The Maricopa County Attorney’s Office dismissed charges against Fountain Hills resident Merita Kraja, owner of Euro Pizza Café, on Saguaro Blvd. for violating the Executive Orders of Governor Doug Ducey related to the pandemic.
The prosecution moved to dismiss the charges without prejudice and the court granted the motion. The dismissal without prejudice would allow the prosecution to refile the charges, and Marc Victor with Attorneys for Freedom Law Firm, representing Kraja, filed a motion to dismiss with prejudice, which would preclude further prosecution. The motion was denied.
The County Attorney’s Office cited prosecutorial discretion in choosing to dismiss the case. It concluded that Kraja’s conduct took place “in the context of extraordinary and trying circumstances for all Arizonans.”
Initial uncertainty related to the application of the Executive Order and a unique layout surrounding the café played a role in the difficulty in applying the rules, according to the prosecutor’s filing.
“Although MCSO was justified in issuing the citation, and (Kraja) should have made better efforts to protect the public health, the extent of her non-compliance on April 5 does not warrant a criminal conviction,” the motion states. “The state has also considered the goals of the Executive Orders and notes that there is no evidence that (Kraja’s) conduct resulted in any actual harm.”
That motion to dismiss was filed on June 22, in response to a defense motion to dismiss filed June 10.
In response to the prosecution’s request to dismiss without prejudice, defense responded with a counter motion.
“(Kraja) opposes the state’s motion and requests this court dismiss this case with prejudice, or in the alternative, allow the defense’s motion to dismiss be litigated.
“…If the defense’s motion were to be granted, the dismissal would be with prejudice, barring further prosecution of (Kraja) for this incident. Now a mere three days before the state’s time to file a response to defense’s motion, the state opportunely filed its motion to dismiss without prejudice and asks the court to preserve its right to prosecute (Kraja) further.”
The defense also suggested that the state was hoping to avoid statutory issues addressed by counsel’s initial motion to dismiss.
“The determination of the statutory issues discussed in defense’s motion carry serious statewide ramifications,” the defense filing states. “The state clearly hopes to avoid litigating defense’s motion. Accordingly the state filed its own motion…hoping to circumvent the likelihood of dismissal with prejudice should the defendant’s motion be litigated.”
The court denied the defense motion to dismiss with prejudice.
On April 5, Kraja received a citation for violation of the governor’s Executive Orders which precluded on-site dining for restaurant patrons. Take-out was permitted.
MCSO received previous complaints and returned several times to address patrons dining on the patio and in a breezeway adjacent to the restaurant. During these calls deputies were able to get people to leave the premises and, as noted by prosecutors, at no time were customers dining inside the restaurant.
With the accumulation of complaints MCSO Capt. Larry Kratzer, commander of the Sheriff’s Fountain Hills District station, issued the citation.
Attorneys for Freedom issued a statement following a press conference held on July 1.
“We want to thank our friends at the Goldwater Institute for trusting our law firm with the most serious, even sacred responsibility, of preserving liberty and checking the government when they exceed their authority. It’s especially in hard times that we must be most vigilant.
“The Attorneys For Freedom Law firm got involved with representing Merita on a pro bono basis because when freedom is most under attack, and in desperate need of defending, it’s lawyers who must step up to both bring cases and defend people to preserve the freedom we all benefit from and should all hold dear.
“In this case, we firmly believe the governor, while acting with the best of intentions, simply exceeded his authority by requiring selected private business owners to close their businesses. Further, the enforcement of that order was also improper by requiring business owners to become de facto law enforcement officers. Merita, like many other private business owners, and during an extraordinarily difficult time, was simply trying in good faith to comply with all aspects of the governor’s order. Accordingly, she kept her restaurant, Euro Pizza Café in Fountain Hills open for carry out; which was entirely consistent with the Governor’s order at the time.
“The issue in this case arose when patrons of her restaurant picked up their carry out orders and simply sat on nearby chairs and benches which either were restricted or not under Merita’s control. Merita took reasonable steps to prevent her patrons from utilizing her property to eat their food such as turning chairs upside down and posting signage saying the eating areas were closed. However, requiring Merita to patrol her property and shew away people sitting and eating nearby and out of her view was simply too far and overreaching.
“The framers of our Constitution valued separation of powers for an important reason. This is why we ought to be especially on guard when governors seize the power to both make and enforce laws. This often results in vague mandates and arbitrary enforcement. This remains an ongoing problem today.
“We are all trying to grapple with and understand the issues presented by COVID-19. The government should not expect private business owners to enforce laws. Merita is guilty of being a good American, a good business owner and of having the courage to stand up for what’s right; even under the pressure of a criminal prosecution.”