As two business owners prepare for court appearances this week for allegedly violating Gov. Doug Ducey’s COVID-19 executive orders, Cochise County Attorney Brian McIntyre says public debate about whether such orders are lawful prompted him to review case law from the Japanese internment cases of the 1940s.
On Tuesday, longtime Winslow shop owner Daniel Mazon will appear via video with a justice of peace in Navajo County where he’s charged with one count of knowingly failing “to obey any lawful order or regulation” for operating a supposedly non-essential business in violation of Ducey’s Executive Order 2020-18.
Then on Wednesday, Merita Kraya is scheduled for an initial court appearance after being cited by the Maricopa County Sheriff’s Office for allegedly violating Ducey’s Executive Order 2020-09 prohibiting on-site dining at restaurants. The April 7 citation came following nearly two dozen interactions between deputies and Kraya at her Euro Pizza Café in Fountain Hills.
Both business owners are charged with a Class One misdemeanor under ARS 26-317. If convicted, they each face up to 6 months in jail and/or a $2,500 fine.
But the danger to business owners of arrest is not over yet, as Ducey’s May 4 Executive Order 2020-34 authorizing the reopening of restaurants suggests operations can only be resumed upon “enacting physical distancing policies, limiting the number of diners and following protocols as directed by” the CDC, OSHA, and the Arizona Dept. of Health Services.
Failure of a business to comply with the various executive orders can, unfortunately, also put an employee at risk of criminal prosecution under ARS 26-317, says Cochise County Attorney Brian McIntyre.
“The statute is written incredibly broadly,” McIntyre told Arizona Daily Independent. “Which, of course, begs the question, if an employer tells an employee to perform certain actions, is the employee or the employer to blame?”
Making the issue even more problematic for business owners and employees is that a criminal citation can be issued by a peace officer even if he or she doesn’t personally witness an alleged violation.
“Much like any misdemeanor offense, there is no requirement that the officer witness the event, only that the information available provides probable cause that the offense occurred,” McIntyre explained.
As of May 15, there have been no COVID-19 arrests or citations in Cochise County. And that’s welcome news for McIntyre, who says he sees “many landmines” involved in deciding whether to prosecute someone under ARS 26-317.
“First and foremost, was there a ‘lawful order?’ he explained. “We’ve seen this government overreach before, and I don’t want to be on the wrong side of history on this one.”
That wrong side, according to several current and recent Supreme Court justices, includes the Japanese internment cases. McIntyre says the current controversy about governmental authority to issue emergency orders caused him to reread those cases.
The main internment case was Korematsu v U.S. in which the U.S. Supreme Court ruled the military had authority to arrest and subsequently intern Fred Korematsu, an American-born U.S. citizen of Japanese heritage based on President Franklin D. Roosevelt’s February 1942 Executive Order. The order led to the eventual detention of 122,000 Americans of German, Italian, and Japanese descent.
In June 2018, Chief Justice John Roberts commented in an immigration case that “Korematsu was gravely wrong the day it was decided, has been overruled in the court of history, and—to be clear—has no place in law under the Constitution.”
Looking forward, McIntyre says there may be incidents involving whether a business is doing “enough” to comply with the orders and regulations. He cautions that public health matters “are not appropriate areas for heavy handed law enforcement” and that such concerns can be inherently subjective.
“I believe that before anyone prosecutes this offense there should be a very high threshold of ‘misconduct’ and a clear understanding of what’s being accomplished by the prosecution,” he said. “There is no such thing as shredding the Constitution a little.”
If the cases against Mazon and Kraya do go to trial, it appears their fate will be decided by a judge, not a jury.
Mazon has operated Authentic Indian Arts Store off Interstate 40 for nearly a decade. In late March, he added “essential” retail items such as dog food, household and food items, and hay to his inventory of art and jewelry. But on April 11, he was handcuffed inside his store then placed in a patrol car for operating a non-essential business.
Winslow officials later agreed Mazon could reopen his business without threat of further arrest but have refused to dismiss the criminal charge. Supporters of the 71-year-old note that a Walmart was selling jewelry and art items just one mile away from Mazon’s store.
Meanwhile, Kraya ran afoul with Maricopa County officials even though she closed the indoor dining area of her restaurant as ordered by the governor in March.
Public records show Kraya provided what she called courtesy tables and chairs outside the building for customers waiting for take-out orders. Several customers ended up sitting at the tables, eating their food from to-go containers, and drinking alcohol they purchased as take-out from the restaurant.
Kraya became a U.S. citizen after immigrating from Communist-ruled Albania nearly 30 years ago and says the experience has caused not only financial harm but also emotional distress. If convicted, Kraya’s license with the Arizona Department of Liquor Licenses and Control could be impacted.
Such a possibility is something McIntyre says would be “a very important consideration” if his office was asked to decide whether to pursue charges in connection to an alleged COVID-19 related violation.
“Honestly, the Liquor Board can do far worse things to a business than a conviction for a misdemeanor could,” he said.