SAVANNAH -- A Savannah restaurant recently shut down by the Ashland County Health Department due to violations of the "Dine Safe Ohio Order" can re-open Saturday morning.
Ashland County Common Pleas Court Judge Ron Forstheofel on Thursday approved Cattlemans Restaurant’s request for a temporary restraining order against the health department.
That will allow the restaurant to operate again from 6 a.m. Saturday, July 25, through 5 a.m. on Saturday, Aug. 8, with a possible extension.
The ACHD had suspended the restaurant’s food service license July 15 after employees were observed without face coverings. The owner, Mandy Close, was ordered to cease and desist operations immediately.
According to Close, she requested an emergency meeting with the health department, which was scheduled for Monday evening, but was then canceled hours beforehand.
She took legal action against the health department Wednesday with assistance from a Columbus-based nonprofit.
An attorney with the 1851 Center for Constitutional Law, Maurice Thompson, filed a lawsuit Wednesday on behalf of Close and her restaurant, asking for a temporary restraining order, permanent injunction and monetary damages against the Ashland County Board of Health and Health Commissioner Heather Reffett.
Close said the forced closure has been devastating.
“You take into account that we had that COVID-19 shutdown, and we were shutdown for all that period of time, operated a little with take out in the red, and then just got back open June 1 for dining, and it’s typical that the summer business holds us through the winter business, so our fate may not yet be determined," she said.
The motion for a restraining order claims exemptions applied to each of the employees observed without facemasks. A cook and dishwasher were working socially distanced from one another in a “hot kitchen,” and the “sole waitress on duty” removed her mask due to “overheating and dizziness.”
In the judgement entry approving the temporary restraining order, Forsthoefel said the restaurant’s food service license had been revoked “without due process of the law.”
His decision allows the restaurant to reopen Saturday morning, citing a need for the health department to be informed in advance. It will be able to operate through 5 a.m. Aug. 8, but if Cattlemans’ request for a preliminary injunction has not been issued by then, an extension may be granted.
The court is expected to schedule a preliminary injunction hearing on or before July 31.
Ashland County Prosecutor's Office declines to defend ACHD
The Ashland County Health Department will need to employ outside counsel in its defense against Cattlemans and its owner.
Ashland County Commissioners approved a resolution Thursday allowing Prosecutor Christopher Tunnell to petition the Ashland County Common Pleas Court for the Board of Health to hire outside legal counsel due to an ethical conflict.
Commissioner Jim Justice was not in attendance, so the resolution was approved unanimously by the other two county representatives, Denny Bittle and Mike Welch.
Tunnell filed a petition late Thursday morning, asking Forsthoefel to allow the Board of Health to hire an attorney to represent them in this matter. It was approved before 3 p.m. Thursday.
“This is an unusual position for a prosecutor to take, but these are unusual times and unusual action taken by the Board of Health against a private entity,” Tunnell said. “Opinions will no doubt differ from my own, so I am confident that the Board will find representation by an attorney who believes he or she does not have an ethical conflict to defend this lawsuit. I will not be that attorney."
The Rules of Professional Conduct constitute the ethical rules which Ohio lawyers must follow, including a rule that a lawyer should not defend a proceeding “unless there is a basis in law and fact for doing so that is not frivolous.”
In his petition, Tunnell makes clear that he can not defend the case for this reason. He sees “no defenses which would not be frivolous.”
The Ashland County Health Department declined to comment when contacted Thursday.
Close anticipates reopening Saturday
When Cattlemans reopens Saturday, Close said she doesn’t yet know if her employees will wear masks or not.
“I guess I really can’t answer that I guess we’ll have to wait and see. I’m sure there’ll be instances we probably have to discuss and figure out how to handle,” she said.
In addition to the "Dine Safe Ohio Order," which included a mask requirement, the restaurant will reopen and operate with a statewide mask mandate in place. Gov. Mike DeWine on Wednesday afternoon said all Ohio residents must wear facial coverings in public, effective Thursday at 6 p.m.
Close said there remain exemptions to the governor's orders.
Signs on the restaurant’s door and side windows Thursday read, “The health department and Heather Reffett shut us down because they claimed we violated their mask policy. Call them and let them know how you feel.”
Nearby, a handmade sign is stapled to a post. The message seems to come from a customer. It reads, “We miss you. #reopencattlemans #supportlocal.”
“I’d just like to get things back to normal. I understand we’re in a COVID pandemic, but I’d like to get us back to normal as much as possible,” Close said.
This story was updated at 2:45 p.m. Thursday, July 23 to include Judge Forsthoefel's approval of Tunnell's petition.