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‘Uphill battle’: Restaurants that defy orders face rising fines, possible closure

BEND, Ore. (KTVZ) -- At the Black Bear Diner in Bend, a sign along Third Street, one of the city's busiest streets, reads: "Open for Dine In."

The Cork Cellars Bistro in Sisters promotes on its website that it's open for indoor dining.

And several restaurants in Redmond are also allowing customers to eat inside.

Amid a growing number of businesses defying Gov. Kate Brown's executive orders to curb the spread of COVID-19, state agencies are investigating and say violators could face potentially hefty fines, a "red warning" notice to cease, or bigger consequences in court.

Norman Williams, a professor of constitutional law at Willamette University, said the penalties are largely enforceable.

"State law empowers the governor with a great deal of authority in a public health crisis to take action necessary to minimize and avert the public health crisis," Williams said Tuesday.

An Oregon OSHA representative responded to NewsChannel 21 about its authority, saying in an email: "We can't padlock the doors, but continued non-compliance can get expensive, with substantially higher fines."

"Employers can use the appeal process, but we believe the citations we've issued are valid and that we will prevail," the statement continued.

According to Williams, refusing to pay the fines might not be the best idea.

"I think that's a dangerous strategy for a business owner to take, because the state can start seizing assets to collect fines, and the only recourse for the business owner at that point is to declare bankruptcy, " he said, adding that "bankruptcy of some fines are not dischargeable."

He also said it could get worse for restaurants.

"At least as a initial measure, the enforcement sanctions begin with fines," Williams said. But at a certain point, it would be well within the state's authority to order the closure of the restaurant. It would just have to go to court."

Willamette law professor Paul Diller weighed in on the issue as well.

"it's certainly an uphill battle, but I wouldn't say it's absolutely impossible to win by asserting a certain defense against enforcement," he said.

Diller touched on a few possibilities.

"I think it's always possible a restaurant owner could succeed if they can go show arbitrariness in enforcement, perhaps, or if they could show they are being targeted in some way, if it violates some constitutional norm."

Bend / Business / Central Oregon / Crime And Courts / Government-politics / News / Top Stories
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Blake Allen

Blake Allen is a multimedia journalist for NewsChannel 21. Learn more about Blake here.

Comments

101 Comments

  1. Opening against the Pandemic mandate is very disrespectful to the families of the nearly half million dead Americans. Ans we have Trump to thank for all of those lost lives.

      1. Huh ive never used fb in my life and even i can tell trump is a kgb asset and crap president, not to mention broke… im sorry you bought into the fairy tale, but please (please!) dont take the majority down with you, when your duramax 3500 turns back into a pumpkin tomorrow at noon

        1. Today is the day you need to change your narrative, move on, start commenting on how wonderful things will be now. PLEASE, now that you got your way, isn’t it time that you change from the hateful person that you had to be for the last four years, (for the good of the republic, of course), into the loving person you claim to be, Please start TODAY.
          Oh ya, Oh ya Trump is probably regretting giving away his presidential pay to the deferent charities, and organizations, for the last four years, the TRUTH is, not for one second. Ouch.

    1. Very selfish and disrespectful of you to condemn someone who is simply trying to save everything they worked for. The Gov has no right to destroy these people’s way of life. You people are pathetic. Obviously the virus is real however this is a fake pandemic. Black bear diner isn’t my style however ima go eat there just to give some support. Pukes like you are what’s wrong with this country

          1. You lost me with that one… I was simply addressing Anonymouse’s comment about
            supporting local instead of the chain restaurants because, even though they aren’t locally owned, they do provide local jobs. I never said anything about
            employees from other restaurants not being local…
            I don’t know if Black Bear is structured the same as many other restaurants or not, but it’s possible that each individual restaurant is a franchise, and it could
            be owned by local people.

      1. There is nothing wrong with the Black Bear. It’s just good simple food, and that’s a rarity in this area because it seems like a lot of people here gravitate towards the
        restaurants that are overpriced, and serve very small portions.
        We rarely eat out anymore, but I’d take a chicken fried steak from the Black Bear any day over the trendy restaurants that the beautiful people frequent…

        1. Yep!!! Good old fashioned FILLING food for people who actually WORK for a living as opposed to people who shuffle papers IF that or work for the Gov. and get paid whether they work or not.

      2. I won’t call you what I really think of you because it won’t get through, but thanks stain! my uncle just died of Covid and you spit on his memory with you words!

        1. Your an idiot but we already knew that, and I could care less if you said what you really want to say about me. I’ve had people that are a lot more intelligent than you are call me names…
          What is it with you and the rest of the liberals that supposedly read something,
          and you turn it into something completely unrelated ?
          I never mentioned anything about the virus, your uncle, or anyone else that has died from complications from the virus. I simply said that I would rather eat at the Black Bear than I would many of the other local restaurants, yet you miraculously managed to twist my comment into an attack on your uncle that supposedly died from the virus…
          .

    2. We have a tradition of going out for breakfast on Thanksgiving and Christmas. In Redmond there are only two restaurants that are open, Black Bear and Shari’s. Reading this story I’ll never eat at another Black Bear, period. It’s obvious they don’t care about the health and welfare of their employees or customers, they don’t need my money.

      1. Yes- people that are willing to cut corners when the chips are down- Lord know what corners they cut in good times. I’ll avoid them just out of self interest.

    3. Please explain what president trump should have done to save lives.
      Do you understand how the system works? No matter what the president says or does each state has the authority to say no. It is the states responsibility not the president or the federal government.
      So please, how could the president prevented deaths from this flu?

    4. Amazing how well propaganda works. Biden said Trump’s response was racist and xenophobic. Pelosi said Trump’s response was racist fear mongering. Reporters said the Flu is the real threat. Fauci said it is not something we need to be worried about. And all the while Trump ignored them and brushed aside the usual bureaucracy to create vaccines with “Warp Speed.”

      memories shorter than the new installed president.

  2. Nothing like freedom right? Shut your business down, falsely report the number of Covid 19 deaths, withhold unemployment checks to those in need because of Kate Brown for 13-15 weeks. On top of that we will fine you so that you have to go out of business, possible face bankruptcy, and the. We will still make you pay the fines,… all for going to work….. that’s what I call freedom.

  3. Think what will happen if an outbreak is traced to one of these dumps. The lawyers will have a field day!!! Too bad these people choose to destroy themselves rather than advocate for non existent federal help from there failed dear leader. They’re like that crazy crazy couple in Portland than lost everything because they wouldn’t bake a cake for the hated lesbians. Just stuuuuuupid!!!!!!!!!!!!!!!!

      1. 400,000 DEAD AMERICANS comrade!!!—-“China has been working very hard to contain the coronavirus,” Trump tweeted on Jan. 24. “The United States greatly appreciates their efforts and transparency. It will all work out well. In particular, on behalf of the American People, I want to thank President Xi!” —-SOOOOOOOOOOOOOO MUCH FAILING COMRADE!!!

  4. Ya know, I can only sympathize with these restaurant owners so much. However, it’s obvious their show of non-complience tells me they are rich enough to pay these fines but at the expense of infecting society. Their defiance proves they only care about their selves. For me they have ruined eating out for life. I know I’m just one person, but I will never eat in a restaurant again. I hope karma bares down on you hard, I hope you all go bankrupt.

    1. Stay home, preferably under your bed. Keep your mask on, preferably two or three. Don’t forget some goggles too. And gloves. You shall be safe from the scary virus. Definitely don’t go to any restaurants.

    2. I will never eat at any of these restaurants that put their monetary interest over their customers’ lives. They sure don’t care if their clients and employees get infected and die as long as they put their clientele’s money in their own pockets.

    3. what a good little tyrant you are. Obey. Do not question authority. Obey kate Brown. we are all in this together while she and her cohorts shut down businesses while they still collect a pay check. Biden is in charge now. He will save the world. And when he doesn’t, we will still be told he did.

  5. I do have a problem with this issue. I do not believe that government should be able to order a lawful business to close without some compensation, but this is an unusual situation being a pandemic. Plus Restaurants are not being ordered to close completely. The failure here is one where insurance should have covered as an act of God but I know just how carefully insurance companies limit that liability, and the government has not been given the resources to cover the issue. I also think that there is a problem when people will not order take-out from their favorite places, I know that it has not affected any decision of mine in eating out other that it is from home. The food is the same either way. Support your restaurants! There may be a lack of re-imagination in some of these places like having car hops like Dandy’s or free delivery, or loyalty perks for return orders. Handling this whole thing is a failure of imagination and planing all around. Defying the order at this time is not the answer, and for those who would not eat out unless you can go inside and be kowtowed to, for shame! Make an effort people!

  6. The issue is that the State of Oregon has been arbitrary in determining which businesses must be closed. Large chains like Best Buy and the non-grocery sections of Target, Fred Meyers, and COSTCO should also have been closed from in person shopping if the State were to apply the same standard for all businesses they are forcing on small businesses. Additionally, there has been no appearance of state inspectors in the big-box/chain stores doing a physical count to see if they are over the mandated limits. Thus, on payday weekends, Target and Whole Foods are packed with shoppers far less than six feet apart and no fines/stop business actions have been taken by the state. Also, if the restrictions on small businesses like restaurants, salons, and barber shops were applied to all businesses, then no person who is buying/building a home in Oregon should be allowed to do an in-person walk-through as all can be done virtually, yet numerous real estate agents I know in Central Oregon are running scores through homes without the State conducting a cleaning inspection at the same level as salons/barber shops. Thus, science has not been driving many of the restrictions, but simply ineptitude/double standards on the part of the governor’s staff. COVID-19 is real, but so is the inability of the State to apply a level of equity in a time where fairness is supposed to be the letter of the law.

      1. Here’s this for a thought…. Can we get some quick legislation passed giving some relief from taxes being diverted to tourism promotion? Maybe Visit Bend can take a hike and some of the failing businesses that have had to remit taxes to that travesty can get a little of their money back?

        1. And the tourist-haters think defunding tourism promotion will stop the growth/nasty Californians moving here, as is their right? Who moves here because of an ad? The odds are as slim of that as of telling the tourism industry lobbyists “go away.”

          1. In years past a buddy of mine was in charge of the Oregon tourism commercials for a major Pdx ad agency- He told me don’t worry about the ads because Oregon is so cheap they aren’t willing to spend enough to even dent the marketplace.

          2. Uncle Tifa says that we are coming. We have a fleet of taco trucks. We have heard that meth is now legal in your beautiful state. We can sell our shacks in Cali and buy four shacks here! You my friend, have never turned on your NextDoor and seen the messages from our new denizens. Uncle Tifa is also suggesting a stop gap measure. Perhaps the Great Barnabas thinks that local businesses in danger of closing merely need more out of state advertising?

          3. Being serious for a second here. You read that wrong. I am all in favor of new people. They make my life more interesting and make my property values soar. Do you really think that attracting new tourism is a useful use of our resources at this time during a pandemic? Really? You honestly don’t think that we could give it a break for just a little while and funnel some of that cash back?

            1. I think that the idea of “turning off” the tourism tap is impossible, as it’s 1,000s of Americans deciding on their own where to go, visit, even live. That turning off the funds would be symbolic and not change much, except … the other side of the equation is all those tourist-dependent jobs that tourist-haters think are expendable to keep the nasty outsiders away…

                1. Good luck in Salem/D.C. with that. Those powerful lobbyists represent a lot of our neighbors who enjoy their jobs and, during normal-er times, welcoming visitors. (And yes, hotel/etc. developers with deep pockets… and businesses to defend.)

              1. Barney
                Thank you for what you do !!!!!
                I still remember bend from the
                early 70s
                daytime that is now the dark of night
                Just Sad
                To All have Good Days

    1. People in the US really lack the self discipline to make these preventive measures work. What we needed and still need is a full scale lock down. We won’t get it. It’s pretty much a global failure of government. During WWII when the Germans were blitzing London and the government ordered black-outs I can hear these self indulgent ones screaming ‘you can’t tell me to turn my lights out.” The ones ignoring our enemy Covid will pay a price- If they lived on a planet of one I’d say go for it. Too bad for the collateral damage of innocents but it’s a small price to pay for a burger and fries. People talk like this is over. The party just started.

      1. Okay, take off the tinfoil hat, put down the Kool-Aid, and come back to reality. If you are elderly or medically compromised for sure stay home. As for the other 90% of society get back to work, school, and life. Don’t take jsilber2th advice of putting you head in the sand.

  7. Somebody up-thread (Localguy111) stated: “The Gov has no right to destroy these people’s way of life.” Actually the “GOV” DOES have that right, if someone’s “way of life” is a threat or potential threat to the community in general. See the quotes below from the article.

    From the article: “Norman Williams, a professor of constitutional law at Willamette University, said the penalties are largely enforceable. ‘State law empowers the governor with a great deal of authority in a public health crisis to take action necessary to minimize and avert the public health crisis,” Williams said Tuesday.'”

    Now you an argue all you want about whether or not COVID-19 is a “public health crisis”. I personally do think some of the death numbers are skewed. There was a KGW Newschannel 8 interview some time last year with a representative from the Oregon Health Authority, and during that interview that person admitted that they were classifying deaths as COVID-19 deaths even if the person had not died as a direct result of COVID-19. If I recall correctly, they even used the hypothetical scenario of someone dying in a motorcycle accident 10 days after a COVID diagnosis.

    However, I am still going to follow government guidelines and mandates that have been put in place with good intentions for the benefit of the community. I don’t for a moment believe that Kate Brown is out to ruin businesses like some evil criminal mastermind. I don’t particularly like wearing a seatbelt when I drive my car–after all, it is MY choice. However, I also don’t want to get pulled over and be forced to pay a fine. And of course I’ll be grateful for having worn my seatbelt if I get in an accident. Yeah, it’s sad that restaurants and certain other businesses are being hurt by all of this stuff. What is even sadder is that some restaurants are disobeying the “no dine-in” order and apparently getting away with it while others, at an additional cost to themselves, are doing their best to comply and taking on added expenses of purchasing outdoor tent structures, heat lamps, etc. I was in Jakes a couple weeks ago to pick up some breakfast I had ordered for take-out, and when I walked in there were several patrons sitting around a table having coffee and shooting the breeze. I like Jakes Diner food, but I won’t patronize them again. I’ll take my business to the restaurants that are making the effort to be in compliance with the “no dine-in” restriction.

  8. Hmm well I see the covid cases and deaths haven’t changed too much from when restaurants were open, actually i think they have increased (daily numbers). So why not open things up and see what happens. Oh thats right the new president is supposed to fix it all in January. Guess we will see.

  9. All these comments criticizing the restaurant owners for opening their doors. Do you people realize that Oregon is now one of a handful of states left with this absolutely ridiculous rule of no in person dining? The other 40 some odd states are actually following the data, even NY and IL have finally come to their senses. Wake up people, time to progress, look at the science, stop being so conservative towards this situation. The stance Oregon is taking is worse on the people than the virus.

    1. The writer says “even NY and IL have finally come to their senses” implying restaurants are open in those states. As of 1-2-2021 USA Today reports. NEW YORK: New York City 40% of the state is closed to indoor dining. Indoor dining is also prohibited in other parts of the state with only a portion allowed open under guidelines. ILLINOIS: Restaurants are on restrictions subject to regional closure depending on statistics. They also have a mask mandate.

  10. I’ve been frequenting restaurants all over town this whole time. It’s called “takeout”. It’s absolutely possible to support businesses without indoor dining. You just have to actually do it.

  11. Liberals………. One minute they’re against the rich getting richer and any form of capitalism. The next they’re against shutting down the little guy yet in support of the likes Costco, Home Depot, airlines, and all the other multi billion dollar enterprises.

    Since when does sitting down to eat in a restaurant that’s at half or less capacity spread the virus yet sitting in an airplane for hours with hundreds of others breathing the same circulated air, or shopping in Costco with thousands of other frenzied shoppers doesn’t?

  12. This Lawyer must have received his law degree at Walmart. What many lawyers tend to forget is that the power resides with the people, not the Governor. The constitution, both federal and state, protects businesses from over reaching politicians period. If a law conflicts with the constitution then the constitution takes precedence. Politicians in this state have continued to make laws that conflict but when the people are uneducated on the constitution, and such politicians have control/influence over the legislative, judicial, and executive branches of government, checks and balances go out the window. They have convinced their voters that they are in fact within the law and can basically walk all over your rights with your approval all in the name of fear. This is not America and anyone who thinks this is ok for a government, let alone a Constitutional Republic, to act this way, needs to have your head examined.

  13. Most establishments are doing the best they can and understand we are all in this together. If we all pull together we will get through this and open up in the shortest amount of time. Then there are a few where it is ALL ABOUT ME. Sort of a Trump approach. Of course this approach helps sustain the communitie’s high infection rate that will keep things closed down. The ‘All about ME’ businesses will never see a dollar from me again.

  14. We’re in a pandemic and if they don’t understand that or maybe just don’t care then shut it down, fine them and make them pay their employees from their stock market shares or private equity loans! What black bear is doing is playing politics w their employees during a PANDEMIC! Shame on them! They have enough cash on hand to make it, they’re just choosing not to. #bebest

  15. As I have been telling people. These business owners are losing their businesses. Either they are going to lose the business for lack of customers or lose the business going bankrupt paying fines. Its a no win situation so they are going down fighting. I have to applaud them for that much.

  16. While Covid is real—-and I am very sympathetic to those who have contracted it and those who have lost loved ones from it—the individual risk of catching and dying of Covid 19 in Deschutes County, spread over the entire year of 2020, was less than 0.01% (one hundredth of 1 percent). This is roughly the same as the probability of being in a fatal car crash some time during the year—-which is not normally high on most people’s anxiety list. Annual death toll in Deschutes County from highway accidents—18 to 24 per year. Death toll in Deschutes County from Covid in 2020: 22 people. Death by car crash is terrible. Death by Covid is terrible. The probability is about the same and one is no more worthy of panic than the other. The governor’s emotional and politically driven panic over Covid should not put restaurant owners out of business when there is no evidence that indoor restaurant dining is a significant mode of spreading the disease. Using her logic, she should probably close gas stations because they contribute toward highway fatalities.

  17. I feel for all restaurants and have been supporting the ones who are doing what’s necessary for the good of all! I will never step into these Black Bears again and I work 2 blocks from one! I hope they are put out of business for good!

  18. I feel sorry for all of you living in fear. You can choose for yourself how to live or not. Why insist on dictating / mandating how everyone else does? One person supporting local business in what has already been determined a safe manner (with all we currently know) will not affect YOU in any way. If YOU want to stay locked up in your home for the rest of time, if YOU want to let petty dictators run your lives, ruin your businesses, willingly and knowingly turn you against your fellow man, that’s completely on YOU. Pipe down with your condemnation and gleeful judgment. WE don’t care what you think. I think I’ll be out enjoying a meal indoors, spaced farther from another human being than I ever am at Costco, knowing exactly what’s going on around me and embracing how wonderful life is.

    1. Well go ahead and hurt the community, I will do my best to help! but that’s the difference between you and m! I lost an uncle to Covid on Monday, doing my best to keep someone else from losing a loved one! enjoy your bacon and eggs, because they are so much more important than my uncle!

      1. Deschutes County under 5000 positives total, over 200,000 residents. Pretty small amount to shut everything down. But, please tell me how a small business staying open is hurting our community. Stay in the basement.

  19. This country is going through a crisis but it is not what you think it is. It is a crisis of selfishness, arrogance, ignorance and stupidity. Our last president personified this perfectly. How entitled are we when the greatest sacrifice our generation has been asked to make is to put on a mask in order to protect the more vulnerable among us. And that is evidently way too much to ask for a lot of us. As for the business staying open I am afraid that the only recourse in the long run is to not frequent a business that you feel is a reflection of that attitude. Money and profit are the only things that Americans really understand fully and respond to. As for me it will continue to be takeout for the foreseeable future.

    1. “the greatest sacrifice our generation has been asked to make is to put on a mask”, you need to cut back on what you are smoking ASAP. Try to tell that to the countless who lost their job, home, livelihood and a way to feed their children. Tell that to all the young people who did not have a prom, graduation, the ones who were kicked out of their school and forced to the “distant learning” joke. I love how democrats always try to tell others what they can and cannot do and how to live their lives while screaming for their 1st amendment rights.
      Maybe you should give up all your assets and income, we should ban you from going to the grocery store, gas station, take away your vehicles, cut off all utilities to your residence as a “total shutdown” and we’ll see how the “greatest sacrifice” will work out for you.

  20. whats next after never trumper’s response standing outside pho viet or black bear calling the cops every time car pulls up and telling them license plate of people who go inside to eat? Well we better get ready for the national lockdown.

  21. I’m gonna go there and support them. If Wal-Mart is open, then the restaurants should be too. Covid is a fake pandemic, watch what happens now that chairman biden is chairman.

  22. yeah that guy wonder when we can expect the national lockdown to kick in, wonder if barney is getting communicae from the governor as i type this. Wonder if black bear in redmond and madras is open also in defiance or just the one here in town. Brown was all panicking something was gonna go down today and glad nothing did.

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