The public access to restrooms in The Merc Theater building will be re-opened soon.
Theater raises concerns about facilities’ safety
Under mounting pressure to provide public restrooms for visitors, the Town of Twisp will re-open the bathrooms in The Merc Playhouse building that were closed in 2018 because of safety concerns.
The Twisp Town Council voted to re-open the bathrooms at its meeting last week, providing a much-needed downtown facility — while at the same time exacerbating a strained relationship between the town and the theater organization that has not been resolved to either’s satisfaction.
Council members concluded that re-opening The Merc’s bathrooms is the best near-term action, in that the town’s other public facilities are less accessible and alternative solutions are not on the horizon.
The town has maintained the restrooms under a 99-year lease agreement with The Merc Playhouse Society, the nonprofit that operates the theater. Although the restrooms are inside The Merc’s building and are used by theater patrons during events, they can also be accessed through a lockable public entrance on East Second Avenue. That access has been closed since November 2018 because of concerns about whether the facilities could be kept safe.
Missi Smith, executive director of The Merc, said in an interview last week that the theater organization feels “bullied” by what it considers the town’s unilateral action to re-open the restrooms, and that re-opening the facilities could put the theater’s users at risk.
Smith said The Merc has for several years asked the town to better-maintain the restrooms and ensure their safety, without satisfactory responses. The Merc’s complaints about the restrooms, including incidents of lewd behavior, drug use, filthy conditions and broken fixtures, date back several years. Correspondence from The Merc to the town cites problems The Merc says were not addressed or adequately remedied.
In default?
In late 2020, out of frustration with what the theater organization considered the town’s neglect, The Merc declared the town in default of the 99-year lease under which the town has opened the bathrooms to the public.
In an October 2020 memo to Twisp Mayor Soo Ing-Moody, Smith stated that “this letter provides NOTICE that the Town of Twisp is in Default of the Lease Agreement by and between Twisp and The Merc Playhouse Society … Twisp abandoned the Premises more than 24 months ago.”
In December 2020, the town’s attorney, Scott DeTro responded that “the town disputes your assertion that the town abandoned the premises more than 24 months ago,” and said the town had continued to uphold its requirements under the lease.
DeTro denied that the town was in default, and suggested that to exit the lease agreement The Merc should repay about $32,000 to the town, which acquired funding for the bathroom facilities from Okanogan County in the early 2000s.
In a March 30 letter this year, The Merc’s attorney, Evan Shapiro of Davis Wright Tremaine LLC, reasserted to DeTro that the town is in violation of the lease agreement.
“We do not believe the Town’s offer to mutually terminate the Lease in exchange for the payment by The Merc to the Town of $32,829.25 is fair or reasonable, and we do not accept the Town’s proposal,” Shapiro said in that letter.
“As you know, the Lease requires the Town, among other obligations, to maintain the restrooms in a clean, orderly, and sanitary condition and to keep the restrooms in good repair …,” Shapiro said in the letter. “The Town has not fulfilled its obligations under the terms of the Lease since before the start of the COVID-19 pandemic. The Merc has notified the Town on numerous occasions beginning in August 2018 of problems with the restrooms … The Town has taken no action in response to the Merc’s communication … Our estimate to repair the restrooms so they can safely reopen after years of neglect is $10,000, which is the Town’s obligation to pay under the terms of the Lease.”
In a subsequent response on April 22, DeTro countered that allegations of default “do not serve to further a resolution in this matter.” He said the county need not be involved in resolving disputes about the lease agreement.
DeTro said that in the absence of a counterproposal by The Merc, the town would assess the bathroom facilities and make necessary repairs to re-open them to the public.
“The town is not precluding further discussions regarding an alternate arrangement if The Merc has a proposal for the town to consider,” DeTro said in the letter. “If not, The Merc can anticipate the restroom facility opening in a manner that is consistent with COVID-19 protocol as soon as the town determines it is ready to open.”
‘Clean and safe’
Since the restrooms’ closure in 2018, the town has heard a persistent clamor for public bathrooms to serve Twisp’s visitors, especially during the summer months. Merchants in particular have noted that visitors often ask to use their facilities.
At last week’s council meeting, Public Works Director Andrew Denham said his staff had reviewed The Merc’s facilities to determine what it would take to re-open them. He said there are “some minor items that need attention,” including repairs to the hallway flooring at the public entrance to the restrooms. He estimated repair costs at about $2,000.
In an interview this week, Denham affirmed that estimate and said the town budget includes proceeds from its hotel/motel tax funds to pay for the repairs, which include assuring that the lighting and heating systems are working.
“It will be clean, operable and safe,” Denham said.
At the council meeting, it was proposed that the Public Works Department open the restroom access door in the morning, and that Police Department secure the facility and lock the door at the end of the day. Proposed hours are 7:30 a.m. to 4 p.m., Monday through Saturday, with adjustments as necessary or appropriate. Additionally, Denham said, staff time will be needed to keep the restrooms cleaned and maintained.
Council members noted that the town’s temporary quarters on East Second Avenue are directly across the street from the public entrance to the restrooms, providing better opportunity to keep an eye on the facilities.
In an interview this week, Police Chief Paul Budrow said his staff will inspect and close the bathroom access to make sure no one is lingering. In the past, he said, most problems in the restrooms occurred in the evenings. Earlier closing times should help address that issue, he said. “I think we are in a good spot for now,” Budrow said.
No longer beneficial
In an interview last week, Smith said that as originally drawn up, the 99-year lease agreement mutually benefitted the town and the theater organization, but “it does not serve us or the town anymore … they [the town] are not living up to their end of the contract.”
“It’s so disappointing that they [the town] are disregarding the safety and liability issues,” Smith said. The town’s action to re-open the bathrooms, she said, “leaves us completely powerless … there is no way to delineate where our liability begins and theirs begins.”
In a follow-up email this week, Smith said the Merc’s major consideration is the potential risk that the restroom facility poses to the theater’s users if it is re-opened to the public.
“Now, it appears to be the town’s position that we should either just bear the burden of carrying insurance to cover the public use and hold all liability and risk,” Smith said, “while also having no impact on the cleaning and/or maintenance of the restrooms, OR, we must pay them $32,000 to end the agreement based on 99-year depreciation for bathrooms built with a $40,000 grant from the county in 2002 … Our annual budget is roughly $125,000 per year. We have been closed for over a year with no earned income whatsoever. $32,000 would wipe out a full year of programming.”
Smith said the town’s decision to open the restrooms “came while we were still making efforts to respond to that ultimatum with a counter proposal. This is a no-win situation for our small organization, in the heart of Twisp, and it threatens our future ability to remain a vital part of Twisp and The Methow.”
“They [the town] will now be opening the restrooms, without our consent, and we will be reopening our building in June with summer theater camp for kids,” Smith said. “They have not reached out to us to let us know how they intend to monitor the restrooms, clean them, or provide security….Along with that, they have not remedied necessary repairs or provided any information to us on how they will follow COVID protocols for restrooms, also very concerning.”
Smith said she was uncomfortable talking about the dispute but felt she needed to make The Merc’s case to the public. “It’s amazing to me that we’ve come to the place where we have to say this,” she said. “For them to say they have not heard from us is not true.”
“We’ve tried to keep it civil,” Smith said, “but we’ve been bullied, bullied, bullied.”
