Plaintiffs and the businesses they represent have spent substantial sums to construct, build and create indoor and outdoor safety dividers, outdoor seating for customers, outdoor weather protection, and other safety precautions and protections. Such costs were incurred in reliance on previous executive orders of the Governor, and guidance of the state of Oregon, which executive orders and guidance were rationally based on medical and scientific facts. EO 20-65 lacks such rational basis in scientific and medical facts differentiating the categories of dining and drinking that are prohibited, from those that are allowed to continue.

EO 20-65 expressly discriminates against those in the restaurant and hospitality businesses by permitting other similarly situated businesses, i.e. “[c]ertain specified sectors of Oregon’s economy” to operate with only limited restrictions, or in some cases no restrictions whatsoever. For example, under EO 20-65 grocery stores, retail stores, farmers markets, and indoor and outdoor malls may continue to operate at 75% capacity with no restrictions whatsoever on how long members of the public are permitted to remain on site. Drive-ins are exempted from the full force of this Executive Order as well. Outdoor recreation and outdoor sports, including Division 1 college sports, are similarly not restricted.

Plaintiffs and others in the restaurant and hospitality businesses are required to obtain licenses, permits, and/or approvals from various state, county, and local jurisdictions to do business. There are created property rights in these licenses, permits, and/or approvals that cannot be infringed without the due process of law. However, EO 20-65 does just this without due process of law and without any rational basis.

401.192(3) provides as follows: When real or personal property is taken under power granted by ORS 401.188, the owner of the property shall be entitled to reasonable compensation from the state.

ORS 433.441 describes the conditions that govern public health emergency (6) When real or personal property is taken under power granted by this section, the owner of the property shall be entitled to reasonable compensation from the state.