The city of Fullerton has decided to defy at least one provision of California’s strict Regional Stay-At-Home Order, which took effect on December 6. The state order was imposed on December 6 because the region of Southern California had its collective availability of Intensive Care Unit (ICU) beds fall below 15% (7.7% on Dec. 10). Like other restrictions in effect earlier in the year, the current one limits the capacity of retail businesses, closes personal care services, movie theaters, bars, museums, and other enterprises, and restricts restaurants to take-out food only. In Fullerton, however, four days after the imposition of the order, several downtown restaurants could be seen continuing to serve customers in outdoor patio areas, including at least one on City property.

Outdoor dining tables set up on Fullerton’s Walk on Wilshire on December 10.

Although most restaurants are operating as take-out only, servers at Fullerton Brew Company, located on the north side of Wilshire, were serving customers on December 10. A host station just outside their door instructed patrons to wait to be seated, evidently at the round white tables in the street dining area. A maskless customer was observed handing over his payment to a server as he left. The restaurant’s seating area is part of the street also used by other establishments on the block, including Mulberry Street, an Italian restaurant located opposite. Owner Brandon Bevins told the Observer that he chose to comply with the State order but that it was awkward because customers ask why his restaurant is not seating customers while others are. He said the City had not communicated with him about staying open, and that he had only received a generic notice from the OC Health Dept. notifying him of the new restrictions. Like most other restaurants, Mulberry Street remains open for take-out orders.

Outdoor dining on Fullerton’s Walk on Wilshire on December 10.

On the back side of Wilshire, facing Amerige, Pour Co. and The Back Alley also continue to serve customers in outdoor dining areas. Asked about the persistence of outdoor dining downtown in defiance of state of California orders, Fullerton City Manager Ken Domer wrote to the Observer that, “The fact is, the recent surge has not been traced to outdoor dining and the livelihood of owners and their employees are on the line.” Domer also cited the City’s spending “lots of CARES Act funding to ensure that we can move patrons from indoor dining to outdoor dining and to ensure it is a safe option for diners” prior to the current orders forbidding both activities.

California’s Health and Human Services Secretary Dr. Mark Ghaly has cited the dramatic increase in COVID-9 cases as the reason to implement the temporary outdoor dining ban because it discourages people from going out in general, while acknowledging that the order was “not a comment on the relative safety of outdoor dining.” But he also asserted that some activities that seemed safe just a month ago might not be now in the face of the sharp rise in transmission of the novel coronavirus and increasing deaths. On Friday, December 11, Orange County’s Health Care Agency announced 22 new deaths, expected by many to be just the start of even more in coming weeks in the wake of one major holiday and in advance of another.

Dining with others outside of one’s own household is considered a particularly risky behavior because masks are not worn while eating and drinking. Imbibing alcoholic beverages can exacerbate the danger as diners lower their guards against maintaining safe distances from other parties.  Although restaurants are required to distance parties from one another, some (not on Wilshire) use outdoor tents—sometimes complete with sides—that would seem to closely recreate the conditions of indoor dining. Even with the circulation of air outside, however, many County health officers around the State warn against outdoor dining because the presence of the coronavirus in so many people now increase the chances of further transmission even in outdoor settings like parks and restaurant patios.

OC Health Care Agency Director/County Health Officer Dr. Clayton Chau has repeatedly stated during press conferences that the level of transmission in the community at large has made contact tracing very difficult, and thus, almost impossible to determine where much of the transmission of the virus occurs. OC Public Health Services Chief of Operations Marc Meulman wrote to the Observer, “With such widespread disease transmission throughout the community, it is difficult to identify where transmission occurs for cases due to many potential exposures. The only time we have a reasonable degree of certainty regarding where people contract COVID-19, is when a household contact gets infected or when someone is part of a large outbreak, such as a worksite or congregate living situation.”

When it was allowed earlier in the year, many local restaurant owners invested in outdoor dining furniture and fixtures and safety upgrades to facilitate both indoor and outdoor dining under conditions proscribed the State. The city of Fullerton closed a short block of West Wilshire Ave. just west of Harbor Blvd. for use as an al fresco dining area for restaurants located there, adding potted trees and even an official “Walk on Wilshire” street sign. City councilmember Jesus Silva even suggested adding blue carpet to the street itself to make it more welcoming to diners. The City first required restauranteurs to remove their dining tables each night, but later allowed them to leave some out. Some of the tables now appear to be used by people picking up take-out elsewhere and using the setting as a convenient place to eat or drink.

The State’s COVID-19 website warns that, “Failure to comply with the order may be punishable by fine and as a misdemeanor, revocation of a business license, or court-imposed penalties,” but does not specify who would bring such charges against violators. The Fullerton Police Department has taken an education-only approach to enforcement of COVID-19-related restrictions, and has made it clear that they would not prioritize calls about violations. City Manager Domer wrote that, “In cases where we are unable to garner the compliance, Fullerton PD would document the violation(s) and forward the incident(s) to the Orange County District Attorney’s Office for prosecutorial consideration,” in reference to indoor dining, live entertainment, and dining after 10:00 p.m. All of Orange County remains under the State’s Limited Stay- -at-Home Order, requiring residents to remain at home between the hours of 10:00 p.m. and 5:00 a.m., with exceptions made for work, medical care, and (nonsensically), “unsheltered persons.”

Domer’s warning about violations pointedly excludes outdoor dining, a ban he has chosen to defy, noting that “there are efforts to have the Governor rescind the prohibition of outdoor dining from the Order and we are hopeful that prevails.” It is unclear whether Domer unilaterally made the decision to selectively disregard a high-profile element of a State health order or conferred with members of the City Council before doing so.

Domer’s reference to efforts to overturn the dining ban may be to the Healthy Communities Resolution unanimously adopted by the OC Board of Supervisors on December 8. The resolution calls for local control of responses to COVID-19. During a December 10 OC Health Care Agency press conference, outgoing Board of Supervisors Chair Michelle Steel, who spearheaded the adoption of the resolution, chafed at the inclusion of Orange with counties as far away as San Luis Obispo, complained of the State’s moving the bar on allowed activities during the pandemic, and called Gov. Gavin Newsom’s actions “an inconsistent mess.” During the same meeting Sup. Steel said about COVID-19 that the “death rate is very small.” To date, 1,662 people in Orange Couny have died from COVID-19, including 119 residents of Fullerton. She also complained to HCA Director Chau that the County would not be getting any sales tax income because of pandemic prevention restrictions.

Fourth District Supervisor Doug Chaffee of Fullerton referred to the region including OC, as defined by the State, as an “11 county conundrum” and called for efforts to get it changed. He also called for additional assistance for restaurants who have had to alternately open and close according to State orders.