DIGGING IN THEIR HEELS
Monterey area restaurant owners claim violation of Constitutional protections
MONTEREY >> The owners of two Monterey Peninsula eateries are objecting on Constitutional grounds to the prosecution they are facing over their alleged failure to comply with county health orders, but the jury is still out on how sound their arguments are.
The owners of the Aloha Coffee & Cafe in Monterey and The Tuck Box restaurant in Carmel are digging in their heels, saying the state and the Monterey County Health Department have no right to enforce face coverings in their restaurants.
That is now being debated in court. In two separate cases, one in Los Angeles and another in San Diego County, business owners are challenging the county’s right to force restrictions on their operations. A superior court judge in San Diego slapped a preliminary injunction against the county in a lawsuit filed by two strip clubs. Judge Joel Wohlfeil ruled the clubs can remain open despite a health order to the contrary.
But prosecutors appealed to the Fourth District Court of Appeals in San Diego, arguing the lower court judge overreached in his ruling. The appellate court stayed Wohlfeil’s ruling while it reviews the case further. So for the time being, those county health orders stand.
The Monterey County Environmental Bureau, the department responsible for enforcing the face-covering requirements in eateries county-wide, has a different certainty, as does the District Attorney’s office and in the case of Aloha, a hearing examiner who revoked its health permit. Restaurants cannot legally operate with a voided health permit.
A part of the county health order reads face coverings must be worn “when inside of, or in line to enter, or when conducting business through a car window, walk-up counter at any essential business.” Foodservice is considered an essential business.
But the Aloha owner, Richard
Dunnuck, said he decided to remain open even after his health permit was suspended because the county deprived him of due process and said it violated eight U. S. Constitutional protections and nine state Constitutional guarantees. He is claiming he is exempt from the face- covering order because he has asthma and also claimed an unspecified exemption based on religious grounds. He would not elaborate.
But individuals who filed complaints about Aloha said it wasn’t just Dunnuck who was not wearing a mask, but staff as well. During a permit revocation hearing on Dec. 16, Dunnick acknowledged that he remained open despite multiple citations from the Monterey Police Department and educational outreach by health officials.
On Dec. 22, Jacqueline Pierce, an attorney serving as the hearing examiner in Dunnuck’s case, ruled that he had not produced evidence of his claims and that his due process rights were not violated since he was offered a roadmap of working with Environmental Health to get his suspension lifted. He opted not to pursue that avenue.
“The most alarming part of this sequence of events is Mr. Dunnuck’s complete defiance of the closure order,” Pierce wrote in her decision. “He continued to do business for many days after the order was given.”
Right before New Year’s, Jeff Le Towt, owner of the Tuck Box in Carmel was hit with the balance of a $ 35,000 fine for defying state and county public health orders. He is doubling down in his battle against the Monterey Count y Distr ict Attorney’s Office saying he has no intention of paying a fine until his questions are answered. He had already paid $15,000 of the fine, so the district attorney is demanding he pay the $20,000 balance.
Deputy District Attorney Emily Hickok said Le Towt again began providing dining inside the restaurant, triggering the remaining portion of the penalty.
Monterey County District Attorney Jeannine Pacioni said in an earlier statement that the violations included providing dine-in restaurant service when such activity was prohibited by emergency health orders, failing to follow social distancing protocols such as maintaining 6 feet in between tables inside and outside the restaurant, and employees failing to wear face coverings while working.
“We sincerely hope individuals and businesses will heed the urgent calls from our hospital leaders and voluntarily comply with the new Regional Stayat-Home Order,” Pacioni said in Monday’s statement. “Because our health leaders have said that we are still many months away from a vaccine being widely available to the general public, it is critical that we all continue to follow public health orders.”
In a telephone interview and a follow-up email, LeTow t questioned the DA’s legal argument in the action and raised the issue of his property rights being violated — another Constitutional issue.
“I will be happy to comply once you clear up my concerns,” Le Tow t said, addressing the DA. “At this point, the county position lacks standing medically, scientifically, morally and legally. I fear my right to acquire and possess property is being violated.”
His primary question is why he is being fined when Gov. Gavin Newsom had dinner with lobbyists in an expensive restaurant in Napa without wearing masks.
Neither L eTow t nor Dunnuck would commit to future court action, but Hickok made it clear Tuesday that “the District Attorney will be taking action” against Dunnuck.
On Tuesday, the health department reported 1,759 new COVID-19 cases in the past few days and an additional 20 deaths, bringing the total fatalities in the county to 216.