MASON, Ohio -- A complaint filed Tuesday in Warren County by 40 daycare centers across Ohio seeks to end "arbitrary" limits on the number of children a site can supervise during the COVID-19 pandemic.
The lawsuit seeks a preliminary and permanent injunction against the statewide orders and names Ohio Dept. of Health acting director Lance Himes, former director Dr. Amy Acton and the Warren County Health District.
According to a statement by the 1851 Center for Constitutional Law, which represents the daycare centers, the May 29 orders issued by Acton are "particularly pernicious because they limit child care options for parents needing to return to work, dramatically raise the costs of these options, and threaten to bankrupt Ohio daycares.”
None of the 40 daycare centers involved in the complaint are from north central Ohio.
It's the third court action filed by the 1851 Center against the ODH orders in recent weeks. Successful court challenges were mounted on behalf of gyms and fitness centers in Lake County in May and in Erie County on behalf of a waterpark earlier this month.
According to the complaint, "Defendants continue to obstruct rather than advance Ohioans’ physical and mental health, all the while having continuously overinflated the risk of harm to the general public.
"The pandemic itself has inflicted no deaths on Ohio children, apart from those caused by the policies of Defendants," the complaint said.
The 1851 Center's statement said Acton's orders "severely reduces the number of children each adult staff member may supervise and the number of children who may be in the same room at any one time, even though the statutes governing daycares expressly protect their right to care for larger groups of children."
The statement said Acton's order reduces the number of pre-schoolers a staff member may care for from 14 to nine; the number of school-aged-children a staff member may care for from 20 to nine; and reduces the number of children who may be within the same room, regardless of the size of the space, from 40 to nine.
"However, agency regulations attempting to overrule express legislation on the same subject violate Ohio’s Separation of Powers limits. And in this case the Ohio Revised Code expressly provides that no administrative regulations may conflict with the group sizes the General Assembly has protected," the 1851 Center said in its statement.
“The Ohio Constitution protects Ohioans from unelected government administrators attempting to override statutes passed by elected representatives, no matter what the rationale,” 1851 Center Executive Director Maurice Thompson said in the statement.
The case is pending before Judge Timothy Tepe in Warren County.
The 1851 Center for Constitutional Law is a non-profit, non-partisan legal center dedicated to protecting the constitutional rights of Ohioans from government abuse. The 1851 Center litigates constitutional issues related to property rights, regulation, taxation, and searches and seizures.