Modesto issues first cease-and-desist orders to businesses. What happens if they don’t comply?
Modesto issued cease-and-desist orders Tuesday to two restaurants, a spa and a nail salon suspected of not complying with California’s public health order to stop the spread of the new coronavirus, which has surged in recent weeks throughout the San Joaquin Valley.
This is the first enforcement action by the city’s Neighborhood Preservation Unit since its code enforcement officers started investigating complaints April 30. Modesto police officers had investigated complaints before then.
The cease and desist orders were delivered to the Velvet Grill & Creamery restaurants on McHenry Avenue and Dale Road and the Nails by David Lee and the David Lee Spa. Both are in the same wing of the shopping center at the northwest corner of Standiford Avenue and Tully Road.
California’s July public health order includes the closure of spas and nail salons. Restaurants can stay open but only with outdoor dining and takeout. There were 13 people eating at six tables or booths at the McHenry Velvet Grill & Creamery at about 9:30 a.m. Wednesday. Two people were eating by themselves. The rest were couples, though two tables had several diners.
One diner — a woman who had just had breakfast with her daughter and son-in-law — spoke with The Bee in the parking lot. The woman, who declined to give her name, said she did not know about the indoor dining ban and added that except for trips to Sprouts and Target she seldom goes out during the pandemic.
Neighborhood Preservation Unit code enforcement officers have investigated 115 complaints regarding businesses suspected of violating pubic health orders since April 30.
About 90 percent of the complaints have been resolved without any enforcement action, according to NPU Supervisor Chris Kemper and Community and Economic Development Director Jaylen French. Kemper said in some cases it can take a business a little time to learn about and comply with the most recent public health order.
That leaves about a dozen open cases, including the businesses that received the cease and desist orders. French and Kemper would not provide information about the cases.
They said the city’s focus is on gaining compliance through educating businesses. French and Kemper also refused Tuesday to provide copies of the cease-and-desist orders or name the businesses receiving them. Kemper said the orders were issued after “multiple visits” over three or four weeks to gain compliance.
Immediate compliance expected
The orders and the business names are public information, according to the California News Publisher Association’s general counsel, and Modesto provided the names by late Tuesday afternoon and copies of the orders Wednesday morning.
The cease and desist orders state a business must come into compliance immediately. Kemper said the city has several enforcement options, including issuing administration citations — which start at $100, then $250 and then $500 for a third offense — and the city could fine business $100 to $2,500 per day.
David Lee said Wednesday he was surprised the city issued orders against his businesses. He said his spa and nail salon have been closed since the most recent public health order from July. He said he was standing outside of his spa and salon talking with a friend when a city employee gave him the orders Tuesday.
Lee said people think he’s open because they confuse his business with the nearby Japanese restaurant. He also blamed competitors calling in false complaints against him. Lee said he worries about the public health orders’ economic damage to small businesses, such as his.
Bill Owen — who said he is the secretary and treasurer of Velvet Creamery Inc., which owns the two Modesto restaurants and the one in Lodi — said the state has overstepped its authority.
Business: state order is unconstitutional
“I don’t believe the (public health) order is constitutionally legal,” Owen said. “I don’t believe the state of California can deny me the use of my property without compensating me for it. We are in a tough situation. I know if we try to operate in accordance with what I understand the governor’s order to be, we will be out of business shortly.”
Owen said that essentially is the worst case scenario his restaurants face from state enforcement. He said business at the three restaurants is down 50% to 70% since the start of the pandemic.
He said his restaurants are following the protocols for cleaning and disinfecting but said it’s the employees’ choice on whether they wear face masks. “I cannot force them to wear a mask,” he said.
Owen said it is his customers’ decision on whether they decide to eat at one of his restaurants. He declined to talk about Modesto’s cease-and-desist orders because he said he had not seen the originals. He also would not speak in detail about whether the restaurants would continue to offer indoor dining.
But he said he is working on providing outdoor dining that is attractive and comfortable for the McHenry Avenue restaurant, especially during a hot San Joaquin Valley summer day, but said that will take time.
The Modesto Velvet Grill & Creamery restaurants were among the six Stanislaus and Merced county restaurants California Department of Alcoholic Beverage Control agents suspected of violating the state’s indoor dining and social distancing rules over the Fourth of July weekend.
Pending state action with Velvet Grill
The ABC reported that agents cited the Velvet Grill on Dale Road on suspicion of having an indoor operation, and agents observed indoor alcohol and food consumption at the McHenry Avenue restaurant. An ABC spokesman said Wednesday in an email that his agency has pending disciplinary action against both locations. He said the restaurants can continue to operate while the ABC reviews the matter.
“ABC prefers education over enforcement,” ABC spokesman John Carr said in the email. “The department is interested in compliance with the health orders in order to stop the spread of COVID-19.”
French and Kemper said the businesses receiving complaints fall into three categories: restaurants, personal care services — which includes spas, hair salons and barbershops, massage parlors and nail salons — and fitness clubs, which can only operate outdoors.
Modesto investigates complaints it receives from Stanislaus County. County Office of Emergency Services spokesman Raj Singh said OES acts as a clearinghouse. He said OES refers complaints to the appropriate city. He said complaints about businesses in the county’s jurisdiction are referred to county code enforcement.
Modesto investigates a business only when it receives a complaint.
This story was originally published August 13, 2020 at 6:55 AM.
