First, it was gyms. Now, it’s bars, restaurants, and even a donut shop. For Lansing attorney Dave Kallman, representing the small businesses that have had their liquor licenses suspended, been cited by the health department, or in the donut shop owner’s case, been criminally charged for allegedly violating the state’s COVID-19 orders, has become a bit of a cottage industry.
“They're really attacking these people big time, and going right for their ability to operate and be a business,” Kallman said by phone last week.
There’s no question the pandemic has been debilitating for many in Michigan’s restaurant industry. According to a Michigan Restaurant and Lodging Association survey released in December, 5,600 (or 33%) of Michigan restaurant operators “say it is unlikely they will still be in business in six months.”
And since September, 26 businesses have had their liquor licenses suspended by the Michigan Liquor License Control Commission, at least as of December 21. Alleged violations range from “allowing non-residential, in-person gatherings; providing in-person dining; failure to require face coverings for staff and patrons; and failure to prohibit patrons from congregating,” according to the MLCC. Permits for Sunday Sales, Dance-Entertainment, Outdoor Service, Additional Bar, and Special Permit for Food have been suspended simultaneously for several establishments.
Spanky’s Tavern in Battle Creek. Andiamo Italia in Warren. Polski’s Pub and Grub in Clinton Township. Plaza Lanes in Ann Arbor. The list goes on.
Take one of Kallman’s clients, James Cory, of Cory’s Restaurant, Inc. His business, Jimmy’s Roadhouse in Newaygo (“Comfort Food Served Right,” the website boasts) was charged in November with allowing indoor dining and not making staff or customers wear masks, in violation of the MDHHS order.
According to the charges, the MLCC got a complaint about Jimmy’s Roadhouse, and an investigator went to check it out. That investigator observed the place was “packed,” more than 50% of tables were occupied, and no one was wearing masks.
“Mr. Cory indicated that he was aware that he was supposed to be closed to indoor dining but stated that he was standing up for his freedoms,” the MLCC report says. “Mr. Cory never indicated that he was going to shut down his business. He stated that he was going to continue to operate the establishment for indoor dining. [The investigator] asked Mr. Cory whether a planned event, ‘Stand Up Michigan’ was going to be held inside or outside and whether staff were going to wear masks. Mr. Cory said that the event would be held outside, and staff would wear masks ‘if medically able to do so.’”
On two follow-up visits, including one to temporarily remove the liquor license, the investigator says they were still serving food indoors and not wearing masks.
In December, an Administrative Law Judge imposed $600 in fines and a 60-day liquor license suspension, citing the restaurant’s “disregard for the health and safety” of staff and customers, and that it “continues to dangerously operate indoor dining.”
Kallman says they’re fighting that decision in circuit court. And at least one some fronts, they’re winning.
“We just got a ruling on Jimmy’s Roadhouse in our favor: the [Michigan Department of Agriculture and Rural Development’s] attempt to suspend their [food] license was thrown out. Now, I imagine they’ll probably come back and try again. But at least round one went to Jimmy’s Roadhouse.”
The larger goal, he says, is to ultimately have the MDHHS emergency orders overturned.
“We believe there's some strong arguments, just like there were against Governor Whitmer’s executive orders. They enforced those as if they were the law for six months, until the [Michigan] Supreme Court slapped them down.
“I don't know what's going to happen now on the second wave of lawsuits...but lots of people were being told the same thing back in June, July, August: ‘Well, why don’t you just comply?’ Well if the orders are illegal and they’re unconstitutional, from my point of view, you almost have a duty not to comply.”
It’s not that Kallman and his clients don't believe COVID is dangerous, he says.
“It’s terrible. People are in the hospital, people are dying. Nobody’s disputing that this is a serious thing. But that’s not the standard. You can't just stand up and say, ‘Man, there's a bad virus out there, folks, so we're going to shut you down. But the marijuana [shop] across the street, you can stay open. And the barber across the street, and the gym, you guys can stay open. And you know what, Lowe’s, Menard's, Meijer, you guys can all stay open. You can have hundreds of people in there walking around shopping and everything else.’”
Whitmer and MDHHS Director Robert Gordon have made a point to publicly stress the scientific evidence suggesting that eating indoors in restaurants is high-risk, because people gather for longer periods without masks.
“The science on eating and drinking inside is settled,” Gordon said at a December 7 press conference. “As Governor Whitmer said, there's a lot of studies on this, and I'll name just one recent one. While inside a restaurant, two people got COVID infections from an individual who was 15 to 20 feet away in one case for just five minutes. That finding mirrors a raft of studies finding a correlation between restaurant traffic and infection levels.”
But Kallman says that reasoning feels hollow for his restaurant clients, none of whom, he says, have had any COVID cases traced back to their establishments.
“They can say, ‘Our studies show this,’ but show me one case that's come out of any of our clients, OK? And they just kind of look at it like, ‘Well, OK, but it might happen.’ Are you kidding me? We're going to destroy people's livelihoods, people who have sunk literally hundreds of thousands of dollars, sometimes millions of dollars into these businesses over the years? They they have dozens and dozens of employees. They are integral parts of their community. And the state's going to come in and destroy them because we think you might cause something? Well, the barber might cause something. The marijuana guy might cause something. I don’t see you shutting them down.’”
The MLCC had three more emergency hearings scheduled this month for restaurants and bars that have had their liquor licenses temporarily suspended, on December 23, 28, and 29. The hearings are held virtually and be publicly accessed on YouTube.