Ingham County Circuit Court Judge Wanda Stokes has found Cafe Rosetta, and owner Amy Heikkinen, in contempt of court for refusing to obey an injunction she issued just last week for the Upper Peninsula restaurant.
The order arises out of enforcement action taken by local and state health officials in the wake of the Nov. 15 Department of Health and Human Services coronavirus orders. Under those orders, which has since been lifted, restaurants were prohibited from offering indoor dining. Heikkinen refused to close her doors or to make patrons and employees wear masks.
Local health officials from the Western Upper Peninsula Health Department issued a warning to Cafe Rosetta at the end of November, then a cease and desist order. Heikkinen ignored those directives, so the Michigan Department of Agriculture and Rural Development (MDARD), which issues food licenses in the state, suspended the food license — a move upheld by an administrative law judge.
But Heikkinen, citing an undue economic hardship created by the suspension and orders, continued to operate, resulting in a temporary restraining order issued by the circuit court on Dec. 30 — which she also ignored.
The new contempt order was issued shortly after 5 p.m. Tuesday, said David Kallman, the attorney representing Heikkinen and the Calumet-based cafe. It was issued in response to a brief from the office of the Michigan Attorney General filed earlier in the day. The brief requested a contempt finding.
Kallman said the order did not include a determination of punishment, but directed attorneys from both sides to find a solution to the ongoing standoff.
The case has moved through the Ingham County Circuit Court since Dec. 30 when Stokes issued a temporary restraining order prohibiting the business from being open.
The reason? MDARD had already suspended the food license for Cafe Rosetta during administrative hearings, and the business was continuing to operate without a license. On Jan. 6, a contempt finding was requested against Cafe Rosetta, as well as a temporary injunction.
Stokes in a ruling at the end of January changed the contempt fine for Heikkinen from $2,500 to $7,500. That fine was paid to the Ingham County Clerk’s office before the Jan. 30 deadline, officials there confirmed.
In the brief obtained by the Michigan Advance, lawyers cite an undercover investigation of the cafe conducted by Michigan State Police troopers on Feb. 5, as well as an interview with owner Amy Heikkinen stated she would continue to operate and face jail time, despite Stokes’ preliminary injunction. The brief also indicated residents filed photos and other evidence stating Heikkinen remained open on Saturday, in violation of injunction.
“Under these circumstances, an additional finding of contempt is warranted to prevent further contempt of this court’s orders,” wrote Danielle Allison-Yokom, an assistant attorney general representing the state.
Kallman said in an interview late Tuesday that he had not yet read the brief, but he didn’t deny the cafe had remained open on Friday and part of Saturday. He said Heikkinen didn’t understand “the gravity” of the situation until the two spoke Saturday during the day.
“A lot of people don’t understand the difference between an order from MDARD and a court order or an injunction,” Kallman said. “We concede she was open Friday.”
He said Heikkinen’s interview reflected her perspective at the time, but was not based on his legal advice. “People are going to do what they are going to do,” he said. “Sometimes you just don’t have any control.
On Monday, Kallman was able to get criminal charges against six hairstylists charged for disorderly conduct for providing haircuts on the Capitol Lawn in May dismissed by 54-A District Court. The event was known as “Operation Haircut.”
As some businesses have refused to follow coronavirus orders, Kallman has become a leading lawyer defending them. He said 96% of his business in the last year has been handling administrative and legal proceedings related to coronavirus restrictions. He successfully represented Manke, and is currently suing Whitmer on behalf of four bowling alleys alleging her restrictions resulted in an illegal take over of their businesses.
Kallman also has litigated several cases related to sexual orientation and gender identity protections, sued the Williamston School District for adopting a nondiscrimination policy related to transgender students, was the chief litigator in a Michigan Supreme Court ruling that allowed homeschooling and more.
The request for a contempt finding did not include a request for appropriate punishment. Allison-Yokom noted in a Jan. 6 request for a contempt finding against the cafe and Heikkinen that MDARD preferred bringing the business into compliance over jail time.
Ryan Jarvi, a spokesman for Attorney General Dana Nessel, said he had no comment on whether or not state officials now supported jail time.
Cafe Rosetta continued to operate in spite of this order, causing Stokes to hit the business with the higher fine for deliberate and willful violation of the court order.
In another case, lawyers for the state sought and obtained a contempt finding against the Iron Pig BBQ eatery in Gaylord on Feb. 4. That business also continued to operate without a license after it was suspended in December. Ingham County Circuit Court Judge Clinton Canady III is expected to issue his ruling later this week.
Both Iron Pig and Cafe Rosetta are hoping to regain their food licenses.
Kallman said negotiations have been ongoing in the case for Cafe Rosetta and Heikkinen. He said he was surprised to receive the new request for a contempt finding Tuesday, as he had just had a conference with attorneys from MDARD trying to hammer out a solution.