ASHEVILLE, NC (LOOTPRESS) – An Asheville businesswoman was convicted Friday following a jury trial on misdemeanor criminal charges of violating an emergency statewide lockdown order in May 2020 by opening her breakfast diner to dine-in traffic for several days.
The case is one of only a handful of such cases nationwide in which criminal charges were levied against businesses or business owners for their efforts to survive while trying to cope with a wave of unprecedented government regulations, including monthslong lockdowns, set in motion by the COVID-19 pandemic last year. Most efforts to penalize businesses have been administrative in nature (e.g., licensing status) or involved civil penalties.
Ironically, the business decision that triggered the criminal charges came just five days before the emergency order expired. But at the time it was made, no one knew if North Carolina’s Democratic Gov. Roy Cooper would extend the order.
Kathleen Grace, owner of Rise N Shine restaurant in North Asheville, was convicted of four counts of violating the order on four particular days in May and the business entity was likewise found guilty of four counts for the same offenses. The three-day trial included testimony from Asheville Police Department officials, a Buncombe County health inspector, a restaurant association director and several private citizens who made multiple complaints once they became aware of the reopening.
The jury of 10 women and two men deliberated for about one hour, then broke in order to dismiss one juror and replace her with an alternate, requiring that deliberations begin anew. A further hour ensued, followed by the verdict.
The case stemmed from Gov. Cooper’s Executive Order of March 17, 2020, which limited the sales of food and beverages to “Carry-Out, Drive-Through, and Delivery Only.” The order was originally open-ended with respect to expiration, but was modified by another executive order to expire May 22 at 5 p.m.
Testimony showed that Ms. Grace dutifully shut down dine-in service following the order and made efforts to carry on with takeout service. Due to the nature of her business, however, that proved impractical. As a breakfast and lunch only establishment, Rise N Shine served “a type of food not conducive to delivery or takeout,” as defense attorney Thomas Amburgey said in his closing argument.
Testimony revealed that in mid-May, the diner had reached the breaking point. They had been forced to absorb the loss of perishable foodstuffs at the start of the shutdown, and soon realized that the market for takeout breakfast was negligible.
Furthermore, the staff had been without income for two months and were likewise reaching the breaking point on their personal finances.
Matters came to a head on May 15, when Ms. Grace posted on the diner’s Facebook page that it would open for dine-in service. She simultaneously sent a notice to the Health Department informing them of the same.
Almost immediately, a wave of complaints from other food purveyors and a laid-off bartender from an unassociated business (who travelled to the diner on two separate days and made a total of three phone complaints) rolled into the Asheville Police and County Health Departments. A series of police visits to the site were unable to resolve the impasse and ultimately then (now-retired) Police Captain Gary Gudac, the head of the Criminal Investigation Division, arrived on May 19 and wrote out a citation for violation of the executive order. Gudac testified he had been sent to the diner by the Chief of Police and that Ms. Grace had been “very respectful” and “not belligerent” during their conversation.
Following the citation, Ms. Grace closed the establishment for dine-in again. At 5 p.m. on May 22, the emergency order expired and restaurants were free to resume dine-in service as long as social distancing and masking provisions were observed. As attorney Amburgey noted, the state’s case implied that the diner “was safe at 5 o’clock on the 22d, but it was dangerous five days earlier.”
As to a possible extension, “no one knew what was going to happen with that order” during the time in question, he said.
The Governor’s order, he said, “criminalized [Ms. Grace’s] business.”
The state offered no evidence that anyone had contracted COVID-19 from the diner during the open period; that anyone’s health had been adversely affected; or that there had been any citations for other, unrelated health violations against the diner.
On the diner’s Facebook page dated May 15, Ms. Grace announced the reopening as follows. This and other entries were presented to the jury as evidence:
“To everyone on this page, we tried doing takeout the first 2 days of the shutdown and had 4 orders the entire time. We were literally losing less money shutting everything down. But then I met with my staff… and found out that 3 of them were still pending in the unemployment system – they had not been paid anything from anyone in over 8 weeks…. I am simply providing a place for people to work so they can put food on the table…. And if we can make enough to pay them, then we will remain open. You have every right to NOT visit our café, and if you are afraid, you should stay home. Every adult should have the right to make their own decisions, which includes visiting a restaurant, or not…it has nothing to do with politics and everything to do with people’s need to work. It’s a sad day in America when small businesses and their employees are being harassed for trying to survive.”
Prosecutors requested that Judge Karen Eady-Williams impose the maximum fine. She declined and imposed a fine of $500 against Ms. Grace personally and $1,000 against the business.