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Quarles, Agritourism Challenge Kentucky COVID Executive Orders
Kentucky Ag Connection - 06/30/2020

Agriculture Commissioner Dr. Ryan Quarles filed a lawsuit today in the Scott Circuit Court in Georgetown to declare several of Governor Andy Beshear's executive orders to be violations of the processes outlined by Kentucky's Administrative Practices Act and the state constitution. Commissioner Quarles filed the case alongside Evans Orchard and Cider Mill, LLC, which joins him as a co-plaintiff in the case.

"The Evans Family has put public health first every step of the way during the coronavirus pandemic," said Commissioner Quarles. "But they have also suffered immense financial losses due to restrictions issued by the Governor during the State of Emergency. While the orders may be well-intentioned, they violate the Administrative Practices Act, which contains significant protections for input from the public and the General Assembly during the rulemaking process."

"Every Kentuckian wants to do the right thing to flatten the curve and save lives, but these orders have significantly burdened small businesses -- especially through their haphazard and selective enforcement. In this case, the agencies responsible for communicating and implementing have been slow to provide guidance to this business," Commissioner Quarles added. "For agritourism businesses across the state, peak season is approaching in September and October. Our farm families need answers now."

Evans Orchard and Cider Mill, LLC is a fifth generation family farm-owned agritourism destination in Georgetown, offering a u-pick orchard, a 96,000 square foot playground, and a converted barn facility that can be rented for weddings and other events. During the pandemic, Evans Orchard adopted new public health guidelines. Measures taken by the agribusiness included reducing capacity to allow for social distancing, requiring customers and employees to wear facemasks, and doubling down on efforts to sanitize frequently touched surfaces.

However, the complaint contends the orders from the Beshear Administration violated Kentucky law because they do not follow the procedures required by the Administrative Practices Act. Evans Orchard has worked with the local health department in Scott County to comply with the orders for public facing business and outdoor attractions. In one instance, a public health official told Evans Orchard they could not allow more than 10 individuals into its 96,000 square foot attraction at a time. In another, a local public health official waited five days before responding to an inquiry about reopening to the public. As a result of these burdens, Evans Orchard has experienced major financial losses. So long as certain executive orders remain in place, Evans Orchard will be unable to operate the playground and event venue profitably for the remainder of the calendar year.

"The Administrative Practices Act sets up important guardrails to ensure the right of the people to participate in the policy-making process," said Joe Bilby, the Department of Agriculture's attorney. "In an emergency, the law allows the government to promulgate a regulation that takes effect immediately, but it also preserves everyone's right to participate in the notice-and-comment process. Allowing everyone to be heard makes the policy results better for all of us. For more than 100 days now, the Governor has imposed extraordinary restrictions on Kentuckians' liberties without following the procedure required by law. It's time for that to stop."

"Evans Orchard is a family-operated business in a small, rural community and we want to be able to open in a way that respects public health guidelines and also protects our family, friends, and customers," said Jenny Evans, of Evans Orchard and Cider Mill, LLC. "That's why we have been so proactive in reaching out to our local health department: we want to do what is right to protect everyone. However, the reality of these orders, and the way they have been issued and enforced, have set our dreams back for years. I pray our community understands that we take these actions today to protect everything we've invested into our small family farm."

The filing in the Scott Circuit Court also argues that the actions taken by the Governor in a state of emergency violate Sections 2, 27, 28, and 29 of the Kentucky Constitution. The plaintiffs also argue the process of issuing these orders has "sideline[d] members of the public (and the General Assembly)," both of whom have legal rights to participate in the policy-formulation process.

"In times of crisis, power is stretched in ways that establishes precedents that we may come to regret. It's important to be vigilant in guarding our principles - even during a pandemic," Commissioner Quarles said. "Given the continued spread of the virus, should Kentucky's re-opening be halted or rolled back it is incredibly important the Administrative Practices Act be followed. Our aim is to ensure public health is protected, the American dream is preserved, and that our laws and institutions mean something."


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