Southwest Washington Restaurants Consider Defying State Ban on Indoor Dining

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Restaurant owners are hoping the Legislature might take quick action to hasten the return of indoor dining in Washington after nearly two months of outdoor-only service. Gov. Jay Inslee imposed the current ban in mid-November due to a spike in COVID-19 cases.

Restaurants have been grappling with varying levels of restricted operations since the onset of the COVID-19 pandemic in March, but the indoor dining ban has left owners struggling to develop compliant outdoor seating areas that remain comfortable in winter.

Earlier this week, multiple Vancouver restaurateurs said they were contemplating opening for indoor service in defiance of the ban, following the lead of a handful of restaurants elsewhere in the state that have made headlines recently for flouting the rules, including Brock's Bar and Grill in Woodland.

Mark Matthias, owner of Beaches Restaurant & Bar in Vancouver, sent an email to Gov. Jay Inslee's office Monday expressing frustration with the restrictions and indicating that he and other owners planned to reopen if Inslee chose to extend the ban further.

"Many of us will open on January 11th with or without your consent," he wrote. "We will open under the same safety guidelines and rules as we practiced in October which is how restaurants were able to limit exposures to insignificant levels."

However, Matthias stated on Friday that he will wait and track the progress of a bill introduced Thursday that would speed the reopening process.

Restaurateurs weigh options

Jason Fish, owner of Main Event Sports Grill in Vancouver, also said he was considering reopening his indoor seating, although as of Wednesday evening he said the decision was still "up in the air."

Matthias and Fish are both prominent members of a Restaurant Roundtable group where dozens of Clark County restaurateurs gather for weekly virtual meetings to compare notes and advocate for the industry.

One of the group's organizers, Eric Sawyer of Vancouver consulting firm BBSI, indicated that the possibility of defying the governor's orders had been a recent topic of discussion among the group members, although he said that the group had not endorsed any kind of collective action.

"Each owner has to make their own decisions for what suits them best," he wrote in an email.

Some of the protesting restaurants elsewhere in the state made headlines in part because their efforts attracted support from right-wing or far-right political groups. That's an association that the local restaurants would rather avoid.

Matthias stressed that if he reopens his indoor seating, he intends to follow the restrictions that were in place before the current lockdown began in November, such as limiting capacity to 50 percent and requiring patrons to wear masks when not eating. He said he hoped reopening would prompt renewed engagement with state officials.

Sawyer echoed his comments, and said any conversations about reopening indoor dining have been under the pretense that owners must follow pre-November rules. Fish said the local discussions about reopening are not intended as a political statement, and he criticized the event at Brock's, which reportedly involved a densely packed indoor crowd.

"I'm 100 percent not for that," he said. "That was kind of a middle finger to the governor and to the officials that have to police that. That wasn't responsible."

Restaurant risks

Matthias and other owners said their urgency is driven in part by a relative lack of financial support for owners who stay closed, as well as frustration with what they describe as vacillating state safety directives.

"If you are going to damage the lives of people for the greater good, then they should be compensated," Matthias wrote in an email Friday. "There is no plan for that and our state takes no responsibility for the collateral hardship. That is my issue."

His email to Inslee also asserted that restaurants aren't an especially dangerous source of transmission, citing Clark County Public Health data that listed restaurants as the likely source of exposure in only 1 percent of the county's COVID-19 cases, compared with household members, 46 percent, and private social gatherings, 10 percent.

The recent spike in COVID-19 cases continued in the weeks after the indoor dining ban took effect, he added, which would suggest that restaurants aren't to blame.

Clark County Public Health spokeswoman Marissa Armstrong acknowledged in an email that the data does show food establishments account for a small percentage of exposures, but she cautioned that the data depends on sick people's ability to recall all the places they visited in the prior two weeks — and it can be especially difficult to trace exposure in public places like restaurants.

The Washington State Department of Health pushed back when asked for comment about Matthias's claims, citing a weekly report that lists the state's total number of reported cases from public settings, broken down by sector. Restaurants were at the top of the list as of Dec. 26, with 221 cases reported.

Inslee held firm on restaurant restrictions at a press conference Tuesday. When asked about the protesting restaurants elsewhere in the state, he sought to contrast the nature of restaurant dining with other public spaces like grocery stores.

"People wear masks when they go to grocery stores and they don't sit next to each other for an hour-and-a-half and breathe on each other. It's a very, very different environment," he said.

Inslee's office also replied to a request for comment by citing studies from the U.S. Centers for Disease Control and Johns Hopkins University that pointed to indoor dining as a significant transmission risk. Those studies provide a more comprehensive picture, according to Inslee's press secretary, Mike Faulk, because state data can be limited by relying on infected patients to provide the information.

"But we have a whole body of scientific evidence about the spread of the virus that confirms places like restaurants are high-risk venues," he wrote in an email. "These are awful circumstances, but we are confident in the science behind the decision."

Reopening plans

Inslee unveiled a new reopening plan called Healthy Washington at Tuesday's press conference, with a new set of phased reopening steps that will gradually loosen restrictions on businesses.

The plan divides the state into eight regions, all of which will begin in Phase 1, which maintains the ban on indoor dining. Regions can advance to Phase 2 when they meet a specific set of criteria. Reaching Phase 2 would allow a region's restaurants to resume indoor service at 25 percent capacity.

Matthias sent a follow-up email to Inslee and several state legislators Thursday, pressing for a broader rollback. Republican Sens. Lynda Wilson and Ann Rivers each replied by referencing the bill introduced earlier that day, which would allow all businesses to immediately jump to Phase 2 of Inslee's plan, although Rivers noted that the bill would need support from Democrats to pass.

But even if the Southwest Washington region were to reach that phase quickly, Fish indicated that there would likely still be an appetite for businesses to push for greater changes. A 25 percent limit would be too low to sustain the business at most restaurants, he said, calling the number "kind of a slap in the face."

If the restaurants do choose to open early, they could face stiff penalties. The state's enforcement process is complaint-driven, according to Washington Department of Labor and Industries spokesman Tim Church, but there have been no shortage of complaints about scofflaws during the pandemic — sometimes more than 100 for individual restaurants.

"It's always interesting because sometimes businesses like this that defy the orders do so with the belief they have community support," he said. "I can tell you in almost all cases, the complaints rack up very quickly."

Complaints are routed to L&I or the state Liquor and Cannabis Board, depending on how much alcohol is sold at the business in question. L&I will typically start with a cease-and-desist letter, Church said, then escalate to a notice of immediate restraint if the violation persists.

The next step would be to open an investigation, which can result in businesses being fined for every day the violation continues, potentially adding up to thousands of dollars — especially if they're doing it on purpose. Willful violations are a distinct classification with 10 times higher fines, he said.

The department can also file a motion in court for a temporary restraining order, which carries its own set of violation penalties such as additional fines or possibly criminal charges. Four restaurants in Washington are currently subject to restraining orders, Church said, although Brock's isn't one of them.

Spokeswoman Julie Graham described a similar process for complaints that go to the Liquor and Cannabis Board. The board will initially treat violations as an educational matter, but will escalate to verbal and written warnings and then fines or short-term liquor license suspensions. After that comes a 180-day license suspension, and then a permanent revocation if necessary.

There haven't been any permanent revocations yet, she said, but there have been a handful of 180-day suspensions. Violators could also potentially be referred back into the L&I process if they lose their licenses but continue to violate COVID-19 restrictions.

Church stressed that most businesses stop breaking the rules after the first warning, and that's the way L&I would prefer to see cases resolved.

"I think we all would hope that businesses would understand that this is about protecting the safety and health of people," he said.

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(c)2021 The Columbian (Vancouver, Wash.)

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