Panic Attack

County Attorney Andrew Thomas may have pulled the trigger too quickly on Ajo Al's

But even the shigella would have been handled quietly, Ludwig says.

"Typically, with food-borne illness investigations, we don't go to the media," he says. "Unless we have reason to believe a threat is continuing, we wouldn't do a public alert. And a case like this, typically, wouldn't have been subject to enforcement protocol."

There's good reason for both policies. Even if there had been a problem with a restaurant employee, the diners had become sick after visits in early May. Another month had passed without incident.

Dennis and Karen Dains (pictured with four of their five children) built Ajo Al's -- and now worry that they'll lose it.
Martha Strachan
Dennis and Karen Dains (pictured with four of their five children) built Ajo Al's -- and now worry that they'll lose it.

And shigella cases would be extremely difficult to prosecute — simply because it can be extremely difficult, if not impossible, to positively identify the source of a shigella outbreak.

Unlike, say, salmonella, shigellosis is not necessarily the result of undercooked meat or poor restaurant cleanliness. In 1998, for example, eight restaurant-associated cases of shigellosis were traced back to a 1,600-acre farm in Mexico, according to the Journal of Food Protection. The bacteria had come to the restaurants on the parsley.

Poor restaurant cleanliness can certainly contribute to the problem. But other factors can be just as important.

Donna Garren, a vice president with the National Restaurant Association in Washington, D.C., says she's never heard of a restaurant being charged criminally in relation to a bacterial outbreak.

"Obviously, it's different if there's tampering involved," Garren says. "But something like shigella could come in, on food, into the restaurant, and not be the fault of any employee. And unless the health department does a tough investigation of how the illness started, there's just no way of knowing."

And that hasn't happened yet, as Ludwig confirms. The county environmental services department is taking the matter seriously, and continuing its investigation. But until they get test results, it's impossible to know for sure what, if anything, is to blame.

Indeed, despite Thomas' claims at the press conference, records show that Ajo Al's was not referred to his office because of shigellosis.

Instead, the county visited because of the possible shigellosis connection — and then cited the restaurant for code violations that may well have been completely unrelated.

It may be an honest mistake, but when it comes to freaking out diners, it's a big one.

Part of the problem seems to be that Thomas is embarking in entirely new territory. Garren says she doesn't know of a single case, nationally, where restaurant code violations have resulted in jail time.

The three cases that Thomas triumphantly announced June 29, in fact, are the first in a brand-new Maricopa County program to crack down on repeat offenders in the food business.

Thomas met with the department last year to determine criteria for the program, Ludwig says. The goal was not so much to address things like shigellosis, which can be impossible to trace or the fault of outside vendors. Instead, the environmental services department wanted to target restaurant owners who ignored violations and failed to implement training.

Ludwig says the standard was set so that, based on past precedent, they'd probably cite about 100 establishments each year, out of the 18,000 that are licensed.

On its face, Ajo Al's didn't seem like anybody's idea of a repeat offender. Until last August, after all, they'd been given "gold" marks.

But Ajo Al's ended up being something of an unusual case.

"Food-borne illness can happen in the best of places and the worst of places," Ludwig says. "Now, when certain factors are there, you increase your risk. But the enforcement just happened to overlap with the outbreak investigation. They got bad luck on all three draws."

Since the county inspectors visited on two consecutive days in May to interview employees, they'd naturally stopped by the kitchen and reported their findings on each day.

Typically, a restaurant would have time between its second and third inspection, time to get training together and educate staff. But thanks to the shigella investigation, Ajo Al's didn't have that luxury — those visits happened on consecutive days.

Ludwig says the inspectors wouldn't normally have returned for another inspection the day after issuing violations. But since they were there interviewing employees, they couldn't ignore any violations they spotted.

And so, thanks to the back-to-back inspections, Ajo Al's fit the criteria that Thomas had helped the office develop. On June 26, environmental services wrote Ajo Al's to say it was referring the infractions to Thomas.

Just two days later, Thomas brought the charges to the magistrate, who signed off on third-degree misdemeanor complaints against the restaurant, Dennis Dains, and three of his investors.

And then, thanks to Thomas' startlingly inaccurate press release, the matter exploded.

Suddenly, instead of being tried in Phoenix Justice Court for misdemeanors arising from not following the health code, the Dains were being tried in the court of public opinion for allegedly triggering a major outbreak of shigellosis — never mind that the investigation on that was only getting started.

And then came Thomas' threat of jail time. As the Arizona Republicreported, the misdemeanors can carry up to six months in jail, and Thomas boasted that he'd be asking for jail time.

"I think a day or two in Tent City will get the attention of these folks," he was quoted as saying.

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