Violating public health orders in Santa Clara County now carries a hefty fine of up to $500, giving teeth to mask requirements and social-distancing rules in Santa Clara County that have been in effect for months.
The Santa Clara County Board of Supervisors unanimously approved an ordinance Tuesday that places civil penalties on people and businesses that disregard public health orders, which mandate wearing a mask in public spaces and maintaining a physical distance of 6 feet from others. Repeat offenders will get hit with stiffer fines, while less egregious, first-time violations will be met with the equivalent of a "fix-it" ticket.
Enforcement of these rules has been lax since they were imposed in March, but the soft reopening of numerous businesses and a recent surge of cases in the region has county health officials worried that the public health order won't be effective without at least the threat of fines. County Supervisor Joe Simitian, who represents the North County, said that lives are at stake and there must be a reasonable deterrent for those who flout the law.
"The order already has been promulgated two months ago. The question is whether or not we're going to enforce the order in some way," Simitian said at the Aug. 11 supervisors meeting. "Are we going to be serious about the order? Or are we just going to say our orders have no meaning if they come from the public health officer because there's no enforcement tool."
Santa Clara was among the first counties in the nation to take what Health Officer Dr. Sara Cody called "extreme measures" to control the spread of the coronavirus, imposing a public health mandate that required all residents to shelter at home and shut down nonessential businesses. But more recently, the county has been among the last in the Bay Area to impose fines on public health violators, trailing behind San Mateo, Contra Costa, Marin and Napa counties.
County officials at the meeting emphasized that reopening businesses under the so-called "risk reduction" order carries a higher risk of spreading COVID-19, making it imperative for people to follow mask and social-distancing requirements. Between July 13 and Aug. 11, the number of confirmed cases in the county spiked from 7,537 to 12,962 — more than a 70% increase in less than a month.
Adding to the sense of urgency, the state is now telling counties that they will face penalties for not cracking down on violators. California's 2020 Budget Act requires that local jurisdictions must show that they are enforcing public health orders in order to receive certain state funding. The warning comes at a time when the county is facing deep deficits in excess of $300 million.
"I think the message pretty clearly is we have to come up with an enforcement mechanism in order to avoid losing revenue," said County Executive Jeff Smith.
Under the county's ordinance, which takes effect immediately, the public health department can deputize peace officers, county employees and others to act as enforcement officers, empowered to impose civil penalties to individuals and businesses caught flouting the mandatory health orders.
Individuals breaking the rules will face fines between $25 and $500, depending on the circumstances and number of repeat offenses, while businesses will face between $250 and $5,000 in fines. Businesses under investigation could be subject to review by county employees including environmental health inspectors, which will include on-site observations and documentation similar to food facility inspections.
Up until now, the county has had a somewhat cumbersome approach to enforcing the public health order, routing reports and complaints through the District Attorney's Office as a criminal matter. Violating COVID-19 public health mandates is a misdemeanor offense and has led to some citations. Civil penalties are far more flexible and less punitive, and will give enforcement more consistency as businesses reopen, County Counsel James Williams said at the Aug. 11 meeting.
"It's not overwhelming numbers, but there are entities and individuals who don't believe that they need to be following health orders," Williams said. "It's important for us as a matter of fairness to all of the many, many businesses who are very carefully and thoughtfully adhering strictly to the social-distancing protocols and risk-reduction protocols."
Leading medical experts in the region have repeatedly urged residents to wear a mask in public areas and to practice social distancing and good hygiene techniques as a way to curb the spread of COVID-19. Dr. Mark Adams, chief medical officer at El Camino Hospital, said the spread of the virus can occur even when individuals aren't experiencing any symptoms, making it all the more important for everyone to adhere to the rules.
"By wearing a mask, you are protecting others," Adams said. "If we all take these simple steps, we will flatten the curve once again."
Even though a small minority may be flouting the public health mandates, it's adding up. County officials say they have received a "significant volume" of complaints, including failure to follow face-covering, social distancing, and other risk-mitigation measures meant to reduce the number of positive cases, hospitalizations and deaths.
In Mountain View, for example, the city had received a total of 441 complaints as of Monday. Of those cases, 172 led to either a warning or a police investigation documenting the purported violation, while nine citations have been issued, said police spokeswoman Katie Nelson. She said the Mountain View Police Department will continue to walk the line between education and enforcement under the county's new ordinance.
"Our mission and objectives will not change," Nelson said. "We will continue to be responsive to calls and complaints we receive, while continuing to educate and inform, request compliance and enforce through citations, when necessary."
Perhaps the key difference between Santa Clara County's ordinance and the enforcement measures across the rest of the Bay Area is a "grace period" provision allowing violators a second chance to fix the problem before getting hit with a fine. In the majority of cases, Williams said the default option will be for enforcement officers to give people and businesses a 24- to 72-hour window to comply before handing out a ticket.
Even with the softer touch, some residents raised concerns to the Board of Supervisors that fines would be inappropriate. Bruce England, a Mountain View resident, told supervisors in a letter that there is simply too much ambiguity in the mask mandate, which requires the use of a face covering in most situations outside the home.
"As it is, people are having public arguments about what the rules are," England said. "Adequate clarification around the rules must come first, before putting teeth behind official enforcement."
But Williams urged supervisors to take action now, saying the emergency ordinance in front of them Tuesday was critical for addressing the huge number of complaints related to workplace violations and failing to adhere to social distancing protocols. Several weeks of delay would only worsen that, he said, and could jeopardize the county's state funding.
Most residents and business owners who spoke with this news organization agreed that, five months into the pandemic with no end in sight, enforcing fines is a necessary move the county must take in order to slow the spread of the virus.
"It's taking too long to get in control of COVID," said Adela Alvarado, a Palo Alto resident who runs a preschool in Mountain View. "And I feel like there's still a pocket of the population that still doesn't understand the situation."
If anything, the ordinance on fines should have come earlier, she said.
But some business owners, many of whom are willing to comply with the health orders and support the new ordinance, say they are concerned over how hard the county will crack down on health order violations using civil fines, particularly when it comes to violations by customers. If some residents are already confused about when and where it's acceptable not to wear a mask outside, then businesses — already subject to an exhaustive list of specific directives — are even more fallible to small errors.
Franco Campilongo, owner of Palo Alto restaurants iTalico and Terún, said it's difficult in a hot and busy kitchen for workers to constantly maintain a 6-foot distance from each other and for the staff to wear a mask throughout an entire shift. Restaurants, which are currently operating outdoors under Santa Clara County orders, are also one of the few businesses given play-by-play instructions for how staff and customers should interact within the establishment throughout the meal.
Campilongo said it can easily get complicated to try and constantly enforce every single rule.
Businesses have been trying to do everything they can to adhere to, if not the letter of the law, at least the spirit of the law, said Peter Katz, president and CEO of Mountain View Chamber of Commerce. He said the lack of clarity in the county's rules could be a big problem for businesses trying to follow all the rules.
"The clarity as to what has to happen hasn't been there. ... If there's going to continue to be this confusion between what the law really is, then fining businesses for rules that they don't even know they should adhere to or they weren't clear on is not moving in the right direction," Katz said.
The grace period built into the county's enforcement ordinance does add some leniency, Katz said, but it may not always be enough for businesses.
The perception is that county enforcement of the public health order through the newly imposed civil fines will heighten the sense of caution and pay minute attention to detail. Campilongo likened it to the way overzealous drivers slow down when they see a highway patrol car drive by. The same way tickets are used to enforce safe driving, a fine looming over people's heads may help enforce healthy behavior that strains the spread of the coronavirus.
Whatever justification is used for the new ordinance, however, some residents and businesses, who already found the current stay-at-home and mask mandates too restrictive, may oppose the enforcement, likely deeming it an overstepping of the government's boundaries or a highly impractical rule to enforce.
Barry Katz, a Palo Alto resident who recently wrote an op-ed in the Weekly encouraging face coverings, said he would point to the number of deaths in response to those who feel the enforcement is unnecessary.
"It's not as if somebody gains power over somebody else in virtue of this ordinance," he said. "Nobody wins."
Mountain View Mayor Margaret Abe-Koga said she believes the county's fines make sense, if only to stay consistent with other neighboring counties imposing similar penalties on public health violators. She said most residents have done a good job sticking to the rules and wearing masks, but there have been repeated concerns from residents about bad actors.
"There are individuals who have chosen not to wear masks, and so I think it's definitely time to look at enforcement," Abe-Koga said. "I believe in consistency with all this — I don't think it helps when one county does something and another county next door doesn't. I think we all need to be aligned."
The debate among county supervisors that threatened to block the passage of the enforcement ordinance Tuesday was not about whether to fine people for not wearing masks, but whether to fine hospitals who fail to perform enough COVID-19 tests.
Under the county's public health rules, all large health care systems in Santa Clara County must provide tests to patients at heightened risk of contracting the coronavirus. Hospitals risk getting hit with civil fines if they cannot provide tests to patients with COVID-19 symptoms; patients who had close contact with people who tested positive for COVID-19; and all patients at "higher risk" of exposure because of the nature of their job or recent high-risk activities.
Hospital officials from Stanford and Kaiser, joined by representatives from local physician groups, said the ordinance would punish them for failing to meet an unattainable goal. Testing equipment is in short supply and is a problem totally out of the control of local hospitals, and the county's demand that such a large group of patients gets tested threatens to take away COVID-19 testing from the most vulnerable groups.
"Penalizing their efforts, when many factors are not in their control, is counter productive," said Dr. Cindy Russell, president of the Santa Clara County Medical Association, in a letter to supervisors. "Your reconsideration of the dire consequences of your testing order are essential for ensuring that health care of our community does not come to a halt."
Supervisor Dave Cortese said he was uneasy passing new enforcement rules on hospitals without finding some way to determine whether hospitals are showing a "good faith" effort to meet the county's testing requirements, which could be used as proof to waive any penalties. The county should work with hospitals in the coming weeks to find out what that looks like, he said, and avoid having unclear standards that could damage the county's partnership with health care providers.
"If we can't agree with health care facilities on what the standard is for civil penalties, I don't think we're gonna get what we want," Cortese said. "If what we're looking for is 'testing, testing, testing,' I don't see how ambiguity is our friend with regards to our relationship with the hospitals."
Supervisor Susan Ellenberg took a similar stance, saying she was not in favor of penalizing hospitals when there are other options to push for more COVID-19 testing. At the very least, she said, there ought to be a memorandum of understanding between the county and health care providers that avoids punitive action.
"I'd like to use every last tool that we have before mandating something to our partners," she said.
On the other side was Simitian, who said hospitals have had months to figure out ways to boost testing capacity and should be expected — and applauded — for stepping up to the task. But he said the testing requirements have been in place for months and hospitals are still apparently falling short of meeting the county's mandatory health orders.
"Frankly, I remain concerned that they may not be in full compliance," Simitian said.
In an attempt to gather the four-fifths vote required to pass the emergency ordinance Tuesday, Simitian proposed the passage of the ordinance be contingent on county staff negotiating an agreement with hospital officials on the standards for enforcement, which could be later used to amend the ordinance. The motion passed unanimously.
Find comprehensive coverage on the Midpeninsula's response to the new coronavirus by Palo Alto Online, the Mountain View Voice and the Almanac here.