The Bethel restaurant and bar had hoped a hearing officer would reverse a decision by state officials against renewing the business’ eating and catering license.
AUGUSTA — A state hearing officer upheld a decision not to renew Sunday River Brewing Co.’s eating and catering license over COVID-19 concerns, effectively shuttering the Bethel restaurant and brew pub indefinitely.
The Department of Health and Human Services notified the owners of the embattled business Dec. 7 that it wouldn’t be renewing the restaurant’s license that was due to expire Dec. 19, citing repeated violations of Gov. Janet Mills’ emergency orders in response to the coronavirus pandemic.
Hoping to keep their doors open, co-owners Rick and Ron Savage had sought emergency intervention from the courts by filing petitions Dec. 15. But the court failed to hold a hearing in the matter.
On Dec. 22, an administrative hearing officer listened to arguments in favor of reversing the DHHS decision from Norway attorney Ted Dilworth, who represented the Savage brothers.
Assistant Attorney General Margaret Machaiek argued against renewal of the restaurant’s license or issuance of a conditional license.
Both sides called witnesses.
Administrative Hearing Officer Richard W. Thackeray Jr. wrote in his Dec. 23 decision that DHHS “was correct when it issued a notice of denial” of the restaurant’s eating and catering license renewal application.
The restaurant “has failed to correct violations by departmentally determined deadlines and repeatedly incurred the same type of violations despite technical assistance and guidance from the department,” he wrote in his 11-page decision.
ontinuing operation by (Sunday River Brewing Co.) constitutes an imminent threat to public health and safety.”
On Monday, Dilworth said the restaurant had been in compliance with no violations for more than a month leading up to the expiration of its license, which should have been renewed automatically under Maine law.
Although the restaurant had fallen out of compliance last summer due to a failure to adhere to mask wearing requirements, no COVID-19 outbreaks were ever traced back to the restaurant, he said.
Dr. Nirav Shah testified at the Dec. 22 hearing that he couldn’t point to a current violation at the restaurant, Dilworth said.
DHHS was invited to inspect the business, either announced or undercover, but apparently never did, Dilworth said.
“Bottom line, we are in compliance (and) we are doing all we can to stay in compliance with the law,” he said, “and we desperately want to protect the livelihood of the 58 families that depend on operation of the restaurant.”
Also testifying at the Dec. 22 hearing for DHHS was Maine Center for Disease Control and Prevention Health Inspection Program Manager Lisa Silva, who said the restaurant had been cited four times for having imminent health hazards and five times for temporary license suspensions as well as two temporary restraining orders between May 1 and Dec. 1.
She said the restaurant had continued to operate during the periods immediately following each of those notices and orders.
The “repeatedly uncorrected violations primarily included ‘not wearing face coverings or masks for both staff and patrons, ‘social distancing,’ and ‘plexiglass … no barrier between the bartender and patrons,” she said.
She testified that other state agencies, such as the Bureau of Alcohol and Tobacco Enforcement, have noted the same violations during their inspections.
Shah testified at last week’s hearing that he had “concerns that the increasing numbers of COVID-19 cases in Oxford County faced a substantial risk of increasing as a direct result of ongoing noncompliance with safety measures by Sunday River Brewing Company,” according to Thackeray’s decision.
Ron Savage testified at the hearing that he had taken over management at the restaurant from his brother “and that he had worked diligently to improve the broken relationship cause [sic] by his brother,” Thackeray wrote.
Savage said he would commit to DHHS that the restaurant would, going forward, “comply with all conditions and rules imposed upon his restaurant if the department were to change its decision and issue a conditional license rather than deny the renewal outright,” Thackeray wrote.
Savage noted the ill effect closure of the restaurant would have on not only its 58 workers, but on the local economy.
But Thackeray decided that “a preponderance of the evidence supports a conclusion that the department correctly determined that Sunday River Brewing Co. had sufficiently exhibited a pattern of noncompliance with the terms of its license despite evidence that the department had provided technical assistance and guidance that ought to have resulted in compliance” by the restaurant.
Dilworth has argued in court that DHHS retaliated against the restaurant because Rick Savage had defied Mills’ initial emergency order by opening his restaurant earlier than allowed and by appearing on national television to publicize his defiance.
Dilworth also has argued that Sunday River Brewing Co. was singled out by DHHS for inspection while other area businesses that served food operated without undergoing the same level of scrutiny.
In his Nov. 23 ruling continuing the restaurant’s closure, Justice Thomas McKeon wrote that, since the reopening of eating establishments in Maine, DHHS “has issued 58 (imminent health hazard) warnings and 13 temporary suspensions on establishments (statewide), other than the defendant’s, over COVID-19 compliance issues.”
If DHHS Commissioner Jeanne Lambrew were to sign off on Thackeray’s ruling, his decision can be appealed in Oxford County Superior Court, Dilworth said, while stopping short of saying whether the restaurant owners would take that step.
Two Brothers LLC, the Savage’s company that owns the restaurant and bar, had filed a petition in Oxford County Superior Court two weeks ago challenging the $6,600 in accrued fines imposed by DHHS on Nov. 16 for violations spanning six months.
The judge hasn’t ruled yet on that appeal.