Madsen's Bowling & Billiards lost the first round in its lawsuit seeking to challenge the city's directed health measures aimed at preventing the spread of COVID-19.
But the case is far from over. District Judge Michael A. Smith gave the business's attorney a chance to amend the complaint to add Lancaster County.
In dual decisions Tuesday, Smith granted the city's motion to dismiss two of Madsen's three claims for monetary relief and denied a motion for an injunction that would have blocked the city from enforcing mask mandates and other local directed health measures as the civil lawsuit works its way through court.
"An injunction under Nebraska law is deemed to be an extraordinary remedy that ordinarily should not be granted except in a clear case where there is actual and substantial injury," the judge wrote.
In addition, Smith said that he disregarded allegations made in affidavits offered by attorney Chris Ferdico regarding the applicability of the Americans with Disabilities Act and a claim that the city was delegating its police powers to carry out requirements of the directed health measures onto businesses.
"Those statements are conclusions of law, lacking foundation, and appear to be misstatements of the law," the judge wrote.
Ferdico is representing Madsen's and 15 other business owners facing dozens of criminal charges tied to the local coronavirus restrictions.
On the motion to dismiss, Smith said Madsen's spent considerable time alleging the DHMs issued by the Lincoln-Lancaster County Health Department were void because they exceeded the state's rules. The judge said he was skeptical there was support for a finding that they were illegal, given state statutes that give the health department its powers, but declined to make determinations at this time.
Ferdico said Tuesday while the judge didn't grant the temporary injunction, he also didn't dismiss any of their claims outright, like the city asked. Which Ferdico sees as a win.
"On every issue we live to fight another day," he said.
Ferdico said while they still are in the beginning stages of litigation, they "remain anxious to move this matter forward. One of our biggest concerns in this case has been the lack of transparency regarding the Health Department’s process and decision-making. We look forward to being able to shine a light on this process, so our elected and appointed officials are accountable."
In the suit, Madsen's is alleging the city, Mayor Leirion Gaylor Baird, Health Director Pat Lopez and former Police Chief Jeff Bliemeister were carrying out a mandate without legal authority and threatening businesses with shutdown, civil penalty and criminal enforcement.
At a hearing in January, Ferdico noted disputes over the science and the validity of studies that health officials are relying on. He said that was why the businesses were asking the court to "hit pause" as it sorts through the complicated issues.
The city fought the move to halt the DHM's enforcement, saying they were necessary to protect the public.
Madsen's has alleged that the DHMs, including everything from mask mandates to capacity restrictions to early closing times, are ineffective, setting up a battle of medical opinions that city officials have said they would embrace.
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