A circuit court judge will review the legality of Bend’s administrative mask order at the request of the owners of Kevista Coffee, which was twice cited for violating the rule.

This week, the couple that owns Kevista on Bend’s west side filed a request in Deschutes County Circuit Court asking for a judge to look at the decision of the Bend Municipal Court, which declined to dismiss citations issued by the city. A review was granted by Judge Randy Miller and the city has yet to respond.

Favorable results could help Kevista owners Kevin and Krista Lauinger appeal fines by state safety inspectors of more than $100,000, which are separate from citations issued by the city.

The Lauingers, who spent most of the pandemic flouting rules regarding masks, social distancing and closures at their business, were fined three times by Oregon Occupational Safety and Health administration for a total of $116,470:

• $8,900 in July 2020, for willfully failing to require masks per guidance for bars and restaurants. That citation has been appealed, and the appeal has been transferred to the Workers’ Compensation Board.

• $27,470 in March 2021, for willfully failing to close the restaurant per the state mandate. Also cited for a “serious” violation for failing to implement an infection control plan and another, for failing to conduct an exposure risk assessment, per state law. The citation has been appealed.

• $80,100 in June 2021, for two willful violations: failing to ensure all employees and customers wore facial coverings and another for not following the prohibition of on-premises consumption of food and drink, despite capacity limitations established for extreme risk counties. The citation has been appealed.

On March 18, 2020, the Bend City Council met and ratified City Manager Eric King’s COVID-19 emergency declaration. The mask rule is not an ordinance but an administrative order issued under the authority of the emergency declaration, the procedure for which is spelled out in the Bend City Code. The order has since been updated by the City Council several times.

Kevista was cited in December and February for multiple violations of the city’s rule requiring face coverings. The citations — which are separate from the Oregon OSHA fines — come with a presumptive fine of $750 and could have resulted in fines of $750 per day, according to the city code enforcement officer.

The business asked the municipal court to dismiss both citations. The court declined to do so and upheld them after a written trial. Kevista is now seeking a circuit court review of the initial ruling in order to dismiss the citations on procedural grounds, though the business is not challenging the municipal court’s decision to uphold the citations.

Kevista is attempting a similar procedural argument in circuit court to what it unsuccessfully presented in municipal court, according to Assistant City Attorney Ian Leitheiser.

In spring 2020, as a closure order shuttered bars, restaurants and other businesses around the state, Kevista refused to comply. Signs on the buildings communicated to the public Kevista was engaged in a “peaceful protest,” and the dining room was often bustling, which led to numerous complaints to state and county health departments. The Lauingers reportedly told Oregon OSHA safety inspectors they were aware of the rules banning in-person dining but chose to remain open.

The Lauingers are represented in the judicial review matter by a familiar face in Oregon politics: former lawmaker and longtime Republican organizer Kevin Mannix, who has lately specialized in this type of case. He’s representing the owners of Black Bear Diner locations in Bend and Redmond, who were fined $35,000 for violating COVID-related restrictions, as well as the owners of Cork Cellars Wine and Bistro in Sisters, which was fined more than $17,000.

Those appeals are still pending with scheduled hearings starting in October.

As Mannix sees it, the matter comes down to whether government officials attempting to pass new health and safety rules are following the letter of the law. In the case of Bend’s COVID-19 emergency order, Mannix points to a section of the Bend City Code stipulating an emergency order must also receive “approval” from the Deschutes County Commission.

In his 52-page petition, Mannix cites the following text from the city code book: “The City Manager will submit the declaration of emergency to the Deschutes County Emergency Manager for County Commissioner approval.”

On the same day the council passed its emergency order, the three-member Deschutes County Commission moved to “acknowledge the city of Bend emergency declaration as a result of COVID-19,” according to meeting minutes.

Mannix maintains the County Commission’s “acknowledgement” doesn’t constitute approval.

“If the city of Bend wants businesses to follow the rules, the city of Bend needs to follow the rules, and the rules weren’t followed when they implemented this mask order, and our position is then that the mask order cannot result in citations and fines because it was not properly established,” Mannix told The Bulletin.

According to Mannix, in 2020, the County Commission approved 344 items while “acknowledging” 34.

“If they want to do this kind of thing in the future, they should do it properly or modify their emergency plan properly, or they should get approval for their plan by the Deschutes County commissioners,” Mannix said.

Kevista’s total fine is not far from the high end of what’s been assessed for willful violations of COVID-19-related health and safety rules, which have ranged from $8,900 to $126,749.

The highest proposed fine amount for willful violations was levied against the owner of Courthouse Fitness Centers in Salem, fined five times since the start of the pandemic for a total of $126,749. Capitol Raquet Sports Inc., the entity that operates the gyms, has appealed the fines.