An administrative law judge has ruled that the D.C. Department of Health cannot penalize a Northeast tavern for defying Mayor Muriel Bowser’s COVID-19 emergency health orders.
Responding to an anonymous complaint in January, city health officials found in two inspections that The Big Board failed to require face masks and check proof of vaccination. They issued a $2,000 fine on Feb. 7 and suspended the bar and grill’s license, forcing it to close temporarily.
In a summary judgment issued Tuesday, Judge Cory M. Chandler wrote that D.C. Health could not collect the money because Ms. Bowser’s two orders failed to set the fines properly.
“The statute Respondent is charged with violating states that a Mayor’s emergency order ‘may provide for a fine of not more than $1,000 for each violation,’” Judge Chandler wrote. “But the cited Mayor’s Orders do not set a fine. They provide that an individual who knowingly violates the order may be subject to penalties authorized by law, but do not state the amount of the penalty.”
The judge noted that the administrative court did not have the authority to “invalidate” the city’s declaration of a public emergency, as the restaurant had requested.
But Judge Chandler said officials could collect the money only if “a fine for the violation is listed in a properly promulgated fine schedule,” which they failed to do.
Ms. Bowser and D.C. Health officials did not respond to a request for comment on the ruling.
Following a compromise with city officials, the restaurant located at 421 H Street NE reopened on April 1 while continuing to fight the city’s fines in administrative court.
Attorneys from the Buckeye Institute, a free-market think tank and public interest legal center based in Ohio, represented co-owner Eric Flannery in the case.
In a press release Wednesday, the group said Mr. Flannery responded to Ms. Bowser’s emergency orders in January by tweeting out that “everyone is welcome.”
“The Big Board should have never been subjected to these lawless orders in the first place,” said Buckeye Institute President and CEO Robert Alt, one of the attorneys who represented the tavern in court.