By Bruce Karnick

In mid-August, an undercover agent with the State of Minnesota performed a COVID compliance check at The Busted Nut in Downtown Hastings. The agent took a photo of an employee after they had pulled down their mask for unknown reasons and also turn the photograph over to the State. Recalling the lines that Governor Tim Walz stated regularly on Twin Cities news outlets, “We want to give out masks, not fines. “We want to educate, not punish.”. What ensued the anonymous, undercover reporting does not fit the Governors narrative.

On August 22nd, Busted Nut Owner Tatia Nelson was called by an employee stating that she needed to get to the restaurant. “I was told I needed to get to the restaurant as soon as I could; There was an inspector there,” Nelson explained. Nelson left her home to find out what was going on at her business. Inspections are nothing new for a business like The Busted Nut but something seemed different to Nelson this time. Typically, health inspectors try to build a relationship with the businesses they are inspecting. If they find issues, depending on the severity and history with the business, they often document the violation, give feedback, and provide the owner or manager a timeframe to comply which is typically 10 days. Representative Tony Jurgens confirmed, “The Department of Health comes in all the time, that’s part of doing business where they come in and they [do inspections].”. He continued, “If they find something, a lot of times the bar or restaurant can rectify the situation before the inspector even leaves.” Not this time.

This inspector was a Minnesota Occupational Safety and Health Administration agent, OSHA. Minnesota OSHA is part of the Minnesota Department of Labor and Industry. Regular State Health Inspectors are overloaded right now with the amount of increased compliance checks being required due to Covid-19. OSHA Inspectors have been requested to assist with the increased workload. The standard operating procedures from the Minnesota Department of Health and OSHA differ greatly. Jurgens explained, “When OSHA comes in, they have their own set of standards that they look at. Then everything is available for them to check, whether it has anything to do with the reason they went in in the first place or not.”.

The OSHA inspector spent hours at the Busted Nut. “They interviewed every one of my employees, one at a time… They asked me to leave.” Nelson shared, “The health inspectors have never done anything like that.” While the inspection was being conducted, an employee was wearing a plastic shield that rests on the chin and goes over the mouth and nose.The mouth shield also allows employees to com- municate better, especially with guests that read lips because of hearing issues. The inspector was not sure if that style mask was allowed. “I offered to have my bartender wear one of the surgical masks if the shield was a concern.” Nelson explained, “but she said we didn’t have to make the change, she just needed to call to verify if the mouth shield was approved.” The inspector made several calls trying to figure it out.

“I did offer several times to have the mask swapped out,” Nelson reiterated. “I should have just done it and not asked.” Jurgens added, “If the inspector doesn’t even know if the masks are allowed or not, how can we expect businesses to know if they are or not?” Nelson agreed. After several phone calls, the mouth shield is currently not an acceptable mask to wear according to the OSHA inspector. Nelson pointed out, “It’s just so frustrating trying to keep up with the changes. The rules seem to change every day and those changes don’t always get communicated.” The inspector also stated that customers need to be wearing masks when they are not eating or drinking, even at their tables. “That is not what was presented at all. We were told masks need to be worn by customers when they were not at their tables. Like when they go to the restroom or when they leave, not in between bites or drinks.” Nelson said. At the end of the inspection, Nelson expected to sit down with the inspector and go over the report. To Nelson’s surprise, the inspector started to gather their belongings and prepare to leave. Nelson was told, “…they would set up a conference call later in the week.” The conference call happened on on Wednesday August 26th, “That’s when I found out everything I had to fix,” she said.

There were three things that were required to be fixed starting with their COVID plan.

See Busted Nut Page 7

The Busted Nut has been the talk of Hastings since information was released regarding an inspection where they were fined $7000 for an employee wearing a face shield that a Minnesota OSHA inspector deemed was not an approved form of PPE. Photo by Bruce Karnick Busted Nut From Page 1

Businesses were directed to have a plan to reopen and that plan was to be distributed to all the employees and hung up as reference for all employees. “I had a preparedness plan, which included a COVID book, I just didn’t know I needed to have everyone sign it when I went through it with them.” Nelson stated. “The inspector told me I was supposed to have a book and every employee has to sign off they were trained on it.”

The next fix was regarding chemicals and an eye wash station. Restaurants with a dish washing machine typically have a 5-gallon bucket for each of either two or three chemicals: Detergent, Sanitizer and sometimes a Drying agent. Larger buckets are more economical, and they recycle better, which is a win-win situation. Buckets are generally stored under the dish machine and in many instances, there is a lid with a small hole in it for the hose to stick through which helps keep the chemical from spilling and getting contaminants in it. According to the OSHA inspector, the way the detergent bucket setup, which is standard in restaurants, presented a splash risk for someone changing the bucket. Due to this potential “splash” risk, the restaurant would need to install an eye wash station. The inspector also listed issues with hand sanitizer placed at the tables. The Busted Nut purchased the hand sanitizer from the same vendor that provides their cleaning and dish machine supplies. They were under the impression the hand sanitizer met the requirements of the state.

The question regarding the facemask the employee was wearing and ultimately was found to be non-approved rounded out the inspection report. Nelson promptly fixed the issues as required by the inspection report. “I found out on Wednesday the 26th and all of them were fixed by Monday the 31st” with the mask issue being fixed on the day of the investigation. The COVID book took a few days to collect signatures of employees as they came to work, and the chemical changes needed to take place on the next available order commercial dishwashing detergent isn’t carried at the local grocery store. In most cases, this would be the end of story; It’s not.

According to an email from Minnesota OSHA Spokesman James Honerman, “This case involves a referral to Minnesota OSHA Compliance concerning unsafe or unhealthful working conditions. The case is currently open, and the information related to open cases is not public under Minnesota Statutes section 13.39. So, we can’t discuss the specific violations.” The email from Honerman then cited a general duty clause.

“When an employer is cited for not implementing CDC, MDH or industry recognized COVID-19 related precautions to protect employees from potential exposure to the virus, such as lack of social distancing or failure to implement an employee health screening process, Minnesota OSHA Compliance uses the OSHA general duty clause (MN Stat. 182.653 subd. 2.).”

MN Statute 182.653 Subdivision 2 states; Conditions and place of employment. Each employer shall furnish to each of its employees conditions of employment and a place of employment free from recognized hazards that are causing or are likely to cause death or serious injury or harm to its employees.

Again, to reiterate, businesses were directed to have a plan to reopen and that plan was supposed to be distributed to all the employees and hung up as reference for all employees. The direction never said it must be a book and each employee must sign the book. This is directly from the reopen plan linked from the stayesafemn.gov website. Ironically, it links to a department of labor and industry page.

Item Number 5 states… Do I need to submit my COVID-19 Preparedness Plan for approval? The answer is…

No, COVID-19 Preparedness Plans do not need to be submitted to the state for approval. COVID-19 Preparedness Plans must be communicated to workers and workers must be provided with necessary training to implement the plan. Plans must also be posted at businesses’ workplaces or worksites or may be posted electronically for workers who have means to access the electronic posting.

Further research finds the August 3rd, 2020 Phase 3 Restaurant Industry Guide from the Department of Health website initially stating: Employers must ensure workers can access the Plan by posting the plan in all of the business’s workplaces in readily accessible locations, as required. Later in the document, it does expand the expectations further, including a link to the DLI file, but it says nothing about requiring the COVID plan to be in a book and signed.

THE FINES…

Even though the issues were fixed promptly and there are plenty of discrepancies within the manner information was not only conveyed to business owners, but also in having the knowledge of what type of masks are or are not approved by the inspector, fines that many see as severe and over the top have been assessed in the amount of $7,625 for THREE MINOR VIOLATIONS. When asked about the fines, Nelson said “I can’t remember which dollar amount was assigned to which of the two smaller fines, I’d have to go look at the report. One fine was $350; I think that was for the hand sanitizer and dish detergent. Another fine was $275, which I think was for not having a signed COVID plan.” That leaves $7,000 for the mask that the inspector was unsure about. $7000 for a mask where there was no true explained definition of what is and what is not acceptable from the State of Minnesota. It was during the conference call that Nelson was told there would be fines. “…I was told that there will be fines for the three violations. I have been here 16-years and I have never been fined. I have never even heard of a restaurant getting a fine unless it is a very blatant violation.” While Nelson was not happy, she never expected the fines to be in the amount that has been handed down. “I figured it would be five, maybe six hundred bucks, at worst a thousand.” It is understandable as to why Nelson would think that. According to the same staysafemn.gov FAQ described above, Enforcement authority and penalties are set forth in Executive Order 20-74 as follows.

• Pursuant to Minnesota Statutes 2019, section 12.45, an individual who willfully violates an executive order is guilty of a misdemeanor and upon conviction must be punished by a fine not to exceed $1,000 or by imprisonment for not more than 90 days.

According to the MN Department of Health FAQ, Businesses have heightened responsibility for public safety, given the volume of people that pass-through Minnesota businesses on any given day. As such, businesses (and their owners and management) may be subject to criminal charges (up to a misdemeanor, $1,000 fine, and not more than 90 days in jail), civil enforcement and fines (of up to $25,000), and regulatory enforcement (e.g., actions by government authorities that license or regulate the business).

The key word in the state statute is ‘WILLFULLY’. Did the Busted Nut violate the executive order with intention of causing harm? Did they deliberately violate the executive orders they were given? The willingness of Nelson to have the bartender change the mask on the spot would indicate the answer to be “no.” The inspector acknowledged the employee had a shield on. The inspector was not sure if the shield was an approved mask would also indicate that the Busted Nut was not intentionally violating the order.

Representative Jurgens’ press release highlighted several times… “Two weeks ago, Governor Walz’s administration informed hospitality industry leaders of stepped-up compliance checks in regards to the COVID-19 pandemic that could result in fines, forced closure, loss of liquor license, and workplace investigations. [Previously] Walz had stated that enforcement of state mandates and regulations were to be “educational” in nature rather than punitive.” The press release also stated, “This is just excessive overreach by the Walz administration and another example of kicking bar and restaurant owners when they’re down,” said Jurgens. “The Busted Nut is not a business that is thumbing its nose at COVID regulations. This is an example of a business that’s doing things the right way and trying to comply with the ever-changing rules in order to keep their employees and customers safe. Instead of following through on the educational promise, the agencies have leveled this business with excessive fines, $7,625 in total, which will take weeks if not months of operating at 50 percent capacity in order to pay it off.”

Something else to consider according to Representative Jurgens is that, “on August 27th, a letter went out signed jointly by the Commissioner of Public Safety John Harrington, Minnesota Department of Health Commissioner Jan Malcolm and Roslyn Roberts, who is the temporary Commissioner at the Department of Labor and Industry to bars and restaurants around the state to tell them increased compliance checks would be starting on the 28th.” These compliance checks are to ensure the bars and restaurants are following the COVID guidelines put out by the state. This all began for The Busted Nut a couple weeks before the letter went out to businesses.

If you visit the Busted Nut, you may have already witnessed that everything you see them doing is their best to comply with guidelines and there is no apparent or willful intent to do anything against the Covid mandates that have been handed down by Governor Walz. “I’m operating at half capacity… I have 7 tables inside,” Nelson pointed out, “I lose the patio seating in less than 6 weeks depending on weather.” A patio that for her, and for other local restaurants like hers, “has been a life saver,” except when it rains, like it did on a recent Friday night. “The rain on Friday night killed everything downtown, it seemed people just didn’t want to come out.”. All tables have hand sanitizer on them, and it has been changed out to the new, accepted hand sanitizer. Hopefully for our local restaurants, this won’t change again but, that remains to be determined. Employees maintain their distance as much as possible. They have a separate workspace set up to sanitize menus and condiment containers and they are clearly trying to follow every rule they are aware of, which they have been doing since they reopened.

WHAT’S NEXT What is next for The Busted Nut and Nelson? “Waiting.” Nelson simply said. She is waiting for an answer to her appeal. “I am already fighting it. I had 20 calendar days from the day the letter was written to dispute the fines… it (Letter from State) was written on the 3rd … I received it on the 9th and I had to have it (dispute letter) to them by the 23rd.” The Busted Nut dispute letter was turned in on the morning of September 15.

Nelson may be waiting, but Representative Jurgens is not sitting idly by. Recently, Representative Jurgens and dozens of other lawmakers penned a letter to Governor Walz urging his administration to end this financial punishment process for those bar and restaurant owners who are sincerely trying to operate under Minnesota’s COVID guidelines. Hopefully, this will have an impact on the decisions in the Governor’s office.

When asked for her thoughts, Senator Karla Bigham stated “Our small, Main Street businesses have been hit incredibly hard during this pandemic. I believe the over $7000 fine imposed on the Busted Nut was excessive, and that the inspector should have worked with them first to address compliance concerns. Since the moment, the owner made me aware of what happened, I have been in contact with her and the Department of Labor. I strongly support the Busted Nut using the appeal process. I am hopeful it will be resolved quickly.”

Nelson added that she “… hopes not to pay 7600 dollars in fines, that’s for sure,” when asked about what she hopes the results of the appeal are. It just seems so hard to fathom for so many people when COVID has been tough on everyone and businesses are already struggling, some even closing, as to why it appears some of the State leaders seem hellbent on making it tougher on businesses that are working hard to comply?

During a phone interview with Mayor Mary Fasbender, several things were discussed around the process and the spirit of the executive orders. “It’s no different from our city. Our police are taught, we need to educate first, but if it continues to happen, there might be some enforcement. Until then, we are just here to be educators.” She continued, “I’m hoping this was just a mishap, but I don’t know.” Mayor Fasbender also reinforced the city’s stance of standing behind businesses in the community. “We DO support our local businesses and during COVID it’s been a difficult time on [the] hospitality [industry]. They have been severely impacted for several months, so it’s a concern for our local economy.” She talked about the inspection being at the state level, not federal or local. “It’s the state’s role in educating business owners, to be honest with you, I was kinda shocked when Tatia talked to me about it.” Regarding the fines. When discussing the ever-evolving rules, she emphasized, “Every day we get a new email about the regulations changing.” Mayor Fasbender is also working to assist The Busted Nut from her end. “I do have a statement coming out and a letter was sent to the Governor.”

It is common a theme from people around the community talking in person and on social media supporting The Busted Nut since the story became public. Many people are saying how the Busted Nut has been a leader for the downtown area in helping get all the businesses back open. Tatia is the president of the Downtown Business Association, an association that worked with the Hastings Chamber of Commerce to lead the reopening of all the businesses in Hastings. They helped develop plans and communicate the ongoing changes as things evolve. Folks on social media have been angered at the state for several reasons surrounding this particular event, the more talked about ones being the dollar amount is ludicrous, government kicking businesses when they are down and what happened to giving out masks not fines. The outpouring of support has manifested quickly for the Busted Nut. On September 16th, a Go Fund Me was started to raise money to pay the fines. In 36 hours, they have raised over $10,000. As of September 20th, it is just shy of $12,000. What is going to happen if they win their appeal? The donation page was noticeably clear the moment it went up. “Any funds raised that are remaining or unused will be donated to help out in various areas of the community including other businesses and charities.” If there is a silver lining in this story, there it is.

The Journal did reach out to the Governor’s office, Elected State Officials, and the Department of Agriculture for comment. At this time, our communication requests have been ignored.