Court orders another Anchorage diner to stop dine-in service after it defied pandemic order

Update, 10 a.m. Tuesday: In a Facebook post Monday evening, Little Dipper Diner said due to the fines imposed by the city and the judge’s order, it will no longer open to dine-in and will begin serving takeout only on Wednesday.

Original story:

A state judge on Monday ordered another restaurant in Anchorage, the Little Dipper Diner, to stop serving customers indoors after it defied a recent emergency order requiring all restaurants in the city to halt all dine-in service.

The emergency order, issued by Mayor Ethan Berkowitz, went into effect last Monday and closes restaurants and breweries for dine-in service, allowing takeout and outdoor seating, and closes bars altogether. Berkowitz enacted the order as part of an effort to slow the spread of COVID-19, which public health officials have warned is spreading rapidly in the city.

The Monday ruling comes on the heels of a similar court ruling from a state judge Friday that ordered another Anchorage diner defying the emergency order, Kriner’s Diner, to halt its dine-in service, citing potential harm to the public.

Superior Court Judge Erin Marston gave a similar statement when issuing the ruling.

“When I look at the balance of hardships here, I see a real possibility that if the law is continually violated that people may become sick and may, may pass away because of the violation of the law. So I think it’s clear,” Marston said. “There is irreparable harm here.”

Dewey and Samantha Wells, owners of Little Dipper Diner, were represented by attorney Blake Quackenbush, who also represented Kriner’s Diner.

Quackenbush argued that the emergency order violates the constitutional rights of the Wells family to work, and that the city did not provide evidence of irreparable harm.

Ruth Botstein, attorney for the city, said during the hearing that it was not about evaluating the constitutionality of the emergency order, but about deciding whether the diner must comply with a “presumptively valid law” while that matter is litigated.

Quackenbush also argued that the city had not adequately protected the diner from economic harm, but the judge disagreed. Marston noted that the emergency order is a temporary, four-week measure, and that restaurants are still allowed to do curbside, takeout and outdoor seating services.

“I don’t mean to minimize the effect that has on a business,” Maston said. “I realize in any business, but especially small businesses, that one month will be tougher when you can’t serve indoor. But it’s not a complete stoppage of business.”

[Related: Facing hefty fines, Anchorage diner closes for dine-in after defying pandemic emergency order]

The city issued a stop-work order at the diner last Wednesday, fining the diner $600 a day for keeping its dine-in service open. It later filed for a temporary injunction in Superior Court when the diner did not cease its operations.

In a post on the Little Dipper Diner’s public Facebook page last Tuesday, it wrote, “We are not trying to be unlawful, but we feel EO15 is just so unfair, we just will not survive this month of closure after the last one, we barely survived that.”

[Related: Opposition to Anchorage emergency order grows as restaurants and bars scramble to stay afloat ]

Despite the mayor’s emergency order, a few businesses have continued dine-in service. The city has so far issued stop work orders at at least three, including Kriner’s, Little Dipper’s, and Wings ‘N Things.

City code enforcer Cora Weaver was called to testify at the hearing and said that the code enforcement office is “complaint-driven,” meaning that its workers do not pursue code enforcement actions such as issuing stop-work orders unless a complaint is made.

Kriner’s Diner continued indoor service even after the Friday order to halt the service, and it now faces a contempt of court hearing Tuesday. It has since closed for dine-in because of looming hefty fines.

Quackenbush is also the target of sanctions by the city in its contempt of court motion.

The owners of Little Dipper Diner could not immediately be reached for comment following the hearing Monday.

The diner was closed Monday for “some much needed rest,” according to its Facebook page.

Carolyn Hall, a spokeswoman for the mayor’s office, said by email following the hearing that the diner has indicated it will file a response to the city’s complaint and that there will be another hearing. She also said that if Little Dipper Diner does not follow the court order issued Monday, the city will file a motion for a contempt of court hearing.

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