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City seeks contempt of court hearing after Anchorage restaurant defies judge’s ruling

A stop work order, directing the restaurant to close indoor dining, is posted on the door of Kriner's Diner on Saturday, Aug. 8, 2020 in Anchorage. T (Loren Holmes / ADN)

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Update 5 a.m. Monday:

In a Facebook post Sunday, Andy Kriner, who owns Kriner’s Diner along with Norann Kriner, said the diner would be open for takeout-only service on Monday.

Original story:

The Municipality of Anchorage asked Saturday for a contempt of court hearing after a local diner defied a judge’s ruling to halt indoor dining service.

The city’s motion asks the judge in the case for “the extraordinary remedy of contempt sanctions” against the restaurant, Kriner’s Diner, and its owners. The city’s motion also accuses the restaurant’s lawyer, Blake Quackenbush, of “actively encouraging and participating in the ongoing violation” and argues he should be sanctioned by the court.

In his order Friday, state Superior Court Judge Eric Aarseth wrote that the public would suffer “irreparable harm” if businesses like Kriner’s are allowed to violate the city’s Emergency Order 15, which last week blocked indoor dining at restaurants and breweries. The city’s order is intended to limit the spread of the coronavirus.

On Saturday morning, Kriner’s Diner was open, with a line of customers waiting outside. The restaurant has been crowded all week with diners supporting its stand against the city order.

“We’re incredibly disappointed they continue to choose to flout the law when they already have the attention of the superior court and can have their day in court to make their case that the emergency order is not valid,” said a written statement from Carolyn Hall, spokeswoman for the city.

“The notion that Kriner’s should be immune from emergency orders issued to protect health and safety in our community ignores the reality that most people in Anchorage are enduring: our children are not attending school in-person; our defendants are not getting jury trials; our grandparents in assisted living homes have been stuck inside waiting for the rest of us to make the community safe enough for them to hug their grandchildren; and our epidemiologists and hospitals have warned we could be out of ICU beds next month if the July trends continue,” the statement said. “In this new world, when community transmission of the virus is widespread, it is reasonable for our residents to expect leaders to take actions necessary to preserve life and health in a community, including asking this diner to temporarily pivot to takeout, delivery, and outdoor dining.”

Customers wait outside Kriner's Diner on Saturday, Aug. 8, 2020 in Anchorage. The diner, owned by Andy and Norann Kriner, continues to serve customers indoors after the mayor issued Emergency Order 15, which went into effect Monday and bans indoor dining at restaurants and breweries but allows them to continue takeout service and outdoor dining. The order also closes all bars. (Loren Holmes / ADN)

The diner has been represented by attorney Quackenbush of Blake Fulton Quackenbush Family Law.

“We have a great client with a great business and we have no further comment right now,” said Katie Payton, administrator of the firm on Saturday evening after the city’s filing

Andy Kriner, who owns the diner along with Norann Kriner, could not immediately be reached for comment Saturday evening after the city’s filing.

During Friday’s court hearing, Quackenbush argued that the city has also not shown any evidence that business practices at Kriner’s Diner have contributed to the spread of COVID-19.

A server and customers inside Kriner's Diner on Saturday, Aug. 8, 2020 in Anchorage. The diner, owned by Andy and Norann Kriner, continues to serve customers indoors after the mayor issued Emergency Order 15, which went into effect Monday and bans indoor dining at restaurants and breweries but allows them to continue takeout service and outdoor dining. The order also closes all bars. (Loren Holmes / ADN)

Quackenbush argued that the emergency order violates the Alaska Constitution because it deprives the Kriners of their right to work. He also said that the city is giving the Kriners and other restaurant owners “disparate and unequal treatment.” Other employers who run similar businesses where mask-wearing cannot be feasibly observed, such as gyms, have not been similarly shut down, he said.

City Attorney Kate Vogel said at a community briefing Friday afternoon that “if someone wants to challenge the constitutionality of a law, they are of course entitled to do so, but they’re not entitled to not comply while awaiting that judicial resolution.”

Previously, Kriner has taken issue with the idea that opening the restaurant endangered public health.

“If I thought I was endangering anybody I wouldn’t open. I just don’t believe I am,” he told the Daily News last week.

Earlier Saturday, Kriner said he would lose half the restaurant’s revenue by going to take-out only. He said it “would just be a slow, quiet death in the restaurant business if all you did was take-out. You would eventually not make it.”

In its contempt motion Saturday, city lawyers said they aren’t seeking to jail the defendants. Rather, they want to make sure the restaurant stops indoor dining service “in order to protect the health and safety of the residents of Anchorage.” By staying open, the defendants have “knowingly incurred” a $600 city fine each day, according to the motion. But that has been insufficient, to stop them from operating dine-in services, the motion says.

So, the municipality now wants an order with a fine of $5,000 a day for violating the order, on top of other fines. The city is also seeking $1,430 in attorney fees, because, the motion says, the municipality “should not have been required to bring this action against either the defendant or Mr. Quackenbush in order for them to follow this Court’s Order.”

The motion contends that Kriner was aware of the judge’s ruling, but continued indoor service, based on an interview posted to Facebook on Saturday.

The city contends that Kriner’s attorney, Quackenbush, “is actively encouraging and participating in the ongoing violation.” The lawyer posted a video to a Facebook group on Saturday showing a crowded diner with the caption “Americans peacefully protesting in a historic ‘sit-in’! Breakfast is served.”

Quackenbush also commented on the post, according to the filing, saying “We have a right to work and support our families and communities. Please, if you are healthy, get out and go to businesses and encourage businesses to have the courage to work. It’s crazy to think that we are fighting for a right to work and support our families!”

According to the city’s motion Saturday, a municipal attorney called Quackenbush on Friday after hearing that Kriner’s was continuing dine-in service despite the order and “advised he told his client to obey the court’s order.” Quackenbush said he hadn’t seen the order, the filing says, so the attorney sent him a copy. He responded that he had told his clients to follow the order, according to the motion.

However, the filing says that based on his social media postings Saturday, “Quackenbush is actively working to undermine the Court’s Order and EO-15, despite his acknowledgement that it was his duty to inform his client not to violate the law.”

The city is seeking a monetary sanction against Quackenbush at the discretion of the Court, the motion says, because of his “shocking behavior.”

By posting the video from inside the diner and posting an endorsement of Kriner “willfully disobeying the court’s order,” Quackenbush “knowingly violated” the Court’s order, the emergency order and the Alaska Professional Rules of Conduct, according to the filing.

Additionally, he “affirmatively encouraged others to commit conduct he knows to be illegal.”

His follow-up comment on the post shows that Quackenbush “was knowingly assisting or inducing his client and others to violate or attempt to violate the Court’s Order,” which, the motion says, can be sanctioned.

When asked about the Friday court decision at a community briefing later in the day, Berkowitz said in a briefing on Friday, it was a “heavy day,” and that he took no joy in the decision because Alaskans should be able to solve problems without resorting to litigation.

“I think the importance of being able to protect public health through these public health orders is so important that the law has to apply to everybody,” he said. “And if we want it to be as effective as possible, everyone needs to comply with it.”

Pushback on the city’s pandemic policies is growing. Anchorage health experts say the pandemic’s risks are growing, too.

Berkowitz said he wants to bring the number of COVID-19 cases down with a collective effort, in order to let up on some of the restrictions. The mayor said he was gratified by the large majority of businesses complying with the order.

“I know it’s easy to follow the outliers, and that’s what’s happened,” he said. “And they have received a disproportionate amount of publicity for what they’re doing.”

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 country had better contact tracing, they would be better able to precisely close certain businesses. Instead, they’re making “broad-brush decisions,” based on what’s known to be high-risk, until they know more.

“Those who are politicizing the response to a pandemic are really jeopardizing public health,” Berkowitz said. “And they’re also putting our economic well-being at great risk, and they ought to be held accountable for it. There is no partisan advantage in getting people sick and in perpetuating the pandemic.”

[Read the motion below:]