Forced Closure of Sports Complex Over COVID Compliance Prompts Suit Against Houston Fire

The owners of a Houston sports complex have filed suit against the city’s police and fire departments after it was forced to close for violating Governor Greg Abbott’s executive order relative to the reopening of business.

Sportsplex of Houston, Inc. filed suit yesterday in US District Court for the Southern District of Texas naming the Houston Fire Department and the Houston Police department as defendants. The complaint alleges the city violated the Fourth, Fifth and Fourteenth Amendments to the United States Constitution in forcing Sportsplex to close on May 1, 2020 despite complying with the Governor’s order. Sportsplex seeks temporary and permanent injunctions, plus an award of attorneys fees, or in the alternative damages.

From the complaint:

  • Sportsplex is among the tens of thousands of law-abiding small enterprises in this state that have sacrificed for the greater good, closing its doors for the past seven weeks to comply with state and local decrees issued to safeguard the public health against coronavirus.
  • Governor Greg Abbott’s Executive Order GA 18 issued on April 27, 2020, brought some hope. GA 18 relates to the expanded reopening of commerce as part of the plan to “Open Texas” in a manner that the State has deemed appropriate to safeguard public health.
  • As it relates to Sportsplex’s business activities, GA 18 is clear: “This executive order does not prohibit people from [1] accessing essential or [2] reopened services or [3] engaging in essential daily activities, such as … visiting parks, hunting or fishing, or engaging in physical activity like jogging, bicycling, or other outdoor sports, so long as the necessary precautions are maintained to reduce the transmission of COVID-19 and to minimize in-person contact with people who are not in the same household.
  • GA 18 expressly allows “engaging in physical activity” and identifies “outdoor sports” as falling in that category.
  • Quite obviously, softball is an “outdoor sport” involving physical activity.
  • Nothing in the plain language of GA 18 says that some “outdoor sports” are allowed and others are not. It does not limit outdoor sports to ad hoc pick-up games.
  • It does not prescribe the maximum number of participants who may engage in their chosen outdoor sport.
  • Nor does it ban “outdoor sports” because they are organized and managed by a for-profit business.
  • The only meaningful limitations on outdoor sports is that “necessary precautions are maintained to reduce the transmission of COVID-19 and to minimize-in-person contact.”
  • After GA 18 was issued, Sportsplex advertised its intent to resume outdoor sports activities on May 1, 2020, namely softball and volleyball games.
  • Of course, before it reopened, Sportsplex’s proprietors considered how best they could contribute to the protection of public health while advancing the state-endorsed policy objective of supporting economic revitalization.
  • To that end, Sportsplex relied on a document referred to in GA 18—“Texans Helping Texans: The Governor’s Report to Open Texas.” (“Report”).
  • The Report is a compilation of evolving explanations, recommendations, and guidelines.
  • With those goals in mind, Sportsplex implemented new precautions and protocols in accordance with government-authorized guidelines, recently promulgated industry standards, and the exercise of its own “common sense and wise judgment.”
  • Social distancing was to become part-and-parcel of the game of softball when played at Sportsplex. Sportsplex stocked dugouts with hand sanitizer. It banned communal water coolers.
  • It required players to remain six feet apart from each other at all times while not on the field of play, and all other participants were to remain outside the dugout or stationed in the bleachers.
  • On the field, Sportsplex required the catcher to be at least six feet from the batter.
  • All umpires were to stay at least six feet away from the players. Physical contact and tagging of players were banned.
  • The ball itself needed to be sanitized frequently.
  • Given the nature of softball, members of the fielding team were already expected to be positioned dozens of feet apart, whether on the diamond or in the outfield.
  • The traditional sign of good sportsmanship—post-game handshaking—was prohibited. Patrons were not allowed to congregate in the parking lot after games.
  • Off the field, all staff and customers were required to wear masks. Indeed, anyone entering Sportsplex’s premises was required to wear a face covering and customers were recommended to continue to wear the mask when not playing.
  • Extra sanitary stations were positioned around the facility.
  • In sum, Sportsplex intended to run its business and regulate its patrons as stringently as possible, perhaps even more stringently than many of the “Essential Services” that continue to allow tight groups to congregate and mill around indoor areas without face masks.
  • In the weeks before reopening, Sportsplex broadcast the measures it would take and its intent to reopen on social media.
  • On the morning of May 1, 2020, a Harris County Constable appeared at Sportsplex to ask whether it would be opening later that day.
  • Barry Horvitz, Sportsplex’s General Manager, confirmed that indeed, the business would be open to people wanting to play softball that evening.
  • The constable departed without saying more.
  • Shortly before 6:00 p.m., two Fire Department personnel appeared at Sportsplex.
  • Sportsplex’s lawyer, Ronny Hecht, greeted them.
  • One of the inspectors, Jeannice Mitchel, told Mr. Hecht, to shut down the business because it was in violation of the Governor’s order as there were more than four people ready to begin playing softball.
  • Mr. Hecht refused this demand for Sportsplex to shut down and attempted to explain that GA 18 contained no such restriction.
  • To obtain further guidance, Ms. Mitchel called her superiors—Fire Department’s Assistant Chief, Michelle McLeod, and the Intake Bureau Chief for the Harris County District Attorney’s Office, Jim Leitner.
  • Meanwhile, Sportsplex opened its gates for play beginning at 7:00 p.m.
  • All of the rules, protocols, and policies discussed above were in full force and effect.
  • On all six fields, Sportsplex patrons began playing the inherently socially-distanced game of softball.
  • Around this time, a Houston Police Department officer arrived on the scene claiming that there was “suspicious activity.”
  • Ms. Mitchel then provided Mr. Hecht a copy of the Report to Open Texas and explained that per Mr. Leitner’s directives, the District Attorney’s office concluded that Sportsplex was in violation of the GA 18 and the Report because there were more than four people participating.
  • Mr. Hecht requested that he be allowed to speak with Mr. Leitner to explain that GA 18 does not incorporate by reference the non-mandatory guidelines in the Report. Ms. Mitchel told him that it would not be worth his time.
  • Meanwhile, another police sergeant had arrived and called for back-up units.
  • Mr. Hecht continued to explain that there was no basis in GA 18 authorizing officials to close his business down. His protests fell on deaf ears.
  • Platoons of police officers appeared within minutes. There was clearly no emergency as officers loitered on the premises for several hours, a few of whom, it might be added, did not don protective face masks.
  • The police sergeant “informed Mr. Horvitz what the consequences of his actions would be” if Sportsplex was not immediately shut down—Mr. Horvitz would be arrested, charged with a Class B Misdemeanor, and all of Sportsplex’s patrons would be issued citations.
  • In an effort to deescalate the situation, avoid the arrest of its personnel, and to preserve goodwill with their customers, Sportsplex closed its operations.
  • The officials finally left Sportsplex around 9:00 p.m., announcing their exploits on social media.

Here is a copy of the complaint:

About Curt Varone

Curt Varone has over 40 years of fire service experience and 30 as a practicing attorney licensed in both Rhode Island and Maine. His background includes 29 years as a career firefighter in Providence (retiring as a Deputy Assistant Chief), as well as volunteer and paid on call experience. He is the author of two books: Legal Considerations for Fire and Emergency Services, (2006, 2nd ed. 2011, 3rd ed. 2014) and Fire Officer's Legal Handbook (2007), and is a contributing editor for Firehouse Magazine writing the Fire Law column.
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