Panic Attack

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

Most restaurants start with a dream or a corporate scheme. Ajo Al's started with a horrific car accident.

Karen Dains recounts the bare facts of the accident with detachment: Colorado Springs, 1980. Another driver braking too suddenly; her young family's car skidding off the road; her back broken.

Even today, at 54, Dains is confined to a wheelchair. But the insurance settlement, a tidy $200,000, provided seed money for what would become her family's chain of four Mexican restaurants across the Valley, all called Ajo Al's.

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.

Location Info

Map

Ajo Al's

5101 N. 16th St.
Phoenix, AZ 85014

Category: Restaurant > Cafe

Region: Central Phoenix

Ajo Al's

9393 N. 90th St., Ste. 121
Scottsdale, AZ 85258

Category: Restaurant > Mexican

Region: North Scottsdale

Ajo Al's

6990 E. Shea Blvd., Ste. 126
Scottsdale, AZ 85254

Category: Restaurant > Mexican

Region: North Scottsdale

Ajo Al's

7458 W. Bell Road
Glendale, AZ 85308

Category: Restaurant > Cafe

Region: Glendale

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Until last month, Ajo Al's was a remarkable success story: a thriving family-owned business, a tight Roman Catholic clan that turned misfortune into entrepreneurial success.

Then came the charges from Maricopa County Attorney Andrew Thomas.

On June 29, Thomas told an assembly of TV cameras and print reporters and radio microphones that the restaurant was extremely unsanitary. That an employee had been allowed to work, despite being ill, and spread a bacterial infection called shigellosis to unknowing diners. As part of a bold new policy, he was prosecuting — and the owners deserved to spend time at Tent City.

The Dains were devastated by the claims. Business has plummeted.

"We've lost $50,000 of business in the last week," says Karen Dains, a poised woman with shoulder-length dark hair. "We've laid off more than half our staff."

But though Thomas wrote the claims about shigellosis into his press release, and repeated them without hesitation to reporters, there appears to be absolutely no evidence to support them.

(Thomas's spokeswoman, Krystal Garza, did not return calls for comment.)

Instead, the county health workers who are investigating the case say that their investigation is still ongoing. They have not determined the source of the shigella bacteria. They certainly haven't identified any employees as being infected — the tests haven't even come back yet. They've tested food from the restaurant, but they have yet to link any of it to the bacteria in question.

David Ludwig, a manager for Maricopa County's environmental services department, says that the county is looking at the situation, and had identified problematic "risk factors" at the restaurant, like employees touching lemon slices with their bare hands and unclean microwave walls.

But Thomas' claims about a sick employee spreading shigella go too far, Ludwig says.

"I don't know that anyone knows that for a fact," he says. "Mr. Thomas — well, sometimes when you get people in front of a TV — you know how that is. I'll leave it at that."


The facts about a case like this are always complicated. But the quick summary goes something like this: After years of good evaluations and several "gold" awards from the county, Ajo Al's Phoenix location racked up some violations at its inspection last August. Typical restaurant stuff — dirty floors, an employee forgetting to wash his hands after removing his gloves — but nothing shocking.

In March, after an inspection yielded six similar violations, the restaurant was put on probation.

Then, in May, two families made complaints to Maricopa County within days of each other.

Four people had tested positive for shigella, a nasty strain of bacteria that leads to diarrhea, fever, and stomach cramps.

Shigellosis isn't exactly unusual; the Centers for Disease Control says that 18,000 cases are reported every year. And despite the annoyance factor, which is huge, generally only the very old and very young require hospitalization.

In the May cases, county health officials compared detailed lists of what the families had eaten and where they'd been. They found one common venue: They'd dined at the Phoenix Ajo Al's within three days of each other.

Not a smoking gun, but definitely cause for concern.

So the county environmental services division visited the eatery May 23. They found eight violations. The can opener blade was dirty. An employee had put on gloves without washing his hands first. The black beans were too warm. And so on, along those lines.

Only one violation was a repeat from March, and none were particularly horrific offenses, but with the shigellosis lurking, they had to be taken seriously.

So county workers asked if employees had been ill. And, had they come to work while they were ill? Four said yes, although it's worth noting that none were involved in kitchen prep work. (The Dains say one was a hostess and three were wait staff. And ill doesn't necessarily mean ill with a stomach bug; one woman had an ear infection.)

The next day, the county returned with questionnaires for the employees. While the officials were there, they recorded nine repeat violations from the day before.

They also collected evidence: The sick employees were directed to give stool samples. County workers also took some food samples for testing.

The investigation continued for the next month, without any more complaints about shigella or about Ajo Al's, according to county records. Last month, when health inspectors visited again, they found that all but one of the problems had been fixed.

They gave Ajo Al's a "silver" award, the county's second-highest honor.

Under the old way of doing things, that might have been it. The shigella investigation would have continued, undoubtedly, with the stool samples analyzed and the food tested and a match sought between any bacteria detected. And Ajo Al's would have been subject to something called "stipulation," which basically means inspections every six weeks for the next six months.

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.

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.

The remarks shocked the environmental services staffers who helped Thomas design his fledgling program.

"When we talked about this protocol, it was not our department's intent to ever ask for jail time," Ludwig says, flatly. "When I saw he was talking about people going to Tent City — we never talked about that."

Karen Dains says her family is wounded by the remarks. But they're absolutely confident they can beat the charges.

What they're not so confident about is regaining the trust of the public.

Business has been terrible. And Karen and her husband have been forced to hold a series of dire discussions.

Should they close their doors and sell the place? Sell their house? How many people can they lay off before they're unable to operate?

Karen and Dennis Dains had been living their dream. Once a lowly waitress and bartender, they'd met on the job at Applegate's, the high-end Biltmore area restaurant/dance club, back when fine dining still went hand-in-hand with a good disco.

They'd always wanted their own place. And once the accident made it possible, they'd made it thrive: four restaurants and 300 employees.

It's a family affair, to the point that all five of their kids have worked at Ajo Al's. (All three sons are current employees.) Dennis Dains still gets up at 5:30 every morning to stop by at each restaurant. It's only recently, daughter Theresa Palletta says, that her parents have even been willing to take a one-week vacation.

This has been their life. And it seems unbelievable that it's ending with this: a few violations and a tide of misinformation.

Sitting at a dark corner booth at the central Phoenix eatery with 28-year-old daughter Theresa, Karen Dains' eyes fill with tears.

Her lawyer told her not to talk to the media, she admits. He didn't want her to make Thomas angry, to make things worse. But she couldn't help herself.

"At this point," she says, "we have nothing to lose."

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