A state Superior Court judge on Friday granted the Municipality of Anchorage a temporary restraining order against Kriner’s Diner, which means the restaurant must comply with the city’s emergency order banning indoor dining.
The diner, owned by Andy and Norann Kriner, had continued serving 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. It also closes all bars.
Superior Court Judge Eric Aarseth heard arguments from the city’s attorneys and Kriner’s Diner during a telephonic hearing Friday morning. Aarseth granted the municipality’s motion for a temporary injunction requiring the diner to comply with the emergency order.
The Anchorage public would suffer “irreparable harm” if businesses like Kriner’s are allowed to violate the order, Aarseth wrote in his judgement.
“That the nature of the potential harm to the Anchorage public is of such significant importance, that the closure of a business would be warranted. A property interest cannot outweigh a person’s interest in life,” he wrote.
He also wrote that the diner’s economic interests and those of similar businesses are “adequately protected” because they can serve food outdoors, and offer curbside pickup, to-go and delivery.
Kriner’s will still be able to file an answer to the complaint from the municipality, which could lead to further hearings in the matter, but for now the diner must comply, the judge ruled.
The diner was represented by attorney Blake Quackenbush of Blake Fulton Quackenbush Family Law.
“We have a great client with a great business. We have no further comment at this time,” said its administrator Katie Payton, when reached by phone Friday afternoon.
City attorney Kate Vogel said at a community briefing Friday afternoon that the order issued Friday means the diner must obey the law immediately. The ruling does not just apply to Kriner’s Diner, she said.
“His ruling, as he put, it applies and is a message for all restaurants who are wondering about their obligations. The answer is clear,” Vogel said.
During the hearing, 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.
“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,” Vogel said.
Quackenbush also 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.
The city’s attorney’s said that Quackenbush’s argument is not true and also misses the point -- that an emergency order is the law and that Kriner’s Diner broke the law.
Vogel said that Kriner’s Diner could have sought an injunction and challenged the law in a court instead of “simply not complying.”
Now, there can still be a “robust evidentiary hearing” at which their legal arguments can be tested, Vogel said. The city took the matter to court to show that it is serious and also to let the court, a “neutral decision maker,” weigh in on the legality of the emergency order, Vogel said.
The city is hopeful that the next court hearing will again affirm the mayor’s power to enact emergency orders, she said.
The emergency order caught some businesses by surprise and hospitality industry leaders have said that it unfairly targets their industry and that many restaurants and bars are vulnerable and struggling.
When Mayor Ethan Berkowitz issued the order, he said that while most bars and restaurants have complied with all extra health precautions, it is necessary to close them due to the way the virus spreads.
The virus affects that industry more than anyone else because “it punishes people for doing the things that we like to do for being social hospitality industry is all about encouraging social behavior,” he said Friday at the community briefing.
Anchorage Health Department Director Natasha Pineda cautioned that coronavirus case numbers have increased rapidly in recent weeks, at one point overtaxing the resources of public health workers attempting to do contact tracing.
The new confirmed cases this week were fewer -- often about 40 a day in Anchorage -- and contact tracers are catching up, said Pineda. Hospital capacity, in terms of ICU beds and ventilators, is still at risk, however, she said.
“Each one of us has an ability and a responsibility to do our part to prevent this virus from spreading, so we can keep our businesses open as much as possible, so we can keep our hospital capacity at the level where it’s supposed to be,” Berkowitz said.
Berkowitz said that almost everyone in Anchorage had started to wear masks and “almost all businesses are complying,” with the city’s new order, while acknowledging the challenges and stress of doing so.
“It has been a real demonstration of grit,” he said.
The city is currently deciding how to disperse money from the CARES Act and is looking at a proposal that relates to the hospitality and tourism industry, Berkowitz said. The Assembly will discuss it Tuesday, he said.
“I’m going to ask today, make sure that those funds can be released soon so we can continue our work with the industry groups to make sure that we get that money out as quickly as possible,” Berkowitz said. “We know people in the hospitality industry in particular are paying the price for protecting the rest of us.”
The city has said that restaurants, breweries and bars that do not comply with emergency orders will be disqualified from receiving aid from the municipality.
The majority of businesses have complied, city spokeswoman Carolyn Hall said earlier this week. The city is seeking another injunction from the court that would order Little Dipper Diner to stop its indoor service, which the diner also continued this week.
This is a developing story. Check back for updates.
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