El Paso Standard

An El Paso entrepreneur said he has defied a lockdown order to close his businesses because he doesn’t think it is valid.

Justin Kaufman owns the Back Nine Bar & Lounge, El Paso Drafthouse, the Brass Monkey and El Rey Muerto and two gyms named Ratio One 61.

Kaufman, 34, said he considers the order issued by El Paso County Judge Ricardo Samaniego non-binding. He said while he has observed a 9 p.m. curfew, he has refused to close his businesses despite the judge’s order.

“Which he has no authority to do,” Kaufman told El Paso Standard.

He said when local authorities stopped it once and told him to leave, “I told them to take a hike.”

Kaufman said he was issued a citation.

“I gave it to my lawyer. So she’ll handle it,” he said. “The judge doesn’t have the power to do that. He overstepped his bounds with the mayor.”

Kaufman said his businesses, once thriving with 130 employees and a $15,000 payroll every two weeks, have absorbed a deep drop in the past eight months. His payroll is now $4,000 to $5,000, he said.

For two months, his bar/restaurants could not have sit-down customers and survived by serving alcohol to-go. Kaufman then altered his bars to put more of an emphasis on food, since if half their sales came from food, they could remain open. That has since been increased to 75%.

For Kaufman, that entailed shutting his businesses down for two months except for takeout alcohol, then converting his drinking establishments so that more than half of sales came from selling food, allowing them to reopen initially at half capacity, then at 75% before dipping back to 50% before returning to 75% capacity.

“It’s been pretty crazy since then, with the ups and downs and shutdowns,” Kaufman said.

He said the 9 p.m. curfew is especially hard to take.

“That was devastating,” Kaufman said. “My business was after 10 p.m. It’s pretty bad. Everyone is taking the hit. Everyone.”

He is aware of the risks that COVID-19 poses.

“I think everyone is on the same page, or should be,” Kaufman said. “Something we take serious since the Day 1. We are as clean as can be. I think it’s something that needs to be taken serious, and we do.”

His employees all wear masks, wash their hands frequently, use hand sanitizer and clean the businesses constantly.

“Absolutely,” Kaufman said. “Of course, of course.”

He said there are regular checks, and his places pass with flying colors.

“We’ve never had a ticket, we’ve never been in trouble,” Kaufman said.

Customers wear masks when they enter and as they leave and while walking around. It’s hard to force people to follow the rigorous standards, but he said they ask guests to comply. Most do.

While his revenue slumped, he applied and received money from the U.S. Small Business Administration’s Paycheck Protection Program.

Kaufman has applied for city grants and would like to get into the Build Safe Program, which would help him install Plexiglass, air purifiers, “the whole nine yards.”

It’s just a matter of trying to survive. The lockdown threatened that, and without proper authority, in his view. Kaufman said that is why he chose to ignore it.

On Oct. 29, Samaniego issued a two-week shutdown order for all businesses not deemed essential. It took effective at midnight, Oct. 30.

“All businesses that are non-essential must close,” he said in a video announcement that included other local officials.

Samaniego, a Democrat elected in 2018, said tattoo parlors, hair salons, nail salons, gyms, massage business and in-person dining must cease. He said schools that provide meals, child care facilities, grocery stores, pharmacies, health care agencies, government offices, post offices and polling places would be allowed to remain open.

Samaniego said a health crisis existed, with more than 20,000 active COVID-19 cases in the county.

In Texas, a county judge is both an administrative and judicial position. The judge presides over the commissioners court, performs many administrative tasks, is in charge of emergency services, handles lower level court cases and, in smaller counties, serves as budget officer.

There was an immediate pushback, as the Texas Attorney General Ken Paxton said the judge was overstepping his bounds.

“In sum, County Order No. 13 is unlawful and unenforceable because it conflicts with Executive Order GA-32,” Paxton said. “For these reasons, we have advised El Paso County Judge Samaniego to immediately rescind or revise his order to make it consistent with GA-32 or face likely further legal action.”

The El Paso Police Department said it would not enforce the shutdown order.

El Paso Mayor Dee Margo said he had not been consulted before the shutdown order was issued and said it violated Gov. Greg Abbott’s decision that non-essential businesses could operate at 75% capacity.

“El Paso County Judge Samaniego has no authority to shut down businesses in El Paso County,” the mayor said in a statement. “This is a direct violation of Gov. Greg Abbott’s executive order. Recommendations must not be confused with requirements, especially those that unlawfully burden private citizens and businesses.”

Samaniego responded by saying his order was valid. Paxton and 10 El Paso restaurant owners have requested 34th District Court Judge William Moody issue a temporary restraining order.

A hearing was held on Wednesday, Nov. 4. A decision is expected on Friday, Nov. 6.

The story took another turn on Wednesday, when Kaufman was arrested on several drug charges.

Kaufman was booked into the El Paso County Detention Facility and later released after posting an $85,100 bond. While he faces a potential 99-year prison sentence and $100,000 fine, he told El Paso Standard he thinks he will wind up with probation instead.

He was charged with one count of manufacturing with intent to deliver and 11 drug possession charges. Hundreds of marijuana cigarillos were seized, along with edible forms of pot, some pills, 1.2 grams of cocaine and other drugs and drug material.

His girlfriend, Kathalina Ziffer, who was living with him when the search warrants was served on May 28, was charged with possession of less than 2 ounces of marijuana on May 29 and released the same day after posting a personal recognizance bond.

He said he does not think the drug arrest is linked to his criticism of the lockdown.

"I don’t think it has anything to do with it directly,” Kaufman said. “Are they related? No, I don’t think so.”

He told El Paso Standard he got into legal trouble for dealing marijuana almost a decade ago and that is why he opened his gyms and then the bar/restaurants.

Kaufman said he was 25 and had just got out of jail for selling weed – it was a “two-weeks situation,” he said – when he decided he needed to pursue another line of work.

Kaufman said he has never tried to hide his past criminal record.

On his Facebook page, Kaufman was blunt about his arrest, saying his father was largely responsible. He told El Paso Standard it was “a long story,” but did not offer further details.

“I’m out of jail, I’ve never ever used drugs to pay my way through my businesses ever,” he posted on the social media site. “Nor have I sold since I was in my young 20s. That actually sent me on my career as a business man.

“Have I been known to smoke weed. Yes, hell yes.

“Is this mostly what this is about.. yes.

“Is this going to hurt the hard-ass work I’ve laid down over the years.. yes.  I am not here to change anyone’s minds, but that is my 2 cents”

Kaufman told El Paso Standard he is much more focused on saving his businesses and providing jobs for his employees that worrying about his legal problems.

He said he hopes Congress will follow through on a statement from Senate Majority Leader Mitch McConnell (R-Ky.), who said a new stimulus package was the first order of business when the Senate and House reconvene.

“We need it bad. We really do need it bad,” Kaufman said. “I am skimming the top.”