SCHENECTADY — Schenectady County is going to court to force Bumpy’s Polar Freeze to remain closed until it comes into compliance with public health guidelines intended to stop the spread of the COVID-19 virus.
The county on Friday filed a lawsuit seeking a temporary restraining order against Bumpy’s and owner David Elmendorf, who has been at the center of a recent controversy over racist texts he allegedly wrote, as well as an on-going dispute with the county Department of Health.
“The owner of Bumpy’s has threatened county staff with a power washer, torn down closure notices, and threatened peaceful demonstrators with a pellet gun,” said County Attorney Christopher Gardner. “He has twice been charged criminally for his actions.”
There have been protests outside Bumpy’s on several occasions in recent weeks over the alleged racist texts, but the county’s primary focus is on public health violations. However, Gardner in late June also weighed in on the texts, sending a letter to state Attorney General Letitia James asking for a civil rights investigation.
Elmendorf, 35, was charged with two counts of second-degree menacing, both misdemeanors, on June 30 after he allegedly pointed a pellet gun at protesters, police said. He was released pending court appearances.
But before the recent controversies, the establishment at 2013 State St. was the subject of a health code violation dispute. Last fall, a county health inspector said a violation involving a sink sprayer hose had to be corrected. According to the complaint, Elmendorf subsequently refused the county access to the business to determine whether the issue had been corrected, and has torn off notice violations placed on the business door.
“Enough is enough,” Gardner said in a statement on the new lawsuit. “The defendants’ actions have been one of willful and avowed destruction of the rule of law. Today, the Schenectady County Attorney’s Office seeks to reaffirm the rule of law and the right of our public health officials to perform their duties, without threats or interference.”
But beyond that, the county lawsuit says the business hasn’t complied with guidelines intended to reduce the risk of COVID-19 exposure.
“Defendants have failed to take any action whatsoever to achieve compliance with the regulations adopted by the state of New York in response to the COVID-19 pandemic,” the complaint states.
Under the guidelines, the county says outdoor tables must be at least 6 feet apart, signs must be posted requiring staff and customers to wear masks, and 6-foot distance markers must be placed for those waiting in line, among other measures.
“Defendants have, at all times, refused to comply with these regulations,” the county complaint states.
But James G. Mermigis, the attorney representing Elmendorf and Bumpy’s, said that Elmendorf is ready to comply and there’s no need for a lawsuit, but he is afraid to go to his business now because of the threats he says he has received from protesters.
“The county wasted 140 pages worth of trees to do that,” Mergmigis said. “My client has not had access to go there because his life is threatened, and his employees’ lives were threatened. I told him to go to police to protect himself.”
Referring to the protests of his alleged use of racist language in text messages, Mermigis said Elmendorf denies having written the texts or being a racist.
“He hasn’t been open because he is afraid for his life,” Mermigis said. “This man has been adjudged a racist without a trial … No one has given him an opportunity to defend himself. He categorically denies he is a racist.”
If he does return, the attorney said, “the first thing he has to do is make sure he is compliant, and get the Health Department in there.”
If the attorney general’s investigation finds his client is not a racist, “I will hold the county of Schenectady responsible for this,” Mermigis said.
The case will be heard in the state Supreme Court. No court date has been set.