COVID-19 enforcement of restaurants, gyms in San Diego: Is it working?

Amid a relentless surge in coronavirus infections and hospitalizations that have kept San Diego County businesses in lockdown, a nagging question persists: Are promises of stepped-up enforcement of health order violations making a difference?

Under the current stay-at-home order, in effect since early December, outdoor and indoor dining was shut down, businesses such as hair salons have been temporarily closed, and gyms are not allowed to operate indoors. But shopping malls remain open, as do many retail stores, with much-reduced capacity.

Over the last several months, the county has issued hundreds of cease and desist letters notifying businesses from Chula Vista to San Marcos that they have violated state and county orders designed to contain the spread of the novel coronavirus. Local law enforcement agencies as well have pursued still more instances of disobedience, yet it appears only a small percentage of the defiant businesses have so far been targeted for potential prosecution.

In the meantime, complaints persist that a number of restaurants continue to defy orders prohibiting in-person dining, even as some elected leaders are pledging to do more to crack down on scofflaws.

Just three weeks after taking office as San Diego’s new mayor, Todd Gloria issued an executive order aimed at going after those who “blatantly and egregiously defy the provision of state and county public health orders.” And this week, the county Board of Supervisors’ newly elected chair, Nathan Fletcher, with the help of a new Democratic majority, announced his plans to undo some of the actions of the previous board that he believes worked against slowing the spread of COVID-19.

Yet as the debate over enforcement intensifies, elected leaders and local law enforcement also find themselves in the uncomfortable position of going after businesses at a time when many are on the brink of financial collapse after nearly a year of on-again, off-again closures fueled by a raging pandemic.

“In general, the issue around enforcement has been very frustrating,” Fletcher said. “The more compliance we get the quicker we will be able to be open and stay open ... We understand folks are just trying to make it, but we have to do these things as a community and it’s inherently unfair for those entities who are doing things right to see other individuals who are not.”

Muddying the enforcement landscape is a sometimes labyrinthine process that begins with complaints made by the public, which are followed up by the county’s public health enforcement team. When businesses are not compliant, they are issued a cease and desist order, a warning of sorts, that can eventually be referred to the county district attorney or the San Diego city attorney for possible criminal charges. Independent of that, however, local law enforcement agencies can issue citations of their own for minor misdemeanors and infractions or for referral to the DA or city attorney.

Enforcement approaches also vary from one jurisdiction to another, with some cities and law enforcement agencies saying they prefer to “educate” businesses before pursuing punitive measures.

On an encouraging note, say county officials, 90 percent of those entities and individuals who have been the target of thousands of complaints come into compliance following an investigation by the county’s Safe Reopening Compliance Team. The remaining 10 percent get cease and desist orders — there have been 335 so far — and typically two-thirds of those businesses eventually agree to make changes so they no longer are in violation of those orders, said county spokesman Mike Workman.

“We as well as individual cities have been collaboratively working to follow up on complaints and take escalated enforcement when there are violations that are not addressed by the business,” Workman said in an email. “We do find the majority make adjustments to be in compliance.”

To date, the district attorney’s office says it has received 26 referrals from various law enforcement agencies since December, of which 18 are restaurants. The remainder are gyms. More than half of the referrals — 15 — are from Carlsbad where a number of restaurants in the city’s downtown village area continue to operate in what they are calling a “peaceful protest” of the health orders. County officials said at least 17 of the cases submitted to the district attorney involve businesses that had refused to comply with cease and desist letters, and they expect that number to climb in the next few weeks as the county makes its way through dozens of still active cases.

So far the only business owner District Attorney Summer Stephan’s office has charged with a misdemeanor for violating public health orders was Peter San Nicolas, who refused to close his Ramona Fitness Center. The gym owner was charged in August with five misdemeanors for operating during the state’s shutdown orders

The charges were later dropped when San Nicolas started complying with the rules, said District Attorney spokeswoman Tanya Sierra.

The district attorney is still reviewing all of the referrals it has received and has not yet decided which other businesses, if any, to charge with misdemeanor violations.

Because of a backlog of cases in the court system due to the pandemic, it could still be months before any COVID-19 cases would make their way on to a court calendar, Sierra said. Her office declined to divulge the names of those businesses referred for potential prosecution.

“We see the devastating financial struggle that businesses are facing and the devastating impact COVID is having,” she said. “We are working closely with the County Compliance Team and law enforcement. As we have in the past, we will file charges when they are appropriate.”

Meanwhile, the San Diego city attorney’s office has received since June 40 misdemeanor referrals involving largely San Diego businesses that remained open in violation of state health orders. More recently, as restrictions have tightened, City Attorney Mara Elliott’s office has been referred five cases since Dec. 1 — four of them gyms and one an individual, said spokeswoman Hilary Nemchik.

On Friday, Elliott’s office filed a civil action against the owner of a Miramar warehouse where a balcony collapsed under the weight of dancing New Year’s Eve partygoers, leaving three injured. The party organizer also was charged.

Also involved in enforcing the local public health order is the California Department of Alcoholic Beverage Control, which oversees liquor licenses. It currently has 59 open investigations of businesses involving violations in San Diego County, in addition to four restaurants and bars already cited by the ABC, said spokesman John Carr. That’s after ABC agents made more than 8,300 site visits to licensed businesses in San Diego County since July 1.

Even as enforcement seems to have escalated in recent weeks, Carlsbad City Councilwoman Cori Schumacher says she remains discouraged by efforts that in many cases emphasize education over punitive action. In an hours-long council meeting this week, she failed to get the support of her colleagues for her proposal to step up enforcement through locally imposed citations and fines for violators.

“I don’t think we’re enforcing,” Schumacher said. “When law enforcement says they’re enforcing, they mean they’re educating. They’re handing out masks, they’re handing out fliers about the public health order but they’re not enforcing. If the county health department finds an infestation of rats or an E. coli outbreak, they shut that restaurant down but right now in a similar situation with an outbreak killing hundreds of thousands of people, we don’t have law enforcement treating this with the same level of enforcement that we would like to see.”

Part of her frustration is aimed at the dozens of Carlsbad restaurants that have chosen to continue operating in-person dining in defiance of the current stay-at-home order that limits operations to takeout and delivery only. The county so far has issued cease and desist orders to nearly 30 Carlsbad restaurants advising them they are in violation and that failure to comply could lead to a $1,000 fine for each violation.

Restaurateur Gaetano Cicciotti’s, whose Cicciotti’s Trattoria on Grand Avenue is among those who received a letter from the county, said he has no choice but to continue offering outdoor dining. It’s a matter of survival, he says.

“It’s not a principle, this is live or die,” said Cicciotti, who spent $20,000 on each of two dining venues for expanded patio seating with extra heaters and lighting. “If I stay closed another three weeks, I would probably close for good. We don’t force anyone to come to work. I would like people to understand our frustration. The county, they do what they have to do, but there is no law we are breaking, our attorney tells us.”

Attorney Michael Curran, who is representing, pro bono, hundreds of businesses in San Diego County, including about 60 in Carlsbad, said he suspects that enforcement seems lax because, he insists, there is no law that restaurants and bars are violating. He pointed to a recent Superior Court ruling, now on appeal, that had allowed restaurant and live entertainment venues to reopen in the county. The judge had argued that there was no compelling evidence that allowing restaurants to operate, with health and safety restrictions, added to the risk of spreading COVID-19.

“We’re saying we have constitutional rights that are in conflict with the so-called public health orders,” said Curran, who knows of no clients who have been cited or have had cases referred to the DA or San Diego city attorney.

Law enforcement agencies have acknowledged that the health order presents a unique enforcement challenge.

“This is something new to us,” said Carlsbad police Assistant Chief Mickey Williams. “We’re trying to accomplish our responsibility, which is protecting the public.”

Williams said his department responds to all reports of health order violations and proactively checks on businesses that have been given cease and desist orders to document any violations and discern whether a case needs to be forwarded to the district attorney’s office.

“We’re doing the best we can under the situation, which is challenging for everybody — challenging for the community, it’s challenging for businesses, it’s challenging for the police,” Williams said. “We’re trying to help people stay healthy, and part of that is to ensure that people are following the laws.”

Many law enforcement agencies have taken a much more hands-off approach, leaving enforcement of cease and desist letters to the county.

In El Cajon, City Manager Graham Mitchell says about a dozen businesses have been issued such letters. He said he had not been informed of any businesses that had defied the letters, but made it clear that the city was leaving that sort of enforcement to county officials.

In November, El Cajon Mayor Bill Wells said he had asked his city’s police officers not to prioritize day-to-day issues related to COVID-19. But Mitchell said that should not be interpreted to mean that the city is doing nothing. He said El Cajon police detectives have been assigned to handle complaints the city receives and that education is their first priority.

“If there’s someone who is willfully, blatantly disregarding health regulations and they clearly are putting the community at danger, of course, we’ll consider a heavier approach, but we haven’t found that to be the case,” Mitchell said.

He said the city’s education-first approach is partly built upon data provided by the county suggesting that restaurants and other businesses aren’t responsible for the explosion of cases currently plaguing the region.

Local disease detectives try to ask everyone who tests positive about the things they did in the two weeks before they got sick. Of the people who were interviewed, about 8.2 percent of people said they’d visited a restaurant, and only 0.4 percent of people said they’d been to a gym.

And while restaurants and bars have been the sites of 215 outbreaks between March 25 and Jan. 4, community outbreaks, including those at restaurants, have only accounted for about 4 percent of all cases across the county.

Those pushing for tougher enforcement acknowledge that it is not the sole solution to taming the current pandemic.

“We need better testing, better distribution of the vaccine, better initiative in terms of adherence to the public health order,” Mayor Gloria said. “There is no easy button on this but I can’t just sit and watch this happen. When I issued the executive order, there were 1,400 fatalities in the county, we’re now at more than 1,700.”