Essential businesses are allowed to stay open in California. But what “essential” means is open to debate — and loopholes.
Guidelines from San Francisco and other Bay Area counties say that essential businesses may remain open during the shelter-in-place period. An executive order signed by Gov. Gavin Newsom last week said critical infrastructure could continue to operate, including crucial manufacturing and information technology operations. Some businesses have deemed their work critical under those exemptions — including gun shops and video game stores — when local governments might disagree.
Some counties’ chief lawyers have not clearly communicated about businesses operating in the gray area between critical and not, allowing some bad actors to stay open, posing potential health risks to employees and customers, according to Maureen Gorsen, an attorney with the law firm Alston & Bird in Los Angeles.
“All week long I’ve been calling counties on behalf of clients,” said Gorsen, who also served as the general counsel of the California Environmental Protection Agency. She said some counties have flatly declined to give opinions on whether specific companies could continue to operate.
The California Department of Justice, the state’s top law enforcement agency, referred questions on the stay-at-home order to Newsom’s office. The governor’s press office did not respond to requests for comment on how enforcement of his executive order will work with respect to businesses.
The San Francisco city attorney’s office referred questions about enforcement to the city’s Joint Information Center, which pointed to a fact sheet that did not address the issue of enforcement. Businesses had mostly been compliant with the closure orders, Police Chief William Scott said during a news conference Monday.
The city attorney’s office tweeted Wednesday that it is working with the SFPD to prevent illegal gatherings.
The Santa Clara County Sheriff’s Office said it had not shut down any businesses or gatherings as of last week, according to an email from Sgt. Michael Low.
County Counsel James Williams said Santa Clara maintains an online FAQ for businesses and that the district attorney’s office is fielding tips on businesses defying the order.
“They are coordinating with local law enforcement such as the San Jose Police Department and others,” Williams said.
The Alameda County counsel’s office, which recently confronted electric car-maker Tesla on its choice to continue manufacturing cars after being told it could not, did not respond to a request for comment. The San Jose Sheriff’s Department said Friday it had forcibly closed 56 businesses.
While authorities continue to figure out how to enforce the orders, businesses desperate to keep money coming in pushed the limits of the new rules, with some resulting in confrontations with authorities, and others executing fighting retreats on experiments that they realized would not fly under the region and state’s strict virus-fighting regimens.
Video game and electronics retailer GameStop tweeted that it would reduce its hours through March 29 but that some stores would remain open. The company said it sells products that facilitate remote work and other virtual connectivity and can therefore stay open under county orders.
Tesla initially resisted the shutdown order at its sprawling Fremont factory that employs around 10,000 people before relenting and powering down its production lines this week, according to internal emails obtained by The Chronicle.
Two Tesla employees recently tested positive for the coronavirus, another email obtained by The Chronicle said. The email did not make clear if the employees worked at the factory or when or how they might have been exposed to the virus.
Another business, Castro Valley’s Solar Tactical gun shop, initially said on Facebook it would remain open as an “essential” business, but also relented.
“It’s selective enforcement of what shops they’re targeting,” store owner Michael Addis said in a video filmed outside his store last week.
Another retail business, the nationwide 7-Eleven chain, has kept its doors open — convenience stores sell food — but has also kept employees not directly involved in store operations working and even traveling.
A posting for 7-Eleven field consultants says the job requires overnight and daily travel for tasks like recruiting and supervising stores in a particular territory.
The company said it needs to support its franchisees, which “includes our field operations team who are delivering critical information and training materials to stores.”
Restaurants and their staffs have been hit especially hard by the closure orders, which prohibit dining in, and some have tried to get creative to keep revenue flowing.
Cow Hollow’s Atelier Crenn sent out an email last week announcing meal kits for pick-up, but also offered in-home meals that appeared to violate government orders.
“We are also going to have Atelier At Home, an option for small gatherings of 8 guests maximum. Our team will remain small as well — two chefs and one server only — who will come to your home to help prepare a five-course dinner with menu items that we will choose with you in advance as well as wine pairings,” the restaurant wrote in its newsletter.
After an inquiry by The Chronicle, the restaurant sent out another message saying Atelier At Home would not be available until things returned to normal.
“Atelier At Home was never meant to be implemented now during the shelter-in-place mandates,” the restaurant wrote, even though the wording of its first newsletter suggested more immediate availability. “This is something we hope to be able to practice in the near future,” the restaurant wrote, noting the option “is not available for reservation right now.”
San Franisco Chronicle staff writer Esther Mobley contributed to this report.