Supervisors Consider & Reject Lovingood’s Call To Defy State On Business Closures

In recent weeks, there has been a fierce debate raging nationwide as to whether the wholesale closures of businesses as a precaution against the coronavirus outbreaks were as effective as represented in some quarters, were necessary or were an overreaction. In the midst of that, Governor Gavin Newsom last week signaled his readiness for the state to step down from its heightened status of COVID-19 alert, and begin the reignition of California’s economy on a measured and gradual basis, using milestones of progress which some considered to be too exacting, such as a requirement that jurisdictions to be opened have no deaths from the coronavirus within the past month. That target was shown to be unrealistic, and that criteria was dropped. However, Newsom thereafter laid out a rather confusing standard for the reopening of a county, saying that testing had to reveal that there were fewer than 25 new cases per 100,000 residents in the past 14 days or less than 8 percent testing positive in the county.
Shortly after the opening of a regular meeting of the board of supervisors this Tuesday, May 19, County Chief Executive Officer Gary McBride said that the county was examining the governor’s latest criteria, but he said it did not appear that the county met the standard that would allow it to “self-certify” and be able to use its authority to go beyond continuing state restrictions on certain types of businesses.
Board of Supervisors Chairman Curt Hagman asked McBride, “Are we going to be one of those counties that self certify?”
McBride responded, “On testing and contract tracing we are still behind on those metrics.”
McBride indicated that the county at present did not have enough employees within the Department of Public Health to meet the testing and tracing requirements the state is insisting on.
Hagman responded, “If we’re not able to self-certify because of the lack of personnel on our side, on the county, then we’re going to have a very angry business and resident community This has to be a top priority.”
County Chief Operating Officer Leonard Hernandez offered an assurance that the county has a team studying the criteria the governor set so the county can meet those standards.
Supervisor Dawn Rowe seemed to suggest the county should have a set of standards for the second stage of openings that was different from that of the state to facilitate a speedier reopening effort.
Hernandez pointed out that “the added components that the county had put in there are not part of that at this time.” Hernandez’s reference was to the state’s standards, which are yet operative in San Bernrdino County.
The county last week had requested the suspension of the state’s requirements that would allow the openings in the county to proceed. That request was in a letter co-signed by the mayors of all of the county’s cities.
Lovingood said the county should quit shilly-shallying around, stop dithering and move full speed ahead with getting the county’s residents back into the game of life, working and reestablishing the economy.
“Over the weekend it was projected from the state we are going to reach a 25 percent unemployment level,” Lovingood said. “The state itself and every company, family, business, city can’t survive that. If we’re at 20 percent plus unemployment, the walking back is untenable. It won’t happen from there.”
Lovingood suggested, despite what McBride had said, that the county was meeting the criteria the governor had put in place to allow reopenings to take place. He suggested the county could fudge its testing numbers, by selectively reporting the ones from venues that meet the state standard to allow a reopening and ignore the others. “If you take hard numbers of tests and report more like what you’ve received from Arrowhead [Arrowhead Regional Medical Center, the main campus of the county hospital] versus what we are receiving [through the County Department of Public Health], we’ve exceeded the numbers and requirements by the state,” he said.
Enough is enough, Lovingood said.
“Our small businesses have sat and waited,” he said. “They’ve waited patiently as long as they can. They cannot suffer this economic suppression any longer.  We’re on that edge. Unless we want to guarantee we’re going to have above 20 percent unemployment, we don’t have two weeks to wait. I’m making a motion that we reopen the county and allow businesses to move move forward with the plans that we have in place for them to be compliant, with masking requirements.”
Supervisor Janice Rutherford, while expressing that she was tempted to act precipitously herself, said that doing so would be counterproductive.
“We all feel the angst about this,” Rutherford said. “We would all like to get open, but we want to do so safely and we want to do it in a way that does not jeopardize the taxpayers by defying the state. There’s just too much at risk. Everything you talked about business and companies are risking right now, that is the same thing the taxpayers stand to risk if we exceed the governor’s grasp. As disappointed as we are about that politically, that’s the reality. There are hundreds of millions of dollars at stake.”
Supervisor Rowe seconded Lovingood’s motion. She said, “I do believe we have a balance in life that is out of balance, and that is our financial well being, our mental well being, our emotional well being. The governor’s restrictions only take into consideration our physical well being at this time.”
Rowe said the county should not be afraid to test the envelope. She referenced defiance of state restrictions by Yuba County officials. “They voted to do their own thing and they initially received pushback from the government,” she said, but that show of defiance led Governor Newsom to “create a dialogue  and a path forward for them. So, they were very glad they did that.”
Rowe said she was in favor of the county undertaking the opening on its own authority as long as it did so “thoughtfully.”
Lovingood called for opening restaurants to 35 percent of their occupancy, and he said doing so would be no more unhealthful than the continuing operation of grocery stores, which he called “contaminated,” and where he said customers handle items and return them to the shelves for others to buy and consume.
Be done with the nanny-state, Lovingood said. “We’re adults,” he asserted. “We get to make a decision to or not to. That’s a personal decision. We are at liberty to make our own decision that we move forward.”
Hagman, who was formerly a member of the California Assembly, cautioned his colleagues against acting rashly or in a way that will get the county or local businesses in Dutch with the State of California. He said the county should remain patient.
As board chairman, Hagman endeavored to convince Lovingood and the others that as a governmental entity, the county had to work within the framework and the rule of order, law and authority, as well as reason, even in the event of honest disagreements between different elements and levels of the government.
“What would be the repercussions for our businesses that they lose their liquor license because they open up within our guidelines that we give them cover but now suddenly the state pulls their liquor license because they’re not following state guidelines?” Hagman asked. “We’re all frustrated, but that’s why we’re trying to push politically, policy-wise, staffing-wise, and we have gotten so much change for the week. From last Monday to this Monday, we have gotten tremendous gains on that front, but I’m afraid that our actions may put our business leaders at risk for losing, if we open hair salons, which is supposed to be within the next ten days as well, their state license, and he [Governor Newsom] has pulled state licenses, liquor licenses. I hear that from businesses all the time. They are afraid what the state will do if they don’t act appropriately.”
Hagman said the county could get sued by businesses that opened with county’s blessing and then lost their state licenses. By defying the state, Hagman suggested, the county might also risk monetary subsidies that might come from the state or which might come from the federal government that were passed along through the state.
Rutherford, saying she had an inclination to do what Lovingood was calling for, said it would be better to do an ordered phasing in of the openings.
Supervisor Josie Gonzales hailed as a positive the “exploratory discussion of the action” but said the county was “hindered by authority outside our realm.”
Because the action Lovingood had called for in his motion was not on the agenda, the board delayed voting on it until its next meeting, a specially-called one which occurred yesterday.
Ultimately, the county on Thursday did not use its authority to open businesses yet shuttered under the state’s mandate, but did vote to coordinate with and solicit a letter of support from the Hospital Association of Southern California and to engage with the California Department of Public Health to support its attestation to the state that it should be allowed to proceed with its own readiness and recovery plan.
As of today at 5 p.m., according to the San Bernardino County Department of Public Health, the county has sustained since the coronavirus pandemic began 4,146 confirmed cases of the disease, which have resulted in 173 fatalities.
-Mark Gutglueck

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