County bucks Governor’s roadmap, opens through Stage 3

Tulare County Board of Supervisors votes 3-2 to reopen county through Stage 3 of the State’s Resiliency Roadmap, restaurants and bars risk losing ABC license, CalOES threatens COVID-19 impact funding

VISALIA – The Tulare County Board of Supervisors told Gov. Gavin Newsom where he could shove it, after deciding to strike out on their own and reopen the local economy through Stage 3 of the Governor’s COVID-19 Resiliency Roadmap.

But the 3-2 vote that allowed businesses and patrons to proceed at their own risk, also put county and city impact funding in jeopardy. And still, the legality of the vote is in question.

The item published on last Tuesday’s agenda was whether or not to approve the county’s Health and Human Services Agency’s (HHSA) submission of a local variance attestation to the California Depart of Public Health, and authorize chairman Pete Vander Poel to sign a letter of support for the letter. A variance attestation would have perhaps propelled Tulare County through the initial restrictions of the state’s COVID-19 Resilience Roadmap which includes some retail and low risk work places where employees do not work so close together.

What passed instead was a letter amended by District Two Board Supervisor Dennis Townsend to include the county’s declaration to immediately allow businesses to open through Stage 3 of the Governor’s COVID-19 Resilience Roadmap; rescind the county’s public health officer’s local order that would have limited reopening to the initial portions of Stage 2 and halting all local civil enforcement related to the stay at home order; direct HHSA to issue guidance mirroring the state’s Stage 3 business guidance; and move HHSA’s efforts away from meeting state metrics required to move through Stage 2 and Stage 3 and instead assist with problem areas and populations in the county that include the elderly and health compromised individuals, skilled nursing facilities, hospitals and businesses or agencies with reported outbreaks.

County counsel Deanne Peterson, Tulare County’s attorney, offered her concern over Townsend’s motion.

“You’re not actually intending to override the [Governor’s] action with this motion,” Peterson inquired.

She asked as well, when Townsend said that his motion should be instituted immediately after the vote, whether the board would wait for the state’s response to their letter?

“No, we already know what the states response is going to be,” Townsend said.

When Peterson asked if Townsend and the rest of the board would like to recess into closed session to discuss the item, Townsend staunchly said “no” and insisted that the discussion be public. District Five Board Supervisor, Eddie Valero chimed in to request the item be tabled for a special meeting.

“There are a lot of moving pieces here…at least from my end, I think we should have some special meeting,” Valero said.

Townsend chimed in further and asked Chairman Vander Poel whether it is a point of order to have discussion after a second on the amended item. District One Board Supervisor Kuyler Crocker second the motion, but quickly thereafter, without any room for discussion, Vander Poel called for the board to vote.

Townsend, Vander Poel and Crocker all voted yes, while District Three Board Supervisor Amy Shuklian and Valero voted no. Shuklian explained immediately after that she voted no because of a lack of discussion, and Valero echoed her reasoning.

When asked by The Sun-Gazette whether the motion was legal because of how Townsend’s amendment changed the nature of the letter from a submitting a variance attestation, to an unsanctioned reopening through Stage 3, Peterson deferred to attorney client privilege.

“County Counsel cannot provide any legal analysis or statement regarding the Board of Supervisors action taken today without breaching attorney-client privilege,” Peterson relayed through new Board of Supervisor chief of staff, Tammie Weyker-Adkins.

Spirit of collaboration

Board supervisors repeatedly mentioned Governor Gavin Newsom’s press conference from last Monday, May 18. He said there are approximately 53 of California’s 58 counties that are ready to meet the metrics required to move to the latter portion of Stag 2. When asked by KCBS reporter Doug Sovern which five counties were left out, Gov. Newsom mentioned Tulare County among others.

“It’s not surprising but there are concerns. As an example, the skilled nursing facilities in Tulare County. In Kings County, the meat packing plants that we’re still addressing,” Newsom said.

The California Public Health Department has outlined that for counties to move through Stage 2 the County Health Officer must sign a local variance attestation, indicating that the County meets the eight readiness criteria in four primary areas:

  1. Containment capacity
  2. Case investigation, contact tracing, and isolation capacity
  3. Hospital capacity
  4. Ability to protect vulnerable populations

On Tuesday, May 19, board members almost unanimously brought up that the outbreaks at skilled nursing facilities such as Linwood Meadows, Redwood Springs and Lindsay Gardens are not their fault. Instead they are regulated by the state.

“It is so frustrating to me that we are being hamstrung and held back by facilities we don’t even regulate,” Vander Poel said.

As of Friday, May 22, before HHSA removed their metrics tracker online, Tulare County met five of eight key metrics. All counties have been tasked with reducing their daily new cases to 8% and have at least a 14-day supply of personal protective equipment (PPE). With skilled nursing facilities, the county had a 10.4% rate of new daily cases, and 9.9% without them. As well, they only had five days of PPE on hand, but HHSA director, Tim Lutz said in his presentation to the board that equipment has been easier to come by. Tulare County almost met their contact tracer requirement of 75 as well, which Lutz also expressed confidence in after signing a contract with Visalia Unified to use their qualified staff.

Shuklian pointed out in an interview with The Sun-Gazette later that skilled nursing facilities aren’t the counties largest hinderance. Instead food packing plants such as Ruiz Foods and Central Valley Meats have been the main driver of new cases in recent weeks.

Crocker questioned the Governor’s metrics in the first place, and said that they are not helpful in reducing spread in the county anyways. He added that communities on and near the boarder of Tulare and Fresno counties prove that restricting commerce in Tulare County doesn’t do much.

“I just think the rules created by the Governor are completely unfair,” Crocker said. “We are not reducing our risk. If you live in Dinuba you can go do business in Reedley, you can go to Kingsburg.”

Valero said to The Sun-Gazette last week that the county’s vote wasn’t about metrics, it was about calling out Newsom.

“What I felt was that it was about emotion and politics…they were saying that if the governor was calling us out on Monday, we’ll call you out on Tuesday,” Valero said.

On Friday, May 22, Newsom addressed a question from ABC 30 reporter Jacqueline Mclean about his thoughts on Tulare County rushing beyond his order and into Stage 3. Newsom responded by cautioning about the danger COVID-19 perpetuates.

“It breaks my heart; it should break your heart. Families of loved ones who may have been impacted by COVID-19, may have had a loved one lost in their life who would not have otherwise lost their life,” Newsom said. “People are working in the spirit of collaboration…there are health professionals who understand the virulence of this disease and understand the consequences about being flippant in the moment.”

Not necessarily in the vein of collaboration, immediately following the County’s vote on May 19, California Office of Emergency Services director, Mark Ghilarducci sent a letter to County Administrative Officer, Jason Britt. Ghilarducci’s letter warned that COVID-19 impact funding from the state may be withheld from the county and cities.

Nonetheless, Newsom added in his response from Friday that he understands the economic stress businesses and counties are under, but still wants to work collaboratively.

“I don’t wake up to look to be punitive, I want to be responsible and respectful to the deep economic challenges that all of us are facing…I just want to reflect a sense of empathy and understanding to those who have disagreements. But I hope they know we are looking forward to working with them. And I don’t take comments or resolutions personally,” Newsom said.

At your own risk

Upon hearing that the county has “reopened” through Stage 3 businesses turned their closed signs around. But that wasn’t true for everyone. The two types of businesses still running at the state’s pace are those with ABC and cosmetology licenses

Weyker-Adkins said to The Sun-Gazette last week that the county implores businesses to check in with their regulating state agencies, if applicable. The most notable businesses of which are restaurants and bars. Some initially made their reopening known. Rookies welcomed patrons to their dine in area allowing for 50% capacity. But after a discussion with California’s Alcohol and Beverage Control (ABC) office last Thursday, they announced over social that they are choosing to go back to pick up orders only.

“After speaking with ABC this morning, we MUST follow governor Newsom’s restriction and ABC will not permit any sit-down dining for restaurants that have a liquor license,” a post from Rookies stated. “So unfortunately, we are back to take out only, until this governor of ours decides to release us for business as usual.”

Rocky Hill Brewing just outside of Exeter was selling and delivering beers shortly after the Governor’s stay at home order in March. Now, since the county’s vote they have also chosen to reopen from 12 p.m. to 6 p.m. Friday through Sunday. Other Exeter bars like Bell Craft and Rock Yard Tavern chose to semi-quietly reopen in early May, even before the county voted last week.

The city of Exeter, for their part has done little to stop it. Exeter city manager Adam Ennis said that the city has not so much as issued a formal warning, much less a fine. But he added that the city doesn’t have a robust code enforcement department.

“We have tried to encourage voluntary compliance from folks. We only have 37 staff [including] everybody, we don’t have a whole department of code enforcement to even do anything…It wouldn’t be an easy thing to do if the city went down that road,” Ennis said.

He added that the city has taken some proactive steps, and police chief John Hall has made some rounds to contact businesses.

Aside from business with ABC licenses, Valley’s Gym in Visalia opened in early May as well, and came under a light threat from code enforcement. Owner David Robles said that he initially shut down when he received a warning from Tulare County code enforcement on April 13. He reopened on May 8. A week later, on May 15 he received a second warning, this time from Visalia code enforcement. At which point he called Visalia city councilman Brian Poochigian.

“‘I can’t tell you yes or no not to [reopen],’ that’s what he said,” David said. “He told me ‘if you are going to do it, Visalia’s not going to stop you.’”

Poochigian said in an interview with The Sun-Gazette that the city has chosen to not fine anyone, and they have taken the “teeth” out of enforcement.

“I keep saying the city of Visalia never closed any businesses so we can’t tell you to open there might still be repercussions coming from the state or county,” Poochigian said. “I did say that if code enforcement comes there will be no fine or punishment.”

Robles said that he did not reopen to defy the city or county. And if the city had asked him to close he would have conceded.

“If Visalia came in and said they wanted to recant what they said and told us to shut down…I’d make my phone calls but yeah I would. I don’t think you get anything from fighting in that manner,” Robles said.

He added that he has taken extra measures to ensure the cleanliness of the gym.

“For myself, we just upped the standard of all our cleaning supplies. And at that time, it was tough to get them,” Robles said.

Businesses with employees that choose to reopen also run the risk of an employee contracting the virus at work. According to Newsom’s Executive Order N-62-20, that he signed on May 6, if a worker contracts the novel coronavirus, the presumption will be that they got it at work. Although, the order notes that employers will have the chance to rebut the claim.

Harsh and unreasonable

Part of Townsends remarks, before making his amendment, was an expression that the county is not enforcing the local public health order. And for that reason, he did not want any enforcement language in the county’s public health order at all. Instead, the county should leave it up to cities to decide if they want to enforce the state’s public health order.

“Why don’t we just say yeah, ‘there’s a state order in place. Cities do what you’re going to do,’” Townsend asked.

California Office of Emergency Services, an office that falls under Gov. Newsom’s purview, understood that point as well, and noted as much in their letter addressed to County Administrative Officer, Britt.

“As you may be aware, the budget proposed in the Governor’s May Revision includes $1.3 billion in COVID-19 recovery funding for county governments, and $450 million for cities,” the letter from CalOES director, Ghilarducci stated. “This funding is explicitly contingent upon jurisdictions’ adherence to federal guidelines and the state’s stay-at-home-order. Clearly the action Tulare County has taken would render it and the cities within the county ineligible for this funding.”

The county has already spent $1.5 million in COVID-19 related costs. And Shuklian said the County stood to receive almost $50 million.

Shortly after the letter was circulated to cities in the county, city administrators and officials started to chime in for themselves. Visalia city manager Randy Groom wrote back to Ghilarducci directly, saying that withholding funding from cities because of what the board of supervisors decided to do was brash.

“It seems both harsh and unreasonable to penalize the eight incorporated cities within Tulare County for the impending actions then…The board’s actions were abrupt, and apparently have immediate effect, and none of the cities were given an opportunity to preview the action, provide input to the county or have any impact whatsoever,” Groom stated.

As a point of contention, in an interview with The Sun-Gazette, Shuklian pointed out the Visalia City Council attempted to do the very same thing the Board of Supervisors did just weeks before.

At the Visalia City Council’s May 4 meeting Poochigian attempted to make a motion directing the Visalia Police Department and the city’s code enforcement not to enforce the Governor’s guidelines on which businesses were considered essential and allowed to open.

“The No. 1 thing we can do is help getting people back to work,” Poochigian said. “Our No. 1 priority is working with law enforcement to not enforce the Governor’s ban.”

He was cutoff mid motion by Vice Mayor Steve Nelsen who wanted to clarify that the police department has never enforced any of those guidelines, which then dovetailed into a public hearing where local business owners and residents clamored for small businesses to be allowed to go back to work. After several attempts to finish his motion, and after warnings from city manager Groom about voting on an item that was not on the agenda, city attorney Ken Richardson shut down the motion.

“I would caution against making any motion that affirmatively directs staff in contravention to the Governor’s executive orders, which are lawful orders the cities and the counties do have to follow,” Richardson said.

Poochigian challenged the attorney’s logic saying that the guidelines instructed Tulare County Public Health to enforce the law and not the city of Visalia. “We are not breaking with Governor’s order, we are putting it in the County Health Department’s hands,” he said.

The city of Tulare hadn’t taken such a defiant stance against the state and also issued a letter to Ghilarducci. On May 20, Tulare stated that it is within the best interest of the city to remain in Stage 2 for health reasons as well.

“The city of Tulare has no intent to issue any directive that would contradict State guidelines; to do so not only creates health and safety risks, but also jeopardizes funding from the State to reimburse costs related to the mitigation of COVID-19 in our community,” the letter from Tulare stated.

Community development director for Woodlake, Jason Waters said that they have continued to enforce the state’s public health order even if the county won’t. Since the county’s vote they have received calls at city hall asking whether businesses in the latter phases of Stage 2 and 3 can reopen. Before, the city would say they have enforcement power, but also reopening puts them at risk of being fined by related county department. Now they only have their own enforcement mechanisms unless it’s a business with an ABC or cosmetology license, where the state can also weigh in.

“We read the letter like every other city, and we want to make sure that if possible we are eligible for the money,” Wates said. “As far as we are concerned we are still following the Governor’s executive order on this.”

Farmersville mayor, Greg Gomez said things were finally clear until the county voted to go their own way.

“Just the mass confusion and lack of leadership is astounding and that’s my biggest frustration,” Gomez said. “It was a unilateral decision by the county. They declined a taskforce where everyone can have a voice…it was a reckless decision on their part.”

Gomez added that the county’s decision to move beyond the state’s guidelines puts their public health guidance at risk as well.

“The responsibility of public health falls on the county and if they aren’t doing it then that puts us in a dangerous position because we can’t do it and if they aren’t going to do it and they aren’t going to give us the funds to do it then it’s a catch 22 that’s the way I see it,” Gomez said.

Governor Newsom seized on the point of contention in his Friday, May 22 press conference, pointing out that cities are pushing back on the county’s decision.

“By the way it’s interesting. The county officials have a lot of disagreement with a lot of the city officials, where the city officials are saying, ‘don’t put this pressure on us, we don’t want to go as quickly,’” Newsom said.

Open to worship

One of Townsend’s largest gripes about the Governors roadmap was the lack of emphasis on places of worship.

Less than a week after the county’s move to accelerate through Stage 3, Newsom issued a press release on Monday, May 25 stating that counties statewide can hold worship at 25% capacity or 100 attendees, whichever is fewer.

Newsom also issued a 13 page guide that goes over a workplace specific plan, topic for employee and volunteer training, individual control measures and screenings, cleaning and disinfecting protocols, physical distancing guidelines and considerations specifically for worship practices and funerals.

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