A La Jolla hair salon filed a proposed federal class action against Gov. Gavin Newsom on Tuesday, claiming California’s regional stay-at-home order infringes on the constitutional rights of barbering and cosmetology professionals. Among other causes of action, the suit alleges that salons must be compensated for the shutdown of their businesses under the Fifth Amendment’s takings clause.
In the 52-page complaint, filed in the U.S. District Court for the Southern District of California, Tatoma Inc. claims that hair and nail salons have been “singled out for closure in order to benefit the public” and are one of the only types of businesses in the state that have been ordered to shut down completely in response to the COVID-19 pandemic, “despite the lack of showing or evidence” that operating salons at the same levels permitted for other businesses would lead to increased transmission of the virus.
“As such, the property of Plaintiff and the Class has been taken for a public use and benefit, and compensation must be paid,” the salon claims.
Under California’s regional stay-at-home order, issued on Dec. 3, hair salons, barber shops, and other personal care services in a given region are required to shut down completely if the region’s ICU capacity drops below 15 percent. On Dec. 29, California extended the order indefinitely.
The salon claims that as a result of the orders it is “completely and indefinitely prohibited from engaging in any business operations.” It also claims that Newsom’s order requiring salons’ complete closure “is unique in the United States.”
“Defendants have allowed pet groomers to remain open, sending the signal that dog haircuts are more essential than human haircuts,” the salon claims. “Defendants have also allowed restaurants, strip clubs, toy stores, clothes stores, souvenir shops, and adult sex shops to remain open while at the same time forcing Plaintiff to completely close, with no opportunity to make any income or livelihood whatsoever.”
The orders closing barbering and comsetology businesses, the salon claims, constitute a regulatory taking of private property for public benefit without just compensation, in violation of the takings clause.
“The explicitly stated purpose for the complete closure orders is to maintain the number of ICU beds available to the public,” the salon claims. “This is clearly a public benefit, similar to expanding a highway by forcing adjoining landowners to have their homes acquired by the government in order to expand the highway.”
If the orders are lawful, the complaint alleges, then salons “are entitled to compensation because their property has been taken for the benefit of the public.”
The suit also claims the orders violate salons’ due process and equal protection rights, as well as various clauses of the California Constitution. It asks the court for an order requiring the state “to provide just compensation for the regulatory taking of Plaintiff’s private property.”
The governor’s office and the California Attorney General’s office could not be immediately reached for comment on the lawsuit.
The case is Tatoma Inc. v. Newsom, case number 3:21-cv-00098, in the U.S. District Court for the Southern District of California.
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