SOUTH PARIS — Lives versus livelihoods.
That was how Wednesday’s court arguments were presented to a judge who must decide whether Sunday River Brewing Co. in Bethel must remain closed until Dec. 10 and whether the restaurant and bar may lose its liquor license or be fined.
Oxford County Superior Court Justice Thomas McKeon said after hearing a full day of testimony Wednesday that he would make a decision by Friday.
Assistant Attorney General Margaret Machaiek, a lawyer for the Department of Health and Human Services, said the COVID-19 restrictions ordered by Gov. Janet Mils are aimed at saving lives by keeping the virus in check.
Rick Savage, left, and his brother Ron Savage, both of Bethel, sit with their attorney, Ted Dilworth, in his Norway office Wednesday during a videoconference hearing in Oxford County Superior Court in South Paris. A judge heard arguments on whether to keep their Bethel restaurant closed and whether it should lose its liquor license. Christopher Williams/Sun Journal
Maine Center for Disease Control and Prevention Director Dr. Nirav Shah testified Wednesday that 218 people in Maine have died from the novel coronavirus since it struck the state in March, 19 deaths in the past couple of days alone. He said he wasn’t aware of any effort on the part of the governor’s office to single out the Bethel restaurant for enforcement.
Machaiek said the restaurant’s license has been suspended five times for violations of the governor’s order since it went into effect eight months ago and the business has remained open for more than 100 days with a suspended license since May.
Recently, the restaurant had been operating with a suspended license and was found last week to be in contempt of a court order aimed at enforcing the governor’s emergency order. Since then, the restaurant has been closed, but its owners, Ron and Rick Savage, are eager to reopen, citing the toll its closure has taken on its nearly 60 employees.
Defense attorney Ted Dilworth told the judge that his clients’ restaurant was targeted for selective enforcement because Rick Savage had publicly criticized Mills last spring for the restrictions she placed on businesses, calling into question their constitutionality. Dilworth attended the videoconference hearing remotely from his Norway office with his clients.
Justice McKeon was at the courthouse.
In an effort to lift the restraining order against the restaurant, Dilworth offered to bar Savage from the premises, citing testimony from state inspection officials who said they had been able in the past to work well with Ron Savage toward compliance at the restaurant. Inspectors reported experiencing abrasive and verbally abusive behavior from Rick Savage. Neither brother works full-time at the restaurant, they said.
Assistant Attorney General Andrew Black, who represents the Maine Bureau of Alcoholic Beverages and Lottery, asked the judge Wednesday to revoke the liquor license of the restaurant’s bar, but would allow the company’s adjoining brewery to continue operation.
If the judge were to decline to revoke Sunday River Brewery’s license, Black asked that its license be suspended for 90 days. A third, and less desirable option, he said, would be to impose a $25,000 fine. He said he feared a fine less than that amount would be viewed by the owners as simply the cost of doing business for a company that grossed more than $1 million in annual liquor sales.
Dilworth said the restaurant was in full compliance in mid-October and that, with the exception of a couple of instances where masks were improperly worn by employees, had been since.
Black introduced into evidence Wednesday photographs taken by several liquor inspectors who surveilled the restaurant undercover for violations, some before October and some as recently as last month, showing unmasked or improperly masked workers.
“What’s concerning is that every time the inspectors went there, there were violations,” he said.
Black paraphrased testimony from Ron Savage who said he tells his employees often to wear masks while at work.
“And they know that if they lose their license, they may be out of work,” Black said. “Apparently their employees don’t care about that,” he said despite the numerous warnings, they’ve been observed to continue not wearing masks or wearing them improperly.
“What’s clear from the (Bureau of Alcoholic Beverages and Lottery) standpoint is the management and the licensee is not taking effective action to make sure that its employees comply with the law,” Black said.
The bureau doesn’t have the authority to revoke or suspend liquor licenses, only a judge can do that, Black said. One requirement for having a liquor license is to have in place all other necessary state licenses, including from DHHS.
Despite the repeated suspensions of the restaurant’s DHHS license and continued operation under that department’s license suspension, its liquor license has remained intact since it started serving alcohol on May 18, Black said.
With only five liquor license inspectors to oversee 2,700 establishments in Maine with liquor licenses, Black said, “the only way this system works is the rule of law and the respect for the rule of law in voluntary compliance.”
Bottom line, Black said, “this is a matter of life and death.”
Dilworth on Wednesday called as a witness Mitchell Sweetser, a private investigator who was hired to randomly visit businesses in Oxford County that serve food and gauge their compliance with the COVID-19 restrictions.
Sweetser testified that all five of the businesses he observed were in violation of one or more of the requirements.
On cross-examination, he said he wasn’t aware that any of the businesses had liquor licenses. He also said under cross-examination that he didn’t report the violations to DHHS.
Ron Savage, who appeared in court via videoconference from Dilworth’s office, testified Wednesday that his wait staff makes from $600 to $1,000 per week in tips, many of them working mothers.
He said the restaurant has done its best to stay in compliance with state regulations, but the restrictions under the governor’s emergency order continue to change periodically.
“We do have to know when it changes,” he said. “We have to be notified of that. We’ve had no education from the state.”
Dilworth proposed putting the business on notice that its liquor license would be in jeopardy if it were found in violation again, akin to giving a warning for a criminal violation.
“If they come back, you could then really hammer them,” he said.
Dilworth said other restaurants whose licenses were suspended for COVID-19 violations weren’t taken to court, only Sunday River Brewing.
“They’re the most inspected restaurant, probably, in the United States,” he said.
Dilworth urged the judge to reopen the restaurant as soon as possible.
“You gotta open them up,” he said. “We’re talking about families.”
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