Over the past week, the Big Board on H Street, Northeast, went from low-key neighborhood burger joint to the latest flash point in the Covid culture wars. After a viral tweet hinting that it would not follow DC’s vaccine mandate for indoor dining, the business quickly started racking up warnings and fines from government officials for failing to enforce the new rules and for staff not wearing masks. A GoFundMe campaign started by a Daily Caller correspondent raised more than $5,000 within its first 24 hours to help the restaurant and bar fight against the mandates.
So what will happen next to the Big Board—or any other DC business that decides to openly defy the Mayor’s orders?
Bar and restaurants that violate the city’s mask or vaccine mandates receive two warnings (verbal, then written), then escalating fines ($1,000 for the first, $2,000 for the second). After that, they must go before the DC liquor board, which has the power to suspend or revoke their liquor license.
At least one DC bar has already lost its liquor license for Covid-related violations. Kiss Lounge in Shaw was shut down last spring for what one investigator called “a dumpster fire of violations,” including ignoring social distancing rules; operating over capacity and after permitted hours; allowing hookah use; and failing to enforce mask requirements. Owner Eyob Asheba called the liquor board’s decision “unjustified” and claimed the nightlife spot had followed all the pandemic rules, despite photo and video evidence to the contrary. (Kiss Lounge also had a rap sheet unrelated to Covid— its liquor license was previously suspended after a shooting that occurred during what appeared to be an illegal pop-up cannabis event.)
DC officials don’t necessarily have to wait for multiple warnings and fines to accrue before suspending or revoking a liquor license. Establishments can just be shut down if they’re deemed an “imminent danger to the health and welfare of the public.” In the past, this has happened if there’s, say, a shooting or other violent incident, says DC attorney Scott Rome, who works with many restaurants and bars on liquor license issues.
Mayor Muriel Bowser also threatened to use such authority at the start of the pandemic when restaurants were ordered to halt indoor dining. At the time, Hill Restaurant Group—which operates Hawk ‘n’ Dove, Lola’s, and several other spots—said it would “not bow down” to the Mayor’s office and would continue to operate as normal. Bowser responded publicly that she’d use the “full force” of the Metropolitan Police Department, DC Health, and other government agencies to make sure they complied. The restaurant group changed course before the situation escalated further.
The Big Board’s defiance of the mask and vaccine mandates is somewhat “uncharted territory” in DC, Rome says. At the same time, he argues, “This is no different than if they said, ‘Look, we’re going to serve minors every night. If you’re a minor, come on in.'”
The owners of the Big Board have not responded to multiple requests for comment. But one possibility, speculates Rome, is that the flagrant violations could be building up to a legal challenge of the city’s Covid mandates.
“They would be thrown out of court,” says Georgetown Law professor Lawrence Gostin, who specializes in public health law. “They have to abide by city law if they want to operate in the city, and they have to pay the fines.”
Gostin cautions against looking for local implications from the Supreme Court’s recent decision to block President Joe Biden’s national vaccine mandate for workers at large private companies. The ruling, he notes, applies to federal mandates. In fact, the Supreme Court has upheld city and state vaccine mandates, including for New York City’s health care workers.
“Cities and states have enormous power to require health and safety standards out of businesses. They were able to close businesses completely down during the lockdowns at the height of the pandemic,” Gostin says.
Last winter, the Restaurant Association of Maryland filed lawsuits on behalf of several dozen restaurants to overturn indoor dining bans in Montgomery and Prince George’s counties, but Maryland judges ultimately upheld the bans. More recently, Gostin says there have been a slew of lawsuits from city and state government workers around the country against vaccination mandates—”they’ve all lost in court.”
“This is a political statement, it’s not a legal one,” Gostin says. “It has no bearing on science or law. It’s pure and utter politics and political theater.”