DATE FILED: July 8, 2020 5:49 PM

DISTRICT COURT, ARAPAHOE COUNTY, STATE FILING ID: 7A0E42A672695

CASE NUMBER: 2020CV31347
OF COLORADO
7325 S. Potomac Street
Centennial, CO 80112

Plaintiff: 4842 MORRISON ROAD CORP. d/b/a

PLAYER’S CLUB

v.

Defendant: TRI-COUNTY HEALTH

DEPARTMENT, COLORADO DEPARTMENT OF
PUBLIC HEALTH AND ENVIRONMENT, TRENA
SIMONS, in her official capacity as a Community
Outbreak Investigator, and JILL HUNSAKER RYAN,
in her official capacity as the Executive Director of the
Colorado Department of Public Health and
Environment
▲COURT USE ONLY▲
Attorneys for Plaintiff:
Case Number:
Jordan Factor, #38126 20CV_______
Brenton L. Gragg, #52528
ALLEN VELLONE WOLF HELFRICH & FACTOR P.C. Division/Courtroom:
1600 Stout St., Suite 1900
Denver, Colorado 80202
Phone Number: (303) 534-4499
jfactor@allen-vellone.com
bgragg@allen-vellone.com

VERIFIED COMPLAINT FOR DECLARATORY AND INJUNCTIVE

RELIEF

Plaintiff, 4842 Morrison Road Corp. d/b/a Player’s Club, by and through its
counsel, hereby submits its Verified Complaint for Declaratory and Injunctive Relief,
and in support of the same avers as follows:

INTRODUCTION

1. Plaintiff seeks to restrain the Defendants from depriving Plaintiff of its

rights, privileges and immunities secured to it by the Constitutions of the United
States and the State of Colorado. Specifically, Plaintiff seeks to have this Court
declare as unconstitutional, both on its face and as applied, and to enjoin, specified
aspects of the Seventh Amended Public Health Order 20-28 Safer At Home and in
the Vast, Great Outdoors, June 18, 2020, (hereafter, the “Order”) issued by Jill
Hunsaker Ryan in her official capacity as the Executive Director of the Colorado
Department of Public Health & Environment pursuant to the Colorado Governor’s
directive in Executive Order D 2020 091 and thus far sought to be enforced by Trena
Simons, a Community Outbreak Investigator for the Tri-County Health Department.

PARTIES

2. Plaintiff 4842 Morrison Road Corp. d/b/a Player’s Club is a Colorado

corporation with its principal place of business in the County of Adams, State of
Colorado, at 6710 Federal Boulevard, Denver, 80221. Plaintiff operates a duly
licensed restaurant that provides adult entertainment featuring dancers performing
erotic dance routines on stage.

3. Defendant, Colorado Department of Public Health and Environment

(“CDPHE”), is Colorado agency created and authorized pursuant to CRS § 25-1-101,
et seq. The CDPHE is headquartered at 4300 Cherry Creek Drive South, Denver,
Colorado.

4. Defendant Jill Hunsaker Ryan is the Executive Director of the CDPHE,

and is sued in her official capacity only, as the Executive Director of the CDPHE.

5. Defendant Tri-County Health Department (“TCHD”) is a public agency

created pursuant to CRS § 25-1-505 wherein three Boards of County Commissioners
passed resolutions designating the Tri-County Health Department as their local
public health agency and maintains an office at 6162 South Willow Drive, Suite 100,
Greenwood Village, Colorado.

6. Defendant Trena Simons is a Community Outbreak Investigator for

TCHD and is sued in her official capacity only as a Community Outbreak
Investigator. Ms. Simons maintains an office at 15400 E. 14th Place, Suite 115,
Aurora, Colorado.

RELEVANT STATUTORY AND ORDER PROVISIONS

7. The Executive Director of the Colorado Department of Public Health and

Environment (“CDPHE”), Jill Hunsaker Ryan (“Ms. Ryan”) signed the Order on June
18, 2020, and it is currently in effect.

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 8. A true and accurate copy of the Order is attached hereto as Exhibit A
and is hereby incorporated by reference as though fully set forth herein.

9. The Order provides, in part:

Effective June 18, 2020, indoor and outdoor events such as receptions,
events, non-critical auctions, theaters, trade shows, markets, indoor
malls, rodeos, fairs, festivals and parades or other outdoor or outdoor
events not otherwise covered by this Order may operate in accordance
with the following requirements:

* * *

Performers in a restaurant or bar must maintain a minimum of 25 feet

of distance from the patrons.

[Appendix I.A.3(e), p. 42]

* * *

e. . . . . If performers join the patron spaces, they must be included in the

capacity limit numbers.

f. Operators, employees and attendees must wear face coverings unless

doing so would inhibit the individual’s health, in which case reasonable
accommodations should be pursued to maintain the safety and health of
all parties.

[Section H.4(e)(f), p. 5-6]

10. Ms. Ryan’s stated authority for promulgating the Order stems from a
directive set forth by Colorado Governor Jared Polis in Executive Order D 2020 091
(“EO 91”).

11. The Order does not define “performers” and does not describe how the
25-foot buffer is to be calculated, e.g., whether it is to be measured from the performer
or the stage. If the performer, the Order does not specify how to implement the 25-
foot buffer when the performer moves.

12. The Order contains contradictory provisions, allowing performers to join

patron spaces if they are included in the building’s capacity limits, but also stating
that performers must maintain a 25’ distance from patrons.

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 13. The Order makes it mandatory for certain employees to wear masks but
does not address whether “performers” must do so. Nor does the Order clarify
whether the 25-foot buffer is required if the performer wears a mask or only in lieu
of the performer wearing mask.

14. The Order references certain research performed by the CDC suggesting
that singing may spread COVID-19 at an increased rate due to respiratory particles
exhaled by singers while performing, and therefore recommends additional space
between a singer and the audience. That is the only factual basis the Order cites for
the 25-foot requirement.

15. Defendants CDPHE and Ryan do not independently interpret and

enforce the Order. Rather, county health departments like Defendant TCHD are
charged with interpreting the Order and enforcing it through their investigators like
Defendant Simons.

16. Ms. Simons is a state actor.

17. TCHD is a “local authority” authorized by the Order to enforce the Order
“by all appropriate means.”

18. Ms. Simmons is a “local authority” authorized by the Order to enforce

the Order “by all appropriate means.”

JURISDICTION AND VENUE

19. This Court has subject matter jurisdiction over this action pursuant to
the Constitution of the State of Colorado, Article VI, Section 9.

20. This Court has personal jurisdiction over Defendants because they are
located and perform government functions in the State of Colorado.

21. Venue is proper in this Court under C.R.C.P. 98(b)(2) because Defendant
Simons is a public officer, and claims brought against her are in virtue of her
discharge of those duties.

GENERAL ALLEGATIONS

22. On or about June 24, 2020, Plaintiff notified Defendants Simons and
TCHD that three of Plaintiff’s employees had tested positive for COVID-19. Plaintiff
then voluntarily and temporarily ceased its operations to control the potential spread
of COVID-19 by disinfecting its facility and implementing protective measures.

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 23. Defendant Simons responded in writing that Plaintiff requires approval
from TCHD before it may reopen.

24. Defendants Simons and TCHD issued to Plaintiff a set of written

requirements that Plaintiff must satisfy before it may re-open for business.

25. Among the requirements that TCHD insisted Plaintiff satisfy before
reopening is maintenance of at least a 25-foot distance between stage performers and
patrons, citing the Order as authority for such requirement. (“Spacing
Requirement”).

26. Defendants provided no justification for applying the Spacing

Requirement to Plaintiff.

27. Plaintiff took all steps necessary to comply with TCHD’s requirements
for re-opening.

28. TCHD authorized Plaintiff to re-open as a restaurant, but ordered that

Plaintiff may not provide adult entertainment unless the Spacing Requirement was
satisfied for all stage performances.

29. Plaintiff reopened as a restaurant on July 6, 2020.

30. However, imposition of the Spacing Requirement makes it impossible

for Plaintiff to earn enough revenue to sustain operations.

31. To comply with the Spacing Requirement, Plaintiff must effectively shut
down half of its space to patrons, thereby limiting substantially the number of
patrons who may be accommodated.

32. Physical proximity is an essential aspect of the performance that

Plaintiff’s entertainers provide. Plaintiff’s entertainers seek to create erotic art and
such eroticism requires less distance than 25 feet to be effectively communicated to
the patrons. Therefore, the Spacing Requirement makes it impossible for Plaintiff
and its entertainers to perform their art.

33. Moreover, Plaintiff’s patrons pay to experience and engage with erotic
performance art. Because the Spacing Requirement diminishes substantially the
eroticism of the performance, Plaintiff’s patrons will refuse to pay Plaintiff for entry.

34. Patrons pay Plaintiff’s entertainers directly while they are performing
on stage by handing cash directly to, or placing cash near, the entertainers in the
midst of their performances.

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 35. The Spacing Requirement makes it impossible for patrons to pay
Plaintiff’s entertainers directly, substantially impacting the ability of entertainers to
be compensated for their art.

36. The Spacing Requirement has not been applied to Plaintiff’s competitors
or to other restaurants.

37. Of all the adult entertainment venues in Colorado, only Plaintiff has
been made subject to the Spacing Requirement.

38. Other county health departments have permitted Plaintiff’s competitors

to provide the same entertainment without requiring a 25-foot separation between
stage performers and patrons.

39. TCHD has permitted all of Plaintiff’s competitors within its jurisdiction
to provide the same entertainment without requiring a 25-foot separation between
stage performers and patrons.

40. At all times, Plaintiff’s competitors have and continue to provide adult
entertainment on stage without maintaining a 25-foot buffer between the entertainer
and the patrons.

41. Defendants TCHD and Simons have singled Plaintiff out as the only
venue as to which the Spacing Requirement applies.

42. Patrons that have entered Plaintiff’s premises on or after July 6, 2020
have complained that Plaintiff’s competitors do not impose a 25-foot barrier, and,
therefore, such patrons intend to favor Plaintiff’s competitors going forward and not
return to Plaintiff’s establishment.

43. Because Plaintiff, but not its competitors, must comply with the Spacing
Requirement, Plaintiff will effectively be destroyed and unable to conduct its
business.

FIRST CLAIM FOR RELIEF

(Declaration Pursuant to C.R.S. §§ 13-51-106, et seq. that the Order Violates
U.S. Const., amend. XIX)

44. Plaintiff incorporates all prior paragraphs as if fully stated herein.

45. The Order violates the Fourteenth Amendment of the United States
Constitution both facially and as applied to Plaintiff for numerous and various
reasons including, but not limited to, the facts that:

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 a. It treats Plaintiff differently than similarly situated
establishments presenting the same form of entertainment for no compelling,
important, or rational reason;

b. It treats entertainers at Plaintiff’s establishment differently than

similarly situated entertainers presenting the same form of entertainment at other
establishments for no compelling, important, or rational reason;

c. It treats Plaintiff differently than similarly situated

establishments presenting different entertainment or no entertainment for no
compelling, important, or rational reason;

d. It treats workers at establishments presenting certain forms of

performance dance entertainment, such as Plaintiffs’, differently from workers at
establishments presenting other forms of entertainment or no entertainment, for no
compelling, important, or rational reason;

e. It violates Plaintiffs’, and the entertainers who perform on

Plaintiffs’ premises, rights under the occupational liberty component of the
Fourteenth Amendment; and

f. It is impermissibly vague.

46. As a direct and proximate result of the unconstitutional aspects of the

Order and the Defendants’ and their delegates’ application of the Order against
Plaintiff, Plaintiffs’, Plaintiffs’ employees, and the entertainers who perform at
Plaintiffs’ establishments have suffered and will continue to suffer irreparable
injuries, including, but not limited to, financial ruin, business ruination, and the
violation of the rights protected by the Fourteenth Amendment of the United States
Constitution.

47. A real and actual controversy exists between Plaintiff, on the one hand,
and Defendants, on the other hand, concerning the constitutionality of the Order.

48. This Court should enter an Order to relieve the parties of uncertainty.

49. This Court should declare that the Order, both facially and as applied to
Plaintiff, violates the Fourteenth Amendment of the United States Constitution.

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 SECOND CLAIM FOR RELIEF
(Declaration Pursuant to C.R.S. §§ 13-51-106, et seq. that the Order Violates
U.S. Const., amend. I)

50. Plaintiff incorporates all prior paragraphs as if fully stated herein.

51. The Order violates the First Amendment of the United States
Constitution both facially and as applied to Plaintiff for numerous and various
reasons including, but not limited to, the facts that:

a. It effectuates an impermissible prior restraint upon speech and

expression;

b. It is an impermissible infringement upon the freedom to

expressive association.

52. As a direct and proximate result of the unconstitutional aspects of the

Order and the Defendants’ and their delegates’ application of the Order against
Plaintiff, Plaintiffs’, Plaintiffs’ employees, and the entertainers who perform at
Plaintiffs’ establishments have suffered and will continue to suffer irreparable
injuries, including, but not limited to, financial ruin, business ruination, and the
violation of the rights protected by the First Amendment of the United States
Constitution.

53. A real and actual controversy exists between Plaintiff, on the one hand,
and Defendants, on the other hand, concerning the constitutionality of the Order.

54. This Court should enter an Order to relieve the parties of uncertainty.

55. This Court should declare that the Order, both facially and as applied to
Plaintiff, violates the First Amendment of the United States Constitution.

THIRD CLAIM FOR RELIEF

(Declaration Pursuant to C.R.S. §§ 13-51-106, et seq. that the Order Violates
Colo. Const. Art. 2, § 25)

56. Plaintiff incorporates all prior paragraphs as if fully stated herein.

57. Article 2, Section 25 of the Colorado Constitution provides that “[n]o

person shall be deprived of life, liberty or property, without due process of law.”

58. The Order violates Article 2, Section 25 of the Colorado Constitution

both facially and as applied to Plaintiff for numerous and various reasons including,
but not limited to, the facts that:

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 a. It treats Plaintiff differently than similarly situated
establishments presenting the same form of entertainment for no compelling,
important, or rational reason;

b. It treats entertainers at Plaintiff’s establishment differently than

similarly situated entertainers presenting the same form of entertainment at other
establishments for no compelling, important, or rational reason;

c. It treats Plaintiff differently than similarly situated

establishments presenting different entertainment or no entertainment for no
compelling, important, or rational reason;

d. It treats workers at establishments presenting certain forms of

performance dance entertainment, such as Plaintiffs’, differently from workers at
establishments presenting other forms of entertainment or no entertainment, for no
compelling, important, or rational reason;

e. It violates Plaintiffs’, and the entertainers who perform on

Plaintiffs’ premises, rights to occupational liberty; and

f. It is impermissibly vague.

59. As a direct and proximate result of the unconstitutional aspects of the

Order and the Defendants’ and their delegates’ application of the Order, or
threatened application, against Plaintiff, Plaintiffs’, Plaintiffs’ employees, and the
entertainers who perform at Plaintiffs’ establishments have suffered and will
continue to suffer irreparable injuries, including, but not limited to, financial ruin,
business ruination, and the violation of the rights protected by Article 2, Section 25
of the Colorado Constitution.

60. A real and actual controversy exists between Plaintiff, on the one hand,
and Defendants, on the other hand, concerning the constitutionality of the Order.

61. This Court should enter an Order to relieve the parties of uncertainty.

62. This Court should declare that the Order, both facially and as applied to
Plaintiff, violates Article 2, Section 25 of the Colorado Constitution.

FOURTH CLAIM FOR RELIEF

(Declaration Pursuant to C.R.S. §§ 13-51-106, et seq. that the Order Violates
Colo. Const. Art. 2, § 10)

63. Plaintiff incorporates all prior paragraphs as if fully stated herein.

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 64. Article 2, Section 10 of the Colorado Constitution provides that “[n]o law
shall be passed impairing the freedom of speech; every person shall be free to speak,
write or publish whatever he will on any subject[.]”

65. The Order violates Article 2, Section 10 of the Colorado Constitution

both facially and as applied to Plaintiff for numerous and various reasons including,
but not limited to, the fact that:

a. It effectuates an impermissible prior restraint upon speech and

expression;

b. It is an impermissible infringement upon the freedom to

expressive association;

66. As a direct and proximate result of the unconstitutional aspects of the

Order and the Defendants’ and their delegates’ application of the Order, or
threatened application, against Plaintiff, Plaintiffs’, Plaintiffs’ employees, and the
entertainers who perform at Plaintiffs’ establishments have suffered and will
continue to suffer irreparable injuries, including, but not limited to, financial ruin,
business ruination, and the violation of the rights protected Article 2, Section 10 of
the Colorado Constitution.

67. A real and actual controversy exists between Plaintiff, on the one hand,
and Defendants, on the other hand, concerning the constitutionality of the Order.

68. This Court should enter an Order to relieve the parties of uncertainty.

69. This Court should declare that the Order, both facially and as applied to
Plaintiff, violates Article 2, Section 10 of the Colorado Constitution.

PRAYER FOR RELIEF

WHEREFORE, Plaintiff respectfully prays that this Court enter an Order:

A. Entering Declaratory Relief pursuant to C.R.S. §§ 13-51-106, et seq., and

C.R.C.P 57.

B. Entering Injunctive Relief pursuant to C.R.S. §§ 13-51-106, et seq., and

C.R.C.P. 65.

C. Awarding Plaintiff its Costs and Fees.

D. Any other Relief this Court deems just and proper.

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 DATED this 8th day of July, 2020.

Respectfully Submitted,

ALLEN VELLONE WOLF HELFRICH & FACTOR P.C.

By: s/ Jordan Factor

Jordan Factor
Brenton L. Gragg
1600 Stout Street, Suite 1900
Denver, Colorado 80202
(303) 534-4499
jfactor@allen-vellone.com
bgragg@allen-vellone.com

ATTORNEYS FOR THE PLAINTIFF

PLAINTIFF’S ADDRESS:

6710 Federal Boulevard

Denver, CO 80221

In accordance with C.R.C.P. 121 § 1-26(7), a printed copy of this document with original
signatures is being maintained by the filing party and will be made available for inspection
by other parties or the Court upon request.

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