SCHENECTADY — The Schenectady County Public Health Services has ordered that Bumpy’s Polar Freeze and its owner, David Elmendorf, be required to pay a $10,000 fine for a health code violation and failure to comply with the state’s COVID-19 dining restrictions.
The fine was imposed in an order signed Tuesday by County Public Health Director Lisa Ayers, after the county conducted an administrative hearing on the violation allegations in late July.
For now, a temporary restraining order issued by state Supreme Court Justice Michael Cuevas remains in place, ordering that the State Street grill and outdoor ice cream stand remain closed because of the violations. It has been closed since late June.
Elmendorf’s attorney, James G. Mermigis, said the fine will be disputed in court.
“We are not surprised by this decision since the Health Commissioner had the final approval on the fine,” he said in an email on Saturday. “The entire procedure is the equivalent of a kangaroo court. The entire process or lack thereof was patently unfair and the odds were stacked against my client. We will certainly appeal this ridiculous and punitive fine.”
Bumpy’s and Elmendorf have also been at the center of a controversy over racist texts he allegedly wrote, with protests outside Bumpy’s in June. Elmendorf, 35, was arrested for menacing protesters after he allegedly pointed a pellet gun at some of them. The county asked state Attorney General Letitia James to investigate.
Prior to and separate from the racism controversy however, the business at 2013 State St. was the subject of a health code violation dispute. Last fall, a county health inspector found a violation involving an interconnected sink sprayer hose had to be corrected. It wasn’t.
Subsequently, county officials say Elmendorf refused the county access to the business to determine whether the issue had been corrected, tore off notice violations placed on the business’ door, and threatened county employees who came to the property.
On the recommendation of hearing officer Joe Landry, the county made six public health findings against Bumpy’s. Landry, who serves as the county director of public works, is also an attorney.
In his report, Landry said he found the testimony of county employees credible, and recommended the $10,000 fine even though he said the business could have been fined more than $50,000, based on the number of days various violations went uncorrected. The sink sprayer hose issue was not fixed until June 26, Elmendorf testified at the hearing.
In addition to the sink hose violation and the dispute over it, the hearing officer found that Bumpy’s was operating without a valid permit, since the county denied a 2020 operating permit due to the unaddressed violation.
Landry also found that Bumpy’s hadn’t complied with Gov. Andrew M. Cuomo’s orders intended to address the COVID-19 pandemic, including not marking six-foot waiting distances for customer lines, not spacing tables six-feet apart, not requiring employees to wear masks, and being open for on-premises consumption before June 4, when restaurants were allowed to serve take-out only.
The hearing officer’s report also found credible the charge from two county employees that Elmendorf used profane language in ordering them to leave the property, threatened them, and sprayed water from a power-washing hose in their direction.
The county attorney’s office sought the $10,000 fine. “Mr. Elmendorf’s behavior demonstrates that significant fines are appropriate because of his willful active interference with SCPHS,” First Deputy County Attorney Frank S. Salamone wrote in a brief to the hearing officer.
During the hearing, Mermegis argued that the county had not proven its case, and photos the county submitted didn’t actually show customers violating the social distancing restrictons. He said Elmendorf shouldn’t be responsible for anything other than the $100 fine that the county originally sought to impose because of the spray nozzle violation.
He also said Elmendorf is no longer operating the business, and will be forced to sell it.
“The County did not come close to meeting its burden of proof and I feel certain that my client’s rights will be vindicated under appellate review,” Mermigis wrote on Saturday. “We also intend to file suit against the county this week.”