State revokes permit, but Jalisco Cafe remains open - Silver City Daily Press and Independent

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Silver City’s Jalisco Cafe remains open Saturday, despite suspension of its food permit Friday afternoon by the New Mexico Environment Department. 

“Until they take me out in handcuffs or whatever, yeah, I’m coming in,” said Michael Mesa, owner of the cafe. “We’re going to work.”

The state’s move came after the landmark downtown restaurant reopened for dine-in service Monday morning, in defiance of the N.M. Health Department’s public health orders enacted to reduce the spread of COVID-19 in the state. After initial orders issued March 13 limited restaurants to 50 percent capacity, the state moved a week later to limit restaurant operation to carryout and delivery service only — restrictions which have permanently closed at least two Silver City restaurants, and temporarily shuttered others.

“When any business presents an imminent risk to public health or the environment, the Department will not hesitate to use all of its authorities to protect New Mexicans,” Environment Department Secretary James Kenney said in a news release issued Friday. “Unlike these two businesses, the vast majority of restaurants are operating in compliance and protecting public health from the threat of COVID-19.”

The restaurateur disagreed with the state’s interpretation of its Food Service and Sanitation Act, which, according to the state’s press release, authorizes NMED to immediately suspend a permit if “conditions within a food service establishment present a substantial danger of illness, serious physical harm or death to consumers who might patronize the food service establishment.” Mesa said the state’s revocation abused the intent of the law.

“It’s like saying something egregious — like you did something really dirty in the back and caused someone to get ill, like you have rodents, or you caused food poisoning, or something really bad,” Mesa said. 

The governor’s office, however, sees the situation differently, according to an email to the Daily Press from Tripp Stelnicki, director of communications for Gov. Michelle Lujan Grisham.

“It’s actually a lot more egregious than that,” Stelnicki wrote. “On top of violating the law, on top of putting customers and employees health at risk, it is extremely unjust — every single other restaurant in the state is suffering just as much as this owner would claim to be, but is playing by the rules, because they understand the need to help keep people safe and healthy.”

“But with this … virus, you can’t prove that anybody got sick here,” Mesa said. “Where did they get the virus? Where did it come from? It could be — there’s no way to prove that…. It’s ambiguous, at best. You can’t even prove it, but they’re making a case for it. They’re using that statue to say, ‘We’re going to take your license, we’re going to shut you down.’”

“We could absolutely ‘prove’ if someone got sick at that restaurant, there is nothing ‘ambiguous’ about it,” Stelnicki responded in the email. “That’s what contact tracing is. That happens every single day with scores of businesses and services all across the state. Ninety-five percent of them understand the risk to people, their customers and employees, and are obeying the law — and when they do have a positive, they shut down, they cooperate with the Department of Health to get everyone tested and clear.”

Mesa pointed out that despite disagreeing with the state’s health orders, he had complied with them completely — until Monday. Even after defying the rules by reinstating dine-in service Monday, he said the restaurant continues to follow the state’s prior limitations of reduced capacity, increased sanitation and protective gear for staff.

“We’re wearing masks, we do gloves, we’re sanitizing … everything,” he said. “We’ve had a lot of backlash, and we’ve had a lot of support.”

Mesa said that without the federal Paycheck Protection Program the restaurant received, he likely would have had to take action even sooner.

“Without PPP, we would be dead,” he said. And despite the assistance, “I have other costs, and other overhead. [But] without the PPP, we would have been forced to — you know, we would have stayed open, period, because we couldn’t navigate the cost.”

Mesa expressed frustration that business owners were not, in his view, being allowed flexibility to look out for their customers in ways that make sense for them and their community.

“It’s important for us to take care of our customers and make sure they’re safe and that they’re getting a good product. We’re doing everything we can. What good does it do for me to jeopardize that?” he said. “I tell my daughter, you know, what made us a success all these years is we’ve always adapted to whatever came our way. We came up with a rule. We came up with a method. We did something to make it better, faster and more efficient. That’s the way we’ve stayed alive, stayed in business and stayed successful, is because we just didn’t say, ‘You know what? We’re just going to do it the same old same way every single time.’”

The statewide approach taken by the state in battling the coronavirus is counterproductive, Mesa said, treating Silver City in the same way as hard-hit areas like Albuquerque and northwestern New Mexico.

“Why are you doing the whole state with one draconian rule, instead of having a nuanced approach, that is to say, ‘Hey, you know what, these areas are in different situations?’ And I understand why they’re doing that up there, but we’re not in the same situation here,” he said. “You get, what was it, 16 cases just in this Grant County area, but they don’t take the figures down. People are all recovered. We don’t have any new cases. So you have the population of Grant County, with 16 cases — that comes up to zero-point-zero-zero-zero-zero-five. So, you see, nothing’s happening [here]. So why are we being shut down, when you go can go to Arizona and eat at a restaurant, no problem?”

“Protecting New Mexicans is not draconian,” Stelnicki said. “Sixteen cases becomes 160 becomes 1,600 very quickly — we’ve seen that all over the state, the country, the world. Also, it’s 16 known cases. Unless this restaurant owner knows something I don’t, not every individual in this county or in this community has been tested. And we know a sizable percentage of virus transmission is through asymptomatic individuals — i.e., those who don’t even know they are sick.”

Both the state and Mesa agreed that the issue will ultimately be resolved by a judge.

“We have to petition the court to get our license reinstated, to show that we haven’t done anything illegal. In other words, we haven’t done anything,” Mesa said. “The inspector didn’t come in and talk to me — he just left the paperwork. I didn’t get inspected. They didn’t come in, look at my building. I’ve never, I’ve never failed a health inspection. Ever. Never.”

According to the state release, Jalisco “must cease providing food service immediately. Failing to do so may result in legal action from the Department. If these establishments correct the violations, they may request that NMED reinstate their food service permit.” 

Since they’re staying open for now, Mesa said he expects fines — although he’s unclear how they will be calculated.

“It’s something like a $500 fine per incident, I guess,” he said. “But I don’t know what’s an incident. What’s — what does that mean? I have no idea. None whatsoever.”

A spokeswoman for the N.M. Environment Department said the restaurant could incur multiple offenses, as well as separate fines for each day the restaurant violates state orders — a decision that will be made in district court. 

“In addition to granting injunctive relief (i.e. ordering the restaurant to cease food service operations), the district court may impose a civil penalty not exceeding five hundred dollars ($500) on any person who violates any provision of the Food Service Sanitation Act,” Maddy Hayden, public information officer for the Environment Department wrote in an email to the Daily Press. “Each and every violation of the provisions of that act shall constitute a separate offense. Separate offenses could compile on a daily basis.

“Ultimately, NMED may request a permit be permanently revoked through district court,” Hayden wrote — and regardless, “the facility is required to request an onsite reopening inspection prior to reopening the facility and request the permit be reinstated.”

Jalisco was one of two restaurants in the state that had its state permit revoked Friday, with the other being Anaheim Jack’s in Ruidoso. That restaurant had also begun serving diners, but on an outdoor patio.

The two restaurants aren’t receiving public support from most other restaurant owners so far, however.

“The New Mexico Restaurant Association does not support restaurants opening against the governor’s orders,” Carol Wight, CEO of the New Mexico Restaurant Association was quoted as saying in the state press release.

Two Silver City restaurant owners contacted by the Daily Press on Saturday expressed disappointment that Mesa was being allowed to operate in violation of the state order, particularly when all the other restaurants were limiting their own businesses to comply. Neither would agree to comment on the record for this story, however.

While the Jalisco Cafe opened for business Saturday morning, the restaurant is generally not open Sundays, and also plans to be closed Monday in observance of Memorial Day, and to “give the guys a break,” Mesa said.

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State revokes permit, but Jalisco Cafe remains open - Silver City Daily Press and Independent
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