The Journal Gazette
Saturday, October 30, 2021 1:00 am

Restaurant weighs options in mask suit

In Facebook post, Yergy's in Bluffton says fight continues

DEVAN FILCHAK | The Journal Gazette

A Bluffton business will likely push back after a Wells County judge's decision to dismiss a lawsuit it filed against Gov. Eric Holcomb, the state and the health department.

The lawsuit was filed in December by the owners of Yergy's State Road BBQ against the Wells County Health Department, Holcomb and the state of Indiana, saying the business was improperly closed for violating masking requirements and capacity limits.

Yergy's lawsuit challenged the health department's order, arguing the health department didn't have the authority to shut the restaurant down in the first place. It challenges every executive order the governor put in place during the pandemic, as well as the Emergency Disaster Law the governor used for the executive orders.

The mask mandate was lifted by the governor in April, and Yergy's reopened in May.

Wells Circuit Judge Kenton Kiracofe dismissed the lawsuit, ruling the case is now moot because the primary issues raised aren't in effect.

Yergy's posted to Facebook that the restaurant's leadership is “leaning heavily” toward an appeal.

“We are going to keep standing up for our rights to own a business and operate it with the same freedom we had prior to a virus that has been heavily politicized to hurt the middle class, small business owners and individual liberties,” it stated. “We were hoping for some help from the courts, however that didn't happen, so we will fight on in a thousand different ways to end tyranny in the state of Indiana.”

Kiracofe said the court “is sympathetic to the hardship the government's response to the pandemic has caused” the restaurant as well as all Hoosiers affected by Holcomb's mask mandate.

“While (Yergy's) argues that even if the issues presented are now moot, the issues presented are of great public interest,” Kiracofe said in his order. “While this court may agree that there are interesting constitutional issues presented during this uncertain period of Indiana's history, the ability of a trial court to issue, essentially, an advisory opinion is contrary to the precedent of Indiana law.”

Kiracofe isn't the first judge in northeast Indiana to dismiss a lawsuit regarding statewide COVID-19 orders for being moot. Allen Superior Court Judge Jennifer DeGroote dismissed a lawsuit filed by Ceruti's Catering Inc. in September, also declaring that case moot.

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