COVID-19 health order enforcement still murky

Local authorities remain reluctant to enforce state and county health orders despite repeated violations and months of increasing COVID-19 cases.

As a result, a number of businesses, especially restaurants, defy the orders and operate openly at various levels of service. Some serve patrons outdoors and a few allow indoor dining despite the orders that forbid it.

Owners of restaurants such as The Compass and Garcia’s in Carlsbad’s downtown Village closed except for take-out service during the first months of the pandemic. But now they have reopened and allow sit-down dining in “peaceful protest” of the health orders, despite receiving cease-and-desist orders from the county.

A number of elected officials, including San Diego County Supervisor Jim Desmond, have been outspoken about the need to keep restaurants and other small businesses open so people won’t lose their jobs and to keep the economy healthy. They say the continuing spread of the virus shows that lockdowns don’t work.

Others say the lockdowns don’t work because people don’t follow them, and that better enforcement is the answer. Earlier this week, a majority of the county Board of Supervisors voted to increase inspection and enforcement efforts, issue more citations and withhold relief funding from businesses that don’t follow the rules.

“We are preparing to increase ... education first, then follow up with action if required,” said county spokesman Michael Workman in an email Friday.

County sheriff’s deputies have issued hundreds of citations and cease-and-desist orders, but few cities follow the county’s example.

City officials point out that municipal codes are separate from county and state laws, and some cities have chosen not to enforce the county health orders.

The San Diego Police Department issued nearly 400 citations in April, then backed off enforcement of the health orders. A police spokesman said fewer than 10 citations were issued in the final months of the year.

San Diego Mayor Todd Gloria, elected in November, said Dec. 30 that he had signed an executive order “to pursue fines and potentially other enforcement action against public nuisances who choose to endanger the lives of others and blatantly and egregiously defy the provision of state and county public health orders.”

Few other elected officials have taken that stance.

El Cajon Mayor Bill Wells said in November that his police would give a low priority to enforcing the county health order. He said earlier in a Union-Tribune commentary that, though the virus is devastating and people should take precautions, the city has no right to stop people from worshipping in church or opening their restaurants, schools, nail salons and hardware stores.

Oceanside has taken a similar stance.

A recent downtown visit found a Mission Avenue brewery and cafe serving indoor customers, some restaurants serving outdoor customers, and others offering take-out. Some places sold take-out orders only but allowed patrons to eat the food at outdoor tables.

“The bottom line is we don’t have the staff” for enforcement, said Oceanside Mayor Esther Sanchez. “The only thing we can do is put the information out there that ... we don’t have room in the hospitals.”

Hospitals are at or near capacity with COVID-19 patients, which creates problems for anyone with a health care emergency. Outdoor dining should be safe, she said, but people need to take responsibility and be cautious to avoid spreading the virus.

“If anyone has to go to the hospital, they won’t get the level of care,” she said. “There is not enough staffing .... this is a really bad time.”

The Carlsbad City Council has discussed the possibility of increased enforcement at least three times. Yet, each time, a majority of the members have said additional restrictions would hurt small businesses and could violate constitutional rights. Instead, the council chose to have officers talk with people about things like mask-wearing and social distancing.

Councilwoman Cori Schumacher asked for increased enforcement, but her request was opposed by business owners, employees and fellow council members.

“The outcome ... sends the wrong message to those in willful violation of the public health order during a very critical moment in the COVID crisis — that we’re going to look the other way,” Schumacher said in a tweet.

Carlsbad Police Chief Neil Gallucci said at the Jan. 12 council meeting that since Sept. 22 the department has made 1,583 “citizen contacts” on the COVID issue and handed out 564 face masks.

“Generally, businesses in violation get an educational contact on the first response,” Gallucci said. “On a second violation, a cease-and-desist order is issued by the county. On a third violation, officers take a report for submission to the District Attorney’s Office.”

The department had recorded 30 cases of violations and submitted 19 of them to the DA’s office as of Tuesday, he said.

“This process has been expedited when businesses have announced an intentional violation,” Gallucci said. In those cases, after police make the educational first contact, they will take a crime report on the second contact and refer the case to the DA whether or not the county issues a cease and desist order.

Some of the cases were not submitted to the DA’s office because officers returned and found the business in compliance, he said.

Countywide more than 350 cease-and-desist orders have been submitted so far to restaurants, gyms, health spas and other small businesses for violations of the county health order. Each violation can be subject to a fine of up to $1,000 and up to six months in jail. About two dozen of the county’s COVID violation cases have been referred to the DA’s office.

Meanwhile, the DA’s office has only charged one business with a misdemeanor for violating public health orders, the Ramona Fitness Center, and those charges were later dropped when the owner started complying with the rules.

“Since December we have had 32 cases referred to us,” District Attorney spokeswoman Tanya Sierra said in an email Friday.

“Of the submissions, 19 are restaurants and 13 are gyms,” she said. “Most of these are in North County. All cases referred to us are under review.”