahoma City’s municipal code §§ 1536-1540 (OKC RCPA). Absent an order from this Court, Plaintiffs will continue to suffer irreparable injury because they will be deprived of their constitutionally protected right to enjoy the gains of their own industry. A temporary restraining order, preliminary injunction, and permanent injunction are therefore necessary to stop Defendants from continuing to infringe on Oklahomans’ fundamental constitutional rights, stop the harm inflicted on Plaintifis by Defendants, and stop the outrageous abuse of power by Mayor Holt. The balance of equities favors the Plaintiffs, Restaurants and bars can serve food and drinks in a safe way. The requested relief removes the criminal penalties for individuals who operate or work in a business that sells food or drinks per CDC and Oklahoma Department of Health guidelines. Plaintiffs ask that Oklahoma City treat people selling food or beverages ata restaurant or bar no differently than someone working at a grocery store, convenience store, sporting event, movie theater, marijuana dispensary, comedy club, or church. Page 3 of 18STATEMENT OF FACTS On March 15, 2020, Governor Stitt declared a state of emergency resulting from the COVID-19 pandemic. Governor Stitt declared the order pursuant to power vested in him by Article VI § 2 of the Oklahoma Constitution.? He stated that “it is now necessary to provide for the rendering of mutual assistance among the State and political subdivisions of the State and to cooperate with the Federal government with respect to carrying out emergency functions during the continuance of the State emergency pursuant to the provisions of the Oklahoma Emergency Management Act of 2003. The word “disaster” does not appear anywhere in this order.S Mayor Holt declared a state of emergency in Oklahoma City in a proclamation on March 16, 2020 due to COVID-19.° The proclamation was revised on March 28, 2020, April 2, 2020, April 29, 2020, May 14, 2020, May 29, 2020, May 31, 2020, June 2, 2020, and July 2, 2020.7 On November 16, 2020, Governor Stitt issued his Seventh Amended Executive Order 2020-202 This executive order added the following language: 2 Executive Order 2020-07, https://www.sos.ok.gov/documents/executive/1913.pdf (attached as Exhibit 1). 31d. ‘id. 5 See id. 6 Covip-19 EMERGENCY RESTRICTIONS IN OKLAHOMA CITY, https://www.okc.gov/residents/prepare-okc/know-what-to-do/covid-19-coronavirus-in- oke/covid-19-emergency-restrictions-in-oklahoma-city (last visited Nov. 22, 2020). 71d. ® Seventh Amended Executive Order 2020-20, hutps://www.sos.ok.gov/documents/executive/1971.pdf (attached as Exhibit 2). Page 4 of 1825, Effective November 19, 2020, restaurants and bars shall ensure a minimum of six (6) feet of separation between parties or groups at different tables, booths, or bar tops, unless the tables are separated by properly sanitized glass or plexiglass. 26. Effective November 19, 2020, food or beverages of any kind shall not be sold, dispensed, or served for on-premises consumption by any license holder authorized to make such sales or services after 11:00 P.M. CST daily. The sale and service of food and non-alcoholic beverages for on-premises consumption may resume at 5:00 AM. CST daily. The sale and service of alcoholic beverages for on-premises consumption may resume at 8:00 A.M. CST daily.? ‘The word “disaster” does not appear anywhere in this order.1° On November 19, 2020, Mayor Holt issued the Proclamation." In the Proclamation, Mayor Holt states, “Title 21, Section 1321.9 of the Oklahoma Statutes allows cities and towns to enact ordinances to issue a Proclamation of State of Emergency . . . .”!? Sections 1321.1- 1321.11 of Title 21 of the Oklahoma Statutes are the RCPA."? Mayor Holt further states in the Proclamation, “Section 15-37 of the Oklahoma City Municipal Code provides that I, as the Mayor, after finding that a public disaster exists which affects life, health, property or the public peace, may proclaim a state of emergency in the area affected . ...”"4 In addition to the above restrictions in Governor Stitt’s Seventh Amended Executive Order, the Proclamation added the following: All restaurants, bars, breweries, wineries, taverns, shopping mall food courts, food halls, and cafeterias are restricted to providing only take-out, drive-thru service, or delivery of food and beverages during the time listed above. During those times, patrons may enter the building to receive carry-out service for consumption off the premises, but the interior spaces of such locations are °ld. 10 See id. 1) REVISED PROCLAMATION OF STATE OF EMERGENCY NOVEMBER 19, 2020, htps://www.okc.gov/home/showdocument?id=20448 (attached as Exhibit 3). ug 13 Oxia. STAT. tit, 21 § 1321.1. Wid. (emphasis added). Page 5 of 18otherwise closed to the public and persons, other than employees, and are restricted from such places for any other purpose.!5 ‘The Proclamation further states, “Any person, including but not limited to a business ‘owner or employee, not complying with the requirements of this Proclamation shall be subject to Section 15-40 of the Oklahoma City Municipal Code.”!® Section 15-40 of the Oklahoma City Municipal Code states, “Any person violating a provision of this article or any proclamation or order issued pursuant hereto shall be guilty of a Class "b" offense and upon. conviction be punished by a fine not exceeding $750.00, excluding costs or imprisonment in the City Jail not exceeding six months, or both such fine and imprisonment.””” ARGUMENT Plaintiffs seek a temporary restraining order, and thereafter, a preliminary injunction then permanent injunction, to prevent the Proclamation from inflicting further harm on Plaintiffs. Plaintiffs currently may not operate their businesses or work in a meaningful way after 11:00 p.m. Some of these businesses operate almost exclusively at night, so the impact on them is far greater than a business that is open during both the day and night. Those businesses, and others in the industry, will just not open because patrons will not want to be forced to leave a few hours after arriving. Customers will simply not visit these establishments. Thus, Mayor Holt has instituted a de-facto shutdown of an entire industry. To issue a temporary injunction, the following factors must weigh in Plaintiffs’ favor: “1) the likelihood of success on the merits; 2) irreparable harm to the party seeking injunction 1S Id. 16 Id. 17 OKLAHOMA CITY, OxLA., CoDE § 15-40. Page 6 of 18relief if the injunction is denied; 3) his threatened injury outweighs the injury the opposing party will suffer under the injunction; and 4) the injunction is in the public interest.”"8 Under Oklahoma law, “[tJhe right to injunctive relief must be established by clear and convincing evidence and the nature of the injury must not be nominal, theoretical or speculative.”! ‘The irony of this situation is that what Mayor Holt has effectively done is issue an unlawful injunction on restaurants and bars. Oklahoma law defines an injunction as “a ‘command to refrain from a particular act.” This is precisely what Mayor Holt has done, except Mayor Holt did not see a judge and prove why the above four factors weigh in his favor. And if someone disobeys Mayor Holt’s injunction, Mayor Holt can throw them in jail for up to six months and fine them up to $750." Plaintiffs believe itis Defendants who should prove why an injunction should exist—not the other way round. Plaintiffs have been afforded zero due process in the shutting down of their businesses or elimination of opportunity to work. Defendants have taken Plaintiffs’ liberty without going through any process where they have to explain why they are justified in taking that liberty. Instead, Plaintiffs are now in the unenviable position of having to explain why their liberty should not be taken. Justice has been turned completely upside down here. A temporary restraining order is controlled by 12 0.S. § 1384.1." This Court may issue a temporary restraining order if “it clearly appears from specific facts shown by affidavit 18 Dowell v. Pletcher, 2013 OK 50, 7, 304 P.3d 457, 460, as corrected (July 15, 2013). = 2 tit. 24 § 1381. 21 Cope § 15-40. 2 tit. 12 § 1384.1. Page 7 of 18or by the verified petition that immediate and irreparable injury, loss, or damage will result to the applicant before the adverse party or the attorney for the adverse party can be heard in opposition...” A. Plaintiffs are Substantially Likely to Succeed on the Merits of Their Declaratory Relief Claim, Violation of the Oklahoma Constitution Claim, Violation of State Law Claim, and Violation of the Equal Protection Clause Claim. This case hinges on the meaning of the word “disaster.” Oklahoma City would have this Court believe that a slowly-unfolding and lingering virus with a massively high survival rate constitutes a disaster. Logic, the plain meaning of the word, the statutory construction of the RCPA and OKC RCPA, and the history of the RCPA and OKC RCPA say otherwise. Under Oklahoma law, “[w]ords used in any statute are to be understood in their ordinary sense, except when a contrary intention plainly appears, and except also that the words hereinafter explained are to be understood as thus explained.” Note the following definitions: - Black’s Law Dictionary defines “disaster” as “{a] calamity; a catastrophic emergency.” = Black’s Law Dictionary defines “major disaster” as “[a] catastrophe, such as a hurricane, tornado, storm, flood, earthquake, drought, or fire, so severe that it warrants disaster assistance from the federal government.”25 2 Id. 4 tit, 25 § 1. 25 DISASTER, Black's Law Dictionary (11th ed. 2019). 26 Id, at MAJOR DISASTER. Page 8 of 18Merriam-Webster defines “disaster” as “a sudden calamitous event bringing great damage, loss, or destruction.”2” Oklahoma law defines “natural disaster” as “any natural catastrophe, including, but not limited to, a tornado, severe storm, high water, flood waters, wind-driven water, earthquake, landslide, mudslide, snowstorm, or drought which causes damage of sufficient severity and magnitude to warrant hazard mitigation or the use of resources of the federal government, or the state and political subdivisions thereof to alleviate the damage, loss, hardship or suffering caused thereby;”.28 Oklahoma law defines "man-made disaster” as “a disaster caused by acts of man including, but not limited to, an act of war, terrorism, chemical spill or release, or power shortages that require assistance from outside the local political subdivision;” ‘The Oklahoma Emergency Operations Plan defines “disaster” as “[a] dangerous event that causes significant human and economic loss and demands a crisis response beyond the scope of any single agency or service, such as the fire or police department. Disasters are distinguished from emergencies by the greater level of response required. A disaster requires resources beyond those available locally.” The Oklahoma Emergency Operations Plan defines “disaster ~ man-made” as “{a] disaster caused by acts of man including, but not limited to, an act of war, terrorism, 2 Disaster, MERRIAM-WEBSTER.COM, https://www.merriam- webster.com/dictionary/disaster?src=search-dict-hed (last visited Nov. 21, 2020). 2 tit. 63 § 683.3. 29 Id. 39 STATE OF OKLAHOMA EMERGENCY OPERATIONS PLAN, hetps://www.ok.gov/OEM/documents/State%20E0P%20101219.pdf. Page 9 of 18chemical spill or release, or power shortages that require assistance from outside the local political subdivision.” = The Oklahoma Emergency Operations Plan defines “disaster ~ natural” as “[alny natural catastrophe, including, but not limited to, a tornado, severe storm, high water, flood waters, wind-driven water, earthquake, landslide, mudslide, snowstorm, or drought which causes damage of sufficient severity and magnitude to warrant hazard mitigation or the use of resources of the federal government, or the state and political subdivisions thereof to alleviate the damage, loss, hardship or suffering caused thereby.” It is therefore obvious, under every conceivable definition of “disaster,” that the term “disaster” in the RCPA and OKC RCPA in no way, shape, or form refers to a pandemic such as the COVID-19 pandemic. Allowing the City to apply the term “disaster” to the current COVID-19 pandemic would set a dangerous precedent. This would give the City the ability to declare almost anything that slightly disrupts daily life or affects someone's health a disaster, thereby giving them extraordinary powers. The next stock market crash, the next drought, the next flu, the next time air quality is deemed poor, or whatever the next thing is that could possibly affect human life could be considered a “disaster” by an Oklahoma City mayor. Asis evident by the above definitions of disaster, a disaster is generally a sudden event that has immediate severe consequences to life or property. Mayor Holt’s first emergency ad, 32d. Page 10 of 18declaration was over eight months ago. This was seemingly because he believed a disaster had occurred. Even, assuming that, a disaster occurred at the start of the COVID-19 pandemic, are we to believe that there has been an ongoing disaster for eight months? Or is Mayor Holt saying that the recent rise in cases is a new disaster within an eight-month long disaster? This is completely nonsensical. ‘The City will likely point to President Trump's declaration of a “major disaster” in Oklahoma on April 5, 2020. This is irrelevant. President Trump's declaration was done pursuant to a federal law to allow federal money to be made available for Oklahoma to fight COVID-19.% Its purpose is purely administrative and funding-related with respect to the federal government.% This action is challenging a state law and municipal ordinance in a state court and addresses whether a municipality may stretch the definition of “disaster” to put Oklahomans in jail for up to six months.27 The ability of a mayoral fiat to automatically become a law that has criminal penalties—six months in jail, the maximum sentence possible for a municipality—should not be taken lightly. If he Mayor and City Council truly believed this was a big enough deal, then they would pass an ordinance. This would give them the ability to get input from the 33 See CoviD-19 EMERGENCY RESTRICTIONS IN OKLAHOMA CITY. ‘% PRESIDENT DONALD J. TRUMP APPROVES OKLAHOMA DISASTER DECLARATION, hitps://www whitehouse. gov/briefings-statements/president-donald-j-trump-approves- oklahoma-disaster-declaration-5/ (last visited Nov. 22, 2020). 35 PRESIDENT DONALD J. TRUMP APPROVES OKLAHOMA DISASTER DECLARATION FOR OKLAHOMA, hitps://www.fema.gov/news-release/20200723 president-donald-j-trump-approves- major-disaster-declaration-oklahoma (last visited Nov. 22, 2020). % See id. 97 See Cope § 15-40. Page 11 of 18community and make a group decision—not simply done at the whim of one person. Furthermore, any ordinance can be tailored to each specific activity the City wants to regulate. Is it necessary that the maximum jail penalty for a restaurant owner staying open past 11:00 p.m, be the exact same maximum jail penalty for driving under the influence?*® This is way out of balance. ‘The whole point of giving the mayor the extraordinary ability to set curfews and regulate pursuant to the OKC RCPA is because time is of the essence in a disaster. Strict penalties must be enforced for violators when the City is concerned about looting and rioting in areas where the electrical system may be offline or law enforcement presence may not be possible. But the COVID-19 situation does not give rise to a sudden loss of utilities or access to law enforcement. Most people are going on about their lives the same way every day. Since there is no sudden, catastrophic, event, there is no need for a mayoral dictate that takes effect immediately. There is time for the mayor to meet with city council and debate what—if anything—should be done to adjust to the slowly-unfolding situation. The lives of the citizens of Oklahoma City are being thrown into turmoil by Mayor Holt’s unlawful dictates that are given with little notice and have immediate effect. ‘The fact that Governor Stitt has not declared an emergency pursuant to the RCPA cannot be overstated. COVID-19 is affecting Oklahomans throughout the entire state. It is not a localized issue such as a riot in downtown Oklahoma City or one devastating tornado. ‘Are we to believe that COVID-19 is a disaster that only affects people within the city limits of 38 Cope § 32-7. Page 12 of 18Oklahoma City? Governor Stitt has a far greater number of resources and advisors to help him through the COVID-19 pandemic. What does Mayor Holt know that Governor Stitt does not? Governor Stitt has had over eight months to declare a disaster in Oklahoma pursuant to the RCPA, yet he has not done so. Governor Stitt has not declared a disaster pursuant to the RCPA because he does not believe that disaster exists. If no disaster due to COVID-19 exists statewide, then it certainly does not exist only in Oklahoma City. ‘The statutory construction and history of the RCPA and OKC RCPA, as outlined in the Petition, show that Mayor Holt is grossly misinterpreting the OKC RCPA. Plaintiffs will succeed on all of their claims because it is clear that Mayor Holt is abusing his power by invoking the OKC RCPA for COVID-19. B. Plaintiffs Will Suffer Irreparable Harm if the Ordinance is Enforced. Plaintiffs will suffer serious and irreparable harm in the absence of a temporary restraining order and temporary injunction. The Proclamation has gone into effect, and Plaintiffs have already been harmed. The harm is not nominal, theoretical, or speculative. It involves real people and businesses suffering real financial loss—including complete loss of current job and complete loss of business. As is clear from the harm detailed below, the damage and loss are immediate and irreparable. On November 20, 2020 at approximately 9:30 p.m., two officers from the Oklahoma City Police department showed up at Western Nights. The officers told the owners that their department intended to enforce the Proclamation and that Western Nights was to shut down, at 11:00 p.m, Additionally, the officers told the owners of Western Nights the section of the Page 13 of 18Oklahoma City municipal code that they would be cited for violating—§ 15-40, the penalty section of the OKC RCPA. Based on this clear threat of criminal prosecution, Western Nights closed at 11:00 p.m, on November 20, 2020 and will continue to close each night at 11:00 p.m. so long as the Proclamation is in effect. On November 20, 2020, the number of patrons at Western Nights was down 80% from a typical Friday night at this time of the year. This resulted in Western Nights losing significant income and suffering significant harm. This damage cannot be undone. Approximately 75% of beverage sales at Western Nights come after 11:00 p.m. Closing each night at 11:00 p.m. will cause Western Nights to lose at least that percentage in sales every night. In reality, they will likely lose more because less people will even bother to go out due to the early closing time. Staying open may cause Western Nights to lose more money than they would if they closed. At some point, Western Nights may decide to close rather than lose more money. This future harm is severe, certain, and irreparable. The harm Plaintiffs Roadhouse and Six Shooter Saloon have suffered and will suffer due to the Proclamation is similar to that of Western Nights. Brent Bamett works as a bartender at a bar inside the city limits of Oklahoma City. His employer told him to not come in to work on November 20, 2020 due to the anticipated low tumout of patrons. Mr. Barnett has already suffered harm under this Proclamation by losing income. Due to the credible threat of criminal prosecution, the bar that Brent works at will close at 11:00 p.m. each night while the Ordinance is in effect. If the Proclamation continues to be enforced, Mr. Bamett’s income will be reduced by approximately 70%. Of course, this is assuming the bar where he works stays open. If it decides to shut down because Page 14 of 18they lose less money by shutting down, then Mr. Barnett’s income will be reduced by 100%. This future harm is severe, certain, and irreparable. ‘The harm Plaintiffs Kari Rehi, Lacy Gilworth, and Augustin Ramon have suffered and will suffer due to the Proclamation is similar to that of Mr. Barnett. C. The Balance of Harms and Public Interest Support Injunctive Relief. Plaintiffs’ requested relief will “preserve the status quo,” tipping the balance of equities toward Plaintiffs and serving the public interest. The “status quo” is “the last actual, peaceable, noncontested status which preceded the pending controversy . . ..”2° The status quo in this case would be the situation before Mayor Holt issued his Proclamation.” Furthermore, the Tenth Circuit has made clear that “it is always in the public interest to prevent the violation of a party’s constitutional rights.”4 A temporary restraining order will preserve the status quo."® % Dusbabek v. Local Bldg. & Loan Assin, 1936 OK 769, 178 Okla. 592, 63 P.2d 756, 759; Waveland Drilling Partners II-B, LP v. New Dominion, LLC, 2019 OK CIV APP 8, 4 17, 435 P.3d 114, 120, reh’g denied (Sept. 13, 2018). * See id. 41 Awad, 754 F. Supp. 2d at 1308 (W.D. Okla. 2010), affd, 670 F.3d 1111 (10th Cir. 2012); Planned Parenthood of Ark. & E. Okla. v. Cline, 910 F. Supp. 2d 1300, 1308 (W.D. Okla. 2012) (“The public has an interest in constitutional rights being upheld and in unconstitutional decisions by the government being remedied.”); BNSF Railway Co. v. City of Edmond, Okla., No. CIV-19-769-G, 2019 WL 5608680, at *3 (WD. Okla. 2019) (‘Oklahoma does not have an interest in enforcing a law that is likely constitutionally infirm. Moreover, the public interest will perforce be served by enjoining the enforcement of the invalid provisions of state law.”) (quoting Chamber of Commerce of U.S. v. Edmondson, 594 F.3d 742, 771 (10th Cir. 2010). 4 Morse v. Earnest, Inc., 1976 OK 31, 547 P.2d 955, 957. Page 15 of 18The harm to Plaintiffs, if an injunction is not granted, greatly outweighs the harm to Defendants if it is granted because there is no way to give someone back constitutionally protected rights. There is also no way to make up for the income Plaintiffs will lose. Defendants have no plan to reimburse Plaintiffs for their lost income. Defendants are completely unaffected by the imposition of the Proclamation. None of them work in the food service industry, so they will neither be harmed from the effects or the Proclamation nor the absence of the Proclamation. Plaintiffs will lose income, not be able to pay rent, not be able to pay utility bills, not be able to pay for food, not be able to provide for their families, and not be able to do many of the things Defendants will be able to do with zero problems. Even people who are not Plaintiffs are being harmed by the actions of the Defendants because there are countless other restaurants, bars, waiters, waitresses, bartenders, security guards, entertainers, and other people who will suffer the negative impact brought on by the Proclamation. The relief Plaintiffs seek will serve as a benefit to all whose work is related to the food-service industry in Oklahoma City. The impact of the Proclamation will not be just on workers in the affected industry. The families of everyone affected by the Proclamation will suffer. Children may go homeless or hungry because their parent(s) lost their job as a direct result of the Proclamation. ‘The impact of the Proclamation on the goal Defendants are trying to achieve, stopping the spread of COVID-19, will be negligible. Every business is allowed to operate as normal until 11:00 p.m, The vast majority of businesses can operate as normal all day and night. What is so special about 11:00 p.m.? Why not 10:59 p.m,? Or 11:01 p.m.? Defendants have presented zero evidence that 11:00 p.m. is some magical time when COVID-19 really begins Page 16 of 18to spread—and only in bars and restaurants, On the other hand, the negative impact of the Proclamation on Plaintiffs, people situated similarly as Plaintiffs, and the people that rely on Plaintiffs for support will be immense and certain. The interest of the public will be served by granting the injunction because Defendants, as well as state and national governing bodies, already have protective measures in place to combat the spread of COVID-19. Defendants have enacted a mandatory mask ordinance. Any establishment is still free to enact their own policies on things such as social distancing and capacity. All Plaintiffs follow the CDC guidance for their industry. ‘The publicis suffering greatly by Mayor Holt’ illogical interpretation of the OKC RCPA and outrageous abuse of power. The public does not benefit when a government acts outside the scope of its authority. Allowing Defendants to continue with their unlawful acts sets a terrible precedent. If Defendants can continue to use the OKC RCPA to issue legally-binding proclamations for the COVID-19 pandemic, then they will be given the green light to further stretch the definition of “disaster” to whatever situation they see fit. The citizens of Oklahoma City cannot deal with living under a constant state of “disaster” or get thrown into new “disasters” any time some event comes along that may eventually cause some lives to be lost. Oklahoma City is acting beyond its authority. Itis time for them to follow the law. Page 17 of 18D. A Bond is Not Necessary in This Case. A temporary restraining order does not require the posting of a bond. No bond will be necessary to issue a temporary injunction because the relief sought will result in no monetary loss to Defendants. ‘CONCLUSION For all the foregoing reasons, Plaintiffs’ motion for a temporary restraining order and/or temporary injunction should be granted. tit. 12 § 1392. “1d. Respectfully Submitted, Frank A. Urbanic, OBA No. 32528 The Urbanic Law Firm, PLLC 1211 N Shartel Ave Ste 906 Oklahoma City, OK 73103 Phone: (405) 633-3420 Fax: (405) 446-8413 Email: Frank@Urbanic.Law Attorney for Plaintiffs Page 18 of 18cme S20—1E072SLP Dossmam Fes O4RIRD Page Le J. Kevin Stitt FILED Office of the Governor State of Oklahoma waR 15 2tz0 OKLAHOMA SECRETARY EXECUTIVE DEPARTMENT OF STATE EXECUTIVE ORDER 2020-07 On March 15, 2020, the eighth case of a novel coronavirus (“COVID-19"), was confirmed in the State of Oklahoma. As noted in a previous Executive Order, the United States Centers for Disease Control and Prevention has identified the potential public health threat posed by COVID-19 as “high” both globally and in the United States. In addition, on March 14, 2020, the President of the United States declared a national health emergency in the United States as a result of the national spread of COVID-19. While impact in Oklahoma has continued to be relatively minimal to date, it is increasingly important for Oklahoma to be ready for this threat. Therefore, I believe, after consultation with numerous health experts within my administration, it is now necessary to provide for the rendering of mutual assistance among the State and political subdivisions of the State and to cooperate with the Federal government with respect to carrying out emergency functions during the continuance of the State emergency pursuant to the provisions of the Oklahoma Emergency Management Act of 20. Therefore, I, J. Kevin Stitt, Governor of the State of Oklahoma, pursuant to the power vested in me by Section 2 of Article VI of the Oklahoma Constitution, hereby declare and order the following: 1. There is hereby declared an emergency caused by the impending threat of COVID-19 to the people of this State and the public's peace, health, and safety. The counties included in this declaration are: AIL 77 Oklahoma Counties 2, The State Emergency Operations Plan has been activated, and resources of all State departments and agencies available to meet this emergency are hereby ‘committed to the reasonable extent necessary to prepare for and respond to COVID-19 and to protect the health and safety of the public. These efforts shall be coordinated by the Director of the Department of Emergency Management with comparable functions of the federal government and political subdivisions of the State. 3. State agencies, in responding to this emergency, may make necessary emergency acquisitions to fulfill the purposes of this declaration without regard to limitations or bidding requirements on such acquisitions to include the use of EXHIBIT) __ SRCUTELAIENG + BOKINCA Bye \ OF PAGES “A7I* wmSIEG T8z0S0cucesapevanr.sLh Document Find o4zIn0 Pape ot the state purchase card, Such necessary emergency purchases shall be capped at $250,000.00 per transaction. All such purchases must be readily identifiable as such, as following the conclusion of this threat, all such necessary emergency acquisitions will be audited to determine if they were made for emergency purposes. 4. State agencies, in responding to this emergency, may employ additional staff without regard to the classification requirements of such employment. 5. State agencies shall continue to follow guidance for interaction with the public provided by the Oklahoma Department of Health. In addition, I direct all state agencies as follows: 1. Transmit a clear delegation of authority for state agency directors and designate an Emergency Management Liaison by 5:00 p.m. on March 16, 2020; 2. Establish and, if necessary, implement a remote work policy that balances the safety and welfare of state employees with the critical services they provide; 3. Encourage Oklahomans interacting with agency services to utilize online options whenever possible; 4, Ensure continued compliance with Executive Order 2019-13, which limits non- essential out-of-state travel. 5. Promulgate any emergency rules necessary to respond to the emergency and to comply with the directives contained herein. This Order shall be effective until the end of thirty (30) days after the filing of this Order. Copies of this Executive Order shall be distributed to the Director of Emergency Management, the Oklahoma State Health Commissioner, and the Director of the Office of Management and Enterprise Services who shall cause the provisions of this Order to be implemented by all appropriate agencies of State government. IN WITNESS WHEREOF, I have set my hand and caused the Great Seal of the State of Oklahoma to be affixed at Oklahoma City, this 15th day of March, 2020.cusesanevo0aresiP Oona ts Fusouzan0 Page sole BY THE GOVERNOR OF THE STATE OF OKLAHOMAFILED J. Kevin Stitt NOV 16 azo Office of the Governor OKLAHOMA SECRETARY State of Oklahoma OF STATE EXECUTIVE DEPARTMENT SEVENTH AMENDED EXECUTIVE ORDER 2020-20 On November 16, 2020 the 156,857" case of a novel coronavirus (“COVID-19"), was confirmed in the State of Oklahoma. As noted in a previous Executive Order, the United States Centers for Disease Control and Prevention (“CDC”) has identified the potential public health threat posed by COVID-19 as “high” both globally and in the United States. In addition, on March 14, 2020, the President of the United States declared a national health emergency in the United States as a result ofthe national spread of COVID-19. On March 15, 2020, l issued Executive Order 2020-07, which was last amended in Eighth Amended Executive Order 2020-07, declaring an emergency caused by the impending threat of COVID-19 to the people of this State and the public’s peace, health, and safety, and I have issued a series of Executive Orders over the last few months addressing this health crisis, the last of which, Sixth Amended Executive Order 2020-20, was issued on October 24, 2020. This health crisis still exists, and still needs to be addressed in various ways by Executive Order. As COVID-19’s impact continues to affect our State and its citizens, it is important to continue to take measures to protect all Oklahomans against this threat. Therefore, I believe, after consultation with numerous health experts within my administration, it is still necessary to provide for the rendering of mutual assistance among the State and political subdivisions of the State and to cooperate with the Federal Government with respect to carrying out emergency functions during the continuance of the State emergency pursuant to the provisions of the Oklahoma Emergency Management Act of 2003. In view of the foregoing, I,J. Kevin Stitt, Governor of the State of Oklahoma, pursuant to the power vested in me by Section 2 of Article VI of the Oklahoma Constitution hereby declare and order the following: 1, There is hereby declared an emergency caused by the threat of COVID-19 to the people of this State and the public’s peace, health, and safety. The counties included in this declaration are: All 77 Oklahoma Counties 2. The State Emergency Operations Plan has been activated, and resources of all State departments and agencies available to meet this emergency are hereby committed to the reasonable extent necessary to prepare for and respond to COVID-19 and to protect the health and safety of the public. These efforts shall bbe coordinated by the Director of the Department of Emergency Management EXHIBIT PAGE __\_OF PAGES 4690608 al subd with comparable functions of the federal government and pol of the State. State agencies, in responding to this emergency, may make necessary emergency acquisitions to fulfill the purposes of this declaration. If using a P-Card to make such acquisitions, agencies may purchase the necessary acquisitions without regard to the current P-Card policy limitation of $5,000.00 purchase limit. Agencies may make the necessary emergency acquisitions without the requirement to follow bidding requirement/limitations on such emergency acquisitions, without the need to purchase from State Use Vendors, or to purchase from mandatory Statewide contracts. Such necessary emergency purchases shall be capped at $250,000.00 per transaction. All such purchases must be readily identifiable as such, as following the conclusions of this threat, all such necessary emergency acquisitions will be audited to determine if they were made for emergency purposes. State agencies, in responding to this emergency, may employ additional staff without regard to the classification requirements of such employment. State agencies engaging in rulemaking as set forth in 75 OS. § 303 may conduct virtual public comment hearings via videoconference, The requirement in Amended Executive Order 2019-3 that the Chief Administrative Officer request and obtain approval from the Cabinet Secretary for an exemption to the personnel freeze for agencies under the Secretary of Health and Mental Health shall be waived. ‘State agencies shall continue to follow guidance for interaction with the public provided by the Oklahoma State Department of Health (*OSDH”). Emergency responders employed by the State of Oklahoma who are correctional officers, law enforcement officers, and fire personnel shall not be excluded from the application of and benefits under the Emergency Paid Sick Leave Act of the Families First Coronavirus Response Act (“FFCRA”) if: a. They are subject to a coronavirus quarantine or isolation order; b. They have been advised by a healthcare provider to self-quarantine due to coronavirus concerns; or ¢. They are experiencing symptoms of coronavirus and are seeking a medical diagnosis. In addition, I direct as follows: 1 2. All State agencies shall continue to transmit a clear delegation of authority for state agency directors and designate an Emergency Management Liaison. Alll State agencies shall establish and, if necessary, implement a remote work policy that balances the safety and welfare of state employees with the critical services they provide.3. All State agencies shall encourage Oklahomans interacting with agency services to utilize online options whenever possible. Alll State agencies shall ensure continued compliance with Executive Order 2019-13, which limits non-essential out-of-state travel. Alll State agencies shall promulgate any emergency rules necessary to respond to the emergency and to comply with the directives contained herein. All occupational licenses extended during any previous Order, including Fifth ‘Amended Exeuctive Order 2020-20 will expire sixty (60) days following the issuance of this Order. Any medical professional who holds a license, certificate, or other permit issued by any state that is a party to the Emergency Management Compact evidencing the meeting of qualifications for the practice of certain medical services, as more particularly described below, shall be deemed licensed to practice in Oklahoma so Tong as this Order shall be in effect, subject to the following conditions: a. This shall only apply to Medical (MD) and Allied Licenses issued by the Board of Medical Licensure and Supervision, Licenses issued by State Board of Osteopathic Examiners, and Licenses and Certificates issued by the Board of Nursing, all three shall collectively be referred to as “Boards”; b. Any medical professional intending to practice in Oklahoma pursuant to this Order, hereinafter referred to as “Applicant,” shall first apply with and receive approval from appropriate Board; c. It is the responsibility of each Board to verify the license status of any applicant and, upon verification of good standing, shall issue a temporary license to practice within this State; and sant licensed under this Order shall be subject to the oversight and ir lity of the Board related to any alleged misconduct of the applicant. Hospitals and Physician Clinics (collectively referred to as “hospitals”) operating in the State shall cooperate with and respond to all requests for critical data from the OSDH, as applicable to the services they provide. This shall include, but will not be limited to, the daily submission, no later than noon, of critical data in a manner and format prescribed by OSDH. Critical Data shall include, but not be limited to: a. The number of available (i) ICU beds, (ii) medical surgery beds, (iii) ventilators, (iv) anesthesia machines capable of patient ventilation; b. The number of (i) positive patients and persons under investigation in10. 12, under investigation sent home for self-quarantine; and ©. Personal Protective Equipment stock on hand. Every public or private entity that is utilizing, or has utilized, an FDA-approved test, including an emergency use authorization test, for human diagnostic purposes of COVID-19, shall submit to OSDH, as well as to the local health department, reports in a format prescribed by OSDH on a daily basis (or as often as new specimens have been received or processed) of al test results, both positive and negative, the number of test supplies available, and the number of ‘samples/specimens received and pending processing, for all days from the date hereof forward. In addition, OSDH shall promptly share this information with ‘the CDC. ‘The OSDH shall provide an aggregated summary of the information requested in the preceding paragraphs to the Office of the Governor by 3:00 p.m. of each weekday. Telemedicine shall be used to maximum potential and shall be allowed for non- established patients for the purposes of the COVID-19 response. The preexisting patient relationship requirement for telemedicine, as required by 59 O.S. § 478.1, ‘only applies to the prescribing of opiates and other controlled dangerous substances. 59 O.S. § 478.1 already allows the physician to see patients using telemedicine without the prior establishment of the physician patient relationship. ‘Nothing in this Order shall waive or authorize waiver of 59 O.S. § 478.1 (C) for the purpose of prescribing opiates and other controlled dangerous substances referenced therein nor waive or authorize the waiver of any other statutory prohibition, restriction, or regulation of telemedicine. Oklahoma State regulations requiring Clinical Laboratory Improvement Amendment (“CLIA”) certification for testing laboratories are hereby suspended for the universities named below and for the narrow purposes During this suspension, laboratories operated by or through the University of Oklahoma, including the OU Medicine Laboratory, and ‘Oklahoma State University are authorized to conduct testing and testing-related activities in response to the COVID-19 pandemic. Further, the Oklahoma Commissioner of Health, acting through and on behalf of OSDH, is hereby authorized to contract with the Board of Regents for the Oklahoma Agricultural and Mechanical Colleges, the Board of Regents for the University of Oklahoma, and/or their constituent agencies and the OU Medicine Laboratory, to perform laboratory tests and test-related activities, without regard to CLIA certification requirements, as necessary to detect and report COVID-19 infection in compliance with applicable law. The Commissioner of Health is authorized to negotiate and execute any and all agreements and terms necessary to execute and implement this provision.14, 16. 7. 18, 19. All citizens of Oklahoma (but particularly adults over the age of sixty-five (65) and people of any age who have serious underlying medical conditions collectively referred to as “vulnerable individuals”) are encouraged to regularly consult the OSDH’s COVID-19 Alert System (www.coronavirus health.ok.gov/covid-19-alert-system) and follow the Guidelines published therein for their County of residence. Vulnerable individuals are strongly encouraged to follow the “General Guidelines for High-Risk Individuals” on OSDH’s Alert System website described above. For those vulnerable individuals living in Counties color-coded Orange or Red on the OSDH’s Alert System website, such individuals should consider staying in their home or place of residence except for working in a critical infrastructure sector and conducting essential errands. Essential errands shall mean those errands which are critical to everyday life and includes obtaining medication, groceries, gasoline, and visiting medical providers. Vulnerable individuals are also encouraged to use delivery and/or curbside services whenever available. Unless otherwise specified in the Open Up and Recover Safely (“OURS”) Plan on the Oklahoma Department of Commerce website, individuals should follow CDC guidelines for social distancing and gathering in groups. Alll businesses should adhere to the statewide OURS Plan as provided on the ‘Oklahoma Department of Commerce website. Visitation, outings, group meals and communal dining at nursing homes, long ‘term care facilities, and retirement homes shall be in accordance with guidance issued by the OSDH based on recommendations from the CDC. {All delivery personnel including package, floral, and food delivery shall, at the request of a hospital, clinic, long-term care facility, or childcare facility submit to a screening prior to delivering goods. Such screening shall include a temperature check and may include a short questionnaire about potential exposure. Additionally, package delivery drivers must take their own temperature daily and shall not deliver packages if it registers over 100.4 degrees Fahrenheit. Questionnaires shall include questions about recent travel to areas with significant community spread and personal contact with individuals who have tested positive for COVID-19. As supporting front-line healthcare workers is essential to our battle against COVID-19, front-line healthcare workers and their children, who have not tested positive for COVID-19 and are not otherwise exhibiting the symptoms thereof, shall not ~ simply because they are healthcare workers or children of healthcare workers be discriminated against in housing or childcare services. Any statutory or rule-based time requirements for completing training and becoming certified as a peace officer for duly appointed or elected peace officers during the existence of this emergency are hereby waived during the period of the emergency and for thirty days after the emergency is declared to20. ai. 22. 23. be over. Any requirements that county reserve deputies, municipal reserve officers, or other duly appointed reserve peace officers in this State be CLEET-certified prior to serving in an individual capacity or be accompanied by a CLEET- certified peace officer prior to becoming CLEET-certified are hereby waived during the period of the emergency and for thirty days after the emergency is declared to be over. Any such reserve deputy, municipal reserve officer, or other duly appointed reserve peace officer must be commissioned and authorized by his or her appointing agency's head or designee before being allowed to work as a peace officer under this provision. lll persons who enter the State of Oklahoma from another state or country are ed to. follow © CDC_— travel © guidelines found at /Jeoronavirus.health.ok. gov/travel. hw The OSDH shall continue to work with the Oklahoma State Department of Education to further refine a plan for COVID-19 testing of every Teacher, as defined by 70 OS. § 1-116, and Support Employee, as defined by 70 OS. § 1-116. The Plan should continue to prioritize the testing of people physically working in school buildings and may, as originally directed, include creating private-public partnerships to increase testing capacity and coordinating with County Health Departments and other stakeholders, as necessary. Neither the Plan nor this provision shall limit the ability of a local board of education to provide for additional testing. ‘The Oklahoma Department of Agriculture, Food, and Forestry shall: a. Assist in the depopulation of any animals that are unable to be processed at available processing facilities due to COVID-19. b. Assist in the disposal of animal carcasses resulting from euthanasia in a ‘manner that protects the environment, does not create a public health hazard, does not result in contamination of public or private drinking water supplies, and ensures watersheds and groundwater are adequately protected pursuant to 2 O.S. § 20-10(B). Utilize all necessary equipment and manpower available and to freely move the equipment and manpower across state lines in cooperation with bordering states. 4. Cooperate with appropriate agencies, including but not limited to Oklahoma Department of Transportation, Oklahoma Department of Public Safety, and Oklahoma Department of Environmental Quality to ensure roadways are protected and all solid wastes are managed and disposed of appropriately. ©. Ensure ease of licensing, including the use of umbrella licensing, for24. 25. 26. vehicles utilized to move animal carcasses. Effective November 17, 2020, and except as otherwise provided herein, all persons on property, including buildings and office space, owned or leased by the State of ‘Oklahoma shall wear a facial covering or mask over the mouth and nose at all times where physical distancing measures may be difficult to observe, This only applies to persons while indoors or when in an outdoor space, wherever it isnot feasible to ‘maintain six feet of social distance from another person. Facial coverings or masks ‘are not required in the following circumstances: a In state owned and leased vehicles, if only occupied by one occupant; b, When a person is alone in an enclosed space; c. When the individual has a bona fide religious objection to wearing a facial covering or mask; d. While eating or drinking; e. When a licensed healthcare provider has determined that wearing a facial covering or mask causes or aggravates a health condition for the individual; £ When wearing a facial covering or mask would prevent the receipt of services or performing work in the course of employment; & ‘When complying with the directions of law enforcement or for the purposes of verifying a person's identity; and h. Children under the age of 10. Effective November 19, 2020, restaurants and bars shall ensure a minimum of six (6) feet of separation between parties or groups at different tables, booths, or bar tops, unless the tables are separated by properly sanitized glass or plexiglass. Effective November 19, 2020, food or beverages of any kind shall not be sold, dispensed, or served for on-premises consumption by any license holder authorized to make such sales or services after 11:00 P.M. CST daily. The sale and service of food and non-alcoholic beverages for on-premises consumption may resume at 5:00 AM. CST daily. The sale and service of alcoholic beverages for on-premises consumption may resume at 8:00 A.M. CST daily. Further, I hereby order the temporary suspension of the following as they apply to vehicles in the support efforts: The cost and fees of oversize/overweight permits required of carriers whose sole purpose is transportation of materials, equipment, and supplies used for recovery/relief efforts which require an overweight permit under Title 47 of ‘Oklahoma statutes.By execution of this Order, motor carriers and drivers providing direct assistance in support of relief efforts related to the COVID-19 outbreaks are granted emergency relief from Parts 390 through 399 of Title 49 Code of Federal Regulations, except as restricted herein, and consistent with regulatory relief granted by the Federal Motor Carrier Safety Administration. Direct assistance means transportation and other relief services provided by a motor carrier or its driver(s) incident to the immediate restoration of essential services, such as medical care, or essential supplies such as food, related to COVID-19 outbreaks during the emergency. This Emergency Declaration provides regulatory relief for commercial ‘motor vehicle operations that are providing direct assistance in support of emergency relief efforts related to the COVID-19 outbreaks, including transportation to meet immediate needs for: (1) medical supplies and equipment related to the testing, diagnosis and treatment of COVID-I9; (2) supplies and equipment necessary for community safety, sanitation, and prevention of community transmission of COVID-19 such as masks, gloves, hand sanitizer, soap and disinfectants; (3) food for emergency restocking of stores; (4) equipment, supplies and persons necessary to establish and manage temporary housing, quarantine, and isolation facilities related to COVID-19; (5) persons designated by Federal, State or local authorities for medical, isolation, or quarantine purposes; (6) persons necessary to provide other medical or emergency services, the supply of which may be affected by the COVID-19 response; (7) fuels and petroleum products (to include fuel oil, diesel oil, gasoline, kerosene, propane, and liquid petroleum); and (8) livestock, poultry, feed for livestock and poultry, and crops and other agricultural products ready to be harvested. Direct assistance does not include routine commercial deliveries, or transportation of mixed loads that include essential supplies, equipment and persons, along with supplies, equipment and persons that are not being transported in support of emergency relief efforts related to the COVID-19 outbreaks. Direct assistance terminates when a driver or commercial motor vehicle is used in interstate commerce to transport cargo or provide services that are not in support of emergency relief efforts related to the COVID-19 outbreaks or when the motor carrier dispatches a driver or commercial motor vehicle to another location to begin operations in commerce. 49 CFR 390.23(b). Upon termination of direct assistance to emergency relief efforts related to the COVID-19 outbreaks, the motor carrier and driver are subject to the requirements of 49 CFR Parts 390 through 399, except that a driver may return empty to the motor carrier's terminal or the driver's normal work reporting location without complying with Parts 390 through 399. However, if the driver informs the motor carrier that he or she needs immediate rest, the driver must be permitted at least10 consecutive hours off duty before the driver is required to return to the motor carrier's terminal or the driver's normal reporting location. Once the driver has returned to the terminal or other location, the driver must be relieved of all duty and responsibilities and must receive a minimum of 10 hours off duty if transporting property, and 8 hours if transporting passengers. 3. The requirements for licensing/operating authority as required by the Oklahoma Corporation Commission. 4, The requirements for licensing/registration authority as required by the Oklahoma Tax Commission. ‘Nothing contained in this Order shall be construed as an exemption from the Controlled Substance and Alcohol Use and testing requirements. (49 C.F.R. part 382), the Commercial Driver License requirements (49 C.F.R. part 383), the Financial Responsibilities requirements (49 C.F.R. part 387), or any other portion of the regulations not specifically identified herein. Motor carriers that have an Out-of- Service Order in effect cannot take advantage of the relief from regulation that this declaration provided. This Order shall be effective until the end of thirty (30) days after the filing of this Order. Copies of this Executive Order shall be distributed to the Director of Emergency Management, the Oklahoma State Health Commissioner, the Commissioner of the Department of Publi Safety, the Director of the Office of Management and Enterprise Services, the Oklahoma Tax Commission, and the Oklahoma Corporation Commission who shall cause the provisions of this Order to be implemented by all appropriate agencies of State government. IN WITNESS WHEREOF, I have set my hand and caused the Great Seal of the State of Oklahoma to be affixed at Oklahoma City, this 16 day of November, 2020. BY THE GOVERNOR OF THE STATE OF OKLAHOMA Sa Se TKEVIN STITT