(COLUMBUS, Ohio) – Ohio Attorney General Dave Yost has asked a court in Cambridge to dismiss a criminal charge against a restaurant owner who opened before the date permitted under the Ohio Department of Health’s “Dine Safe Ohio” order.
Yost noted in his motion for leave to dismiss that the General Assembly provided for two separate mechanisms to enforce an emergency health order: a suit for injunctive relief, or the second-degree misdemeanor charge.
“Unless there’s something really unusual, Ohio’s policy is better served by a civil injunction,” said Yost, explaining his decision to drop the charge. “Sending a business owner with no prior record to jail does nothing to promote public health. An injunction – and compliance – can be obtained very quickly. Criminal due process takes longer – for example, this case is not set until August 27, long after the public health order expired.”
Yost took the unusual step of laying out the rationale for his exercise of prosecutorial discretion in his motion.
“Each case obviously turns on its own unique facts – but I hope this will provide guidance and some degree of consistency for charging decisions around the state,” he said.
In mid-March, the state of Ohio banned the on-site consumption of food and beverages at restaurants and bars. The order remained in effect until May 15, 2020, when businesses with outdoor seating areas were allowed to offer on-premises consumption of food and drinks, so long as certain other requirements were met. Indoor dining was allowed to resume May 21.
The owners of the National Road Diner in Cambridge – Dwight and Vicki Brearley – initially followed the closure order. But by early May, Dwight and Vicki Brearley decided they could not abide by the restrictions anymore. They reopened their National Road Diner for in-person service in early May.
After being warned by law enforcement and the local health department that they were in violation of the initial order, the Brearleys once again on May 6 permitted one or more individuals to purchase and consume meals at tables located within the National Road Diner.
Guernsey County Health Commissioner Dr. Edward Colby then filed criminal complaints against the restaurant owners, charging each with a single count of violating an order of the Director of the Department of Health under O.R.C 3701.352, a misdemeanor of the second degree.
The restaurant owners complied with all health, sanitation and distancing measures; the only violation included in the complaint was the early opening.
The Cambridge City Attorney asked the Ohio Attorney General to take the case a special prosecutor. After reviewing the file, Yost concluded that the interests of justice would not be served by prosecution.
Since the deadline has passed, an injunction would now be moot.