420 CV 00656 RLW

Case: 4:20-cv-00656-RLW Doc.
#: 1 Filed: 05/18/20 Page: 1 of 40 PageID #: 1
UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
F FOUR, LLC, d/b/a “House of Pain )

Gym”, )
)
JOSEPH L. CORBETT, )
)
and )
)
MORRIS E. TUREK, )
)
Plaintiffs, )
)
v. ) Case No.:
)
ST. LOUIS COUNTY EXECUTIVE, ) JURY TRIAL DEMANDED
SAM PAGE, individually and in his )
official capacity, )
)
ST. LOUIS COUNTY ACTING )
DIRECTOR, DEPARTMENTOF )
PUBLIC HEALTH, EMILY )
DOUCETTE, individually and in her )
)
and )
)
ST. LOUIS COUNTY COUNSELOR, )
BETH ORWICK, individually and in her )
)
Defendants. )
COMPLAINT FOR DAMAGES,

DECLARATORY JUDGMENT, AND INJUNCTIVE RELIEF, 42 U.S.C. §1983
COME NOW F Four, LLC d/b/a “House of Pain Gym” (“HOP”), Joseph L. Corbett
(“Corbett”), and Morris E. Turek (“Turek”), and for their Complaint against Sam Page (“Page”),
St. Louis County Executive, individually and in his official capacity, Emily Doucette (“Doucette”),
Acting Director of the St. Louis County Department of Public Health, individually and in her
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Case: 4:20-cv-00656-RLW Doc. #: 1 Filed: 05/18/20 Page: 2 of 40 PageID #: 2
official capacity, and Beth Orwick (“Orwick”), individually and in her official capacity, state and
allege as follows:
INTRODUCTION
1. Plaintiffs come before this honorable Court to vindicate the essential liberty
principle that even during times of crisis, and perhaps especially in times of crisis, the rights and
freedoms enshrined in the United States Constitution are worth protecting and fighting for.
2. This Court is, of course, well-aware of the current COVID-19 pandemic. Plaintiffs
neither doubt nor minimize the seriousness of the COVID-19 pandemic or that this virus seems
particularly dangerous to people who are elderly, obese, and immunocompromised or who suffer
from other serious underlying health conditions.
3. Fortunately, it appears most people who get the virus experience only mild to no
symptoms and the overall survival rate in the United States appears to be well over 99%. Just as
fortunately, as of the date of this filing, upon information and belief, COVID-19 hospitalizations
(BJC, Mercy, SSM, and St. Luke’s) for the greater St. Louis metropolitan area have been trending
down over the last several weeks. The same appears to be true for the new reported cases.
Unfortunately, viruses are a fact of life human beings have always had to live with, and will always
have to live with.
4. What is at issue in this case is that the actions of the Defendants, even if taken in
good faith initially, have gone too far and are needlessly infringing upon some of our citizens’
most essential freedoms and liberties which are enshrined in our Constitution.
5. The Defendants’ conduct alleged herein, under color of state law, have also been
taken in violation of the very state laws they claim authorize their conduct and in contravention of
the County’s own orders and ordinances.
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6. These infringements on certain of our Constitutional rights would have been
unimaginable in our freedom-loving country before COVID-19.
7. After the onset of the COVID-19 pandemic, federal, state and local government
officials began implementing measures intended to “flatten the curve” with respect to the spread
of the virus.
8. The President and the Governor of the State of Missouri declared states of
emergency.
9. The State of Missouri took measures intended to ensure the government response
to COVID-19 was clear, uniform and coordinated using state-wide regulations issued by the
Director of the Missouri Department of Health and Human Services (“MDHSS”).
10. During the COVID-19 pandemic, St. Louis County Government, through various
orders issued by Defendants Page and Doucette, mandated that St. Louis County, Missouri citizens
stay at home, with only certain limited exceptions, and that businesses in St. Louis County cease
operation, with certain exceptions. For ease of reference, these orders are referred to hereinafter
collectively as “County Stay at Home Orders.”
11. County Executive Page, claiming he had the authority to do so under the Missouri
Constitution and Statutes of the State of Missouri, declared a state of emergency for the entirety
of St. Louis County and, relying on that County-wide declaration of a state of emergency, the
Defendants adopted certain other orders as emergency measures intended to attempt to curtain the
transmission of COVID-19.
12. Plaintiffs maintain that Page’s legal authority to declare a state of emergency is
limited to unincorporated areas of St. Louis County. The municipalities situated within St. Louis
County are separate political subdivisions of the State of Missouri. The individual executive
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officers of each of those political subdivisions have authority to declare a state of emergency within
their respective territorial limits. But Page has no constitutional or statutory authority to declare a
state of emergency within any municipality located inside St. Louis County.
13. Plaintiff F Four, LLC owns and operates two gyms in St. Louis County, Missouri
which do business under the properly registered fictitious name “House of Pain Gym.” It is the
sole owner and operator of those gyms.
14. One of the gyms is entirely within the territorial limits of the City of Chesterfield,
a municipality that is a political subdivision situated in the County.
15. The other gym is entirely within the territorial limits of the City of Maryland
Heights, a municipality that is a political subdivision situated in the County.
16. Plaintiff Corbett owns F Four, LLC and is also its manager.
17. Plaintiff Turek is a House of Pain Gym member.
18. During the entirety of the County Stay at Home Orders, Plaintiffs complied with
the State of Missouri’s stay at home orders and with the “County Stay at Home Orders.”
19. During the County Stay at Home Orders, to their great financial harm, Corbett and
HOP closed the House of Pain gyms to the public. They remained closed to the public until May
4, 2020.
20. In late April of 2020, President Trump adopted the “Opening America Up Again
Guidelines” (the “Presidential Guidelines”). The Presidential Guidelines are published on the
White House website at https://www.whitehouse.gov/openingamerica/ (last checked May 17,
2020).
21. The Presidential Guidelines include “Phase One” guidelines for “Specific Types of
Employers.” Id.
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22. Gyms are specifically, clearly, and unambiguously included in the “Phase One
Guidelines for Specific Types of Employers.” Pursuant to the Presidential Guidelines, “Gyms can
be open if they adhere to strict physical distancing and sanitation protocols.” Id. (emphasis
added).
23. By order of the Director of MDHSS dated April 27, 2020, Phase One of the State
of Missouri’s “Show Me Strong Recovery Plan” went into effect for the entire State of Missouri
on May 4, 2020 (the “State Order”). A copy of the State Order is attached to this Complaint as
Exhibit A.
24. The Presidential Guidelines were incorporated by reference into the April 27 State
Order (by three separate references in fact).
25. The April 27 State Order allows all businesses (i.e., including gyms because they
are included in Phase One under the Presidential Guidelines) to reopen as long as they do so in
compliance with the Presidential Guidelines, the State Order, and local health ordinances,
regulations and orders that are not inconsistent with the State Order.
26. The State of Missouri’s adoption of the Presidential Guidelines permitting gyms to
open in Phase One is repeated on the Governor’s official state website:
(https://governor.mo.gov/show-me-strong-recovery-plan-guidance-and-frequently-asked-
questions (last checked May 17, 2020).
27. According to the Governor’s “Show Me Strong Recovery Plan: Phase I Guidelines
and Frequently Asked Questions”…“Gyms and hotel swimming pools can also open if they
adhere to strict social distancing and sanitation protocols.” Id. (emphasis added).
28. The Show Me Strong Recovery Plan “Frequently Asked Questions” include the
following guidance from the Governor:
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“This order applies to ALL Missouri businesses.” Businesses that

are categorized as “essential” by the federal government should
continue current operations, and incorporate our General Guidelines
for Business outlined above. Businesses that were considered “non-
essential” by the federal government may resume operations in
Missouri in accordance with the Order and these guidelines.”
Id. (emphasis in original).
29. The State Order provides that “…nothing herein shall limit the right of local
authorities to make such further ordinances, rules, regulations, and orders not inconsistent with
this Order which may be necessary for the particular locality under the jurisdiction of such local
authorities.” (Ex. A, emphasis added)
30. That language is in keeping with the statutory limitation on local health agency
authority codified at Mo.Rev.Stat. §190.300, which sets forth in relevant part:
1. The county commissions and the county health center boards

of the several counties may made and promulgate orders,
ordinances, rules or regulations, respectively as will tend to enhance
the public health and prevent the entrance of infectious, contagious,
communicable or dangerous diseases into such county, but any
orders, ordinances, rules or regulations shall not:
(1) Be in conflict with any rules or regulations authorized

and made by the department of health and senior services in
accordance with this chapter or by the department of social
services… (Emphasis added).
31. Furthermore, Mo.Rev.Stat. §192.290 provides that:
All rules and regulations authorized and made by the department of

health and senior services in accordance with this chapter shall
supersede as to those matters to which this chapter relates, all
local ordinances, rules and regulations and shall be observed
throughout the state and enforced by all local and state health
authorities. Nothing herein shall limit the right of local authorities
to make such further ordinances, rules and regulations not
inconsistent with the rules and regulations prescribed by the
department of health and senior services which may be necessary
for the particular locality under the jurisdiction of such local
authorities. (Emphasis added).
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32. 19 CSR §20-20.050(3), sets forth, in relevant part:
The local health authority, the director of the Department of Health

and Senior Services or the director’s designated representative is
empowered to close any public or private school or other place of
public or private assembly when, in the opinion of the local health
authority, the director of the Department of Health and Senior
Services or the director’s designated representative, the closing is
necessary to protect the public health. However, in a statewide
pandemic, only the director of the Department of Health and
Senior Services or the director’s designated representative shall
have the authority to close a public or private school or other
place of public or private assembly. The director or designated
representative shall consult with the local health authorities prior to
any such closing. Any school or other place of public or private
assembly that is ordered closed shall not reopen until permitted by
whomever ordered the closure. (Emphasis added). 1
33. The State Order does not order gyms to close, nor does it confer upon any local
health official any authority to make any order inconsistent with the State Order in this regard.
34. In fact, the State Order says exactly the opposite – that local health authorities
specifically cannot make any ordinances, rules, regulations, or orders that are “inconsistent with
this Order…” (Ex. A, emphasis added).
35. The MDHSS director has issued no other order since the State Order that directs
any gyms or fitness centers closed.
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Apparently there was recently a proposed emergency rule that would have modified the language of 19 CSR §20-
20.050(3) to read, in pertinent part, as follows: “…However, in a statewide pandemic, as established by only the
director of the Department of Health and Senior Services or the director’s designated representative, such
individual shall have the authority to close a public or private school or other place of public or private school or
other place of public or private assembly…” However, that proposed emergency rule has not been published in the
Missouri Code of State Regulations (See: https://www.sos.mo.gov/cmsimages/adrules/csr/current/19csr/19c20-
20.pdf - last checked May 17, 2020) or as an adopted emergency rule on the Missouri Secretary of State’s website:
(See: https://www.sos.mo.gov/adrules/EmergenciesforInternet/emergency - last checked May 17, 2020).
For the Court’s reference, a true and correct copy of the aforementioned Emergency Rules web page is attached to
this Complaint as Exhibit F. It appears the proposed emergency rule change was either rejected by the Secretary of
State or was withdrawn. That is unclear. But, as of May 17, 2020, it appears it has not been published. In any
event, the proposed rule change would not change the legal analysis here.
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36. The MDHSS director has not issued any order designating any of the Defendants
(or any other person) any authority to order any place of public or private assembly closed after
May 4, 2020 – let alone the HOP gyms.
37. By way of comparison and contrast, in the State Order, the MDHSS director did
order that “schools shall remain closed for the remainder of the 2019-2020 school year.” (Ex. A,
¶5).
38. Had the MDHSS director intended that gyms and fitness centers generally, or any
specific gyms in particular, were to remain closed on or after May 4, 2020, the director certainly
could have said so in the same manner the closure of schools was addressed in the State Order.
39. In reliance on the State Order and the Presidential Guidelines incorporated therein
by reference, and the lack of statutory authority for the Defendants to order gyms closed
inconsistent with the State Order, on May 4, 2020, HOP and Corbett re-opened the gyms and
began operating them in under strict social distancing and sanitization protocols, as well as other
reasonable measures intended to mitigate against the spread of COVID-19 and other viruses.
40. Realizing that obesity and poor physical fitness are significant risk factors for a
potentially bad outcome if one becomes infected with COVID-19, Plaintiff Turek, and many
fitness enthusiasts like him who are also HOP gym members, wants to train and exercise at the
HOP gyms in order to maintain his physical and mental health and well-being.
41. HOP gym members are generally much healthier and physically fit than people in
the community who do not train and exercise.
42. HOP and Corbett are certainly capable of responsibly operating the gyms utilizing
social distancing, capacity limits, health inquiries, hand washing protocols, intensive cleaning,
sanitization procedures, and the like.
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43. In fact, the social distancing and sanitization protocols in force at the gyms are
much more robust than the vast majority of other businesses the County has arbitrarily allowed to
operate during the COVID-19 pandemic.
44. The HOP gyms are far less crowded than many other types of businesses that are
being allowed to operate in the County and that have been allowed to operate throughout the
entirety of the pandemic.
45. The HOP gym employees (who depend on their jobs to feed their families) are
actually quite well-versed in the use of enhanced cleaning and sanitization protocols. Many of
these were in use even before the COVID-19 pandemic.
46. Other St. Louis County businesses and places of public and private assembly, by
comparison, previously had relatively little to no awareness of disease and virus prevention
protocols, and are trying now to catch up to gyms like HOP.
47. In other words, Plaintiffs are well-suited - actually, better suited in many respects -
to protect the health and safety of those choosing to use the gyms, than many other places of public
or private assembly the County has arbitrarily allowed to stay open. A visit to any of the County’s
crowded Wal-Marts or hardware stores would clearly illustrate this indisputable fact for any
reasonable objective person.
48. At every gas station in the County, thousands of people touch the gas pump handles
and pay-at-the-pump credit card readers tens of thousands to hundreds of thousands of times per
day. While one hopes the gas stations are frequently cleaning those surfaces, by way of comparison
and contrast, all of the high contact surfaces at the HOP gyms are continuously cleaned by well-
trained staff dedicated to that purpose, and all members are, among other things, expected to clean
and sanitize every piece of equipment they use before and after using it. To say the gyms’ members
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are highly compliant with this expectation would be an understatement. They are health and fitness
enthusiasts.
49. On May 8, 2020, Dr. Emily Doucette, Acting Director of the St. Louis County
Department of Public Health issued a revised stay-at-home order. (See Exhibit B - the “County
Order”).
50. The County Order states that “The Order by the Missouri Director of the
Department of Health and Senior Services dated April 27, 2020 and effective May 4, 2020 is
hereby adopted and incorporated herein, and all restrictions therein will be enforced under this
Order.” (Ex. B, Section III, ¶ 1, emphasis added).
51. That County Order “replaces” and “rescinds” St. Louis County’s prior “stay-at-
home” orders. (Ex. B, Section I, ¶ 6). In other words, all of the County’s prior stay-at-home orders
are a legal nullity at this point.
52. The County Order states that “A state of emergency was declared in St. Louis
County on March 13, 2020, resulting in several executive orders and DHP orders, policies, and
rules to implement those executive orders.” (Ex. B, p. 1, ¶1).
53. Defendants rely on Page’s countywide state of emergency declaration as part of
their claimed authority to issue and enforce the County Order. However, the County has no
authority under Chapter 44 of the Revised Statutes of Missouri to exercise its police power to
declare a state of emergency (i.e., a “stay at home order”) within any separate political subdivision
that sits within St. Louis County.
54. Mo.Rev.Stat. § 44.010(14) defines “political subdivision” as “any county or city,
town or village, or any fire district created by law.”
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55. Mo.Rev.Stat. § 44.010(10) defines “executive officer of any political subdivision”
as “the county commission or county supervisor or the mayor or other manager of the executive
affairs of any city, town, village or fire protection district…”
56. Mo.Rev.Stat. § 44.010(11) defines “local organization for emergency
management” as “any organization established under this law by any county or by any city, town,
or village to perform local emergency management functions…”
57. Mo.Rev.Stat. § 44.080 sets forth that:
All political subdivisions shall establish a local emergency

management organization – 1. Each political subdivision of this
state shall establish a local organization for disaster planning in
accordance with the state emergency operations plan and
program. The executive officer of the political subdivision shall
appoint a coordinator who shall have direct responsibility for the
organization, administration and operation of the local emergency
management operations, subject to the direction and control of the
executive officer or governing body. Each local organization for
emergency management shall be responsible for the
performance of emergency management functions within the
territorial limits of its political subdivision, and may conduct
these functions outside of the territorial limits as may be required
pursuant to the provisions of this law. Id. (emphasis added).
58. Chapter 44 of the Revised Statutes of Missouri clearly provides that the County
Executive has no authority to issue a declaration of emergency and cause the issuance of a “stay
at home order” within any municipality that is a separate political subdivision. Any such authority
rests with each political subdivision’s local organization for emergency management. Pursuant to
Mo.Rev.Stat. § 44.080, Page’s authority to perform emergency management functions within the
territorial limits of his political subdivision is limited to unincorporated areas of St. Louis County.
59. Thus, as applied to the City of Chesterfield and the City of Maryland Heights, for
example, the County’s Stay at Home Orders, including the County Order of May 8, 2020, are
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merely recommendations and are not binding on persons within those separate political
subdivisions.
60. Moreover, Defendants cannot claim the exercise of the County’s police power to
issue the County Stay at Home Orders or the County Order and enforce them within the
aforementioned separate political subdivisions is authorized by state health statutes and/or County
health ordinances. See, e.g., City of Olivette, et al. v. St. Louis County, et al., 507 S.W.3d 637
(Mo.App.2017) (statute permitting counties to make additional health rules did not provide county
with authority to enact an ordinance imposing countywide minimum standards for police); see
also, Missouri Attorney General Opinion No. 375 (1967), 73 (1968) (“…(Chapter 44 RSMo.)
envisions autonomous local civil defense organization in those political subdivisions defined by
the law. Therefore, the county…has duties and responsibilities only within the areas of the county
lying outside any of the statutorily defined political subdivisions having their own local
organization for disaster planning”).
61. The County Order states that the director of the St. Louis County Department of
Public Health (i.e., Defendant Doucette) is the “local health authority” under 19 CSR 20-20.050(1)
and has been delegated the authority to act on St. Louis County’s behalf for the public health
purposes described in §193.300, RSMo.” (Ex. B, Section I, ¶2).
62. But there is no §193.300 RSMo. That statute was repealed in 1984 (Repealed L.
1984 S.B. 574 §1). Of course, no statutory authority can even arguably be conferred upon the local
health officials by a repealed statute.
63. The County Order purports give Doucette the sole authority to enforce the County
Order by “civil and criminal penalties” and “appropriate control measures to prevent or control the
spread of an infectious disease, including isolation, quarantine, disinfection, and closure of
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establishments in the interest of public health…” as well as “the authority to deem a business,
businesses comprising a certain industry, geographic areas or the County as a whole to be unsafe
and order such business, businesses comprising a certain industry, or businesses in a geographic
area, to cease operations or to close to prevent additional transmission.” (Ex. B, Section V., ¶ 2).
64. In that regard, the County Order is inconsistent with the State Order, the applicable
statutes limiting the local health authority’s authority to issue any order inconsistent with a
controlling state order, and 19 CSR 20-20.050(3) which, on its face, vests authority to close any
place of public or private assembly with the MDHSS director during a pandemic. 2
65. The County Order also nominally provides an administrative review process for
individuals and businesses adversely affected by a closure ordered by the St. Louis County
Director of Public Health. “If DPH closes a business in accordance with such authority, that
business will have the opportunity to be heard by the Director of DPH.” (Ex. B, Section V, ¶ 2).
66. Nothing in the relevant statutes or the County Order confers upon Orwick, the St.
Louis County Counselor, or anybody else with the County Counselor’s office for that matter, any
authority whatsoever to take any of enforcement actions, criminal, civil or administrative,
described in the County Order which Defendants have threatened to take (and indeed, have taken)
against HOP and Corbett in particular. (Ex. B).
67. Nothing in the relevant statutes or the County Order confers upon Orwick, the St.
Louis County Counselor, or anybody else with the County Counselor’s office for that matter, any
authority to serve as the person or body to which an administrative challenge or appeal of an
enforcement action may be taken.
2
For purposes of this action, at this time, Plaintiffs take no position on the constitutionality of 19 CSR 20-20.050(3)
as the Court need not reach that issue in order to adjudicate the narrow issues before it in the context of the present
controversy.
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68. Nevertheless, upon information and belief, the County Counselor’s office, acting
at the direction and control of Page, Doucette and/or Orwick, assumed unto itself the role of
arbitrarily conferring upon some businesses the County’s blessing to remain open, while arbitrarily
denying others the same right, without any legitimate rational basis for making such distinctions.
69. On May 9, 2020, Orwick, acting at the direction of Defendants Page and/or
Doucette, purporting to do so under color of state law, sent HOP a letter ordering HOP to “cease
operations and close in compliance with the County’s Orders by Sunday May 10, 2020 at 5:00
p.m.” A copy of Orwick’s unauthorized shutdown order is attached as Exhibit C.
70. Orwick had no actual statutory or constitutional authority to order the HOP gyms
to close, whether on May 10, 2020 or otherwise.
71. Doucette has never sent HOP an order to close.
72. Moreover, Orwick’s May 9, 2020 unlawful order did not provide any due process
or even attempt to apprise HOP of its right to oppose the County’s shutdown order, whether by
hearing before Doucette, or otherwise.
73. Instead, Orwick’s May 9, 2020 order said “If I do not hear from you by that time
or if both locations of House of Pain do not close, we will pursue legal action on Monday, May
11, 2020.” (Ex. C) (emphasis added).
74. Ms. Orwick did hear from HOP’s and Corbett’s counsel, that same day in fact.
75. In that response, HOP and Corbett petitioned the government for redress of
grievances, opposed the County’s unlawful May 9, 2020 shutdown order, and gave the Defendants
an opportunity to correct their unlawful and unconstitutional course of conduct.
76. The response provided a detailed explanation and analysis as to why the County
Order to close gyms generally, and Orwick’s order to close the HOP gyms specifically, was
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unlawful as, among other things, it was inconsistent with the State Order permitting gyms to open
with the proper precautions. A copy of HOP’s and Corbett’s May 9, 2020 letter, by and through
their attorney, is attached as Exhibit D.
77. Instead of responding to Plaintiffs’ petition for redress of grievances and challenge
of the May 9, 2020 shutdown order with so much as a modicum of due process, Defendants
retaliated by filing a lawsuit in the St. Louis County, Missouri Circuit Court.
78. That state court action was initially styled St. Louis County v. House of Pain Gym
Services, LLC, St. Louis County, Missouri Circuit Court, Case No. 20SL-CC02430.
79. Defendants, before initiating that lawsuit, did not bother to research the County’s
own records to determine the correct party in interest to sue. Had they done so, they would have
easily been able to determine that F Four, LLC d/b/a “House of Pain Gym” is the company that
owns and operates the gyms they are trying to shut down. 3
80. On Saturday, May 16, 2020, the County amended the state court petition. However,
despite having actual knowledge that House of Pain Gym Services, LLC (a Missouri limited
liability company) is not a correct party in interest (F Four, LLC owns the Chesterfield property;
it is the tenant at the leased Maryland Heights property; it employees the HOP employees; House
of Pain Gym Services, LLC is a dormant entity that owns nothing, operates nothing, employs
nobody, etc. – and the County Counselor’s office has an affidavit from Corbett, the House of Pain
Gym Services, LLC manager informing the County that entity has no interest whatsoever in the
3
The County initially improperly sued as the defendant in that state court lawsuit, a Missouri limited liability
company, House of Pain Gym Services, LLC, which does not own or operate the properties or gyms in question. The
state court lawsuit was initially styled, St. Louis County v. House of Pain Gym Services, LLC, St. Louis County, Missouri
Circuit Court, Case No. 20SL-CC02430. In open court at a May 15, 2020 hearing on House of Pain Gym Services, LLC’s
motion to dismiss for lack of jurisdiction (failure to name the indispensable party) in that case, the Assistant County
Counselor admitted to the Circuit Court that the County is now aware the company that owns and operates the gyms
at issue is F Four, LLC, a Florida company. The Circuit Court denied the motion to dismiss (which House of Pain Gym
Services, LLC maintains that court had no discretion to do pursuant to Mo.R.Civ.P. 55.27(g)(3)) and gave the County
leave to amend its petition to sue the correct party in interest.
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ownership or operation of the subject properties or gyms), the County Counselor’s office
knowingly refused to dismiss the improperly named company, House of Pain Gym Services, LLC
(i.e., fraudulent and pretensive joinder), but it did finally sue the correct company, the real party
in interest, F Four, LLC.
81. In that state court action, the County seeks to close the HOP gyms, under color of
state law, by asserting a “public nuisance” claim which is wholly devoid of merit.
82. In the state court action, the County is asking the St. Louis County Circuit Court
to: close the HOP gyms indefinitely; order HOP to turn over to the government the names and
contact information of all of its members and others who have been inside the gyms; and order
HOP to pay for the cost of mandatory COVID-19 testing of each such person.
83. HOP and Corbett maintain that the state court action has been commenced, and is
being prosecuted, by Page and Orwick maliciously, in bad faith, in retaliation for them daring to
petition the government for redress of grievances and speaking out publicly in defiance of the
Defendants’ unlawful shutdown order as applied to the HOP gyms. Upon information and belief,
they are not suing any other small business owners who have opened in alleged violation of the
County Order.
84. The indefinite closure of the HOP gyms sought by the Defendants, would result in
financial ruin for HOP and Corbett, in the form of revenue, and continued incurrence of
unavoidable business expenses, combined with the cost of mandatory COVID-19 testing, if
ordered by the state court, all of which would cause HOP and Corbett to suffer monetary damages
well in excess of $75,000.00.
85. The Fourth Amendment to the United States Constitution provides that “The right
of the people to be secure in their persons, houses, papers, and effects, against unreasonable
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searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause,
supported by oath or affirmation, and particularly describing the place to be searched, and the
persons or things to be seized.” (U.S. Const. amend. IV).
86. The County has no right to the names or contact information of HOP’s gym
members. Likewise, the County has no right to compel any individual to submit to compulsory
COVID-19 testing (i.e, a search of the person), much less any right to compel a private business
or its owner to pay for such testing.
87. This conscience shocking demand is an example of egregious government
overreach and heavy-handed tactics by the County intended to intimidate Plaintiffs. The purpose
of the Fourth Amendment is to protect the citizens of this country from precisely that sort of
abusive government intrusion.
88. In filing and pursuing the state court “public nuisance” action, Defendants denied
Plaintiffs HOP and Corbett the due process rights mentioned in the County Order (i.e., notice from
the Director of Public Health, and a right to a hearing before the Director).
89. Moreover, in initiating the state court “public nuisance” lawsuit seeking to shut the
HOP gyms down, the Defendants and St. Louis County intentionally failed and refused to exhaust
the required administrative remedies set out in the County’s own public nuisance ordinances.
90. The St. Louis County Ordinances provide a detailed administrative procedure that
the County is supposed to follow when declaring a property or business to be a “public nuisance”
based on exactly the sort of public health, safety, or welfare claims the government is using to
justify its unfair, arbitrary and capricious efforts to shut HOP’s gyms down.
91. The administrative process that was supposed to be followed under the St. Louis
County Public Nuisance Ordinances includes the following provisions:
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SLCO §716.300 – Public Nuisance Prohibited.
- 1. Every person who owns, resides in, uses or is responsible for a

structure, shall take all possible action to prevent said structure from
being the site of any of the following illegal activities, regardless of
whether the owner occupies the property, rents the property to
other(s) or allows the property to stand vacant, any of which illegal
activities shall cause the structure to be deemed a public nuisance…
i. in violation of law, maintaining or permitting a condition

or engaging in an activity which unreasonably annoys, injures or
endangers the safety, health, morals or repose of any inhabitant of
St. Louis County...
k. any other condition or activity constituting a felony,

misdemeanor or ordinance violation under federal, state or County
law which is detrimental to the safety, welfare or convenience of the
inhabitants of St. Louis County.
716.310 - Notice of Public Nuisance.
…2. If the County Counselor believes that there have been two or
more instances of illegal activities as specified in Section 716.300.1
at the structure within a three-year period, or if within three (3) years
of sending the "Notice of Public Nuisance" the County Counselor
receives notice of a subsequent use of the structure for any illegal
activity specified in Section 716.300.1, the County Counselor shall
notify the Director of Public Works or the Director's designee
(hereafter "Director") of said uses. The Director shall thereafter send
a notice to all owners and tenants that a public nuisance may exist
under Section 716.300 and that any such nuisance must be abated
within thirty (30) days of receipt of the notice. Said notice shall be
given in accordance with subsection (3) of this section.
3. All notices required herein shall be served by means of certified

mail, return receipt requested, sent to the last known address of the
intended recipient. In the event said notice is not served within thirty
(30) days of the original attempt, posting said notice in a
conspicuous place on the structure described therein shall be
sufficient and notice shall be deemed received on the date of posting.
716.320 - Determination of Nuisance and Abatement.
- 1. If the Director believes that a public nuisance may exist at the

expiration of the thirty-day period, the Director shall give notice to
all owners and tenants by certified mail that the Director shall hold
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a hearing at the time and place specified therein for the purpose of
determining whether a public nuisance exists. Any such notice shall
be given at least twenty-one (21) days prior to the scheduled hearing,
and shall also be posted on the structure.
2. Each interested person shall be given an opportunity at the hearing

to present evidence under oath and to be represented by counsel. The
Director shall have the power, on the Director's own motion, to
subpoena witnesses and to take testimony, under oath, pertaining to
all relevant matters. The Director may continue all or part of a
hearing, if necessary, to conclude the investigation.
3. If, based on all the evidence adduced, the Director shall determine
that the use of the structure for any of the activities specified in
Section 716.300.1 is a significant, continuous, and unreasonable
interference with rights common to all members of the community
in general, such as public health, safety, peace, morals, or
convenience; or that any of the activities specified in said section
have occurred in a structure and are a significant, continuous, and
unreasonable interference with rights common to all members of the
community in general, such as public health, safety, peace, morals,
or convenience, the Director may:
(a) Order the discontinuance of such use of the structure where a

public nuisance exists; and/or
(b) Order the closing of said structure as necessary to abate the

public nuisance, as prescribed hereafter.
4. In determining whether a structure should be closed as a result of

the existence of a public nuisance under Section 716.300, the
Director shall consider, in addition to all other relevant factors, the
impact of the closure on innocent parties; however, the lack of
knowledge of, acquiescence or participation in, or responsibility for
a public nuisance on the part of the owners, lessors, lessees,
mortgagees and all those persons in possession or having charge of
as agent or otherwise, or having any interest in the structure used in
conducting or maintaining the public nuisance, shall not be a
defense by such persons or entities.
5. Results of the hearing shall be mailed to the owner and the tenant,
by means of certified mail, return receipt requested. Any interested
person or organization present at the hearing may request a copy of
the Director's order. A copy of said order shall also be posted on the
structure within seventy-two (72) hours of the decision. Thirty (30)
calendar days after the posting of an order issued pursuant to this
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section, officers of the St. Louis County Police Department are

authorized to act upon and enforce such orders.
92. Defendants intentionally ignored, and deprived HOP and Corbett of, the due
process to which they were entitled under the administrative process codified in the County’s own
Ordinances, and the administrative hearing process provided by the County Order, and thereby
deprived Plaintiffs HOP and Corbett of their right to due process in violation of the Fourteenth
Amendment.
93. The Fourteenth Amendment’s Due Process Clause protects persons against
deprivations of life, liberty, or property without due process of law. Wilkinson v. Austin, 545 U.S.
209, 201 (2005).
94. The right to due process is a fundamental right when misconduct of officials is
conscience shocking and in violation of one or more fundamental rights that are deeply rooted in
this Nation’s history and tradition, and implicit in the concept of ordered liberty, such that neither
liberty nor justice would exist if they were sacrificed. Groenwold v. Kelley, 888 F.3d. 365, 373 (8th
Cir. 2018).
95. The local government official’s order to close Plaintiffs’ business, when not
authorized by law, is indeed conscience shocking and a violation of one or more fundamental rights
that are deeply rooted in this Nation’s history and tradition, and implicit in the concept of ordered
liberty, such that neither liberty nor justice would exist if they were sacrificed.
96. Plaintiffs recognize that the State authority, and indeed a duty, to implement
reasonable measures to stem the spread of COVID-19 and “flatten the curve.”
97. But even a public health crisis does not give the executive branch of State or local
government carte blanche to impose measures that are arbitrary and irrational, or that patently
violate our most sacred constitutional rights.
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98. On April 27, 2020, in discussing the necessary balance between COVID-19
mitigation measures and protecting our essential liberties, U.S. Attorney General William P. Barr
directed all of the U.S. Attorneys to “be on the lookout for state and local directives that could be
violating the constitutional rights and civil liberties of individual citizens.” A copy of Attorney
General Barr’s memorandum is attached hereto as Exhibit E).
99. “The Constitution forbids…undue influence with the national economy.” (Ex. E,
p.1).
100. “If a state or local ordinance crosses the line from an appropriate exercise of
authority to stop the spread of COVID-19 into an overbearing infringement of constitutional and
statutory protections, the Department of Justice may have an obligation to address that overreach
in federal court.” (Ex. E, p.1).
101. “[T]he Constitution is not suspended in times of crisis.” (Ex. E, p.2).
102. However well-meaning their intentions, government officials cannot arbitrarily
violate citizens’ constitutional rights. The very purpose of our Constitution is to restrain the
exercise of governmental power in the interest of protecting our sacred individual liberties – even
when it may be hard or unpopular to do so.
103. “Thus, the particular phraseology of the constitution of the United States confirms
and strengthens the principle, supposed to be essential to all written constitutions, that a
law repugnant to the constitution is void; and that courts, as well as other departments, are bound
by that instrument.” Marbury v. Madison, 5 U.S. 137, 180 (1803).
104. Plaintiffs do not by this action assert that local government officials cannot make
reasonable orders and enforce business restrictions or, even closure orders, for the health and
protection of St. Louis County residents.
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105. Indeed, local government health authorities are authorized to exercise broad public
health regulatory powers - as long as they do not exceed their constitutional or statutory
authority in so doing.
106. And, that is the issue here. Plaintiffs’ issue with the Defendants’ conduct is simply
that they have acted, and are continuing to act, in excess of their statutory and constitutional
authority in this particular instance, as applied to the closure of gyms and fitness centers.
107. The State Order does not allow, and cannot be read to allow, a county government
or county official to override a permission the State Order grants (i.e., the right of gyms to open
and the right of citizens to use such gyms to train and exercise in order to preserve their physical
and mental health).
108. While the County can conceivably adopt reasonable regulations applicable to the
operation of gyms and other businesses - as long as they are evenly and fairly applied in a manner
that does not violate the Equal Protection Clause and are consistent with the State Order –
Defendant’s blanket orders that gyms much close is clearly inconsistent with the State Order.
109. That violates the State Order, Mo.Rev.Stat. Ch. 44, Mo.Rev.Stat. §190.300,
Mo.Rev.Stat. §192.290 and 19 CSR §20-20.050(3).
110. The County’s May 8, 2020 Order is also internally inconsistent with itself. It adopts
the State Order and “all restrictions” in the State Order. One of the restrictions clearly set out in
the State Order is that local health authorities cannot adopt orders inconsistent with it. But, after
adopting the State Order and “all restrictions” thereof, the County Order goes on to say gyms and
fitness centers must remain closed (clearly inconsistent with the State Order). Then it goes on to
say professional teams and athletes can, however, assemble, train and practice (consistent with the
22
State Order, but inconsistent with the County Order’s nominal prohibition on gyms and fitness
centers opening and being used by individuals).
111. The May 9, 2020 shutdown order from Orwick directing HOP to close its gyms is
also inconsistent with both the State Order and 19 CSR §20-20.050(3) (only the MDHSS director
has the authority to issue any such order during a pandemic).
112. Even if arguendo the County had the authority to order the gyms closed after the
State Order (which it clearly does not), the County Order nominally confers that authority on
Doucette – not Orwick. The County Counselor is not the director of the Department of Public
Health.
113. In any event, the State Order, statutes and regulations on point specifically pre-empt
the County’s authority to order the gyms closed in this instance.
114. Plaintiffs also take issue in this action with the arbitrary and capricious manner in
which the Defendants unfairly and without any rational basis, ordered gyms (which help people
stay fit and maintain a healthy weight) shut down, while at the same time allowing numerous other
business to remain open, including, but not limited to, a great many that are much more crowded,
far less sanitary, and which sell unhealthy products like cigarettes and tobacco, vaping products,
liquor and others known to cause serious health problems and kill people in far greater numbers
than COVID-19.
115. This arbitrary and capricious discrimination against persons like HOP and Corbett
who own and operate gyms violates the Fourteenth Amendment’s Equal Protection Clause.
116. The County Order inexplicably permits professional athletes to gather together and
participate in training sessions and practices, while prohibiting amateur athletes (like Turek and
HOP’s other gym members) from gathering (with appropriate social distancing, and sanitization
23
precautions, of course) at their training facilities to engage in similar activity – i.e. training and
exercise. (See Ex. B, Section V, ¶ 7) (“This paragraph does not prohibit authorized professional
sport team training sessions and practices provided that no members of the public attend these
activities in person for entertainment purposes.”).
117. Plaintiffs allege that this special treatment for professional athletes and sport teams,
and corresponding disparate treatment of gyms and their amateur athlete members, has more to do
with money than it does public health. Upon information and belief, the County has a substantial
financial interest in a practice facility in Maryland Heights where at least one local professional
sport team and its athletes train and practice.
118. In fact, the “Centene Community Ice Center is an $83 million project funded
through a public-private partnership with support from the City of Maryland Heights, St. Louis
County and the State of Missouri.” (See, https://www.centenecommunityicecenter.com/about-
us/facility-overview - last checked May 17, 2020). Upon information and belief, the County
receives, or stands to receive, significant tax revenues from that development.
119. One of the major tenants at that property is a professional sport team. Another is an
athletic training and performance enhancement facility which, upon information and belief,
provides weight training, strength training, speed training, performance training, and nutrition
services for professional and elite athletes. Its website boasts an impressive list of professional
teams and athletes that the business works with and features numerous photographs of weight
training and other exercise equipment very similar to the equipment used at HOP’s and Corbett’s
gyms. (See https://www.mercy.net/practice/mercy-sports-performance-maryland-heights/# - last
checked May 17, 2020).
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120. Upon information and belief, during the entire period during which the various
County Stay at Home Orders have been in place to present, that athletic training and performance
enhancement facility has been allowed to operate beyond the “Minimum Basic Operations”
restrictions set forth in previous County Stay at Home Orders. Yet the Defendants have, upon
information and belief, taken no enforcement action against that fitness center, while taking
selective and rather aggressive enforcement action against HOP and Corbett and ordering the HOP
gyms to close.
121. This selective enforcement in favor of the County’s preferred fitness facility at the
aforementioned Maryland Heights center is direct evidence of unfair and unequal treatment under
the law of similarly situated persons. Defendants’ conduct in targeting the HOP gyms, after
Plaintiffs dared to petition their government for redress of grievances, is evidence of the
Defendants’ actual malice, intent to harm Plaintiffs or callous disregard for the rights of others.
122. Under the County Order, citizens like Turek who train at private gyms like HOP
are subject to imprisonment, prosecution, fines and civil penalties.
123. Professional athletes engaging in the exact same conduct at similar facilities,
however, are not.
124. Under the County Order, businesses like HOP and Corbett who operate private
gyms and fitness centers are subject to imprisonment, prosecution, fines and civil penalties.
125. Professional sport teams engaging in the exact same conduct at similar facilities,
however, are not.
126. That is precisely the sort of arbitrary, capricious and discriminatory application of
the law that the Fourteenth Amendment’s Equal Protection Clause is supposed to prohibit.
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PARTIES
127. Plaintiff F Four, LLC is a Florida limited liability company. It is duly registered
and authorized to transact business as foreign limited liability company in Missouri under the
properly registered fictitious name “House of Pain Gym.” It is the sole owner and operator of the
gyms at issue in Maryland Heights and Chesterfield, Missouri.
128. Plaintiff Corbett is a citizen of the State of Florida.
129. Plaintiff Turek is a citizen of the State of Missouri.
130. Defendant Page is the duly appointed St. Louis County Executive.
131. Defendant Doucette is the duly selected and serving Acting Director, Chief Medical
Officer, of the St. Louis County Department of Public Health.
132. Defendant Orwick is the duly appointed St. Louis County Counselor, serving at the
pleasure of the County Executive.
133. At all times material to this action, and with respect to all actions complained of
herein, the Defendants acted in concert with each other and with other individuals employed by,
or who were agents of, the St. Louis County government, under color of state law, to deprive
Plaintiffs of their federal constitutional rights as alleged herein.
CAUSE OF ACTION, JURISDICTION AND VENUE
134. This actions is brought pursuant to 42 U.S.C. §1983 to redress the deprivation of
rights secured by the Fourteenth Amendment to the United States Constitution.
135. This honorable Court has subject matter jurisdiction over the claims asserted in this
action pursuant to 28 U.S.C. §1331 (federal question) because this case involves interpretation of
the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the U.S.
26
Constitution (U.S. Const. amend XIV) and because the action seeks to prevent the Defendants
from interfering with federal civil rights.
136. Jurisdiction is appropriately exercised by this Court pursuant to 28 U.S.C. §
1343(a)(3)-(4) to redress the deprivation, under color of any State law, statute, ordinance,
regulation, custom or usage, of any right, privilege, or immunity secured by the Constitution, and
to secure equitable or other relief under any Act of Congress providing for the protection of civil
rights.
137. To the extent this action involves claims or issues that must be addressed under
State law, this Court has supplemental jurisdiction pursuant to 28 U.S.C. §1367(a) because
Plaintiffs’ state claims are so related to their federal claims that they form part of the same case or
controversy under Article III of the United States Constitution.
138. Venue is properly vested in this Court pursuant to 28 U.S.C. §1391 because all
Defendants reside in this district and the conduct that underlies this action occurred in St. Louis
County, Missouri within the Eastern District of Missouri.
139. There is a present and actual controversy between the parties.
140. The relief requested is authorized pursuant to 28 U.S.C. § 2201 and 2202
(declaratory judgment), 28 U.S.C. §1651(a) (injunctive relief), and 42 U.S.C. § 1988 (right to
costs, including attorneys’ fees).
141. “[I]t is always in the public interest to protect constitutional rights.” Phelps-Roper
v. Nixon, 545 F.3d 685, 690 (8th Cir.2008).
142. With respect to the inconsistency between the County Order and the State Order as
applied to gyms and fitness centers, and the lack of the Defendants’ statutory authority to order
gyms and fitness centers closed, Plaintiffs herein assert a facial challenge because the potential for
27
harm extends beyond the parties, Rodgers v. Bryant, 942 F.3d 451, 459 (8th Cir. 2019), and there
scenario under which
COUNT I
DEPRIVATION OF LIBERTY AND PROPERTY IN VIOLATION

OF THE FOURTEENTH AMENDMENT DUE PROCESS CLAUSE
143. Plaintiffs incorporate by reference and re-allege each and every allegation set forth
in all preceding paragraphs as if fully set forth herein.
144. The Due Process Clause of the Fourteenth Amendment provides that “[n]o State
shall…deprive any person of life, liberty, or property, without due process of law.” A State
“violates this guarantee by taking away someone’s life, liberty, or property under a criminal law
so vague that it fails to give ordinary people fair notice of the conduct it punishes, or so standardless
that invites arbitrary enforcement.” Johnson v. United States, 135 S. Ct. 2551, 2556 (2015).
145. The County Order threatens citizens with imprisonment, business closure, fines and
other criminal and civil penalties for its violation.
146. Defendants, in particular Orwick, have also directly threatened the HOP gyms’
owner with imprisonment, business closure, fines, and other criminal and civil penalties, without
any actual lawful justification for doing so.
147. As applied to the closure of gyms and fitness centers, the County Order is
inconsistent with the State Order, Mo.Rev.Stat. §190.300, Mo.Rev.Stat. §192.290 and 19 CSR
20-20.050(3). As applied to the closure of gyms and fitness centers, it is void and unenforceable
under Missouri law.
148. Because the County Order is inconsistent with the State Order, and because it
violates Mo.Rev.Stat. §190.300, Mo.Rev.Stat. §192.290 and 19 CSR 20-20.050(3), it fails to
28
provide sufficient notice of which actions will potentially subject Plaintiffs to the penalties the
Defendants incorrectly seek to, and have threatened to, apply.
149. Specifically, although the State Order (incorporating the Presidential Guidelines)
allows gyms to open with the proper precautionary measures, the County Order, which adopts the
State Order “and all restrictions” in that State Order, goes on to contradict the State Order, as
applied to gyms, and purports to criminalize the opening and operation of gyms, which the State
Order permits.
150. It is therefore, unclear at best, to any person of ordinary intelligence what the State
Order and the County Order actually permit and allow with respect to the operation of or use of
gyms and fitness centers.
151. Indeed, HOP and Corbett have at all times since May 4, 2020 operated the gyms in
reliance on the State Order, honestly believing based on their plain language that the State Order
controls and allows the gyms to open – but Defendants have continued to threaten imprisonment,
fines, business shutdown, civil penalties, lawsuits, and denial of COVID-19 funds from the federal
government intended to help small businesses impacted by the government stay-at-home orders.
152. Because the County Order also contradicts itself internally, and the State’s
guidelines published on the Governor’s website (the “Show Me Strong Recovery Plan: Phase I
Guidelines and Frequently Asked Questions”), no reader of ordinary intelligence could reasonably
ascertain with any degree of certainty whether continuation of such business might constitute an
actual criminal offense for which one might be prosecuted, fined or imprisoned – as threatened by
the Defendants.
29
153. On one hand, the County Order criminalizes opening and operating gyms and
fitness facilities like HOP, but on the other hand expressly permits the same conduct with respect
to professional sport teams using similar fitness facilities.
154. With respect to Turek, the County Order permits professional athletes to gather and
train, but denies him (and HOP’s other gym members) the same right.
155. The County Order also criminalizes Turek’s and similarly situated others’ conduct
in gathering at a fitness facility to train (with proper precautions, of course), while permitting the
exact same conduct for professional athletes.
156. Additionally, with respect to HOP and Corbett, the Defendants have violated the
Due Process Clause, under color of state law, in that they have completely and intentionally
disregarded any meaningful procedure for challenging their determination that a business, like
Plaintiffs’ gym business, is “non-essential”, either pre or post-deprivation of Plaintiffs’
constitutional right to use their property. Logan v. Zimmerman Brush Co., 455 U.S. 422, 432-33
(1982).
157. With respect to HOP and Corbett, the Defendants have intentionally disregarded
the County’s own administrative procedures set out in the County’s Ordinances and in the County
Order itself. That is an intentional and conscience shocking deprivation of Plaintiffs’ substantive
and procedural due process rights.
158. Defendants have violated the Due Process Clause by failing to provide any
meaningful procedure for challenging their arbitrary determination that a business is non-essential,
either pre or post deprivation of HOP’s and Corbett’s right to use their property. Logan v.
Zimmerman Brusch Co., 455 U.S. 422, 432-33 (1982).
30
159. Instead, the Defendants have simply announced, inconsistent with the State Order
and their own County Order, that gyms and fitness centers are not essential and must be closed.
160. At the same time the Defendants have allowed, among numerous other examples:
professional sport team training facilities (like the one the County owns in Maryland Heights not
far from one of HOP’s gyms), restaurants, hair salons, nail salons, big box retailers, lingerie and
adult novelty stores, shopping malls, liquor stores, vaping stores, cigarettes stores, etc., to stay
open as “essential” businesses.
161. Defendants’ conduct complained of herein has caused Plaintiffs to suffer
deprivation of their constitutional rights and essential liberties (i.e., constitutional injury),
reputational harm, and, with respect to Corbett and Turek, undue stress, worry, and fear of
imprisonment for which Plaintiffs are entitled to recover compensatory damages in an amount
determined by a jury to be fair and reasonable.
162. Due Process violations such as these, in particular with respect to the Defendants’
intentional disregard for the County’s own public nuisance ordinance process and the due process
rights described in the County Order, must be subjected to the strictest scrutiny, but they cannot
survive even basic scrutiny.
163. Defendants’ conduct complained of herein is intentional or committed with reckless
or callous disregard for Plaintiffs’ rights, such that punitive damages should be awarded in amounts
sufficient to punish each Defendant and to deter Defendants and others from like future conduct.
164. Plaintiffs also seek a declaration that the Defendants’ conduct described herein
violates the Fourteenth Amendment’s Due Process Clause and injunctive relief to stop the
continuing violation of their constitutional rights.
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COUNT II
VIOLATION OF THE FOURTEENTH AMENDMENT
EQUAL PROTECTION CLAUSE
165. Plaintiffs incorporate by reference and re-allege each and every allegation set forth
in all preceding paragraphs as if fully set forth herein.
166. When those who appear similarly situated are nevertheless treated differently, the
Equal Protection Clause requires at least a rational reason for the difference, to ensure that all
persons subject to legislation or regulation are indeed being ‘treated alike, under like circumstances
and conditions.’” Engquist v. Ore. Dep’t of Agr., 553 U.S. 591, 602 (2008).
167. “A statute or ordinance which vests arbitrary discretion with respect to an ordinarily
lawful business, profession, appliance, etc., in public officials, without prescribing a uniform rule
of action, or in other words, which authorizes the issuing or withholding of licenses, permits,
approvals, etc., according as the designated officials arbitrarily choose, without reference to all of
the class to which the statute or ordinance under consideration was intended to apply, and without
being controlled or guided by any definite rule or specified conditions to which all similarly
situated might knowingly conform, in unconstitutional and void.” State ex rel. Triangle Fuel Co.
v. Caulfield, 196 S.W.2d 296, 298 (Mo. 1946).
168. Gyms are allowed to operate in Missouri, under the State Order. In fact, many are
operating in neighboring counties just a few miles from each of Plaintiffs’ gyms.
169. Professional sport teams and athletes are allowed under the County Order to train
and exercise at facilities similar to the HOP gyms at issue – including a facility owned by the
County in Maryland Heights not far from one of HOP’s gyms.
32
170. However, under the County Order, private gym owners like HOP and Corbett are
arbitrarily denied the right to use their similar property and facilities for the same exact sort of
activities Defendants allow to take place at the aforementioned professional sport team facilities.
171. Of course, the only real difference here is that the County apparently owns one of
the training facilities used by one such professional sport team. So the government has bestowed
on itself special privileges which it denies to business owners like HOP and Corbett.
172. Under the County Order, private citizen amateur athletes like Turek are arbitrarily
denied the right to train at private gyms and fitness centers like HOP, while professional athletes
are allowed to train at similar facilities like the one owned by the County in Maryland Heights.
173. Other businesses, like, but not limited to, the ones mentioned above, are arbitrarily
deemed by the Defendants to be “essential” enough to be open in St. Louis County.
174. Many of those “essential” businesses attract much larger gatherings of people, who
interact with each other in less sanitary conditions.
175. Many such “essential” businesses sell products or services that offer questionable
if any health benefits - as opposed to gyms and fitness centers which help keep people fit and at a
healthy weight.
176. Indeed many of those businesses the Defendants have allowed to stay open actually
sell products that are known to kill people in far greater numbers than COVID-19, a virus that has
a better than 99% survival rate in the United States.
177. But gyms are irrationally, arbitrarily and capriciously deemed by the Defendants to
be somehow more dangerous. This makes no sense and is completely devoid of any rational
justification.
33
178. It has widely been reported in local media that the greater St. Louis metropolitan
area reached its COVID-19 “peak” (i.e., “flattened the curve”) well before the County Order,
Orwick’s May 9, 2020 shutdown order, Defendants’ retaliatory state court lawsuit, and the filing
of this lawsuit.
179. Yet the Defendants persist in arbitrarily picking and choosing the winners and
losers in terms of their favored vs. disfavored businesses – with no rational basis as applied to
gyms like the ones owned and operated by HOP and Corbett, and the use of those gyms by private
citizen amateur athletes including Turek.
180. There is no legitimate rational basis for the Defendants’ arbitrary and capricious
harsh treatment of gyms and amateur athletes as compared to other businesses, and professional
athletes, in St. Louis County.
181. Defendants’ conduct complained of herein has caused Plaintiffs to suffer
deprivation of their constitutional rights and essential liberties (i.e., constitutional injury),
reputational harm, and, with respect to Corbett and Turek, undue stress, worry, and fear of
imprisonment for which Plaintiffs are entitled to recover compensatory damages in an amount
determined by a jury to be fair and reasonable.
182. HOP and Corbett have suffered financial injury in the form of lost revenues and
profits for the entire period of the Defendants’ shutdown orders through May 4, 2020, the date on
which the gyms reopened as permitted under the State Order.
183. Defendants’ conduct complained of herein is intentional or committed with reckless
or callous disregard for Plaintiffs’ rights, such that punitive damages should be awarded in amounts
sufficient to punish each Defendant and to deter Defendants and others from like future conduct.
34
184. Equal Protection violations such as these, in particular with respect to the
Defendants’ unlawful targeting of HOP’s and Corbett’s livelihood and rights to use their property
for their lawful business pursuits, must be subjected to the strictest scrutiny, but they cannot
survive even basic scrutiny.
185. Plaintiffs also seek a declaration that the Defendants’ actions described herein
violate the Fourteenth Amendment’s Equal Protection Clause and injunctive relief to stop the
continuing violation of their constitutional rights.
ATTORNEYS’ FEES AND COSTS
186. Plaintiffs are accruing attorneys’ fees and costs herein, for which they claim a right
to recovery from Defendants pursuant to 42 U.S.C. §1988.
PRAYER FOR RELIEF
In light of the foregoing, and for the reasons set forth herein, Plaintiffs respectfully pray
that this honorable Court:
A. Issue a declaratory judgment, pursuant to 28 U.S.C. §2201 and Rule 57 of the
Federal Rules of Civil Procedure, that:
(1) The State Order incorporates the Presidential Guidelines, which specifically permit
gyms to open if they adhere to strict physical distancing and sanitation protocols;
(2) Pursuant to Mo.Rev.Stat. §192.290 the State Order supersedes and pre-empts the
County Order with respect the opening of gyms and fitness centers;
(2) The County Order’s blanket prohibition on gyms and fitness centers opening, and
on individuals using them, is inconsistent with the State Order and violates Mo.Rev.Stat.
§190.300.1.(1), Mo.Rev.Stat. §192.290, and 19 CSR 20-20.050(3);
35
(3) The HOP gyms are places of public or private assembly. The State of Missouri is
currently in a statewide pandemic. Pursuant to 19 CSR 20-20.050(3), during a statewide pandemic,
the Defendants have no authority to close a place of public or private assembly. Such authority
rests solely with the director of the Missouri Department of Health and Senior Services or his or
her designated representative;
(4) The County’s directive that Plaintiffs HOP and Corbett close the House of Pain
gyms pursuant to the County Order, under color of state law, is an unlawful order because the
Defendants lack the statutory authority to order the gyms closed;
(5) The Defendants’ directive that Plaintiffs HOP and Corbett close the House of Pain
gyms pursuant to the County Order violates the Fourteenth Amendment’s Due Process Clause
because such directive deprived Plaintiffs HOP and Corbett of their due process rights as set forth
in the administrative procedures codified in the St. Louis County Ordinances governing public
nuisance proceedings and in the County Order itself;
(6) As applied to gyms and fitness centers, the County Order violates the Fourteenth
Amendment’s Due Process Clause because it conflicts with and is inconsistent with the State Order
and it is in excess of the authority conferred upon local health authorities under the controlling
statutes and state regulations (Mo.Rev.Stat. §190.300, Mo.Rev.Stat. §192.290, and 19 CSR 20-
20.050(3)). As such, the County Order fails to give ordinary people fair notice of the conduct it
punishes, it is confusing with respect to what the law actually requires, what conduct is actually
permitted, and what conduct is actually prohibited;
Amendment’s Due Process Clause and the Fourteenth Amendment’s Equal Protection Clause
because it vests arbitrary discretion with respect to ordinarily lawful businesses in unelected public
36
officials, without prescribing a uniform rule or action and authorizes the issuing or withholding of
authority to engage in lawful trade or commerce as the unelected public official arbitrarily chooses,
and without being controlled or guided by and definite rule or specified conditions to which all
similarly situated persons affected thereby might knowingly conform. As such, the County Order
is unconstitutional and void. See, e.g., State ex rel. Triangle Fuel Co. v. Caulfield, 196 S.W.2d
296, 298 (Mo. 1946);
Amendment’s Equal Protection Clause in that all persons subject to the regulation are not being
treated alike, under like circumstances, and conditions. See, e.g., Enquist v. Ore. Dep’t of Agr.,
553 U.S. 591, 602 (2008). There is no rational basis for denying gyms and fitness centers the right
to open and operate (if they adhere to strict physical distancing and sanitation protocols), while at
the same time permitting professional sport teams to use similar gyms, fitness centers and athletic
training facilities. There is no rational basis for denying ordinary individual citizens access to gyms
and fitness centers (if they adhere to strict physical distancing and sanitation protocols), while at
the same time permitting professional athletes access to similar gyms, fitness centers and athletic
training facilities;
Amendment’s Equal Protection Clause in that the Defendants have arbitrarily and capriciously,
and without any rational basis, allowed the operation of numerous other businesses that attract
larger gatherings of people, in equivalent or less sanitary conditions, that carry with them an equal
or higher risk of COVID-19 transmission from person to person, than gyms and fitness centers that
observe strict social distancing and sanitization protocols;
37
(10) Gyms and fitness centers provide a service that promotes fitness, healthy weight,
physical health and mental health. By comparison, the Defendants have permitted to remain open
and operating other businesses that sell products, which, although legal, are commonly known to
cause serious illness and death on a large scale in the United States. Specifically, cigarette and
liquor stores have been allowed to remain open in St. Louis County during the entirety of the
COVID-19 pandemic. As applied to gyms and fitness centers, the County Order violates the
Fourteenth Amendment’s Equal Protection Clause in that there is no rational basis for the
Defendants arbitrarily and capriciously deeming such other businesses essential enough to remain
open, while ordering gyms and fitness centers closed; and
(11) Such other declarations as the Court deems necessary, just and proper under the
circumstances according to the proof at trial.
B. Issue a permanent injunction enjoining the Defendants and all other persons in St.
Louis County Government acting in concert with them, from:
(1) Enforcing any provision of the County Order to require the HOP gyms to close as
long as they adhere to strict appropriate physical distancing and sanitation protocols;
(2) Enforcing any provision of the County Order to require any gym or fitness center
in St. Louis County to close as long as such gyms and fitness centers adhere to strict appropriate
physical distancing and sanitation protocols;
(3) Enforcing any provision of the County Order to prohibit Plaintiff Turek and every
other individual from training or exercising at the gym of his or her choice, as long as such training
and exercise is done in adherence with strict appropriate physical distancing and sanitation
protocols;
38
(4) Ordering that Plaintiffs HOP and Corbett shall not be compelled by the County to
turn over to the government any of the HOP gym members’, employees’ or other private citizens’
names or contact information without a search warrant issued by a court of competent jurisdiction,
upon probable cause, supported by oath or affirmation, and particularly describing the place to be
searched, and the things to be seized, as required by the Fourth Amendment;
C. Award compensatory damages to each Plaintiff in such amounts as a jury deems
fair and reasonable according to proof at trial, plus punitive damages against each Defendant in
amounts sufficient to punish each Defendant and deter like future conduct.
D. Award Plaintiffs reasonable attorneys’ fees and all recoverable costs pursuant to 42
U.S.C. §1988; and
E. Award such other and further relief under the law which the Court deems just and
proper under the circumstances, including other fees and costs of this action to the full extent
permissible under the law.
VERIFICATION OF SIGNED ORIGINAL DOCUMENT
Pursuant to Local Rule 11-2.11, W. Christopher McDonough, hereby attests to the
existence of a paper copy of this document bearing the original signatures of W. Christopher
McDonough and Joan M. Swartz. The document was electronically filed on May 18, 2020.
Counsel will retain the paper copy bearing the original signatures during the pendency of the
litigation including all possible appeals.
39
Respectfully submitted,
THE McDONOUGH LAW FIRM, LLC
By: /s/ W. Christopher McDonough

W. Christopher McDonough # 49648MO
16640 Chesterfield Grove Road, Suite 125
Chesterfield, MO 63005
(636) 530-1815 – Telephone
(636) 530-1816 – Facsimile
E-mail: [email protected]
Attorneys for Plaintiffs F Four, LLC
and Joseph L. Corbett
and
LAW OFFICE OF JOAN M. SWARTZ, LLC
By: /s/ Joan M. Swartz

Joan M. Swartz, # 37242MO
3348 Greenwood Blvd.
St. Louis, MO 63143
(314) 471-2032 - Telephone
(314) 485-2345 - Facsimile
E-mail: [email protected]
Attorneys for Plaintiff Morris E. Turek
40
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#: 1 Filed: 05/18/20 Page: 1 of 40 PageID #: 1

UNITED STATES DISTRICT COURT

F FOUR, LLC, d/b/a “House of Pain )

COMPLAINT FOR DAMAGES,

from other serious underlying health conditions.

have to live with.

the County’s own orders and ordinances.

6. These infringements on certain of our Constitutional rights would have been

unimaginable in our freedom-loving country before COVID-19.

Director of the Missouri Department of Health and Human Services (“MDHSS”).

collectively as “County Stay at Home Orders.”

sole owner and operator of those gyms.

a municipality that is a political subdivision situated in the County.

Heights, a municipality that is a political subdivision situated in the County.

17. Plaintiff Turek is a House of Pain Gym member.

White House website at https://www.whitehouse.gov/openingamerica/ (last checked May 17,

Order (by three separate references in fact).

open in Phase One is repeated on the Governor’s official state website:

questions (last checked May 17, 2020).

following guidance from the Governor:

“This order applies to ALL Missouri businesses.” Businesses that

Id. (emphasis in original).

authorities.” (Ex. A, emphasis added)

authority codified at Mo.Rev.Stat. §190.300, which sets forth in relevant part:

1. The county commissions and the county health center boards

(1) Be in conflict with any rules or regulations authorized

31. Furthermore, Mo.Rev.Stat. §192.290 provides that:

All rules and regulations authorized and made by the department of

32. 19 CSR §20-20.050(3), sets forth, in relevant part:

The local health authority, the director of the Department of Health

this Order…” (Ex. A, emphasis added).

any gyms or fitness centers closed.

May 4, 2020 – let alone the HOP gyms.

the community who do not train and exercise.

sanitization procedures, and the like.

operate during the COVID-19 pandemic.

entirety of the pandemic.

these were in use even before the COVID-19 pandemic.

protocols, and are trying now to catch up to gyms like HOP.

reasonable objective person.

Order.” (Ex. B, Section III, ¶ 1, emphasis added).

are a legal nullity at this point.

rules to implement those executive orders.” (Ex. B, p. 1, ¶1).

53. Defendants rely on Page’s countywide state of emergency declaration as part of

that sits within St. Louis County.

54. Mo.Rev.Stat. § 44.010(14) defines “political subdivision” as “any county or city,

town or village, or any fire district created by law.”

55. Mo.Rev.Stat. § 44.010(10) defines “executive officer of any political subdivision”

affairs of any city, town, village or fire protection district…”

56. Mo.Rev.Stat. § 44.010(11) defines “local organization for emergency

or village to perform local emergency management functions…”

57. Mo.Rev.Stat. § 44.080 sets forth that:

All political subdivisions shall establish a local emergency

organization for disaster planning”).

purposes described in §193.300, RSMo.” (Ex. B, Section I, ¶2).

health officials by a repealed statute.

spread of an infectious disease, including isolation, quarantine, disinfection, and closure of