Santa Clara County issues the most COVID fines to businesses

When Sara Dubon opened her first floral shop in the midst of the pandemic, she knew it might be financially risky. But she didn’t anticipate the risk from Santa Clara County’s COVID-19 prevention squad, who hit her with a $500 fine without any written warning after just one month.

The reason?

No posted notice about the six-person capacity limit at her tiny storefront in San Jose’s Westfield Oakridge mall.

“I should have no excuse, but I’ve never had a store before and I honestly just didn’t know I could get fined for that,” Dubon said, noting she followed county instructions for all other safety signage and protocols but missed that one. “When a business is doing well, maybe $500 doesn’t seem like much. But for me, that’s a lot of money.”

She has plenty of company among businesses that learned the hard way how Santa Clara County’s public health enforcers — unlike their counterparts in other counties — are almost as relentless as the coronavirus itself in searching out prey.

In the year since the Bay Area issued the nation’s first public health order to fight the pandemic, with businesses struggling from a seemingly endless series of capacity restrictions and forced closings, the county has fined nearly 400 business owners like Dubon a whopping total of $4.9 million in civil penalties for breaching coronavirus restrictions.

In contrast, six other Bay Area counties that issue fines for similar infractions have collected a combined $82,000 from 68 businesses in all, according to an analysis of data obtained by this news organization.

Interviews with business owners as well as a survey of about half of California’s 58 counties reveal that Santa Clara County has for months deployed an exceptionally heavy enforcement hand.

“They’ve just given carte blanche authority to these county employees who got moved over to COVID police,” said Vickie Breslin, owner of The Post in Los Altos, which has accumulated $40,000 in fines from the county. “At this point, they’re literally just beating down small businesses that have already been decimated by the poor leadership of this county and the state.”

Fined businesses include large chain retailers like Target and AT&T, churches, gyms, illicit nightclubs, and mom-and-pop salons and restaurants. The cited offenses ranged from serious, like failing to enforce mask-wearing or operating indoors when prohibited, to perplexingly minor, such as playing televisions and “non-ambient music” — no-no’s that don’t merit fines anywhere else in the region.

In the cases of the county’s two highest offenders — The Calvary Chapel, which racked up $2 million in fines and is locked in an ongoing legal battle with the county, and the California Ripped Fitness gym, which was hit for almost $1 million — the leaders of both openly flouted the laws, allowing indoor worship services and indoor exercise even though those activities were banned.

But that’s only a small part of the story of Santa Clara County’s strict enforcement system.

The Bay Area News Group’s analysis of fines data found:

• Santa Clara County businesses are at least 13 times more likely to get slapped with a fine than those in any other Bay Area county.
• Even excluding the county’s two biggest outlying offenders, the total amount of fines issued by Santa Clara County is 50 times more than the next highest county, San Mateo.
• Excluding the same church and gym, the median fine in Santa Clara County was $4,977, compared to $1,587 in San Mateo County and $883 in Contra Costa County.
• In Santa Clara County, at least 95 businesses have received fines totaling more than $5,000.

Santa Clara County Counsel James Williams insists his county has taken a “very measured approach.”

“I think that the real question is, why up and down the state we have real and serious health and safety rules in the midst of a pandemic and yet they’re getting less enforcement than carpool lane violations or failure to stop at a stop sign or all sorts of other infractions,” Williams said. “It’s a matter of safety, it’s a matter of equity and there have to be real consequences attached to what are actual crimes here.”

But it seems no other California county defines the consequences with anything close to Santa Clara County’s zeal.

Creating a new method of enforcement

Intent on promoting safety from the deadly virus, Santa Clara, Contra Costa, San Mateo, Marin, Santa Cruz, Napa and Sonoma counties adopted laws last summer authorizing public health officers to levy civil fines against businesses and individuals that violate their orders. Across California, only a few other counties such as Los Angeles and Santa Barbara did the same.

But the majority of counties across California — including San Francisco and Alameda in the Bay Area, as well as Sacramento, San Bernardino and Orange — chose not to follow suit. Instead, they left it up to local law enforcement or state agencies to cite violators.

By and large, sheriff’s and police departments haven’t taken aggressive measures to enforce coronavirus restrictions; in some places, like Orange County, they’ve faced criticism for not doing enough to protect public health.

In Alameda County, the sheriff’s office said in an email that it has not issued a single citation for public health order violations since the start of the pandemic. San Francisco says it has not levied any fines.

In announcing its enforcement scheme, Santa Clara County vowed that compliance through education and outreach would be its primary goal.

But on Thanksgiving weekend, with health officials everywhere correctly predicting a surge of COVID-19 cases due to family gatherings and shopping sprees, the gloves came off.

County Counsel Williams announced that enforcement officers would patrol busy shopping areas, issuing immediate fines rather than offering the previously promised grace period of 24 to 72 hours to fix violations.

That weekend, the county handed out about $450,000 in fines to 180 businesses without any written warnings.

In a recent interview, Williams explained that by then the rules had been in place for months and county teams had made rounds at prominent shopping centers informing businesses of upcoming enforcement plans.

“There was nothing secretive about it. We were out there sounding the alarm,” he said. “When those messages weren’t being heeded, the Black Friday proactive enforcement was one of the tools that we used to try and deal with the very alarming surge in cases that was occurring.”

The county created a formidable force to handle its “proactive enforcement,” redeploying 50 full-time employees to the task from other departments.

Santa Clara County enforcement officers have issued more than 600 warnings and provided grace periods for hundreds of businesses to correct a violation before issuing a fine. But if a business has violated the orders before, refuses to comply once educated or is found to be intentionally violating the orders, the county has at times — as it did on Thanksgiving weekend — forgone any written warnings.

Despite its hardball approach, Santa Clara County has maintained the highest COVID-19 case rate per 100,000 residents among the core six Bay Area counties. Alameda and San Francisco counties have the lowest case rate, according to data analyzed by this news organization.

In a recent interview, Santa Clara County Supervisor Susan Ellenberg said “COVID fines were never about generating revenue for the county. They were always about keeping the public safe.”

She added that the county has worked “very hard to mitigate the harm done to small businesses during the pandemic,” citing a $6 million small business loan program passed by the board in January and a $5.5 million plan to waive permit fees for small businesses in the county.

‘The punishment has to fit the crime’

Compared to Santa Clara County, the other Bay Area jurisdictions that created new public health enforcement mechanisms have exercised a much lighter hand. Contra Costa, Santa Cruz, Marin and San Mateo counties primarily have fined businesses operating indoors when prohibited, restaurants defying the outdoor dining ban and those failing to abide by social distancing and capacity requirements.

In San Mateo County, enforcement officers can only respond to complaints and must also issue at least one written warning before returning another day to see if the business has complied. So far it has fined only 23 businesses, for a total of $36,500.

“We’re the county of no surprises,” said Wayne Hoss, a retired San Mateo police officer who leads San Mateo’s business compliance unit. “Our job is to help businesses open back up safely when they’re able to — not shut them down. I think that’s a different approach than what I hear from Santa Clara.”

In Contra Costa County, Incontro Ristorante in downtown Danville collected the most in fines, $6,500 worth, before the county temporarily suspended the Italian restaurant’s health permit for serving customers outside when banned over the winter. The restaurant did not return multiple calls and emails asking for comment for this story.

Santa Clara County officials are enforcing a much longer list of rules and fining businesses much more for violating them.

Last fall, enforcement officers visited La K~Baña Del Tio Tavito in San Jose’s La Placita Tropicana shopping center multiple times a week for at least three weeks, according to manager Mariano Frausto.

Though the restaurant was permitted to serve customers outside, civil enforcement officers investigated complaints about other violations. They measured the distance between tables, reviewed checks to determine whether customers ordered food along with their drinks and instructed employees that they were prohibited from playing Latin music with lyrics and that they could only put on “ambient” music.

The county tallied more than a half-dozen violations and issued a fine to La K~Baña in November for $58,000 – more than a third of which was due to playing “non-ambient music.”

“I know the Hispanic community can be kind of loud in that aspect but I don’t even know exactly what that is,” Frausto said of ambient music.

The music rule came from a specific dining directive issued in the fall by Santa Clara County Health Director Dr. Sara Cody, according to Williams, though he could not elaborate on the reasoning behind it. That regulation is no longer in place.

For Calvary Chapel and California Ripped Fitness gym, both in San Jose, the cited violations were much more straight-forward – operating indoors when it was banned.

The gym’s manager, who told this news organization in an earlier interview that the gym was “exercising its constitutional right to peacefully protest,” said earlier this month that the owner was “in the process of working it out with the county” and that he “just wanted to get it over with.” Now that county rules allow indoor exercise at reduced capacity, the gym has reopened.

Mariah Gondeiro, an attorney with Advocates for Faith & Freedom who is representing Calvary Chapel, said she doesn’t question the county’s public health order but disagrees with how it “treats places of worship and certain business types in a discriminatory manner.”

Santa Clara County was recently ordered by the U.S. Supreme Court to allow churches to reopen after it was the only county in California to defy an earlier court order overturning the state’s limitations on indoor worship. Now Calvary Chapel is suing Santa Clara County, arguing that its fine system constitutes “cruel and unusual punishment.” Santa Clara is also the only county in the Bay Area to impose fines on churches for violating public health orders, according to records collected from the other counties.

“A basic tenet of the law is that the punishment has to fit the crime or has to be proportionate to the crime and so it’s hard to imagine that what these businesses and churches are doing, that they should be punished millions of dollars,” Gondeiro said.

Who’s on the hook?

So far, only about a third of the Santa Clara County businesses issued fines have made any payments, with the county collecting $333,250 as of the beginning of March, according to the county.

Along with Calvary Chapel, other businesses and entities facing some of the highest fine amounts, including La K~Baña, The Post and Enso Nightclub in downtown San Jose, have retained attorneys to help them appeal, claiming enforcement officers made exaggerated or false allegations.

Williams said all business owners are welcome to appeal their fines through a county process, though multiple owners interviewed said they had been waiting months without any reply from the county on their submitted appeals, phone calls and emails. And now, in some instances, unpaid fines have been turned over to the county’s Collections Department.