Modesto restaurants continue to serve people inside. Here’s what the city plans to do
Modesto expected Wednesday to start issuing daily fines against the two Velvet Grill & Creamery restaurants for continuing to serve customers indoors in violation of the state public health order to help stop the spread of the new coronavirus.
But the city did not after Mayor Ted Brandvold raised concerns about the fines.
The Velvet Grill on Dale Road and the one on McHenry Avenue were the subjects of at least 16 complaints for allowing indoor dining from July 2 to Aug. 14, according to the Stanislaus County Office of Emergency Services, which acts as a clearinghouse for complaints about businesses not following the order and refers the complaints to cities for follow-up.
Modesto issued cease and desist orders against both restaurants Aug. 11 to gain compliance. And The Bee observed the restaurants serving customers indoors Wednesday and Thursday. The public health order allows restaurants to offer outdoor dining, which is what many local restaurants are doing.
City spokesman Thomas Reeves said Wednesday that Modesto would issue that day what is called a notice and order against both Velvet Grill restaurants, which includes administrative penalties of as much as $2,500 per day. But later Wednesday he said the notices and orders would not be issued that day.
He did not know the amount of the administrative penalties.
Reeves said Thursday the city was on track to issue the notices and orders soon. That came after city officials met earlier Thursday to review the steps they had taken to gain compliance from the restaurants. Reeves said the mayor did not take part in the meeting.
Brandvold said Wednesday he had contacted City Manager Joe Lopez and City Attorney Jose Sanchez when he learned the city could fine the Velvet Grill restaurants.
Mayor eating breakfast at Velvet Grill
“I expressed my concerns on pursuing a punitive course without making sure we have worked with them on the issues, on their nonability to come into compliance,” Brandvold said.
Brandvold said no one from the restaurants asked him for his help. He said he was having breakfast Saturday at the Velvet Grill on McHenry when he learned from an employee about the difficulties the Velvet Grill faced in the pandemic and the restrictions put in place to stop it.
Brandvold said he was eating outdoors, sitting at the table near the entrance. The mayor acknowledged he saw customers enter the restaurant and dine inside. “If they are comfortable with it, it didn’t bother me,” he said when asked whether he was concerned with customers dining inside.
Brandvold said he did not know the particulars of the Velvet Grill and said he was concerned about all businesses struggling in the pandemic. He said Modesto needs to offer businesses as much help as it can to come into compliance with the public health order. He said for restaurants that could include helping them figure how to set up outdoor dining and learning about available grants and loans.
Businesses struggle in pandemic
“These are small businesses,” the mayor said. “... They are hurting out there, and many of them are afraid. They have worked hard, and we need to be helping them. And we need to be caring for these people. ... Businesses are shutting down. Many, many of them are not going to be there when we come out of this.”
Modesto has not been heavy handed in enforcing the public health order.
As of Wednesday, Modesto’s code enforcement officers have opened 128 cases since April 30 against businesses suspected of violating whatever public health order was in place at the time. The city has resolved the vast majority through working with businesses to gain voluntary compliance.
Modesto has issued only four cease and desist orders: the two for the Velvet Grill restaurants and one for the David Lee Spa and one for Nails by David Lee, all on Aug. 11. Reeves, the city spokesman, said the spa and nail salon are in compliance and no further action by the city is needed.
Reeves said Modesto plans to issue to a cease and desist order soon against a health club for operating indoors. Health clubs can operate outdoors. The orders can be followed by citations, daily administrative penalties and other enforcement actions for businesses that don’t comply.
Bill Owen — who has identified himself as the secretary and treasurer of Velvet Creamery Inc., which owns the two Modesto restaurants — said in an Aug. 13 Bee story that he did not believe the state public health order was constitutional. He also said he was working on setting up permanent outdoor dining at the McHenry restaurant.
‘No one is forcing them’
Owen declined Wednesday to comment on the restaurants continuing to offer indoor dining. When asked about the 16 complaints, he said: “I have nothing to say about that. People come ... are our customers because they want to. No one is forcing them.”
Owen said he was working on offering temporary outdoor dining at the Dale Road restaurant and permanent outdoor dining at the McHenry Avenue restaurant. He said the city has told him he needs to submit applications for both restaurants through the city’s open air initiative, which Modesto started to help businesses quickly set up temporary outdoor dining.
Owen said he has submitted an application for the temporary dining at Dale Road along the shopping center’s asphalt in front of the restaurant. But the restaurant had about a half dozen tables set up outside near its entrance Wednesday and Thursday. Customers were eating at those tables as well as inside the restaurant.
Reeves said Wednesday the city had not received an application, but Owen had submitted a couple of drawings. Reeves said Owen would need to apply for a building permit for permanent outdoor dining and not submit an open air application for the McHenry restaurant.
Reeves said once a notice and order is issued, a business has 20 days to appeal. The notice and order is not enforced until the appeal is heard by an administrative hearing officer. If a business loses, it could then appeal in Superior Court. He added even after a notice and order is issued, the city “provides a reasonable amount of time to come into compliance” before the fines start.
This story was originally published August 28, 2020 at 6:00 AM with the headline "Modesto restaurants continue to serve people inside. Here’s what the city plans to do."
