Sunday River Brewing Co. appeals DHHS fines and restaurant license denial

SOUTH PARIS — The owners of a Bethel bar and restaurant that gained national notoriety for flouting Gov. Janet Mills’ emergency order restricting businesses over COVID-19 concerns are appealing the state’s action blocking renewal of their license and seeking an emergency ruling from the court.

Rick Savage, left, and his brother Ron Savage, both of Bethel, sit with their attorney, Ted Dilworth, in his Norway office Dec. 2 during a videoconference hearing in Oxford County Superior Court in South Paris. A judge heard arguments on whether to keep their Bethel restaurant closed and whether it should lose its liquor license. Christopher Williams/Sun Journal

Two Brothers Inc., which owns Sunday River Brewing Co., filed petitions in Oxford County Superior Court this week aimed at challenging fines imposed by the Maine Department of Health and Human Services for operating under license suspension nonrenewal of the restaurant’s eating and catering license, which expires Saturday.

In one of the petitions, submitted to the court by attorney Edward Dilworth III, the company is appealing $6,600 in accrued fines imposed by DHHS on Nov. 16 for penalties in 2020. Those penalties resulted from the restaurant’s various violations of state licensing requirements to operate a restaurant and led to repeated suspensions.

The other petition appeals DHHS’ denial of the restaurant’s application for renewal of its license to serve food. It seeks to have a judge intervene immediately to allow the restaurant to stay open until a final administrative appeal is heard and decided.

Dilworth said he filed the petitions late Tuesday with the court in hopes of an emergency hearing this week. The court was closed Thursday due to a snowstorm.

The health department at DHHS sent a letter to the restaurant’s owners Tuesday, notifying them the state doesn’t intend to renew the restaurant’s license when it expires Saturday.

The petition appealing DHHS fines cites constitutional grounds in supporting the challenge, including whether Gov. Mills’ order regulating businesses violated the restaurant owners’ right to due process under the Fourteenth Amendment. It also takes issue with Mills’ decision to divide Maine businesses into designations as essential and nonessential.

The company is seeking to have the court determine whether DHHS is “selectively going after Two Brothers, LLC because of their outspoken dissatisfaction with the governor’s ability to govern,” the petition says.

In May, Fox News host Tucker Carlson interviewed restaurant co-owner Rick Savage, who told a national audience that he planned to defy Gov. Mills’ order barring restaurants from indoor and outdoor dining and would instead welcome customers to eat at his restaurant.

When the restaurant undertook that prohibited action, DHHS issued an imminent health hazard finding, then suspended the restaurant’s license after it reportedly failed to comply with departmental regulations. DHHS would go on to suspend the restaurant’s license four more times over the past eight months, citing similar compliance failures.

In its petition to keep DHHS from denying renewal of the restaurant’s license, Two Brothers is asking the court to rule on whether DHHS “improperly denied” the restaurant a conditional license or to put off denial of its renewal until a final hearing is held and a ruling made.

That final administrative hearing is scheduled for Dec. 22, but a decision by that DHHS chief administrative hearing officer may not be handed down for months, Dilworth said Thursday.

That’s why the restaurant’s owners are hoping a judge will hold an emergency hearing in its case before Saturday and stay the expiration of their license until a final decision is made by the state, Dilworth said.

The petition says DHHS “failed to notify what violations or conditions are present that pose a serious danger to the health and safety of the public in finding that the license is in noncompliance.”

The restaurant “is 100% in compliance,” Dilworth said Thursday. “We’ve actually asked for an inspection” by the DHHS health department, he said.

If the state fails to issue a conditional license or wait until after a hearing before denying the restaurant’s license renewal, it will cause the restaurant “and its employees irreparable harm by not allowing them to operate.”

On Nov. 23, Oxford County Superior Court Justice Thomas McKeon ordered the restaurant to remain closed for violations of his temporary restraining order or face fines of $5,000 per day. The restaurant complied.

A week later, after holding hearings in the case, McKeon ordered the restaurant to remain closed until Dec. 11, when the restraining order was due to expire.

The restaurant resumed operations Dec. 11 and hopes to remain open.

McKeon also ordered the suspension of the business’ liquor license through Dec. 28 and imposed a $34,000 fine.

Dilworth said the bar has not served liquor since the judge’s ruling. It has applied for renewal of its liquor license, which expires around the same time as the eating and catering license.

At court hearings involving the Maine Bureau of Alcoholic Beverages and Lottery, that agency’s attorney presented evidence from undercover liquor inspectors showing noncompliance with Gov. Mills’ order, largely failure to adhere to her mask mandate.

The state presented testimony from Dr. Nirav Shah, director of the Maine Center for Disease Control and Prevention, who explained the health and safety need for the restrictions included in Mills’ emergency order.

Shah said the state had traced 10 COVID-19 outbreaks to eating establishments. He said mask-wearing and social distancing were among the most effective methods of guarding against the spread of the virus.

Dilworth argued that the Savage brothers and the restaurant’s manager had made good-faith efforts to comply with Mills’ order, but asserted the restaurant had been singled out for selective enforcement because of Rick Savage’s public rebuke of Mills.

He called as a witness a private investigator who had visited other businesses in Oxford County and testified all had been in violation of the Mills’ order.

In his decision, McKeon cited a DHHS supervisor who had testified that her department had “issued 58 (imminent health hazard) warnings and 13 temporary suspensions on establishments, other than the defendant’s, over COVID-19 compliance issues.”

Dilworth also noted that the shuttering of Sunday River Brewing’s bar and restaurant had put 60 people out of work.

“I know some of the people who work there,” he said. “I’m getting text messages from them asking, ‘Am I going to have a job? Am I going to have to go look for a new job.’ And with Christmas coming, and the cold weather and heating bills, I can’t imagine being in their shoes,” he said.