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May 29, 2020

Branford spa sues Lamont over COVID-19 closing

PHOTO | Pixabay.com
By Michelle Tuccitto Sullo

The owners of a Branford spa are suing top state officials in federal court for being forced to close during the coronavirus pandemic, claiming the ongoing closure order violates their constitutional rights.

The Branford River Resort & Spa LLC and its owners, Doreen and Natalie Bastian, filed the litigation Thursday in U.S. District Court against Gov. Ned Lamont and David Lehman, the commissioner of the state’s Department of Economic & Community Development.

The lawsuit starts with a quote from Benjamin Franklin: “Those who would give up essential Liberty to purchase a little temporary Safety, deserve neither Liberty nor Safety.” 

Attorney Kevin Murray Smith of the New Haven law firm of Pattis & Smith filed the lawsuit on the spa’s behalf. 

“This is an action that challenges the unprecedented actions of political leaders who have asked Connecticut citizens to give up all of their constitutional liberties in exchange for a little safety,” Smith wrote in the lawsuit.

According to the lawsuit, Doreen Bastian has owned the 249 E. Main St., Branford business since 2009, and has run it along with her daughter, Natalie.

The business provides a range of services, such as massage, facials, waxing, tanning, manicures and pedicures, according to its website. 

Lamont’s mid-March order to shutter “non-essential” businesses due to the coronavirus pandemic forced the spa to close, according to the lawsuit.

Around April 11, the plaintiffs sought a waiver to be deemed an essential business so it could reopen, the lawsuit states. It asserts that the plaintiffs developed a comprehensive safety plan to ensure a safe reopening, including limiting the number of employees at any given time to two workers, requiring face mask usage and practicing sanitation measures. 

In response, the plaintiffs were informed that their business location must remain closed, but they could provide services in clients’ homes. Doing so, however, would have voided their liability insurance. When they appealed the decision, seeking to be able to open the business, they were denied, according to the lawsuit. 

The forced closure resulted in the business losing some $40,000 in April 2020 alone, according to the lawsuit. In contrast, the spa made roughly $11,000 in profit in April 2019.

“If the plaintiffs are allowed to reopen, they can still operate safely while saving their business,” the lawsuit states. “If the plaintiffs are not allowed to reopen, they will be unable to sustain the financial loss that they are currently incurring and will be forced to close or sell the business that they have worked so hard to build not just for one generation, but multiple generations.”

The litigation seeks compensatory and economic damages and for the business to be allowed to reopen. It alleges multiple constitutional rights violations, such as the right to pursue a living, right to the use of property, and right to receive just compensation for the taking of a property.

Under Lamont’s current plans to reopen the state, hair salons are slated to be allowed to reopen June 1, while “all personal services” tentatively may reopen around June 20. The business’ Facebook page indicates the owners plan to reopen on June 20. *

David Bednarz, a spokesman for Lamont’s office, declined to comment on the litigation.

While no attorney is yet listed as representing Lamont and Lehman, the Attorney General’s office represents the state in civil actions.

Attorney General William Tong’s office issued the following comment: "Our state constitution and state laws grant the Governor broad authority to protect Connecticut residents and families in a public health emergency, and his executive orders have been very clearly constitutional and fully legally justified.”

Contact Michelle Tuccitto Sullo at msullo@newhavenbiz.com.

* UPDATE: The business' Facebook page was updated after this story was published to indicate the business plans to reopen on June 20. The story has also been updated to include a comment from Tong's office.

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