Literal interpretation of obscure state law threatens Smithville restaurant
His grandfather, who owned the original Justus Drugstore across the street from 1914 to 1955, built the structure that now houses the restaurant. After he died in 1961, Justus’ mother ran the drugstore in the building for 40 years before selling the pharmacy in 2001.
Five years later, the new occupants abandoned the premises for a strip mall in town. Justus and his wife, Camille Eklof, seized the opportunity to realize their long-deferred dream: opening their own restaurant.
The two had worked in prestigious restaurants in San Francisco, Paris and Kansas City. Now they had the chance to return to Justus’ hometown and set up shop in the building long associated with the family name.
Little did they know that a literal interpretation of an obscure Missouri law threatened to waylay their carefully laid plans.
After mortgaging their house to the hilt and putting in months of sweat equity — they designed and built the interior themselves — Justus and Eklof opened Justus Drugstore: A Restaurant in May 2007. The high-end, dinner-only establishment, which buys from local producers and makes everything from scratch, has drawn rave reviews and is slated to be featured in Bon Appetit and Food & Wine magazines later this summer.
Then, just before Memorial Day, an inspector with the Missouri Board of Pharmacy showed up at the restaurant, file folder in hand.
“We have an issue with your name,” Justus recalled her saying.
“I was in shock. I kept saying this must be a joke,” he said.
It wasn’t.
Earlier this month, Justus and Eklof received a letter on Board of Pharmacy stationery ordering them “to immediately CEASE AND DESIST the unlawful use of the word drugstore” (capitals in the original) in the restaurant’s name.
The letter cited Section 338 of the Revised Statutes of Missouri, an enactment dating back to 1951 and designed to prevent unlicensed establishments from holding themselves out as pharmacies. The law bars a business from using the words “drug store,” “pharmacy,” “apothecary” or similar terms “unless the place of business is supervised by a licensed pharmacist.”
Never mind that the word “restaurant” was part of Justus Drugstore’s name and was displayed prominently in its signs. The inspector and board were unmoved.
“I told her that the intent of the law is clear,” Justus recalled, referring to the inspector. “She jumped all over me and said that someone could come to us thinking they were getting medical advice from a professional.”
For Justus, 43, whose words tend to come out in a rush, the issue is not just one of principle and preserving his family’s patrimony. It’s also one of economics and marketing: Changing the name would require him to alter the restaurant’s signs, menus, uniforms, business cards and the like — not to mention forfeit its hard-won identity.
“We spent an immense amount of energy branding ourselves,” he said.
And then there’s the matter of having to reapply for retail and liquor licenses under a new name. A notoriously thin-margin business, high-end restaurants like Justus Drugstore rely on liquor sales to turn a profit.
The thought of having to await the issuance of a new liquor license sends Justus into a near-panic.
“We’d go out of business,” he said in an interview this week.
For the Board of Pharmacy, the issue is a straightforward one. The statute’s language is unambiguous. It makes no exceptions for a restaurant, even if no one is likely to mistake it for a pharmacy or a drugstore.
“We don’t go out and hunt these places, but our attorney looked at it and said that it violates the statute,” said Debra C. Ringgenberg, executive director of the pharmacy board. “He advised us that we can’t selectively enforce the statute. … That’s what gets us into trouble.”
The attorney, Curtis Thompson, said the state was bound by the unambiguous wording of the statute, regardless of its intent.
Besides, he said, “if somebody has an emergency situation where they need to have a prescription filled immediately and they see a sign saying ‘Justus Drugstore,’ that person could be misled into believing it’s a pharmacy.”
That explanation enrages Sen. Luann Ridgeway, a Smithville Republican, who has been trying to get the pharmacy board to back off.
“I’ve seen the absolutely outrageous letter from the pharmacy board,” she said. “Apparently they’re bored and don’t have anything else to do.”
Ridgeway said she asked the general counsel of the Senate’s Rules, Joint Rules, Resolutions and Ethics Committee “to see if they have the statutory authority to go anywhere beyond the regulation of a pharmacy.”
“We think the clear intent of the legislature was for them to regulate only a pharmacy or someone pretending to be a pharmacy,” she said.
Ridgeway, who has eaten at Justus Drugstore “numerous times” and confesses a partiality to its steak, said she spoke to Gov. Matt Blunt on Thursday about the pharmacy board’s cease-and-desist order, and he responded by calling the action “stupid.”
Blunt, she said, promised to step in personally.
The pharmacy board’s June 10 letter gives Justus and Eklof 30 days to comply with the order. The letter didn’t specify what consequences would ensue from their failure to do so, but Thompson said the board would probably seek an injunction against the restaurant.
“I know the board has done that in the past,” he said. “I know of no reason why we wouldn’t do that here.”
It’s just one more cloud hanging over Justus’ head as he juggles the multiple demands of budding entrepreneur, executive chef and chief bottle washer.
He and Eklof said they have poured everything they have into the enterprise, which occupies their every waking hour and a not inconsiderable portion of their few sleeping ones.
“We have an Aero mattress out back,” he said. “On weekends, I don’t get out of here until 3 a.m.”
“This isn’t a regular restaurant,” he added. “We are very good at what we do, and we’ve worked very hard at it. We’ve gotten some amazing press because of that. The confusion, not to mention the cost of having to do all this…”
His voice trailed off as he contemplated the prospect of joining battle with the state. Then his cell phone rang. It was his bartender, inquiring about a new shipment of wine.
It was time to get back to the kitchen.
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