Bar owner opposes dismissal of shutdown lawsuit

PROTEST: Thomas Peinhopf, left, owner of Livehouse in Tumon, is shown protesting the closure of bars in August. Post file photo

Local bar owner Thomas Peinhopf has opposed the Attorney General of Guam's motion to dismiss his lawsuit in the District Court of Guam, and contends he and others like him are being treated differently.

The lawsuit was filed against Gov. Lou Leon Guerrero and Department of Public Health and Social Services Director Art San Agustin. Both are named as defendants in their personal and official capacities in the suit, which was filed last month.

"This court will accept true that Peinhopf owns a business in Guam and that the defendants have prevented him from using that business – without compensation – through executive order. The court will also accept as true that other businesses on Guam continue to operate and are not subject to the burden of closure though there is no reason to discriminate between Peinhopf, others like him, and those that are deemed essential," Peinhopf's opposition states.

"After all, a person can distance as well at a bar as he can at Pay-Less. This is a taking for public purpose without compensation. This court will also accept as true the shutdown orders which affect Peinhopf and not others deprive him of the beneficial use of his own property, the right to earn a livelihood, and that the actions are not lawful and cannot be enforced as such regardless of whether the process of enactment and enforcement were actually fair. In short, he enjoys a fundamental, constitutionally protected right that has been stripped from him."

The opposition, which was filed on Nov. 3, also states that the defendants provided no notice, appeal or any opportunity for Peinhopf to be heard prior to being shut down.

The lawsuit asks the federal court to nullify the governor's executive orders that forbade certain businesses from opening during the pandemic.

Peinhopf, who operates Livehouse and The Shady Lady bar/tavern, filed the lawsuit through attorneys Thomas Fisher and Rachel Taimanao-Ayuyu.

On Nov. 13, the AG filed a response to the opposition in federal court stating the complaint should be dismissed.

"The question here is whether the distinctions they have drawn are rationally related to the government's legitimate interest in containing the virus," the AG's office stated in its reply. "Mr. Peinhopf complains he is deprived of due process because he has not been afforded prior notice, an opportunity to be heard, or just compensation. He cites no authority in support of his just compensation 'takings' claim, nor does he respond to the defendants' authority ... of their motion to dismiss. Like his demands for damages and his substantive due process claim, his failure to respond is a concession that his 'takings' claim should be dismissed."

The lawsuit contends the governor's executive orders violate the Constitution in that they "control the movement of citizens in their private property."

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