December 11, 2020
Be fine or get fined: how businesses are achieving (or ignoring) COVID compliance
Matt Benoit

The Black Sheep is among restaurants in downtown Bellingham and elsewhere utilizing partially closed city streets to continue serving customers in compliance with policies aimed at fighting the COVID-19 pandemic — and many customers were taking advantage of the opportunity on a chilly December afternoon.

photo: Amy Nelson © 2020
December 11, 2020
Be fine or get fined: how businesses are achieving (or ignoring) COVID compliance
Matt Benoit

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This year, Chas Kubis’ employment numbers have undergone transitions that — if plotted on a line graph — would look a lot like a roller coaster. 

The co-owner of Bellingham’s Black Sheep restaurant and Lorikeet bar employed 70 people at the beginning of 2020. After Washington’s stay-at-home order was enacted, that number shrunk to just 12. By the time Whatcom County entered Phase 2 of re-opening this summer, the two businesses were back to about 50 employees, many of whom were working reduced hours to still be eligible for enhanced unemployment benefits. By the first week of December, their payroll contained 35 names.  

Besides employees, the vicissitudes of the COVID-19 pandemic have resulted in shifting hours and sales, all in order to comply with shifting state-ordered public health mandates to keep businesses and their customers safe from the virus. 

But not every business complies, and when that happens, state agencies have to step in and ensure that rules are followed. 

Complaints and compliance …

Over 10,000 complaints relating to numerous types of businesses across Washington have been received by the state’s Emergency Operations Center (EOC) during the pandemic. 

The EOC then passes those complaints to specific state agencies that have the regulatory authority to handle them. These include Labor & Industries (L&I), the Department of Licensing (DOL) and the Liquor and Cannabis Board (LCB). 

In the case of L&I, spokesperson Tim Church told Salish Current that once a complaint is received by L&I, it assigns specific employees to reach out to businesses to check on the complaint, letting them know what they’re doing wrong and what needs to be done to achieve compliance. 

In some cases, Church said spot checks are performed, where a representative shows up unannounced to see whether compliance is happening. If it’s not, a cease-and-desist letter is sent to the business. Ignoring the cease-and-desist, Church said, can lead to a formal inspection and fine for continuing violations. 

In Whatcom County, Church said only a couple businesses have been fined by L&I after complaints. One is Summit Adventure Park, a recreational trampoline facility that violated a closure order this summer and was subsequently fined $9,639. The Salish Current reached out to the owners of Summit to discuss the fine and process of getting back into compliance (which they did), but did not hear back by deadline. 

… or a day in court

The second business, Lynden’s Fairway Café, recently made news for continuing to operate dine-in service without masks or social-distancing measures. This led L&I to issue an Order and Notice of Immediate Restraint, compelling a business to immediately achieve compliance or face further enforcement. 

Church said the Fairway has received more than 130 complaints in just two weeks as of Dec. 2. On Dec. 3, a Whatcom County Superior Court judge issued a restraining order against the Fairway. Since issuing the order, the Fairway told the Salish Current in a Facebook message that it has stopped providing dine-in service and switched to takeout only.  

According to an article in The News Tribune of Tacoma, each day a restaurant in Washington offers indoor dining, L&I issues a fine of $9,639 per day. Restaurants have 15 days from being notified of their fine to pay it, the article stated. 

As for the LCB, it has received 255 complaints in Whatcom County against 60 different liquor-licensed locations since mandates began this spring, said Julie Graham, LCB spokesman. 

Only three circumstances led to enforcement action. The first two occurred at Ferndale’s Outlaws Saloon in June, when the business was found operating at full capacity despite a 50% rule. They were cited and a hearing is pending. 

The third occurred on Nov. 3, when Rustlers’ Front Street Grill in Lynden was cited for having unmasked waitstaff. According to Graham, the holder of the venue’s liquor license stated they would not comply with the masking request, which resulted in a citation. Rustlers has since had no further issues with the LCB, and a settlement conference on their fine is scheduled. 

In Skagit County, only two businesses have been fined by the LCB or L&I (one per department), according to a Nov. 29 Skagit Valley Herald article. Many more have had complaints levied but fell into compliance before fines were necessary. 

There are, of course, different reasons a restaurant might ignore compliance, either out of necessity for its employees or out of sheer spite for the state health directives. The latter is the case for Spiffy’s Restaurant and Bakery, a Lewis County restaurant ignoring COVID restrictions out of protest. The restaurant now owes more than $67,000 in fines.  

The News Tribune article indicates Spiffy’s continuing violations may lead to the state’s toughest penalties for non-compliance, which include a temporary restraining order. Ignoring that would lead to being held in contempt of court and subsequent court fines.

‘Back to normal … sooner’ — with compliance

While most businesses appear to be obeying mandates, it still doesn’t mean they’re enjoying it. 

The Black Sheep’s Kubis said that losing their limited indoor dining capacity reduced their sales by 50%, resulting in more employees being furloughed. 

“We’re surviving, we’re not thriving,” he said, estimating that around 75% of their sales come from limited outdoor dining, with takeout accounting for the other 25%. Their outdoor dining areas, which were expanded this summer when the city created a pedestrian-only space out of a block of Holly Street, contain covered, heated and separated tables to keep customers safe and trusting of being able to still dine-out.

In addition, relying on themselves for takeout instead of a third party allows them to deliver to-go alcohol for their customers. Popular Viking Foods delivery service does not allow for alcohol to be delivered. 

Despite frustration over the fact that some retail establishments can still have large numbers of people while restaurants can’t serve a single customer indoors, Kubis said he thinks local government has communicated well with businesses about enforcement policies, given the ever-changing circumstances. 

“In Whatcom County, we’ve taken this seriously from the very beginning, for the most part,” he said. “We’ve spoken with the Department of Health a few times when we have questions, and they’re very up-front about things.” 

As for those businesses that ignore mandated precautions to continuing making a quick buck, Kubis said he believes their owners are thinking too short-term and too inwardly. 

“I think it’s selfish,” he said. “We all have to work together in this. The quicker we get this done with, the quicker everything goes back to normal. The sooner I can have people at our bar, sitting there again and enjoying themselves … then we all win.”