SALEM — The owner of a Salem indoor sports training facility admitted in court Monday that her business is not following a temporary vaccine requirement that took effect in the city earlier this month.
The acknowledgement by Loren Weed, the owner of The Grind Factory on Mason Street, came during a hearing on her request for an injunction that would stop the city from enforcing the requirement, which her attorney, Carmine Lepore, called "unconstitutional."
Newburyport Superior Court Judge Kathleen McCarthy-Neyman conducted a hearing on the request via Zoom, and was the first to raise the issue, after Lepore told the judge that enforcement "is certainly going to create a problem" with staff and customers.
Lepore said that if required to comply with the vaccine requirement, many parents of young baseball and softball players will ask for refunds and move to a new facility in another community for winter practice, and Weed won't be able to pay her employees, some of whom she may also lose. That, he argued, created undue and irreparable economic harm to his client.
When the judge pressed him as to the impact of the mandate during the week or so it's been in effect, however, Lepore acknowledged that it had not been strictly enforced by the business.
"Has The Grind Factory not been following the mandate?" the judge asked.
"We believe the mandate is unconstitutional and that's why we've held off," Lepore responded.
Moments later, after Lepore had Weed testify as to the economic impact on her business, Salem City Solicitor Beth Rennard put the question directly to her.
"Has The Grind Factory been checking for vaccination?" Rennard asked Weed.
"No, we have not," Weed responded.
Salem's Board of Health voted last month to enact the temporary requirement, which took effect Jan. 15, in light of rising COVID case counts and demand on hospitals. Businesses that don't comply will receive a verbal warning, followed by escalating penalties for further violations.
Two days before it was set to go into effect, Weed filed suit, accusing the city of violating the due process rights of business owners like herself.
Lepore, in the complaint he filed on behalf of Weed and her business, said other businesses in the city do not face a similar requirement, violating his client's rights to equal protection under the law.
"They specifically exclude a host of businesses," as well as other community settings like houses of worship or schools," Lepore argued.
Rennard, meanwhile, defended the order, calling it a rational response to a public health emergency — and one that is completely constitutional.
"I feel very comfortable that we were well within our authority based on the public health emergency," Rennard said.
In her written response to the suit, Rennard said courts have upheld similar requirements for more than a century, pointing to a 1905 decision by the U.S. Supreme Court that upheld the prosecution of a Cambridge man who refused to be vaccinated for smallpox, and more recent rulings upholding other temporary requirements imposed by Gov. Charlie Baker and others.
In response to a series of questions from the judge, Rennard also pushed back on arguments that the order unfairly singled out fitness facilities, bars and restaurants and entertainment venues, saying that other businesses, like supermarkets or barbershops, are facing a mask requirement.
Beyond that, Rennard argued on Monday, The Grind Factory cannot show that it would suffer irreparable economic harm — one of the factors the judge must find in deciding whether to grant the request for an injunction.
Rennard said that any "speculative" financial impact on the business is outweighed by the public interest in reducing the spread of COVID and preventing hospitals from becoming overburdened.
Lepore, meanwhile, questioned the science behind the decision, and argued that just last week the state's Department of Public Health acknowledged that 49% of people diagnosed with COVID in Massachusetts hospitals had been admitted for another cause and tested positive for the virus "incidentally."
The order is temporary, and is set to be revisited on March 8, she told the judge, just before being interrupted for a second time by one of the more than 170 people listening to the hearing via Zoom.
"Enough is enough and it's time for a change," the man called out before being admonished by McCarthy-Neyman.
"Sir, there has to be decorum," the judge warned.
The man then proceeded to interrupt the judge before being electronically ejected.
McCarthy-Neyman did not immediately rule on the request for the injunction.
Only a court clerk and other staff were inside the Newburyport Superior Court during the hearing; the judge, Lepore and Rennard all appeared from other locations.
Just outside the historic High Street courthouse, about 30 people who were protesting what they described as government overreach were holding up signs and encouraging drivers to honk their horns as they drove by.
Jessica Locke, of Salem, said she was there to show support for The Grind Factory and alert Salem city officials she and other protesters did not approve of the mandate.
"They need to know people are paying attention and do care," Locke said, adding the protest was not about being against COVID-19 vaccinations. "We believe in medical freedom," she said.
Mark Burns, another Salem resident, called the mandate part of a "slippery slope" that chips away at individual freedoms.
"It's about your rights, it's America," Burns said.
Burns went on to say that despite being vaccinated, he contracted COVID-19, and no longer trusts medical experts and city officials with regard to the facts.
"The city is lying. It isn't about the science," Burns said.