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When prosecutors accused the owners of Ajo Al's of violating the county's health code and sickening diners, it took the restaurateurs seven months to get their day in court — but only four hours of testimony for the judge to toss out the charges against them. Arcadia Justice Court Judge...
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When prosecutors accused the owners of Ajo Al's of violating the county's health code and sickening diners, it took the restaurateurs seven months to get their day in court — but only four hours of testimony for the judge to toss out the charges against them.

Arcadia Justice Court Judge Michael W. Orcutt reached his decision February 1 without even hearing the defense's argument. His verdict for Ajo Al's was a blow to Maricopa County Attorney Andrew Thomas' "Dirty Dining" program — and, perhaps, to Thomas's ego.

Prosecutors referred calls to Thomas' spokesman, Barnett Lotstein. Lotstein said his office had no comment on the verdict.

Thomas launched the program with great fanfare last summer. To date, he's hit owners of five restaurants with criminal charges for what used to be strictly a civil affair. (Since he wouldn't talk to New Times, it's not clear what triggered Thomas' interest in health code violations beyond, possibly, the usual prosecutorial taste for publicity. Health department officials say that he proposed the program to them, rather than vice versa.)

At least one restaurateur, the owner of Tepic Restaurant in downtown Phoenix, pleaded guilty and spent 24 hours in jail, according to Thomas' office. But Ajo Al's, a popular central Phoenix hangout, is the highest-profile restaurant to be snared by the prosecutor's dragnet so far. And the allegations Thomas made in his initial press briefing in June — that an Ajo Al's employee spread a bacterial infection to diners — were certainly the most damaging.

In court last week, however, prosecutors didn't even attempt to argue that the restaurant had spread the bacteria in question — a form called shigella, which causes vomiting and diarrhea. As for the actual charges, that employees had touched food with bare hands and not kept surfaces sufficiently clean or a food warmer sufficiently hot, those were summarily dismissed by Judge Orcutt.

The reason: When Thomas pressed charges, Ajo Al's had already entered into a "stipulation agreement" with county health officials regarding the very same charges, and paid a $500 fine. Judge Orcutt ruled that therefore, the law bars prosecutors from pursuing a conviction.

Dennis and Karen Dains, who opened the first Ajo Al's on North 16th Street more than 20 years ago and still own a majority interest, clasped hands and beamed as the judge announced his decision.

The couple had rejected a plea bargain, and spent tens of thousands of dollars on lawyers rather than cave to Thomas.

The county attorney's comments, they say, cost them more than $1 million of business. So despite their victory, the Dains clearly don't consider their fight finished. They're talking to lawyers and seriously considering suing Thomas.

"I put my life on the line for this country," says Dennis "Pat" Dains, a Vietnam veteran who served as a door gunner during the first Tet Offensive. "And what has that man done other than ruin businesses — for no reason?"

The judge's decision came after two afternoons of contentious arguments from lawyers who normally play in a much bigger arena.

Justice Court typically hears drunk-driving charges, misdemeanors, and even traffic offenses. But Steve Dichter and Ivan Mathew, who represented Ajo Al's owners during the aborted trial, are both former assistant U.S. attorneys. (Dichter, for one, went from the "dirty dining" case on Thursday to a sentencing Friday on the Baptist Foundation case — a case involving $550 million in fraud.) Lisa Aubuchon, the deputy county attorney who served as lead prosecutor, is the head of Thomas' pretrial division and has prosecuted high-profile rape and child porn cases.

For all the rhetorical fireworks, however, the most interesting thing about the trial was what it didn't get into.


When Thomas issued his press release, he didn't mince words. "At Ajo Al's, a sick employee was allegedly permitted to continue working and spread shigellosis to diners." But as New Times reported in July, there was little evidence to support the claim ("Panic Attack," July 13, 2006).

That became only more apparent in trial.

"The state does not have to prove, nor does it intend to prove, that [diners] got sick at Ajo Al's," Aubuchon told Judge Orcutt.

And that was no act of kindness. Records show they couldn't prove it.

On July 28, the Maricopa County Department of Public Health closed its shigella investigation without pinpointing a bacterial link.

"Foodborne spread is the likely mode of transmission in this outbreak," its report concluded, "however, a definitive food vehicle or food association could not be determined."

Yes, a party of eight dined at Ajo Al's on May 11, and four of those people did get sick the next day with shigellosis. And yes, the county found another two people who'd dined at the restaurant May 12 and later tested positive for infection.

But no food at Ajo Al's ever tested positive for the bacteria, records show. The "sick employee" in Thomas' release is equally elusive. Three Ajo Al's employees did report being sick during the time in question, but none tested positive for the bacteria, records show.

As county workers admitted in e-mails obtained by New Times, all three employees reported illnesses that lasted only a day, which makes shigella infection an unlikely diagnosis. "So far, no employee admitting to illness compatible with shigella," one health department official wrote in an e-mail May 25 — a situation that didn't change before Thomas' incendiary press conference a month later, nor has it changed since.

In court last week, one of the people who got sick, a retired banker named Ralph McDonald, testified about making the complaint to the county that kicked off its inspection.

Under questioning, though, McDonald said that he and the other three people who got sick shared more than one meal — together for a college reunion, they ate a total of seven meals together at four locations.

They all had beef tacos at Ajo Al's, but Pat Dains estimates that the restaurant served at least 1,000 orders of that meal over the weekend of May 11. It's one of the restaurant's most popular dishes.

If tacos were really the cause, "don't you think someone else would have gotten sick?" he asks.

For the Dains, though, victory is Pyrrhic. Public perception that they spread infection continues to gall them, not to mention impact their business.

Their attorney Mathew calls the case "gut-wrenching."

"There were certainly other ways to handle this case other than to bludgeon my clients with criminal charges," he says. "And it appears that the prosecutors were not even familiar with the statutes and regulations before going to trial.

"Learning about a statute in trial is never a good idea."

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