A Fountain Hills Cafe Owner's Fight to Resist Lockdown Is Headed to Court

Fountain Hills business owner Merita Kraya received repeated warnings from authorities for allegedly failing to stop people from eating and drinking outside of her cafe.

Now, Kraya will have her day in court.

Following a two-week investigation, the Maricopa County Sheriff's Office, led by Democrat Paul Penzone, wrote her up on April 7 for allegedly failing to adhere to Governor Doug Ducey's emergency coronavirus orders, which is a Class One misdemeanor under a state Military Affairs and Emergency statute. She has a pending court date in the McDowell Mountain Justice Court in what could potentially be the state's first judicial test of the governor's emergency powers.

Kraya claims she's being bullied and harassed not just by the deputies, but by town officials and snitching fellow business owners complaining about her. She told Phoenix New Times, as she did the deputies who responded to her cafe, that she was doing nothing wrong.

"I let people sit — they were picking up [food]," she said.

The governor's March 19 order for all restaurants in the state to "close access to on-site dining until further notice" was one of his first executive orders related to the crisis. In a follow-up order effective March 31, Arizonans were ordered to stay at home except while conducting essential activities (which include golfing or hiking). Yet with another catastrophe looming, this one economic, Ducey faces enormous pressure to reopen the state on May 1.

Kraya and her business, Euro Pizza Cafe, now have become heroes to some of the people pushing Ducey to limit the closure orders to the original deadline of April 30.

Thomas Evans, an organizer behind Great 48!, is helping his group plan a celebration for reopening on May 1 — a plan that is blatantly premature, because the governor could still extend the lockdown. The group is also planning a "Freedom Rally" demonstration at the Arizona Capitol on May 3. Evans and Great 48! have promoted a picnic on May 1 at Euro Pizza Cafe, inviting individuals to spread a blanket near the cafe and on the lawn of the town's famous Fountain Park.

Yet neither the governor nor health authorities have said when it will be safe for businesses to reopen, or what form a planned phased reopening will take.

Evans said he still expects people to practice social distancing and good hygiene by washing their hands at the event. The point will be that businesses can and should reopen, he explained.

Tables and Chairs

The sheriff's office, which provides police services by contract for the east Valley suburban town of Fountain Hills, sent deputies to Euro Pizza Cafe at least 10 times over nine separate days from March 21 to April 7, according to incident reports (below) and bodycam videos released to New Times for this article. The cafe is located at Fountain Park, its patio and adjacent breezeway featuring a view of the pond that is home to a fountain that spouts 300 feet in the air every hour when it's operational. Kraya said her primo location is one reason her business has stayed busier than others.

"It was found that patrons were also utilizing the patio area of the restaurant to eat" on March 21, after the governor's restaurant order went into effect, records state. A Town of Fountain Hills staff member reported the alleged offense.

That deputy reported that "the owner believed she was not in violation, as she was only allowing takeout orders, or to-go orders." Kraya "told the deputy that she could not control what patrons did or where they ate
once they got their to-go order."

Another deputy went to the cafe on March 26.

"As I approached the restaurant, I noticed multiple people, approximately 9, sitting and eating in the patio where there are chairs and tables set up," Deputy J. Cosme reported, adding that one of the signs hanging outside the business said, "Please See Hostess for Patio Seating Thank You."

The deputy met Kraya, who told him customers could "be on the patio because she is not doing table service. Merita said the governor's order states there is no dinning in at restaurants," his report states. "I told Merita I would be taking a report on what I observed and she said the only thing I need to write is that I did not observe table service and dining in. Merita told me I wasn't suppose to be in the restaurant because 'non-employees,' are not allowed inside. Merita said the next time I could talk to her outside. Merita stated I was no longer welcome at her restaurant."

Records show that Captain Larry Kratzer talked to Town Manager Grady Miller about the cafe and people allegedly dining on the patio before calling Kraya on March 26. He told her that she appeared to be violating the order by allowing people to dine on the patio, and that it seemed appropriate to cite her if she didn't close it down.

"Maria told me that my interpretation and her interpretation were different and that if I had to cite her for this, a
judge would have to decide whose interpretation was right," he reported.

Kraya told him the sign about patio dining was old and she would remove it, which she did. Kratzer visited the cafe the next day. He walked through the breezeway and patio, noticing six to eight tables with chairs set up near the cafe, and people that he believed "would appear to be seating" for the business.

"Tables and chairs were now blocking the entry to the patio itself and there was a sign indicating it was closed," he wrote in his report. But Kratzer also saw "three groups of people sitting and drinking beer and/or eating.
One group appeared to be eating their food from Euro Pizza which was in to-go containers. Another table had two men sitting at it and they had a bucket of beer, which consisted of a metal bucket with handles, ice inside, with approximately 6 beers. Two were open and the men were sitting and drinking facing the Fountain."

He then had a long argument with Kraya. He asked Kraya at one point if patrons could keep the buckets with ice she provided for beer purchases. She claimed they could.

Four days later, Kratzer was back at the cafe and again saw patrons sitting on patio chairs.

"Officials with the Town of Fountain Hills had expressed numerous concerns over the fact that this restaurant was continuing to allow patrons to sit and dine and drink on-site," he reported. "Additional restaurants in the Town of Fountain Hills were also beginning to allow patrons to sit on their patios and some cited the fact that Euro Pizza was doing it and getting away with it, so they believed they could do it as well (according to the Town Mayor and Town Manager)."

Making the Case

Kratzer talked to people from the state liquor department, Maricopa Environmental Services department, and the property management company that owns the plaza surrounding the business. He found that Kraya's arguments were unsupported: Her liquor license didn't allow her to let patrons drink alcohol in the patio area because there was no fence. A food inspection didn't give her current patio setup a green light. And the property manager said that while Kraya normally could set up tables and chairs in the common breezeway area (if her liquor license allowed it), she shouldn't be doing it now. The company later sent a letter to Kraya on the latter point.

The captain again went to the business on April 1, only to get in another debate with Kraya.

"Merita believed that this is a matter of opinion on my part that she is violating the Governor's Executive Order. I again told her that a judge in the end may have to decide this. Merita stated, 'Let's do that,'" Kratzer wrote. "She said it's not a belief on her part, it is the principle."

Two other deputies returned on April 5 and asked Kraya if she could put her tables and chairs inside the business, but "she refused to," even after being told she didn't seem to be cleaning them often enough.

"Merita became very loud when we spoke to her about moving her tables and chairs inside," they reported.

Kratzer returned on April 7 and wrote Kraya the citation.

The statute he cited her for, ARS 26-317, says nothing about restaurants: "Any person who violates any provision of this chapter or who knowingly fails or refuses to obey any lawful order or regulation issued as provided in this chapter shall be guilty of a class 1 misdemeanor."

Kratzer cited Ducey's March 19 executive orders on dining in his report, adding, he believes "there is probable cause to charge this due to the following contacts, observations, conversations, information learned, etc. that supports Merita knowingly failing or refusing to obey a lawful order or regulation issued in the Executive Order."

The citation ordered Kraya to appear at the McDowell Mountain Justice court, in which former Secretary of State Michele Reagan presides as justice. Online records show that an arraignment is set for April 29, and a pretrial conference set for May 20. Kraya said the arraignment has been changed to May 20. Her lawyer, Douglas Schumacher, declined comment for this article. It's unclear which prosecutor's office is handling the case.

Kraya, who's a member of the Fountain Hills Chamber of Commerce board, maintains she adhered to the executive order. She closed inside dining on March 20 and switched to pickup orders, she said. But she acknowledged she "left maybe four-five tables there" for people waiting for their food. As she told the deputies, Kraya said it's not her responsibility to make sure people who pick up food don't eat it there.

She later moved the tables, she said: "Nothing was going on when we got the citation."

Asked how she felt about the possibility that her customers might get infected with the novel coronavirus, Kraya said that Fountain Hills was not Phoenix, and that people were "careful" when they sat down.

Business has been down 50 percent in recent weeks, she lamented. She admitted she sometimes gave the deputies a hard time, saying that if they came in with a "gotcha attitude," she told them to leave. But she mostly blames her legal problem on other business owners who called after seeing people seated at the cafe's patio or complained to town management.

Friends and Enemies

Word travels fast in a small town, and Kraya said her situation has "created a lot of support, but also a lot of enemies," in Fountain Hills.

She's been "vocal" about other town issues over the years and believes personal motivations of town officials may have led to being targeted by the sheriff's office, she said.

Yet she's clearly ready for a fight. She enjoys support from Great 48!, the leaders of which have asked her to speak at the May 1 picnic event. The group has nearly 20,000 supporters on Facebook.

Evans of Great 48!, who is also a co-founder of Networking360, a networking organization that helps small businesses, said the state should begin a reopening in stages beginning May 1, and he hopes to see a big crowd at the event at Fountain Park with Euro Pizza Cafe. Evans urged anyone going to the event to not go if they are sick, to not "spit on people," to wash their hands frequently, and to place picnic blankets at the park six feet or more from each other.

"I don't feel that people should fear to go out with their families," Evans said.

Yet when asked how he'd feel if lots of people who went to the picnic came down with COVID-19, Evans paused.

"I'm not going to comment on that right now," he said. He then proceeded to comment how he and other supporters of a May 1 reopening are still waiting to hear if any of the protesters at the Arizona State Capitol on April 20 had gotten sick. Photographs from the event showed many demonstrators packed together. Hundreds more protesters showed up at the Capitol on Monday, April 27.

Support for a faster or slower reopening has broken down sharply on party lines. On Friday, the chairwoman of the Arizona Republican Party, Kelli Ward, questioned the authenticity of health care workers who stood in counterprotest to Colorado reopening protesters, and tweeted that protesters in Arizona should all wear scrubs and masks to fool the media.

The MCSO apparently has written no other citations for alleged emergency order violations. Several local police agencies, including Phoenix police, told New Times earlier this month that they have contacted people and business owners about alleged violations, but had not written any corresponding citations. Phoenix and Tempe police didn't immediately respond on Tuesday afternoon when asked if they have issued any citations yet.

Read a statement by Kraya and the Euro Pizza Cafe incident reports by MCSO below: