During the coronavirus pandemic, Orange County Health Care Agency officials have shifted from saying their health inspectors would enforce state health orders regarding restaurants, to now saying that’s the state’s job and the county has no authority.

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Earlier in the pandemic, county officials said their inspectors were required to implement the state’s pandemic health orders on restaurants and other businesses, and that had an effective, education-focused approach that was successful at getting voluntary compliance.

“If there is an order from a governor, an executive order, an order from the state health officer, yes we are expected to do that,” including state health orders for restaurants to space out tables, Dr. Nichole Quick, the county’s then-health officer, told county supervisors at their May 5 public meeting.

“It’s a step-wise approach that involves initially education. In general, environmental health [inspectors] would always rather educate and get voluntary compliance from a facility…I do believe there’s a timeframe in there. So there would be a verbal sort of education process, followed by a written, and then followed by a potential pulling of a health permit, if the violation continued.”

About a month later, Quick resigned amid threats from anti-mask activists who protested outside her home, which prompted the health officer to receive Sheriff’s Department protection.

Fast forward to last week, amid controversy over a Huntington Beach restaurant saying it would not allow customers to wear masks inside, while other restaurants and cafes announced closures due to employees testing positive for coronavirus.

In a shift from Quick’s position, her replacement said last week the county’s health inspectors don’t have the authority to enforce any orders related to coronavirus, and instead can only enforce food safety violations.

“Environmental Health Services only have authority to cite for food-related and food processing [mistakes] or violations. We do not have the authority to cite anything related to COVID-19. I just want to make that very clear,” said Dr. Clayton Chau, director of the Orange County Health Care Agency and the interim county health officer, referring to the division of his agency that has health inspectors.

“So the health officer can issue orders related to COVID-19 based on the state California Department of Public Health, being in alignment with the state order, but the enforcement is not our responsibility…It’s not our authority to do so,” said Chau, who supervisors appointed as the county health officer after Quick resigned.

There are no city health departments in Orange County, so health enforcement by local government largely falls to the county Health Care Agency.

State law requires local health officers to enforce state health orders, according to a manual written by county attorneys and health officers across California.

“The [local] Health Officer is required to observe and enforce…orders prescribed by the California Department of Public Health,” the manual states.

But Orange County officials say they’ve received a legal opinion that their county health inspectors can only enforce food safety issues, but not table separations or social distancing.

Yet the county health officer – currently Chau – does have authority under state law to order masks to be worn in public and issue fines for violations, said Mario Mainero, a law professor at Chapman University who previously served as chief of staff to then-county Supervisor John Moorlach, who now is a state senator.

“This section is explicitly applicable to give the County Health Officer power to ‘take any preventive measure’ consistent with the preservation of public health, including, it seems to me, ordering the wearing of masks in public and imposing fines for the violation of such order, given that such actions would be preventive measures to abate the health hazard and correct misconduct leading to the health hazard,” Mainero said, referring to Health and Safety Code section 101040(a).

“It is Health & Safety Code Section 101040(a) that most clearly grants local health officials authority in the emergency that has been declared in the state, since it is not limited to unincorporated parts of the county, but appears to grant authority for countywide orders.”

Dr. Jason Cord, president of the Orange County Medical Association, said the county’s prior enforcement approach under Dr. Quick worked during the lockdown and that it makes sense to return to it.

“We know that it was working. I mean obviously, we flattened the curve,” Cord said in an interview.

“So returning to an approach that’s a little more similar to our prior makes sense as we approach the…capacity of hospitals.”

The United States has a long history of granting local governments authority to enforce health measures – dating back to before the nation was founded, said Michele Goodwin, a UC Irvine Law School professor specializing in constitutional and health law.

“It was understood that protecting public health and safety was a duty of the local government, whether it was a state or colony,” Goodwin said.

“Much of this is grounded in historic constitutional law, even before the United States was formally a country. Quarantine laws, from which much of this authority stems from, were laws that were legitimate in place dated back to the 1700s in the Unites States. So before we even had the United States we had quarantine laws,” she added.

“There is state authority…that also trickles down to local municipalities to quarantine. And quarantine is of course the most restrictive means a state can have…But if you can enact the most restrictive, you can also act those that are less restrictive to protect public health and safety,” such as mask requirements, she said.

“The leadership in the state cannot be in all corners of the state…This is why we have local municipalities and local health officials,” she said.

Coronavirus hospitalizations and infections have been soaring in Orange County since mid-June, just after the county re-opened much of the local economy.

“We’re now seeing the explosion in cases that the lockdown [earlier in the pandemic] was meant to [prevent] and did prevent,” said Andrew Noymer, an epidemiologist and professor at UC Irvine.

In the absence of local enforcement, Gov. Gavin Newsom has put together a slew of regulatory agencies organized into “strike teams,” which are ready to enforce state health orders in counties refusing to enforce the orders on their own. 

Some of the agencies include the Alcoholic Beverage Control, Occupational Safety and Health Administration, the Department of Business Oversight, the Department of Consumer Affairs and the California Highway Patrol. 

Newsom said the strike teams will first work with businesses and counties that are flaunting the rules, but won’t hesitate to take enforcement action if people don’t comply.

People who do higher-risk activities during the pandemic – like going to bars – can “spread the virus to people who didn’t agree to take that risk,” said Noymer, the epidemiologist.

Two examples he gave are a grandmother getting infected because younger family members went to a pizza parlor, or someone doing essential shopping at grocery store getting exposed by another shopper who had been going to bars.

“Because it’s a communicable disease, you’re not just taking a risk for yourself. So it’s not just ‘I’ll go skydiving and I don’t care if you don’t want me skydiving, I’m going to do it and if there’s a problem with the parachute, that’s my problem.’”

“It’s that we’re all kind of skydiving together.”

Nick Gerda covers county government for Voice of OC. You can contact him at ngerda@voiceofoc.org.

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