Restaurant Owner Challenges Citation Issued During COVID-19 Dining Restrictions

The owner of Euro Pizza Café cited in April for allegedly disobeying Gov. Doug Ducey’s COVID-19 executive order that closed restaurant dining areas will be in court later this month to learn whether a judge plans to dismiss the charge.

Merita Idrizaj Kraja has pleaded not guilty to violating Arizona Revised Statute 26-317, also known as the state’s emergency management law. The charge is a Class One misdemeanor which could result in a sentence of up to 6 months in jail and/or a $2,500 fine.

Public records show the Maricopa County Sheriff’s Office had no evidence that Kraja allowed customers inside her Fountain Hills restaurant prior to the April 7 citation. Instead, deputies allege patrons were allowed to “drink, eat and congregate” at tables and chairs outside the building in an area set up for customers waiting on to-go orders.

However, on June 10 the Attorneys For Freedom Law Firm filed a motion on Kraja’s behalf seeking dismissal of the case, arguing that the statute itself states the criminal provision does not apply to “any private organization or member thereof” for refusal to participate in a declared emergency.

“On its face, the term ‘private organization’ commonly refers to any non-government, privately owned organization or business,” attorney Howard Dworman contends. “This language is clear and unambiguous and therefore, the Court need only apply this plain meaning. Therefore, as stated clearly in the statute itself, ARS 26-317 does not apply to (Kraja’s) privately owned business.”

Dworman has asked a justice of the peace at McDowell Mountain Justice Court to dismiss the case against Kraja with prejudice, meaning the charge could never be refiled. A pretrial conference is set for June 24. The Maricopa County Attorney’s Office must respond to the motion to dismiss before the hearing.

Several attorneys contacted by Arizona Daily Independent agree with the defense argument in light of the wording of the statute. They also pointed to well established case law for guiding judges in interpreting the meaning of legislation.

“When we interpret statutes we must look at the plain meaning of the words the legislature used to write the statute,” explained attorney Jerald Schreck. “Look at Websters or any other dictionary, and the word ‘organization’ is a business.”

Schreck added that ARS 26-317 “clearly gives private businesses in Arizona the right to opt-out of following the Governor’s wide ranging exercise of ‘police powers’ during a State of Emergency like the current Covid-19 Pandemic.”

Arizona is home to more than 7 million residents, but there are only two known instances of businessowners being charged with a criminal violation of ARS 26-317. That fact has not escaped Schreck’s attention.

“I was deemed an essential worker during the period of the governor’s order due to my job as a criminal defense lawyer,” Schreck said. “My office is in downtown Phoenix. At lunch time I saw various businesses, including chain restaurants, that had tables and chairs out on their patio area that construction workers and others were using as a dining area.”

The other known citation was issued April 11 by a City of Winslow police officer to Daniel Mazon, a longtime businessowner who operates a jewelry and art store near Interstate 40. Mazon’s store is about one mile from a Walmart that was never restricted from selling jewelry and art.

Video of the arrest showing the 71-year-old Mazon being handcuffed inside his store for opening his “non-essential” retail business garnered national attention after it was revealed Mazon had already filed government paperwork to add items such as snack foods, dog food, cleaning supplies, and livestock hay to his inventory.

Those types of retail items were considered “essential” under Ducey’s business closure order.

The criminal charge against Mazon is pending in a Navajo County court. Like Kraja’s case, if Mazon goes to trial the verdict will be determined by a judge, not a jury.

Arizona Revised Statute 26-317CitationCity of WinslowCOVID-19COVID-19 pandemicDaniel MazonDining RestrictionsEuro PizzaFountain HillsFreedom Law FirmHoward DwormanJerald SchreckMaricopa County Sheriffs OfficeMcDowell Mountain Justice CourtMerita Idrizaj Krajarestaurant owner