By 
Nick Gerda The |
During the coronavirus pandemic, Orange County Health agency officials have gone from saying that their health inspectors would do enforce state health orders regarding restaurants, so far say that’s State and county work have no authority.
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Earlier in the pandemic, county officials said their inspectors were required to implement state pandemic health orders in restaurants and other businesses, and that they had an effective and education-focused approach that was successful in achieving 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 clear the tables, Dr. Nichole Quick , then the county -health officer, told county supervisors at their public meeting on May 5.
“It is a gradual approach that initially involves education. In general, environmental health. [inspectors] I would always prefer to educate and get the voluntary compliance of a facility … I think there is a time frame there. Therefore, if the violation continued, there would be a type of verbal education process, followed by a written one and then a possible withdrawal of a health permit. ”
About a month later, Quick resigned amid threats from anti-mask activists protesting outside his home, prompting the health officer to receive protection from the Sheriff’s Department.
Fast forward to last week, amid controversy over a Huntington Beach restaurant says it would not allow customers to wear masks indoors, while other restaurants and cafes They announced closings because employees tested positive for coronavirus.
In a change to Quick’s position, his replacement said last week that county health inspectors do not have the authority to enforce coronavirus-related orders and instead can only enforce food safety violations.
“The Environmental Health Services only have authority to cite food processing and those related to food. [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.
“In order for the health officer to issue COVID-19 related orders based on the California Department of Public Health, be in line with the state order, but enforcement is not our responsibility … It is 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 enforcement of health by the local government rests largely with the county Health Care Agency.
State law requires local health officials to enforce state health orders, according to a handbook written by county attorneys and health officials throughout California..
“The [local] The Health Officer is required to observe and enforce … orders prescribed by the California Department of Public Health, “the manual says.
But Orange County officials say they have received a legal opinion that their county’s health inspectors can only enforce food safety problems, but not table separations or social distancing.
However, the county health officer, currently Chau, has authority under state law. to order the masks to be worn in public and to 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 is now a state senator.
“This section is explicitly applicable to grant the County Health Officer the power to ‘take any preventive measure’ consistent with the preservation of public health, including, it seems to me, to order the wearing of masks in public and to impose fines for rape. of such orders, since such actions would be preventive measures to reduce the health hazard and correct the misconduct that leads to the health hazard, ”said Mainero, referring to section 101040 (a) of the Health and Safety Code.
“It is Section 101040 (a) of the Health and Safety Code that most clearly empowers local health officials in the state-declared emergency, as it is not limited to the unincorporated parts of the county, it seems to grant authority for the entire county requests. “
Dr. Jason Cord, president of the Orange County Medical Association, said the county’s pre-compliance approach under Dr. Quick worked during the shutdown and that it makes sense to go back to it.
“We know it was working. I mean, obviously, we have flattened the curve, ”Cord said in an interview.
“Going back to an approach that is a little bit more similar to our previous one makes sense as we get closer to … the capacity of hospitals.”
The United States has a long history of empowering local governments to enforce health measures, dating back to before the nation’s founding, said Michele Goodwin, a professor at the University of California, Irvine School of Law. specialized in constitutional and health law.
“It was understood that protecting public health and safety was a duty of the local government, be it a state or a colony,” Goodwin said.
“Much of this is based on historical constitutional law, even before the United States was formally a country. The quarantine laws, from which much of this authority is derived, were laws that were legitimate and date back to the 1700s in the United States. So even before we had the United States, we had quarantine laws, “he added.
“There is a state authority … that also reaches local municipalities to quarantine. And quarantine is, of course, the most restrictive means a state can have … But if it can enact the most restrictive, it can also act on those that are least restrictive to protect public health and safety, “such as requirements of mask.
“Leadership in the state cannot be in every corner of the state … That is why we have local municipalities and local health officials,” he said.
Hospitalizations and coronavirus infections have skyrocketed in Orange County since mid-June, just after the county reopened much of the local economy.
“Now we are seeing the explosion in case the blockade [earlier in the pandemic] was meant to [prevent] and prevented, “said Andrew Noymer, an epidemiologist and professor at UC Irvine.
In the absence of local enforcement, Governor Gavin Newsom has assembled a number of regulatory agencies organized into “strike teams,” which are ready to enforce state health orders in counties that refuse to enforce orders for their bill.
Some of the agencies include Alcoholic Beverage Control, the Occupational Safety and Health Administration, the Department of Business Oversight, the Department of Consumer Affairs and the California Highway Patrol.
Newsom said strike teams will first work with companies and counties that are flaunting the rules, but will not hesitate to take enforcement action if people don’t comply.
People who perform higher-risk activities during the pandemic, such as going to bars, can “transmit the virus to people who did not agree to take that risk,” said Noymer, the epidemiologist.
Two examples he gave are an infected grandmother because the younger family members went to a pizzeria, or someone who was doing essential shopping at a grocery store was exposed by another shopper who had been going to bars.
“Because it is a contagious disease, you are not just taking risks. So it’s not just, ‘I’m going to go skydiving and I don’t care if you don’t want me to go skydiving, I’m going to do it and if there’s a problem with the parachute, that’s my problem.’ “
“We are all skydiving together.”
Nick Gerda covers the county government for Voice of OC. He can be reached at [email protected].
