BRIEF IN SUPPORT OF MOTION FOR EMERGENCY PRELIMINARY INJUNCTION: CLOSURE

Transcription

1 BRIEF IN SUPPORT OF MOTION FOR EMERGENCY PRELIMINARY INJUNCTION: CLOSURE 42

2 IN THE COURT OF COMMON PLEAS OF (COUNTY) COUNTY, PENNSYLVANIA (COUNTY) COUNTY HEALTH DEPARTMENT : Plaintiff : v. : : (DEFENDANT) : Defendant : GD-(DOCKET NO.) PLAINTIFF S BRIEF IN SUPPORT OF MOTION FOR EMERGENCY PRELIMINARY INJUNCTION Background (Property) is under the ownership and/or control of Defendant according to municipal tax records. (Attached hereto as Exhibit A. ) The (County) County Health Department is a local health department, duly established according to the requirements set forth in The Local Health Administration Law. On (Inspection Date) the (County) County Health Department personnel (conducted an inspection of (Property) and discovered conditions that constituted violations of (County) County Health Department Rules and Regulations OR received a laboratory report indicating that a communicable disease likely to cause irreparable harm to patrons of (Property) was associated with food or personnel at (Property).) (Attached hereto as Exhibit B. ) On (Notice of Violation OR Notice of Communicable Disease Date) the (County) County Health Department issued a (Notice of Violation OR Notice of Communicable Disease) to (Defendant) ( Defendant ) stating that (a) condition(s) present at (Property) violated local health regulations and/or the presence of a source of communicable disease constitute(d) a significant threat to the public s health. (Attached hereto as Exhibit C. ) These violation(s) include: 1. (cite rule/regulation) 2. (cite rule/regulation) 3. (cite rule/regulation) 4. (cite rule/regulation)

3 The circumstances above constitute an imminent threat to the public s health because exposure to them is likely to result in (describe irreparable harm, i.e. injury illness, permanent disability) and/or death. (After receiving the Notice of Violation, Defendant failed to abate the violation(s) within (the time prescribed) OR There is no means to protect the public from (Disease) at this time other than closing (Property).) Because the (Violation(s) OR Disease) constitute(s) a significant threat to human health, on (Order Date) the (County) County Health Department ordered Defendant, pursuant to The Local Health Administration Law, 16 P.S et seq.(and The Disease Prevention and Control Law of P.S et seq. ) [if appropriate]) to immediately close (Property). (Attached hereto as Exhibit D. ) Defendant has not closed (Property), which continues to pose a significant threat to the public s health due to (persistent health regulation violations OR continued cases of disease) linked to patronizing (Property). The (County) County Health Department believes that members of the public who are exposed to (Property) may develop (Health Conditions(s)), which can result in (Outcome(s) ie. death, serious illness, permanent disability). Statutory Basis for Closure The Local Health Administration Law empowers the directors of local health departments to abate public health nuisances. 16 P.S (c). The Disease Prevention and Control Law of 1955 requires that certain serious communicable illnesses are reported to local health directors so that they may prevent additional cases of these illnesses among the exposed public. 35 P.S The Disease Prevention and Control Law of 1955 also provides that local health departments shall carry out appropriate control measures to protect the public from these communicable diseases. 35 P.S When exigent circumstances exist, requiring immediate action to prevent harm to the public s health, an ex parte hearing may occur resulting in an Emergency Preliminary Injunction. Pa. R. C. P. No. 1531(a). Where the party seeking special relief is an instrumentality of the Commonwealth, such as a local health department created by Pennsylvania statute, no bond shall be required. Pa.R.C.P. No. 1531(b).

4 Common Law Basis for Closure A Preliminary Injunction will lie where it is appropriate and there is no adequate remedy at law. A Preliminary Injunction will issue when: (1) the injunction is necessary to prevent immediate and irreparable harm not compensable in damages; (2) greater harm would result from denying the injunction than from granting it; (3) the activity sought to be restrained is actionable, and the Plaintiff's right to relief is clear; and (4) the status quo be restored if the injunction is granted. The Woods At Wayne Homeowners Assn. v. Gambone Bros. Construction Co., Inc., 893 A.2d 196, 204. (2006). Analysis of Facts The (County) County Health Department has determined that (violations of its health code, including: 1. (cite rule/regulation) 2. (cite rule/regulation) 3. (cite rule/regulation) 4. (cite rule/regulation) are OR that (Disease), a communicable disease has been found to be associated with being) present at (Property) and has determined that closure of (Property) is the most appropriate measure to (protect the public s health OR control (Disease)). No remedy at law is appropriate to compensate the harm contemplated herein: (list contemplated harm(s)). The nature of the (violations OR health conditions) are (cite reasons why this is an emergency situation) that immediate action is necessary to prevent harm to the public s health. Due to these exigent circumstances, an Emergency Preliminary Injunction should issue posthaste, with a hearing to be held at a later date. The (County) County Health Department, pursuant to the Local Health Administration Law, has the statutory authority to order such closure, which is the least restrictive means to protect the public s health. Because the (County) County Health Department is an instrumentality of the Commonwealth and (Municipality), no bond should be required. PA.R.C.P. No. 1531(b).

5 The (County) County Health Department has (attempted to) notified(y) Defendant that a public health emergency exists. The Defendant has heretofore refused to close (Property). Conclusion This Honorable Court should issue an Order enjoining Defendant from holding (Property) open to the public in the instant matter because (restate conclusion from analysis of facts) until such time that it has found that no further unnecessary risk to the public s health exists. Respectfully submitted, (Solicitor s Name), Esquire

6 EXHIBIT A Municipal Tax Records for (Property)

7 EXHIBIT B (County) County Health Department (Inspection Report OR Lab Report)

8 EXHIBIT C (Notice of Violation OR Notice of Communicable Disease)

9 EXHIBIT D Order to Close (Property)