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53 MASON STREET - THE GRIND FACTORY - COURT PAPERWORK COMMONWEALTH OF MASSACHUSETTS ESSEX.ss. SUPERIOR COURT CIVIL ACTION No V % �...... .rr.. ....................... ..::. .. .......a .l'l. ............................, Plaintiffs) RECEIVED 'A ......I..........'. / -.t:. 1<'.. . .. . G .. :x. !' ........ ` -: ............................ ' Defen; :. r ............ . dants) JAN 1 3 2022 -j �. SUMMONS AND ORDER OF NOTICE CITY OF SALEM BOARD OF HEALTH To the above-named Defendant: You are hereby summoned and required to serve upon plaintiff s attorney, whose address is 'e .J an answer to the complaint which is herewith serve upon vou, within 20 days after service of this summons upon you, exclusi\e of the day of service. If you fail to do so,judgment by default will be taken against you for the relief demanded in the complaint. You are also required to file your answer to the complaint in the office of the Clerk of this court at either before service upon plaintiffs attorney or within a reasonable time thereafter. Unless otherwise provided by Rule 13(a),your answer must state as a counterclaim any claim which you may have against the plaintiff which arises out of the transaction or occurrence that is the subject matter of the plaintiffs claim or you 4vili thereafter be barred from tnakin`*such claim in any other action. WE ALSO NOTIFY YOU that application has been made in said action,as appears in the complaint,for a prelimi- nary /'j nary injunction and that a hearing upon such application will be held at the court house at said' 'z9;:a('{XW i Ir in the session without jury of our said court on m-- ,U ; he �. day of It }t LLr.. A.D. 20,k 7 at _ : 0 ' o'cldck A i., at which _You may appear and show cause Nt}y such application should not be ,ranted. Witness, S �i i�fiE�:;�EC�; ?, Esquire; at Salem, the -; day of in the year of our Lord two thousand, ;2 Clerk NOTFIS: I. i his sunuiuins is issued pwsuani tip Rule-�iif the h•fassachusctts Rules of C'i�-i1 Prvccdurc. When more than one defendant is inokod.the names otall defendants should appear in the caption. I fir scpar,ate surnmons is used for each defendant.each should be addressed to the particular defendant. PROOF OF SERVICE OF PROCESS l herebv certify and return that on 20 I served a copy of the within summons and order of notice, together with a copy of the complaint in this action, upon the Nvithin nailed defendant, in the following manner (see Mass. R. Civ. P. 4 (d) (1-5): Dated: 20 N.B. TO PROCESS SERVER:- PLEASE PLACE DATE YOU MAKE SERVICE ON DEFENDANT IN THIS BOX ON THE ORIGINAL AND ON THE COPY SERVED ON DEFENDANT , 2o 00 � w DU U a H wz ¢ � nUZ f V Z0. O a0 H z w z U z0 0 � Z �Cn � Q Oz r ! I a y a - - - --•- �he rlar 4-.ourl or massacriusettsC1"VEACTION COVER SHEET Superior Court - --- -- OUNTY Essex superior Court(Salem) Plaintiff The Grind Factory,LLC Defendant: City of Salem,Jeremy Schiller,MD,Chair Board of ADDRESS: 53 Mason Street Salem,Massachusetts ADDRESS: 93 Washington Street Salem,Massachusetts Plaintiff At0tor'� Carmine Lepore Defendant Attorney: ADDRESS: One Sprague Street Revere,MA 02151 ADDRESS: 781-286-8800 BBO: 564603 BBO: + TYPE OF ACTION AND TRACK DESIGNATION(see instructions section below) C©D E IO. TYPE OF ACTION(specify) TRACK HAS A JURY CLAIM BEEN MADE? AD i Violation of Constitutional Rights A ❑ YES ® NO *If"Other" pleae describe: Is there a claim under G.L.c.93A? Is there a class action under Mass.R.Civ.P.23. YES ® NO YES ® NO STATEmENT OF DAMAGES PURSUAN T G.L.c.212 3A The following is ifuli,itemized and detailed statement of the facts on which the undersigned plaintiff or plaintiffs counsel relies to determine money damages. ::or this form, dissgard double or treble damage claims;indicate single damages only. TORT�M �. Documented redical expenses to date 1. Totahospital expenses 2. Totaldoctor expenses 3. Totalshiropractic expenses 4. Totabhysical therapy expenses 5. Totabther expenses(describe below) Subtotal(1-5): $0_00 !. Documented lost wages and compensation to date :.Documented poperty damages to date �.Reasonably anfcipated future medical and hospital expenses Reasonably antcipated lost wages Other documented items of damages(describe below) TOTAL(A-F): $0.00 Briefly describe plaintiffs injury,including the nature and extent of injury: N T CLAIMS This action includes a claim involving collection of a debt incurred pursuant to a revolving credit agreement.Mass. R.Civ.P.8.1(a). Item# Detailed Description of Each Claim Amount 1. Total )nature of Attomey/Unrepresented Plaintiff:X Date: S----------------- LATED ACTIONS:Please provide the case number, name,and county of any related actions pending in the Superior Court. CERTIFICATION PURSUANT TO SJC RULE 1:18 -- hereby certify that i have complied with requirements of Rule 5 of the Supreme Judicial Court Uniform Rules on Dispute Resolution(SJC Rule 1:18)requiring that I provide my ients with information about court-connected dispute resolution services and discuss with them the advantages and disadvantages of the various methods of dispute resolution. nature of Attorney/Unrepresented Plaintiff.X /s/Carmine Lepore 4 Date: January 12,2022 n..«..rr.....na.,«..a.n, ,�nn.i�,n•�c.nc , � 5 `■` rev i"m vvvGrC a nCK:1 11401 MUU I IUNb SELECT CATEGORY THAT BEST DESCRIBES YOUR CASE AQ_Ac- ions Involving the StafelMunicinality.* ER Equitable Remedies 1EP Real Property AA1 Co'ntract Action involving Commonwealth, D01 Specific Performance of a Contract A "L-i n6pality,META,etc. q O C01 Land Taking ( ) D02 Reach and Apply F (F) AB1—For-tkus Action involvingCommonwealth, O CO2 Zoning Appeal,G.L.c.40A D03 Injunction (F) CO3 Dispute Concernin Title )Munbipality,MBTA,etc. (A) D04 Reform/Cancel Instrument (F) C04 Foreclosure of a Mortgage (F)AC1 FReal Property Action involving D05 Equitable Replevin F (x) Co rnmcnwealth,Municipality,MBTA etc. (A) D06 Contribution or Indemnification (F) C99 Condominium Lien&Charges (x) AD1�quityAction involvingCommonwealth, ( ) C99 Other Real Property Action D07 Imposition of a Trust (A) CF) NAur nidpality,MBTA,etc. (A) D08 Minority Shareholder's Suit (A) MC Miscellaneous Civil Actions AE1 ch Arniristrative Action involving D09 Interference in Contractual Relationship IF) Gornrnonwealth,Municipality,MBTA,etc. (A) D10 Accounting (A) E18 Foreign Discovery Proceeding D11 Enforcement of Restrictive Covenant F (x) CN Contractl8usiness Case ( ) E97 Prisoner Habeas Corpus (x) 0 s 12 Dissolution of a Partnership (F) E22 Lottery Assignment,G.L.c.10,§28 (x) 13 Declaratory Judgment,G.L.c.231A (A) A01 S Brvices,Labor,and Material's (F) D14 Dissolution of a Corporation (F) AB Abuse)Hama sment Prevention A02 Goods Sold and Delivered (F) D99 Other Equity Action {F) A03 C mploylcial Paper (F) E15 Abuse Prevention Petition,G.L.c.209A (X) A05 Ern,su neent Contract F E21 Protection from Harassment,G.L.c.258EO< A05 G can su rner Revolving Credit-M.F.o.a.a.i (F) PA Civil 'ons.l ❑Ivin Inca cerated Pa t ) A06 I"su rarre Contract (F) AA Administrative Civil Actions A08 S ale orLease of Real Estate (F) PA1 Contract Action involving an Al C onstrLdion Dispute (A) Incarcerated Pa Al In terpleader F Party (A) E02 Appeal from Administrative Agency, ( ) P131 Tortious Action involving an G.L.c.30A (X) BA1 Governance,Conduct,Internal Incarcerated Pa A-frairs of Entities by (A) E03 Certiorari Action,G.L.c.249,§4 (X) (A) PC1 Real Property Action involving an E05 Confirmation of Arbitration Awards BA3 Li a b ilityof Shareholders,Directors, Incarcerated Party (F) E06 Mass Antitrust Act,G.L.c.93,§9 �q Officers.Partners,etc. (A) PD1 Equity Action involving an E07 Mass Ant trust Act,G.L.c.93,§8 BB 13 hareh dder Derivative (A) Incarcerated Party F E08A (X) BB2 Securities Transactions ( ) Appointment of a Receiver (X) {f') PE1 Administrative Action involving an E09 Construction Surety Bond,G.L.c.149, BC1 Merge, Nsua ce of Sales of Incarcerated Party (F) §§29,29A Assets, Issuance of Debt,Equity,etc. (A) (A) E11 Workers Compensation( ) p BD1 Intellectual Property A TR Torts ' BD2 Proprietary Information or Trade E10 Summary Process Appeal X(X) Secrets El Auto Surcharge Appeal (X) (A) B03 Motor Vehicle Negligence-Personal E17 Civil Rights Act,G.L.c.12,§11 H (A) BG1 Fi nanciallnstitutions/Funds (A) Injury/Property Damage 9 (F) E24 Appeal from District Court BH1 Violation of Antitrust or Trade B04 Other Negligence-Personal Commitment,G.L.c.123,§9(b) X Reg ulaticri Laws (A) Injury/Property Damage F E25 Pleural Re is ( ) A99 Other Contract/Business Action-Specify F ( ) Registry(Asbestos cases) p fY( ) B05 Products Liability (A) E94 Forfeiture,G.L.c.265,§56 (X) B06 Malpractice-Medical (A) E95 Forfeiture,G.L.c.94C,§47 (F) *Choose this case type if ANY party is the B07 Malpractice-Other (A) E99 Other Administrative Action W Commonwealth, 608 Wrongful Death-Non-medical a municipality,the MBTA,or any (A) Z01 Medical Malpractice -Tribunal only, other governmental entity UNLESS your case is a B15 Defamation (A) G.L.c.231,§60B (F) case type listed under Administrative Civil Actions 819 Asbestos (A) Z02 Appeal Bond Denial (X) (AA)- B20 Personal Injury-Slip 8 Fall (F) B21 Environmental (F) so Se O end view t Choose this case type if ANY party is an B22 Employment Discrimination IF) incarcerated party,UNLESS your case is a case BE1 Fraud,Business Torts,etc. (A) E12 SDP Commitment,G.L.c.123A,§12 (X) type listed under Administrative Civil Actions(AA) B99 Other Tortious Action (F) E14 SDP Petition,G.L.c.123A,§9(b) (X) or is a Prison erHabeas Corpus case(E97). RP Summary Process(Real Property RC Reafdctqdglull Actions S01 Summary Process-Residential K El Sex Offender Registry,G.L.c.6,§178M (X) S02 Summary Process-Commercial/ E27 Minor Seeking Consent,G.L.c.112,§12S(X) Non-residential (F) TRANSFER YOUR SELECTION TO THE FACE SHEET EXAMPLE: CODE NO. TYPE OF ACTION(specify) TRACK HAS A JURY CLAIM BEEN MADE? YES NO B03 Motor Vehicle Negligence-Personal Injury F STATEMENT OF DAMAGES PURSUANT TO G.L. c.212, § 3A UTY OF THE PLAINTIFF-The plaintiff shall set forth, on the face of the civil action cover sheet(or attach additional sheets as necessary), a atement specifying the facts on which the plaintiff relies to determine money damages.A copy of such civil action cover sheet, including the atement as to the damages, shall be served.with the complaint.A clerk-magistrate shall not accept for filing a complaint,except as herwise provided by law, unless it is accompanied by such a statement signed by the attorney or self-represented litigant. JTY OF THE DEFENDANT-If the defendant believes that the statement of damages filed by the plaintiff is inadequate, the defendant may with his/her answer a statement specifying the potential damages which may result if the plaintiff prevails. A CIVIL COVER SHEET MUST BE FILED WITH EACH COMPLAINT. FAILURE TO COMPLETE THIS COVER SHEET THOROUGHLY AND ACCURATELY MAY RESULT IN DISMISSAL OF THIS ACTION. :rnnn�•irwnn�a ..-."....,.••,,� ""'"r""'•••s•• nefcTi...n Drin4nrl-n�_1�_')n�)1 o•os•na v COMMONWEALTH OF MASSACHUSETTS ./ ESSEX, SS. SUPERIOR COURT CIVIL ACTION NO: THE GRIND FACTORY, LLC, ) Plaintiff V. ) CITY OF SALEM, JEREMY ) SCHILLER, MD ) CHAIR OF SALEM ) rn Cn BOARD OF HEALTH, KIMBERLEY ) x DRISCOLL, MAYOR ca -FIm p Defendants ) 8 MOTION FOR SHORT ORDER OF NOTICE ON MOTION FOR TEMPORAR-Tq RESTRAINING ORDER/PRELIMINARYINJUNCTION N Now come the Plaintiff and moves that this Honorable Court grant the Plaintiff:s motion for a short order of notice for a hearing to be conducted on Tuesday, January 18 at a` J .� 2:00 p.m. on Plaintiffs Motion For Temporary Restraining Order/Preliminary Injunction or a � C o date provided by the court forthwith. Ila' intiff states that time is of the essence as the Defendants Order goes into effect on uary 15, 2022. The Plaintiff, T nd Factory. LLC unsel�� Carm9sgue Lepore, Esq. One Street Revere,MA 02151 BBO# 564603 (781) 286-8800 January 1`�, 2022 COMMONWEALTH OF MASSACHUSETTS ESSEX, SS. SUPERIOR COURT CIVIL ACTION NO: THE GRIND FACTORY, LLC, ) Plaintiff ) V, CITY OF SALEM, JEREMY ) SCHILLER, MD ) CHAIR OF SALEM ) BOARD OF HEALTH, KIMBERLEY ) DRISCOLL, MAYOR ) Defendants ) PLAINTIFF'S MOTION FOR PRELIMINARY INJUNCTION Now comes the Plaintiff and moves this Honorable Court grant it a preliminary injunction against the Defendants to stay the enforcement of the "TEMPORARY ORDER REQUIRING COVID-19 VACCINATION FOR INDOOR ENTERTAINMENT, RECREATION, DINING, AND FITNESS SETTINGS" mandate which goes into effect on January 15, 2022, a copy of which attached the Verified Complaint as Exhibit "A" Plaintiff respectfully refers the Court to his Memorandum of Law in Support of `fnis Motion. The Plaintiff, The Grind Factory. LLC B C sel, C i Lepore, Esq. One &Wague Street Revere, MA 02151 BBO# 564603 (781) 286-8800 4 COMMONWEALTH OF MASSACHUSETTS ESSEX, SS. SUPERIOR COURT CIVIL ACTION NO: THE GRIND FACTORY, LLC, ) Plaintiff ) V. ) CITY OF SA EM, CITY OF SALEM ) BOARD OF HEALTH, KIMBERLEY ) DRISCOLL, as MAYOR ) Defendants ) PLAINTIFF'S MEMORANDUM IN SUPPORT OF MOTION FOR TEMPORARY RESTRAINING ORDER/PRELIMINARY INJUNCTION INTRODUCTION The Plaintiffs respectfully submits this Memorandum of Law In Support of its Motion for Temporary Restraining Order and/or Preliminary Injunction. FACTS Plaintiff refers this Court to their Statement of Facts in the Verified Complaint. LEGAI1 STANDARDS FOR INJUNCTIVE RELIEF Pursuant to Mass.R.Civ.P.65, the grant of injunctive relief, either in the form of a temporary restraining order or preliminary injunction, is based upon satisfaction of the following standards by the moving party: A likelihood of success on the merits; that irreparable harm will result from the denial of the injunction That, in light of the Plaintiffs likelihood of success on the merits, the risk of irreparable harm to the Plaintiff outweighs the risk of potential harm to the Defendant in granting the injunction; Packing Industries Group, Inc. v. Chenny, 380 Mass. 609, 617(1980). 1 PLC Ilp-TTIFF'S REQUEST FOR INJUNCTIVE RELIEF Plaintiffs request for injunctive relief is based on the arbitrary nature of the Order mandated by the defendants and the unfair, unreasonable and unconstitutional enactment and enforcement of the Order. PLA IN7117F WILL SUFFER IRREPARABLE HARM IF HIS REQUST FOR INJUNCTIVE RELIEF IS DENIER Plaintiff has established by the facts of the Verified Complaint that it will suffer immediate and irreparab le harm if the request for injunctive relief is denied. The plaintiff's harm is not speculative. If the Defendants are allowed to implement and enforce the Order requiring proof of vaccination for the employees and patrons of the Plaintiff it will be unable to operate its business and will suffer immediate and irreparable loss of substantial income. If pary<>ns are refused entry due to not having been vaccinated they will likely take their business to another facility in a s grounding community, thereby resulting in permanent loss of revenue for the Plaintiff. THE GRIND FACTORY CAN ESTABLISH A LIKELIHOOD OF SUCCESS ON THE MERITS OF ITS CLAIM The Defendants' Order is arbitrary in a constitutional sense as it is not applicable, nor does it affect everyone equally. The Order imposes mandates on certain businesses unilaterally determined by the Defendants with no logical or lawful reason. The Defendants have somehow determined that businesses, such as the Plaintiff's, must require its employees and patrons to provide proof of vaccination to enter, this despite the fact that a vaccine mandate does not exist in Salem, or anywhere in this Commonwealth and country. Moreover, the Defendants have excluded from the requirements ofthe Order all retail establishments, senior centers, community centers, barber shops, hair and nail salons, churches, hotels and other businesses as described in the complaint. This distinction is without valid reason and not reasonably related to a legitimate public health concern. The Order also does not apply to any private or public school or daycare facility. To suggest that the Order is directly related to a legitimate public health concern when a 12 year old individual can attend school all day without being required to prove he was vaccinated, but then cannot enter the Plaintiff's business without proof of vaccination is absurd. The Defendants cannot justify the unfair and unequal application of its Order. 2 THic i—ZJIALANCiNG OF HARiVIS FAVORS THE PLAINTIFF The Plaintiff can meet the burden of showing that the balance of harm is in its favor. As discussed above, the]Plaintiff will suffer immediate, crippling and irreparable loss of revenue and loss of staff and ability to operate its bu siness. None of the surrounding communities have instituting a similar order. Accordingly the Plaintiffs cliel-it base Es likely to go to similar businesses in these surrounding communities an take their business away from the PlaiiaLitf. With such a dramatic loss of revenue from customers and loss of staff the Plaintiff will be unable to susta j3n operations. This will occur when many other businesses in Salem can carry on with business as usual. As the Defendant is a government entity the Court must also consider whether the relief sought will adversely affect the public. Tri-Nel Management, Inc., v. Board of Health of Barnstable, 433 Mass. 217(2001). Although the Defendants claim that this Order is required for the safety of the public, they cannot support this contention with any logical reasoning. The Defendants have imposed a mask mandate in all indoor public facilities. The rnask mandate is not being questioned by this action. The mask mandate is applicable equally to every business and public place. It is clear that proof of vaccination in certain business, and not others, is irrational and arbitrary and capricious. As stated a vaccine mandate does not exist in Salem, and other than Boston, no other community in the Commonwealth has mandated a similar Order. The Defendants cannot show a valid scientific/medical basis to support its unconstitutional Order. 1V CONCLUSION For all the above reasons, the Court should allow the Plaintiff's request for a preliminary injunction and award it.- such relief as it deems just and proper. The Plaintiff, TI ` ind actory. LLC yC , C Lepore, Esq. One r gue Street Revere, MA 02151 BBO # 564603 (781)286-8800 January , 2022 3 COMMONWEALTH OF MASSACHUSETTS FSSEX, SS. SUPERIOR COURT CIVIL ACTION NO: TIIE GRIND FACTORY, LLC, ) Plaintiff ) VERIFIED COMPLAINT AND REQUEST V. ) FOR INJUNCTIVE RELIEF CrY OF SALEM, JEREMY ) SCHILLER, MD ) CHAIR OF SALEIvI ) BOARD OF HEALTH, KIMBERLEY ) DR[SCOLL, MAYOR ) Defendants ) PARTIES (. The Plaintiff, The Grind Factory, LLC is a Massachusetts Limited Liability Company with a principal place of business at 53 Mason Street Salem, Essex County, Massachusetts. 2. The Defendant, City of Salem, is a municipality incorporated under the laws of the Commonwealth of Massachusetts with a principal place of business at 93 Washington Street Salem, Essex County, Massachusetts. 3. Defendant Jeremy Shiller, MD is the Chair of Salem Board of Health, an agency within the City of Salem with a principal place of business at 93 Washington Street Salem, Essex County, Massachusetts. 1 I 4. Defendant,Kimberley Driscoll is the Mayor of the Defendant City of Salem, with a principal place of business at 93 Washington Street Salem, Essex County,Massachusetts. FACTS 5. The Grind Factory, LLC (Grind Factory) is a business that operates an indoor baseball and softball training facility located in Salem, Massachusetts. 6. The Grind Factory is home to youth select baseball,North Shore Freedom Baseball (Freedom Baseball), and softball, The Angels Softball Program(Angels) 7. Freedom Baseball and the Angels rent times and space daily from the Grind Factory to conduct team practices, training and lessons. 8. Freedom Baseball has 149 players between the ages of 10 and 17 and a coaching staff of 26, ranging in age from 23 to 74. 9. The Angels have 145 players ranging in age from 8 to 18 and a coaching staff of 15 ranging in age from 3 0—55. 10. The Grind Factory also derives income from running hitting clinics and private 'lessons for individuals not involved with Freedom Baseball or the Angels programs. 11. There are in excess of 50 individuals ranging in ages from 10 to collage age that patronize the Grind Factory for said lessons and clinics. 12. As of January 15, 2022,the defendants, acting under the color of law, are instituting a mandate requiring proof of vaccination before entering certain businesses in the City of Salem. 13. Entitled "TEMPORARY ORDER REQUIRING COVID-19 VACCINATION FOR INDOOR ENTERTAINMENT, RECREATION, DINING, AND FITNESS SETTINGS" (Exhibit A) (The Order) 2 14. The Order prohibits certain businesses, including The Grind Factory, to "not permit a patron, full or part-time employee, intern, volunteer, or onsite contractor to enter a covered premises without displaying proof of vaccination". 15. The Order exempts certain individuals from being required to show proof of vaccination, such as individuals entering for a quick and limited purpose,performing artists, professional athlete/sports team who enter a covered premises as part of their employment and any individual accompanying said performing artist of professional athlete. 16. The Order enumerates a list of"covered entities" (see Exhibit A' 17. The Order by its terms does not apply to public and private pre-kindergarten through grade 12 schools and programs, childcare programs, senior centers and community centers. 18. In addition, the Order does not apply to any retail business such as supermarkets, hardware stores, barber shops, hair and nail salons, liquor stores, car dealerships, take-out food services, convenience stores, smoke shops, churches,places of worship,hotels, doctor and dentist offices and other medical facilities. 19. On January 4,2022 the City of Salem conducted a webinar regarding the Order and outlining what businesses are covered by the order and those that are exempt. https://us02web.zoom.us/ree/play/RLzOtl'55ib5UKFgiYIYgVq- xbb5NzQnpU9vCLaaw8JH9g9VOgT3 Bk3pkl_kSOggH- 7TZzQC20hlu-iDBgl.8oHwG850TKScZ5td?continueMode--true& x zm rtaid=WrGgCl CoQIIWvyn- — — — iAdsm9w.1641919404440.8508f2b7cb4b79dff7c6b3db4fee9748& x zm rhtaid=280 3 20. The Order dictates that the Order will be enforced at the discretion of a City 0 icial, punishments from verbal warnings to fines and ultimately a Cease-and-Desist Order. 21. The Order, if enforced, will cause severe and irreparable financial hardship to the plaintiff while other exempt businesses are allowed to carry on with business as usual. LEGAL CLAIMS COUNT 1 (Violation of Due Process Clause—41h, 5th and 14th Amendments to The United States Constitution and Articles 10 and 12 of the Massachusetts Declaration of Rights) 22. Plaintiff repeats and reallege paragraphs 1-21 of this Complaint. 23. Plaintiff has a liberty interest in continuing operating its business and protecting its income 24. The Defendants actions in instating the Order are legally irrational in that it is not sufficiently keyed to any legitimate state interests. PZF Props, Inc. v. Rodriguez, 928 F.2d 28, 31-32 (1st Cir. 1991) 25. The defendants' actions and Order are arbitrary in a constitutional sense. COUNT II (Violation of Equal Protection Clause—4th, 5th and 14th Amendments to The United State.- Constitution and Articles 10 and 12 of the Massachusetts Declaration of Rights) 26. Plaintiff repeats and reallege paragraphs 1-25 of this Complaint. 27. The Plaintiff is guaranteed the right to equal protection of the laws by the United States Constitution and the Massachusetts Declaration of Rights. 28. The Order, and the enforcement thereof, treats the plaintiff differently from similarly situated persons. 4 29. The defendants are unequally applying the Iaws to the public. 30. The defendants' actions are arbitrary and capricious and not based in sound lawful reason COUNT III (Injunctive Relief) 31. The plaintiff restates the allegations in paragraphs 1 through 30 as fully set forth herein. 32. The plaintiff will suffer immediate and irreparable financial harm and loss of business if the defendants are not enjoined, by temporary restraining order and/or preliminary injunction. 33. Tlie plaintiff has a likelihood that he will succeed after a full hearing with this Court on the merits. WHEREFORE, the plaintiff respectfully requests that this Honorable Court grant it the following relief. A. An finding that the Order violates the Plaintiffs Due Process Rights and it's Equal Protection Rights as guaranteed by the United States Constitution and Massachusetts Declaration of Rights. B. Grant the Plaintiff a temporary restraining order/preliminary injunction against the defendants from implementing and enforcing the Order pending a full hearing with this Court; C. Following a full hearing with this Court, grant the plaintiff an injunction against the defendants from implementing and enforcing the Order. D. For such other relief as this Honorable Court deems just. 5 The Plaintiff, The Grind Factory. LLC By Counsel, /s/C'avamim .Lenaw _ Carmine Lepore, Esq. One Sprague Street Revere, MA 02151 BBO # 564603 (781) 286-8800 Dated: January 13, 2022 VERFICATION I, Loren Weed, Manager of The Grind Factory, LLC hereby certify that I have read the foregoing Verified Complaint and Request for Injunctive Relief and that the facts contained are based upon my personal knowledge and are true and accurate to the best of my knowledge and belief. Signed under the pains and penalties of perjury this _13t'_ day of January, 2022. _/sl Bcsvc n Weed Loren Weed, Manager VERIFICATION I, Carmine Lepore, Attorney for The Grind Factory, LLC., hereby certify that I have read the foregoing Verified Complaint and Request for Injunctive Relief and that the facts contained are based upon my personal knowledge and are true and accurate to the best of my knowledge and belief. Signed under the pains and penalties of perjury this _13th day of January, 2022. l s/ 6aYi z6W' aw Carmine Lepore, Esq. 6 EXHIBIT A i f - CITY OF SALEM, MASSACHUSETTS 10 BOARD OF HEALTH 98 WASHINGTON STREET,3Rn FLOOR PLlbfiCHealU'1 SALEM,MA 01970 Yreveat.Yrumute.Protec C. TF;L.(978)741-1800 health�a4,salem.com KIND_,1BERLEY DRISCOLL DAVID GREENBAUAj, PS MAYOR HEALTH AGN,,N'T TEMPORARY ORDER REQUIRING COVED-19 VACCINATION FOR INDOOR ENTERTAINMENT,RECREATION,DINING,AND FITNESS SETTINGS City of Salem COVID-19 Public Health Mandate of the Salem Board of Health The Salem Board of Health, acting through its duly appointed and authorized agent, and,pursuant to M.G.L. c. 111, § 30,the M.G.L. c. 111 §§ 6, 7, 31, 95, 104, 122, 310 CAM 11.05, 105 CMR 300.200 and all other authorizing statutes hereby enacts and declares as follows: Whereas, as of December 14,2021, 76.4% of the total Salem resident population has received at least one vaccination dose and 68.8% of the total Salem resident population is fully vaccinated; Whereas, as of December 14,2021,84.3% of the Salem resident population over the age of 12 has received at least one dose and 76.3% of the Salem resident population over the age of 12 is fully vaccinated; Whereas, as of December 11,2021,the two-week positivity rate in Salem has reached 6.2%, up from a low of 0.2% in June 2021 and above the Massachusetts Department of Public Health's 5.0% threshold for the red alert level category; Whereas, as of December 16,2021,the percentage of occupied non-surge ICU beds in the northeast region of Massachusetts has reached 95.0%, compared to 83.0% occupancy on December 16,2020, and exceeding the threshold of concern for ICU occupancy; Whereas, as of November 20, 2021, Salem again exceeded the Massachusetts Department of Public Health's metrics to classify as being in the"red,"or highest, alert level category for COVID-19; Whereas, as of December 14,2021, only 46% of the Salem resident population age 16-19 and only 50% of the Salem resident population age 20-29 is fully vaccinated; Whereas, as of December 17,2021,Salem's two-week average new case rate is 15% higher than the state's rate and Salem's two-week positivity rate is-24% higher than the state's rate; Whereas,as of December 16,2021, only 11 medical/surgical hospital beds are available in the northeast region of Massachusetts,compared to 150 beds available on December 16,2020,and around 10% of the capacity of other regions of the Commonwealth; Whereas,when the Commonwealth's final"reopening"phase went into effect on July 13,2020 Salem had 138 active cases, a 1.11 two-week case rate, a 2.1% two-week positivity rate,and 546 available hospital beds in the region, compared to the most current data of 322 active cases, 716 two-week case rate, a 6.2% two-week positivity rate, and 16 available hospital beds in the region; Whereas the conditions recited above present a public health emergency within the City of Salem, and require further temporary measures relative to requiring proof of vaccination for entry into certain indoor settings and are necessary to prevent the spread and mitigate the resurgence of COVID-19. THEREFORE,THE FOLLOWING PUBLIC HEALTH ORDER SHALL BE IN EFFECT FOR THE CITY OF SALEM: 1.A covered entity shall not permit a patron, full- or part-time employee, intern,volunteer, or on-site contractors to enter a covered premises without displaying proof of vaccination. 2.The following individuals are exempted from this Order,and therefore may enter a covered premises without displaying proof of vaccination,provided that such individuals wear a face mask at all times they are unable to maintain six(6)feet of distance from o0ier individuals inside the covered premises: a. Individuals entering for a quick and limited purpose(for example,using the restroom,placing or picking up an order or service,making a delivery, or performing necessary repairs); b. A performing artist regularly employed by the covered entity while they are in a covered premises for purposes of performing,provided they show proof of vaccination at least once; c. A professional athlete/sports team who enters a covered premises as part of their regular employment for purposes of competing; and d. An individual accompanying a performing artist or professional athlete/sports team into a covered premises as part of their regular employment so long as the performing artist or professional athlete/sports team are performing or competing in the covered premises. 3. Each covered entity shall post a sign at the entrance. The sign must alert patrons to the vaccination requirement in this Order and inform them that employees and patrons are required to be vaccinated. The sign will be available at www.salem.com or available for pick up at city locations,prior to the effective date of this Order. 4. For the purposes of this Order: a. "Covered entity"means any entity that operates one or more covered premises, except that it shall not include pre-kindergarten through grade twelve(12)public and non-public schools and programs, child care programs,senior centers, community centers, or as otherwise indicated by this Order. b. "Covered premises"means any Iocation, except a location in a residential or office building the use of which is limited to residents, owners, or tenants of that building, colleges or universities that have a vaccination requirement covering staff and students, or any other site that is otherwise not open to the general public,that is used for the following purposes: i. Indoor Entertainment,Recreational, and Event Venues,including movie theaters,music or concert venues, commercial event and party venues, museums and galleries,professional sports arenas and indoor stadiums, convention centers and exhibition halls,performing arts theaters, bowling alleys,haunted houses, escape rooms, and similar indoor attractions and other recreational centers; ii.Indoor Food Services,including indoor portions of food service establishments offering food and drink, including restaurants,bars, and all indoor dining areas of food service establishments. The requirements of this Order shall not apply to any food service establishment offering food and/or drink exclusively for off-premises or outdoor consumption, or to a food service establishment providing charitable food services such as soup kitchens. iii. Indoor Gyms and Fitness Settings, including commercial gyms,fitness, yoga/pilates/barre/dance studios, boxing/kickboxing gyms, fitness boot camps, indoor pools, and other facilities used for conducting group fitness classes. c "Indoor portion"means any part of a covered premises with a roof or overhang that is enclosed by at least three walls, except that the following will not be considered an indoor portion: (1) a structure on the sidewalk or roadway if it is entirely open on the side facing the sidewalk; and(2)an outdoor dining structure for individual parties, such as a plastic dome, if it has adequate ventilation to allow for air circulation. d. "Proof of vaccination"means proof of receipt of a COVID-19 vaccine authorized for emergency use or licensed for use by the U.S. Food and Drug Administration or authorized for emergency use by the World Health Organization, as required under the phased implementation of this Order. Such proof may be established by a CDC COVID-19 Vaccination Record Card, a digital image of the CDC card, or any other official immunization record from the jurisdiction, state, or country where the vaccine was administered or a digital or physical photo of such a card or record,reflecting the person's name,vaccine brand, and date administered, or any vaccination verification smartphone application developed by the Commonwealth of Massachusetts, or developed or endorsed by the City of Salem. 5. Each instance that a covered entity fails to check an individual's vaccination status shall constitute a separate violation of this Order. 6. The City of Salem and the Board of Health shall develop guidance to assist covered entities in complying with this Order in an equitable manner consistent with applicable law. 7 Covered entities shall comply with any guidelines issued by Salem Board of Health to further the intent dthis Order and increase the number of vaccinated individuals in the City. 8,This Order shall take effect on the following schedule: a. Phase I: January 15,2022. All individuals ages 12 and over shall be required to present proof of at least one dose of vaccination,in either a one-dose or two-dose series. b. Phase II:March 1,2022. i. All individuals ages 12 and over shall be required to present proof of either one dose of a one-dose series or two doses in a two-dose series. ii.All Individuals ages 5 to 11 shall be required to present proof of at least one dose of vaccination, in either a one-dose or two-dose series. c. Phase III: May 1, 2022.All individuals ages 5 to 11 shall be required to present proof of either one dose of a one-dose series or two doses in a two-dose series. EIIFORCEMENT Al reasonable efforts will be made to secure voluntary compliance with this Order,including-- at the discretion of the City Official a verbal warning for a first violation and a written warning for a second violation,however this Order may be enforced through any and all mechanisms afl'nrded by the authorizing statutes above,including fines of$300.00 for every subsequent violation and orders from the Salem Board of Health to cease and desist. To the extent necessary,this Order shall be enforced by Board of Health officials. Penalties will be issued in accordance with municipal fines as set forth in the City Ordinance of$50 for the first offense, $150 for the second offense and $300 for third and subsequent offenses. This emergency order shall be effective immediately and shall remain in effect until such tune as the Board of Health determine this order should be modified or rescinded. This order will be reviewed during the March S, 2022, Board of Health meeting. ORDERED at City Hall this 22nd day of December 2021. For the Board of Health / 1d'k David Greenbaum Health Agent Salem Board of Health a