California cafe fined $108K, still flouts rules. Why it’s so hard to enforce COVID shutdown
Perhaps as much as any business in the state, Apple Bistro has felt the sting of California’s coronavirus police.
The popular cafe, located on Highway 50 just east of downtown Placerville, lost its health permit in August after El Dorado County officials said it failed to make its employees wear masks.
Three months later it was fined $108,000 by the state Department of Industrial Relations for similar infractions — the second-largest penalty imposed by the agency for a COVID-19 violation. Meanwhile, the restaurant is still racking up tens of thousands of dollars in fines from the county.
The punishments, though, don’t seem to have prompted a change of heart from Apple Bistro or its owner, Jennette Waldow.
On Tuesday, the restaurant was open even though county officials said it lacks a valid health permit. Customers were seated indoors in violation of Gov. Gavin Newsom’s latest stay-at-home orders, served by employees without masks.
Signs around the building disparaged the state’s orders, including one that read, “As free Americans we will not comply with unconstitutional medical or political mandates that violate our basic rights!”
Ten months into a pandemic that has killed more than 27,000 Californians, state and local officials are still struggling to get businesses and individuals to comply with orders issued by Newsom and county governments in an effort to curb the spread of the coronavirus.
In part, that’s because law enforcement agencies, by and large, are refusing to join in the crackdown. Sheriffs from throughout the state have said they wouldn’t enforce Newsom’s orders, with Sacramento County’s Scott Jones taking to Facebook this week to decry prohibitions on church attendance and in-person dining.
State agencies with the authority to levy fines or pull licenses often stress education instead. About 90 businesses in the state have been hit with fines from the Department of Industrial Relations. Agents from the state Department of Alcoholic Beverage Control have paid 152,000 visits to California bars since July — and issued citations against only 171 of them.
No bars have had their licenses revoked. The agency’s goal is “finding a reasonable penalty to bring people into compliance,” said ABC spokesman John Carr.
The effect, some experts say, is that Californians are being told the rules are merely suggestions.
“Is this voluntary? Essentially, it is,” said Andrew Noymer, a public health expert at UC Irvine. “To some extent, it is the honor system.”
Noymer said he doesn’t want to see sheriffs enforcing health orders. But at the same time, by publicly refusing to take action, sheriffs are “telegraphing” the idea that the orders don’t have to be followed, he said.
Break up a party? ‘Not our job’
The state’s COVID-19 restrictions forbid indoor services at houses of worship. Health officials have been warning for months about the dangers from large gatherings.
But a few churches have been holding services nevertheless. One of the most defiant has been Destiny Church of Rocklin, whose pastor recently set up a “freedom fund” that’s distributed $25,000 to small businesses, open and closed, said Destiny spokesman Tanner Di Bella. On New Year’s Eve, the pastor’s daughter was married at the 1,500-seat church. Di Bella said 220 guests attended amid “social distancing, sanitation stations and more.”
That same night, 100 people showed up for a New Year’s Eve party at the Granite Bay mansion once owned by actor Eddie Murphy in an obvious violation of the COVID rules. (The lawyer for the host says he only invited a few friends but word spread on social media).
Placer County sheriff’s deputies were called to the party after hearing a complaint about noise. But the deputies issued no citations or make any attempt to break up the bash. Sheriff Devon Bell, like many other sheriffs, has said his deputies wouldn’t be instructed to enforce any of the health orders.
“That’s not our job,” said department spokeswoman Angela Musallam, when asked why the deputies let the Granite Bay party continue.
“We will continue to take on an educational role and we will not enforce COVID-19 guidelines,” she added. “It is not within the constitutional purview of law enforcement.”
Placer’s sheriff has plenty of company in California. Bill Schueller, the police chief of Redding, said he’s been able to talk people out of hosting large “super spreader” events.
“More often than not, a conversation about best practices usually resolves that issue, so we don’t have to go down any kind of criminal route,” he said.
He’s also reluctant to go after businesses violating the rules. “Fighting businesses that are already struggling does not seem like a fair thing to do in the time of a pandemic,” the chief said.
Meanwhile, other major events are scheduled — including a conference in Rancho Murieta this weekend organized by elected officials from around the state who are opposed to Newsom’s stay-at-home orders.
Dr. Olivia Kasirye, Sacramento County’s public health officer, said the event violates “state and local health orders” and warned of possible criminal or civil action against the owner of the Murieta Inn and Spa, where participants are scheduled to stay.
Event organizers said the conference will be staged safely. A protest at the Capitol is scheduled for Saturday.
Those who aren’t violating Newsom’s directives are challenging the governor in court. Although no one has succeeded yet in overturning one of his orders, houses of worship might be gaining the upper hand.
After overturning rules on church gatherings imposed by New York state — rules that were less restrictive than California’s — the U.S. Supreme Court directed California courts to take a fresh look at what had been an unsuccessful lawsuit filed against Newsom by a Pasadena church. The case is pending before the 9th U.S. Circuit Court of Appeals.
As for Apple Bistro, the Placerville cafe is accumulating local fines from El Dorado County at a rate of $500 a day, for a total of $53,200 so far, said county spokeswoman Carla Hass. (That’s on top of the $108,000 state fine.)
The cafe’s owner, Waldow, couldn’t be reached for comment. When a Sacramento Bee reporter visited Apple Bistro on Tuesday, an employee said Waldow was unavailable for an interview.
Hass said two other restaurants in the county are racking up tens of thousands of dollars in fines and have had their health permits revoked: Danette’s Brick Oven Pub and Cafe El Dorado.
But the restaurants haven’t been closed, Hass said.
“The County does not have any legal authority to do a force closure such as chaining the doors or turning off utilities,” Hass said in an email.
Focus on COVID-19 vaccines instead?
It was an extraordinary exchange at the San Joaquin County Board of Supervisors. At Tuesday’s meeting, supervisors groaned to the county’s health officer, Dr. Maggie Park, about the rise in COVID-19 infections in San Joaquin despite the lockdown of much of the economy.
“If it’s not working, why are we just doing more of it?” said Supervisor Robert Rickman.
Park didn’t refute those assertions.
“A lot of us health officers are saying that people aren’t listening to this anyways, so let us pivot to focusing on vaccines,” she said. “We really need to get people vaccinated to get us out of this pandemic.”
Efforts to crack the whip have been sporadic. Yolo and El Dorado counties passed ordinances over the summer that allow businesses to be fined. Sacramento supervisors were contemplating similar measures in December but shelved the proposal when it was clear the plan didn’t have the votes.
For now, the county’s code enforcement staff will continue to visit businesses that might be violating the orders “if a complaint is received,” said county spokeswoman Brenda Bongiorno.
The pushback from the public on shutdown orders has been relentless, particularly in rural counties.
“America has never been shut down for any reason — this is a bunch of baloney,” a Shasta County resident said at this week’s Board of Supervisors meeting. “This pandemic was caused right here in America by Dr. Fauci.”
Another said: “Civil war is brewing.”
Arthur Caplan, a nationally known medical ethics expert, said the “farcical, irresponsible, wimpy” lack of enforcement in the face of a global plague is getting tens of thousands of Americans killed.
Caplan, director of ethics at New York University’s Langone Medical Center, said law enforcement should be issuing tickets like “they used to ... when people were smoking marijuana in the street.”
He added that Newsom’s moral authority on COVID-19 shutdowns has likely been undermined by the French Laundry fiasco, in which the governor attended a dinner for a lobbyist friend at the exclusive Napa Valley restaurant. Nor has it helped that President Donald Trump has repeatedly downplayed the severity of the crisis, he said.
Meanwhile, health officers’ frustration mounts. Dr. Rita Kerr, the health officer of rural Amador County, was discussing rising caseloads with her Board of Supervisors, complaining that family members are no longer isolating someone who gets sick.
Earlier in the pandemic, if someone got sick, nobody else in the household got infected. Now the virus spreads to practically the entire household, she said. In all likelihood, “people are really, truly fatigued and not able to keep their distance,” she said.
Then a member of the public spoke up, demanding to know why the county isn’t doing more about restaurants that openly ignore the prohibitions on in-person dining.
Kerr said, in effect, that enforcement won’t happen overnight. State agencies like Alcoholic Beverage Control have visited restaurants in Amador to explain the rules, but have so many violators to deal with, they have to move on to the next case.
“The wheels are moving slowly because this is a statewide issue,” she said.
Prosecuting a bar owner in Southern California
Law enforcement officials haven’t completely sat quietly.
Last week the Orange County district attorney filed criminal misdemeanor charges against two people in connection with repeated COVID-19 violations at a Costa Mesa bar.
Roland Michael Barrera, owner of the Westend Bar, was charged with violating a lawful order. The bar’s manager, Luisza Giulietta Maura, was charged with resisting a police officer after she allegedly attempted to keep him from entering the bar.
Each could face up to one year in jail.
Even as those charges were filed, however, the DA’s office said it hopes the two don’t get sent away.
“The District Attorney’s Office is hopeful that there will be no new violations and that the case can be resolved through additional education courses ... instead of jail time,” the office said. It added that it supports “an education and outreach philosophy” and has declined to file charges against nearly two dozen other businesses suspected of operated illegally.
Carr, the Alcoholic Beverage Control spokesman, said each of the 171 citations imposed on bars and taverns so far has included referrals to county prosecutors for possible prosecution. He wasn’t aware of any cases besides the charges filed in Orange County.
Even if no criminal charges are filed, bar owners who’ve been cited can be put on probation or have their licenses suspended or completely revoked.
Of the 12 bars cited in the greater Sacramento area, Carr said five agreed to be placed on probation for three years. That means they could lose their licenses if they violate the order again. The other seven cases are still pending.
He said the agency “would rather gain compliance through conversation and in-person visits,” and pulling a bar’s license isn’t a quick-and-easy process.
“People think we can go out and shut the place down,” he said. “But there’s due process.”
This story was originally published January 7, 2021 at 5:00 AM.