A state judge ruled Friday that Kriner’s Diner must comply with the emergency order of the City of Anchorage that bans indoor dining.
The Anchorage public would suffer “irreparable damage” if companies like Kriner’s were allowed to break the order, Judge Eric Aarseth of the state wrote in his order granting the temporary order.
The dinner, owned by Andy and Norann Kriner, had continued to serve customers after the mayor issued Emergency Order 15, which went into effect Monday and banned the interior of restaurants and breweries, but let them continue with service and open meals . It also closes all beams.
Andy Kriner said Friday that he did not plan to follow through on the order, and was open on Saturday morning, with a line of customers waiting outside.
A telephone hearing was held Friday morning. Kriner’s Diner has become a major player amid a growing pushback against the city’s emergency call and public health restrictions aimed at curbing the spread of the new coronavirus. A petition asking the mayor to revoke the emergency order has collected about 5,500 signatures. Other companies have also publicly dismissed the order, and the city is pursuing a similar court order against at least one other restaurant.
Aarseth heard arguments Friday from city attorneys and Kriner’s Diner and gave the town’s motion for a temporary restraining order requiring the diner to comply with the emergency mandate.
“That the nature of the potential harm to the Anchorage public is so important that closing a business would be justified. A property interest can not be less than the importance of a person in life, ”he wrote.
He also wrote that the economic interests of the diner and those of similar companies are “adequately protected” because they can serve outside food, and offer pick-up, to-go and delivery on the side.
“It went exactly how I thought it would go,” Kriner said of the hearing. “Obviously I broke the law – as what they call the law.”
Kriner was still able to respond to the municipality’s complaint, which could lead to further hearings in the case.
“We have a great customer with a great company. We have no further comment at this time, “said her manager Katie Payton when she was reached by phone on Friday afternoon.
City Attorney Kate Vogel told a community committee Friday afternoon that the judge’s order means the dinner must follow the law immediately. The ruling does not only apply to Kriner’s Diner, she said.
“His statement, as he put it, is applicable and is a message to all restaurants that ask them about their obligations. The answer is clear, ”said Vogel.
At least three other establishments, Jackie’s Place and Wings’ N Things and Little Dipper Diner, have joined Kriner’s in the open discharge of the emergency order.
During the hearing, Quackenbush argued that the emergency order was in violation of the Alaska Constitution because it exempted the Kriners from their right to work. He also said the city gives the Kriners and other restaurant owners “disparate and unique treatment”. Other employers running similar companies where mask wear cannot be observed, such as gyms, are not equally shut down, he said.
“If anyone wants to challenge the constitutionality of a law, they are obviously entitled to do so, but they are not entitled to fail to comply pending that judicial resolution,” Vogel said at the briefing.
Quackenbush claimed during the hearing that the city also did not show any evidence that business practices at Kriner’s Diner contributed to the spread of COVID-19.
City attorneys said Quackenbush’s argument was untrue and also missing the point – that an emergency order is the law and that Kriner’s Diner broke the law.
Vogel said Kriner’s diner could have sought an order and challenged the law in a court of law instead of “just not complying.”
Now there could still be a “robust hearing of evidence” on which their legal arguments could be tested, Vogel said. The city took the case to court to show it was serious and also to have the court, a “neutral decision-maker,” weigh in on the legality of the emergency order, Vogel said.
The city is hoping that the next court hearing will reaffirm the mayor’s confirmation of emergency orders, she said.
The city is seeking another court ruling that would order Little Dipper Diner to stop its overdose, which this dinner will continue this week as well.
People eating outside in the terrace area of Humpy’s Great Alaskan Alehouse and Flattop Pizza & Pool, on F Street, in Anchorage on August 7, 2020. (Emily Mesner / ADN)
‘Broad brush decisions’
When asked about the court’s decision, Berkowitz said in a briefing on Friday that it was a ‘difficult day’ and that he did not rejoice in the decision because Alaskans would have to resolve issues without to direct.
“I think the importance of protecting public health through these public health mandates is so important that the law should apply to everyone,” he said. “And if we want it to be as effective as possible, everyone must comply.”
Pushback on the city’s pandemic policy is growing. Anchorage experts say the risks of the pandemic are also growing.
Berkowitz said he wants to bring down the number of COVID-19 cases with a collective effort to resolve some restrictions.
The mayor said he was ‘gratified’ by the vast majority of companies meeting the mandate.
“I know it’s easy to follow the outliers, and that’s what happened,” he said. “And they’ve got a disproportionate amount of publicity for what they do.”
The mayor said indoor dining is considered ‘high-risk behavior’, according to the Federal Centers for Disease Control and Prevention, and said that if the city and the country had better traces of contacts, they could better close certain businesses. Instead, they make “broad-based decisions” based on what is known as high-risk, until they know more.
More broadly, the mayor said the nation’s response to the pandemic had in some way “become a Rorschach test of partisan politics.”
“Those who politicize the response to a pandemic are really publishing health,” Berkowitz said. ‘And they also pose a great risk to our economic well-being, and they must therefore be held accountable. There is no partisan advantage in making people sick and maintaining the pandemic. “
Berkowitz said the US is a leader, ‘and we are behaving here almost like a failed state. And that’s the result of people getting politically involved in what should be rational decisions. That I’m surprised? I’m incredibly disappointed, ‘he said in response to a question about the pushback to the order.
The mayor said he thinks that after the November election cycle, the “hypertension” of the moment will begin to diminish.
“We need to remember that we are dealing with the stress of the economy, the pressure of a pandemic, but also just with the hyperpartisanism that the whole country is facing at the moment,” he said.
Help for restaurants uncertain
However, the emergency call caught some companies by surprise. Leaders of hairdressers have said that it is targeting their sector unfairly and that many restaurants and bars are vulnerable and wrestling.
Business owners interviewed by the Daily News have said state support has been slow to come while federal pandemic aid has declined. It is not certain when more will be available when another support package is bound in Congress.
Sarah Oates, president of Alaska Cabaret, Hotel, Restaurant and Retailers Association, said the community should be prepared to see a “significant number of permanent closures” of local bars and restaurants.
Nature Pineda, director of anchorage health department, said the city considers food in a non-critical activity where people are “together”, while other businesses such as gyms have other restrictions that keep people separate.
Pineda warned that coronavirus numbers have been rising rapidly in recent weeks, at one point too many public health workers’ sources are trying to track contact.
The daily cases this week were fewer – with 443 new cases reported since Friday compared to 494 the week before – and contact persons caught, Pineda said. While daily cases saw declines, the city’s weekly business rates are still important, she said. And the case numbers in general are still very high. Hospital capacity, in terms of ICU beds and ventilators, is still at risk, she said.
“Each of us has a capacity and a responsibility to do our part to prevent this virus from spreading so that we can keep our businesses as open as possible so that we can keep our hospital capacity at the level it needs to be,” he said. Berkowitz.
Berkowitz said almost everyone in Anchorage started wearing masks and “almost all businesses complied,” with the city’s new order.
“It’s been a real demonstration of grit,” he said.
The city is currently deciding how to distribute money from the CARES law and is looking at a proposal related to the hospitality and tourism sector, Berkowitz said. The meeting will discuss it Tuesday, he said.
“I will ask today to make sure that these funds can be released soon so that we can continue our work with the sector groups to ensure that we get that money out as soon as possible,” Berkowitz said. “We know that people in the hospitality industry in particular pay the price for protecting the rest of us.”
The city has said restaurants, breweries and bars that do not comply with emergency orders will be disqualified from municipal support.
Berkowitz said that even in the midst of pressure and disagreement, “there is a need for decency right now, there is a need for strength.”
