A Dewey Beach condominium owner has filed a federal lawsuit against Governor John Carney, claiming the State of Emergency, tied to the COVID-19 public health threat and its restrictions, are violating his constitutional rights.
In the lawsuit, filed May 15, 2020, in U.S. District Court in Delaware, Patrick J. Murray, who resides in Seaford and owns property at Cove Condominiums in Dewey Beach, called the ban on short-term rentals of private property "overly broad" and outside the governor's purview.
The lawsuit likened the stay-at home orders, in effect for more than two months now, to "house arrest" with no end in sight.
"In fact, Delawareans are being subjected to worse treatment than those criminal defendants that are sentenced to house arrest because the criminal defendant knows the date that the house arrest will end," the complaint reads.
Murray, who's represented by his wife, Julieanne Murray, a Georgetown attorney, said his inability to rent the couple's condo is like a bell, tolling for death. She's not listed as a plaintiff in the lawsuit, despite co-owning the property.
"For many owners, rental income from Memorial Day through Labor Day is necessary to pay the mortgage on the property for the entire year," the complaint said.
The lawsuit alleges rental income becomes even more necessary for those who don't work for essential businesses, which have remained open during the shutdown. The closure of non-essential businesses has led to record unemployment nationwide.
The lawsuit claims the restrictions violate Patrick Murray's rights under the Fifth Amendment's "Takings Clause" which states, in part: "Nor shall private property be taken for public use without just compensation."
"This is essentially, what I'm arguing is, you've taken our property; we can't use it," said Julieanne Murray.
However, Patrick Murray doesn't want compensation, right now, he simply wants to be able to rent his property.
The lawsuit also claims violations under the Fourteenth Amendment, saying the ban on short-term rentals violates Patrick Murray's "life, liberty, and property rights."
"If you violate the modification, it's criminal; it's a fine of up to $50 to $500 or six months in jail, so you have people, who have rental properties, who can't rent them, who are relying on the rental income, particularly coming into the summer...and if they violate it, and they rent it, it's a criminal offense, and so the sense of urgency to this is that, for some people, the summer rental months...will pay the mortgage for the rest of the year, and all of that is off-the-table right now with this blanket ban."
Not included in the lawsuit, but cements the argument and further complicates the situation, according to Julieanne Murray, the fact that Ocean City, Maryland, has reopened.
"For people who own property in Sussex County, who want to be able to rent their property and cant...the customers who would be coming to rent those places, where do you think they're going to go? They're going to cross the line, they're going to go to Ocean City, so there's an economic ramification to this for sure, "said Julieanne Murray.
The complaint further argues that a blanket ban is not the "least restrictive" means required to justify a violation of constitutional rights, especially when renters could practice social distancing and other Centers for Disease Control measures to prevent further spread of the novel coronavirus.
The lawsuit called for injunctive relief in the form of restraining orders that would prohibit the governor from restricting short-term rentals and beach access--with the exception of face coverings. The lawsuit comes just one day after the governor announced beaches would reopen to Delawareans only, in time for Memorial Day weekend, at 5 p.m. on May 22, 2020. Bans on short-term rentals and a required 14-day quarantine for out-of-state travelers, however, remain in effect.
"While it is true that the 14-day quarantine could absolutely impact the ability to rent, right now, with it the way that it is, if the plaintiff wanted to rent to someone from Delaware, who does not fall under the quarantine rules--someone from Wilmington, ho wants to come down to Dewey Beach, he can't. So there is a different argument."
Julieanne Murray said she wouldn't rule out additional multi-plaintiff lawsuits.
"I have been contacted by lots of people since this went out, from out-of-state, who are exactly [those] plaintiffs, and I have indicated that there may be more complaints to follow. This one was pretty specific about just kind of the over-broadness of this blanket ban," she said. "You have people from out-of-state, who can't get to the property that they own--that they're paying taxes on--in Sussex County because they can't afford to come here for 14 days; they want to come down and return back to Pennsylvania or wherever they're coming from, so there's some definite legal issues there," said Julieanne Murray.
Murray's lawsuit calls for oral argument by telephone immediately.
"Time is of the essence and Delawareans and already suffering economically and are going to suffer irreparable economic harm if the court does not step in immediately."
She said the lawsuit doesn't effectively just go away if and when the governor does lift the short-term rental ban.
"We're seeking permanent guidance going forward on whether this passes constitutional muster," she said. "But the ball would be in my court to decide whether I want to continue on with the suit or what would happen after that."
A spokesman for the governor said his legal team is reviewing the lawsuit.
The governor also faces a legal threat from the "Committee to Save Christmas" -- a group of pastors, businessmen, and political figures, including the Reverend Christopher Allan Bullock, pastor at Caanan Baptist Church. That group is expected to file a lawsuit in the coming days as they remain unsatisfied by new guidance, from the state, on places of worship, calling restrictions--even amended ones--"discriminatory."
Read Murray's full complaint: