Photograph by Steve Puterski/Coast News

Rally outside Carlsbad City Hall during the January 5 City Council meeting

It was a showdown like no other.

The battle over whether aggressively to enforce the state’s ban on outdoor dining was the biggest brouhaha to hit Carlsbad in five years. Impassioned pleas and stern rebukes; speakers rattling off facts and statistics; name-calling and finger-pointing.

Photograph by Thomas K. Arnold

It was all done over the internet, during a virtual meeting of the Carlsbad City Council, with undertones of a political conspiracy among Democratic politicians bent on getting tough on restaurants to show their loyalty to California Governor Gavin Newsom. Newsom, also a Democrat, is facing a recall amid mounting criticism of how he’s handling the state’s Covid-19 health crisis.

In the end, the defiant restaurant operators won, as Carlsbad officials continue to look the other way — as they have since the ban was enacted in early December as part of Newsom’s latest public health order to combat the surging virus.

The last time things got this dicey during a Carlsbad City Council meeting was in late 2015, after the council had unanimously approved a proposal by a Beverly Hills developer to build a mall on the south shores of the Agua Hedionda Lagoon, on what are now the city’s famed strawberry fields.

A citizens revolt spilled into a council meeting and led to a ballot measure that overturned the council action. Virtually overnight, a serene coastal town with a complacent electorate and a solidly Republican city council was split into two. Less than a year later, a political neophyte named Cori Schumacher, a former professional surfer who had been one of the leaders of the rebellion, became the first Democrat to be elected to the Carlsbad City Council in more years than anyone can remember — perhaps ever.

Cori Schumacher, the first Democrat to be elected to the Carlsbad City Council in more years than anyone can remember, is the target of a brewing recall campaign.

Photograph by Thomas K. Arnold

Now, it is Schumacher who is once again at the center of this latest controversy to rock Carlsbad, which never quite recovered from the divisive mall issue. Democrats now command a 3-2 majority on the Carlsbad City Council, and while Schumacher failed in her bid to unseat incumbent Republican Mayor Matt Hall in November 2018, she reportedly has her sights set on higher office, with some observers believing she is positioning herself to challenge Supervisor Jim Desmond, a Republican, in 2022.

But in the wake of the contentious January 5 Carlsbad City Council meeting, Schumacher is now the target of a brewing recall campaign. It was launched at a rally outside Carlsbad City Hall while council members were meeting virtually in a four-hour marathon session. More than 100 citizens called to weigh in. The overwhelming majority spoke in support of restaurants that say they simply cannot survive on takeout alone, and that outdoor dining isn’t making the Covid-19 surge any worse.

“Eleven months of wearing a mask and nothing has stopped the spread,” one caller said. “Ms. Schumacher, since you’re the one who wants to shut down all these businesses, let me address my comments specifically to you…. Shutting down our restaurants is killing our community…. All this has done is create resentment and anger against you and our government…. Shame on you for not supporting our whole community.”

Justin Jachura, owner of a North County restaurant company whose flagship is Senor Grubby’s in Carlsbad, says he’s had enough. “For me it’s just pedal to the metal – there’s no turning back,” he says. The ban on outdoor dining, he says, “is just another example of government overreach.”

Photograph by Matthew Suárez

Defiance

The battle over outdoor dining is hardly just a Carlsbad thing. All over San Diego County, restaurants have been blatantly defying Governor Newsom’s order that limits restaurants to takeout and delivery, which covers most of the state and is triggered when Intensive Care Unit capacity in any one of five regions — Southern California is one - dips below 15 percent. Most continue to serve food outdoors, in patios or makeshift outdoor dining areas on sidewalks and in parking lots.

A handful of others, including The Compass in Carlsbad and Hernandez Hideaway in Escondido, also are permitting indoor dining. At the latter restaurant, tucked away on the shores of Lake Hodges off the Del Dios Highway, a poster urging Newsom’s recall is prominently displayed in the lobby.

This defiance, restaurant owners say, is perfectly understandable. Restaurants took a big hit in mid-March, when a sweeping statewide stay-at-home order called for a complete shutdown of all non-essential businesses and limited restaurants to takeout and delivery. The order was rolled back in late May, with restaurants told they could again serve customers provided social distancing was maintained. For most restaurants, this meant operating at a significantly reduced capacity.

At Piatti Italian Restaurant and Bar on Avenida de la Playa in La Jolla Shores, for example, indoor capacity was reduced from 26 tables to 15, while outdoors, on the patio, the number of tables fell from 24 to 14.

Belynn Gonzales, the owner of Garcia’s, broke down in tears as she talked about what she calls “the silent victims – my employees. My employees are very special to me…. They’re my family.”

Photograph by Thomas K. Arnold

Just five weeks later, in early July, a surge in Covid-19 cases found Governor Newsom again telling restaurants they had to close their indoor dining rooms. Restaurant owners scrambled to make the most of their outdoor spaces, while city governments pulled back parking requirements so restaurant owners could expand outdoor seating into parking lots. Cities allowed restaurants to set up chairs and tables on public sidewalks and convert curbside parking spaces into temporary dining patios.

Then came the post-Thanksgiving surge and Newsom’s subsequent Regional Health Order ordered restaurants to limit their business to takeout and delivery. The mandate was met with an outcry from enraged restaurant owners who argued that for months, they had been complying with state health regulations, investing huge amounts of money into creating safe outdoor dining areas, only to be told now it was all for naught. It’s difficult for restaurants to survive solely on takeout, they said, much less support the waiters, waitresses, busboys, and dishwashers who cater to onsite diners.

They questioned the logic behind shutting down outdoor dining, citing data from both the Los Angeles and the San Diego County health departments that show only a small percentage of Covid-19 cases can be linked to restaurants.

DeeDee Rowlett, manager of Lola’s Deli, says “I am not, per one councilmember’s quote, one of ‘a few selfish interests’ placing my community ‘at significant risk by violating public health orders,’ nor am I ‘exploiting unfair competitive advantages within our city.’ With all due respect, I am a longtime resident, constituent, neighbor, friend – and a single mother doing her damnedest to keep a small family business alive and, within that, 13 other staff members and employees so they feed and house their families.”

Photograph by Thomas K. Arnold

Shortly after outdoor dining was prohibited in most parts of California, a Los Angeles County ban that had been imposed two weeks earlier was overturned by a Los Angeles judge who ruled it was “not grounded in science, evidence, or logic.” Around the same time, California Health and Human Services Secretary Mark Ghaly admitted the ban on outdoor dining “really has to do with the goal of trying to keep people at home, not a comment on the relative safety of outdoor dining. We have worked hard with that industry to create safer ways for outdoor dining to happen, from keeping tables farther apart to ensuring masking happens as much as possible … all of those factors make sectors like outdoor dining lower risk.”

The first weekend after restaurant owners were told to no longer offer any onsite dining, Carlsbad restaurants in the city’s seaside “village” staged a “peaceful protest” and kept their outdoor dining areas open. So did restaurants further north, in Oceanside, and, to the south, in downtown Encinitas, home to a famed restaurant row along the Coast Highway that over the summer had expanded into makeshift curbside patios protected from traffic by bright orange barriers the city had installed. All over San Diego County, restaurants reopened their outdoor dining areas, although a fair number had never closed, despite receiving “cease and desist” letters from county health officer Wilma Wooten.

Encinitas Mayor Catherine Blakespear, too, insists “this definitely was not coordinated, in that I never had a discussion or communication of any type with Cori or Todd in advance.”

Photograph by Thomas K. Arnold

On December 17, a judge hearing a challenge to Newsom’s order brought by two San Diego strip clubs authorized all restaurants in the county to re-open however they saw fit, both outdoors and indoors. But a day later, a California appeals court blocked the order, and the on-again, off-again ban was, well, on again.

Justin Jachura, owner of a North County restaurant company whose flagship is Senor Grubby’s in Carlsbad, says he’s had enough. “For me it’s just pedal to the metal — there’s no turning back,” he says. The ban on outdoor dining, he says, “is just another example of government overreach. When we started this whole thing, Governor Newsom promised to follow the numbers and follow science. Well, the numbers and science no longer support closing down restaurants. In the beginning, we did everything we were asked to do, because nobody really knew how the disease was progressing. But now, with all the tracing and all the statistics we have, we know that restaurants are not the cause of the spread — the causes are big-box grocery stores and home gatherings. So my whole thing has been, don’t you want to go to a regulated and controlled environment where people are wearing masks, distancing and sanitizing? Well, that’s called a restaurant.”

The first weekend after restaurant owners were told to no longer offer any onsite dining, Carlsbad restaurants in the city’s seaside “village” staged a “peaceful protest” and kept their outdoor dining areas open. So did restaurants further north, in Oceanside, and, to the south, in downtown Encinitas, home to a famed restaurant row along the Coast Highway that over the summer had expanded into makeshift curbside patios protected from traffic by bright orange barriers the city had installed.

Photograph by Thomas K. Arnold

The ban on outdoor dining in particular “makes zero sense,” Jachura maintains. “Look at Los Angeles. They’ve been shut down for four months, and that’s where the biggest surge is happening. Why? Because they’re being told to stay home, and that’s where the virus is being spread.”

“Their whole entire game plan is a fluke, a failure, and I can’t understand why they continue to push a failed plan.”

Local Democrats try crack-down

What happened next was a series of bizarre coincidences in which three Democratic officeholders pushed for stricter enforcement of fellow Democrat Gavin Newsom’s ban on outdoor dining, all within a few days of each other.

On December 26, Schumacher, who represents District 1, which includes Carlsbad’s restaurant-heavy village, sent a letter to Carlsbad Mayor Matt Hall, requesting a special council meeting to “discuss the adoption of a resolution under the city’s emergency powers for increased enforcement of the public health orders inclusive of administrative citations and fines.”

At the Carlsbad City Council meeting on January 5, nearly 100 speakers spoke in favor of letting restaurants continue to serve food outdoors, including county Supervisor Jim Desmond and dozens of restaurant owners, many of them in the village. Three spoke against.

“The number of my constituents who have been reaching out with concerns about those in willful violation of public health orders continues to grow,” Schumacher wrote. “Two weeks ago, restaurants in the district I represent willfully violated the public health order, leading to 17 cease-and-desist orders…. I am hereby requesting that you call a special meeting of the Carlsbad City Council within the next two weeks….”

On December 29, the state stay-at-home order limiting restaurants to takeout and delivery was extended indefinitely. The very next day, Hall granted Schumacher’s request and a special meeting of the Carlsbad City Council was set for January 5.

That same day, San Diego Mayor Todd Gloria, who had been sworn in less than three weeks earlier, signed an executive order directing the San Diego Police Department and city attorney to “pursue fines and potentially other enforcement actions against public nuisances who choose to endanger the lives of others, and blatantly and egregiously defy the provisions of state and county public health orders.” He said that any restaurant that continues to offer onsite dining will be fined, as will any customers who are found eating at those restaurants.

The following day, New Year’s Eve, Encinitas Mayor Catherine Blakespear in her email newsletter said that effective immediately, “the city will be suspending sidewalk and street permits for restaurants that are violating the county health order by remaining open. All restaurants need to follow the county’s take-out only requirements…. The city’s code enforcement has been directed to contact local businesses to seek voluntary compliance and those who don’t comply will have their permit to operate in the city’s right-of-way revoked. We shouldn’t have local businesses using the city’s property to violate county health orders. If you want to report a restaurant, the Sheriff’s Compliance Team is the enforcing agency. To report violators, citizens can call the compliance team at 858-694-2900.”

Coincidence or, as some observers believe, collusion? Jachura says it just doesn’t pass the smell test. “It’s like an echo chamber,” he says. “You’ve got three politicians in three cities following their party’s agenda, all at the same time. It’s obviously an agenda, because they’re not following the numbers. They’re not following the science.”

Schumacher says her letter was motivated by a tweet. “Being responsive to constituents isn’t a conspiracy born of partisanship,” she said. “It’s what we’re elected to do.”

A spokesman for San Diego Mayor Todd Gloria said, “The mayor’s emergency order was not a coordinated partisan move, but, rather, a direct response to increasing Covid-19 deaths and zero ICU capacity in our health system.”

And Encinitas Mayor Catherine Blakespear, too, insists “this definitely was not coordinated, in that I never had a discussion or communication of any type with Cori or Todd in advance. There was also nothing from the party or other political channels. I am aware of what other cities are doing and I knew of their actions.”

She adds, “My guess is that many of us were seeing the same thing, which was: the county announced restaurants had to move to takeout only and restaurants were not complying. I received emails from people saying Encinitas was a magnet throughout the county and our downtown was packed with people. The city of Encinitas contracts with the sheriff, whereas Carlsbad and San Diego have their own police departments. The sheriff does not take direction from Encinitas, which is only one of his contract cities. So the city’s only opportunity to do more to enforce the county health order was related to the encroachment permit that we had extended to businesses. The encroachment permits allow them to operate on the sidewalk and in the road. During a stay-at-home order these permits should not be utilized.

The crux of this is that restaurants shouldn’t be using city property to violate the county health order. By and large, all restaurants have complied and we haven’t had to revoke any permits, which is what we hoped would happen.”

Four days after Blakespear’s threat to yank sidewalk and street permits from restaurants that continue to serve food onsite, on January 3, the Encinitas Ale House posted on its Facebook page, “Our Mayor Blakespear has announced that outdoor dining permits will be suspended for those that don’t remove tables from the streets. We have had ONE to-go order tonight. This is not sustainable and small business in Encinitas will be destroyed. If you wish to have a voice regarding the continued enforcement of outdoor dining, we beg you, take one minute and drop an email to: [email protected] and [email protected]. Or say goodbye to all the small restaurants that you love as the corporations move in.”

Families and tears

Which brings us to the Carlsbad City Council meeting of January 5. Nearly 100 speakers spoke in favor of letting restaurants continue to serve food outdoors, including county Supervisor Jim Desmond and dozens of restaurant owners, many of them in the village. Three spoke against.

Andy Davis, owner of two Carlsbad Village restaurants, The Compass and Mas Fina Cantina, told the council that over the last 10 months, he and his fellow restaurateurs have repeatedly had to pivot. “Almost every three weeks, there’s something new we have to do to stay open and survive,” he said. “Meanwhile, big box stores have had zero restrictions, even though data has shown they have been far more responsible for the spread than our industry.” He said his restaurants will remain open “and we will continue to exercise our constitutionally protected right of peaceful protest. We feel we are making the morally right decisions in providing for our staffs, ourselves, and our families. We owe them so much, and our local government has offered very little to help and support us. So I will stay open for them and for my business.”

He chided Schumacher, with whom he was allied five years ago in the fight against the mall, for having “never reached out to me, even though she has my phone number,” and said he’s happy to “discuss solutions rather than just arbitrarily calling a meeting trying to have additional enforcement.”

Belynn Gonzales, the owner of Garcia’s, broke down in tears as she talked about what she calls “the silent victims — my employees. My employees are very special to me…. They’re my family. We shut down the first time and I followed all the rules and regulations. I am all for law and order. But this time, December 3, right before Christmas, I just couldn’t do it. So, yep, I joined the club, I had to help our employees, my family…. We are open. I couldn’t just let them not provide food … and what Christmas? They are my family, and I have to provide for my family. They’re the silent victims in all of this.”

DeeDee Rowlett, manager of Lola’s Deli, gave an emotional rebuke to Schumacher’s call to crack down on restaurants that are violating the state’s ban on outdoor dining. “My family has been here since the early 1900s, and our business began here in 1943. I was raised to honor and care for our history, our culture and our community, and I believe as a third generation that I am upholding my family’s legacy and their wishes. I am not, per one councilmember’s quote, one of ‘a few selfish interests’ placing my community ‘at significant risk by violating public health orders,’ nor am I ‘exploiting unfair competitive advantages within our city.’ With all due respect, I am a longtime resident, constituent, neighbor, friend — and a single mother doing her damnedest to keep a small family business alive and, within that, 13 other staff members and employees so they feed and house their families.”

“In the latest city newsletter it states, ‘We know times are tough and many are struggling to balance work, childcare and selfcare, while keeping worries under control. You don’t have to do it alone.’ Well, then put your money where your mouth is and allow us to serve our community safely while keeping your residents employed so there are no additional struggles or worries in their lives. We are all trying to navigate and work together through this unforeseen and unimaginable pandemic, and we are all committed to the health and well-being of our community.”

In the end, a motion was made by new council member Teresa Acosta to consider a “comprehensive approach to improve compliance,” including incentives for compliant businesses, excluding businesses not complying with the law from the city’s pandemic assistance program, and collaborating with other cities in the region and with the county.” The motion passed, but not without Mayor Hall blasting Schumacher for appearing to be in cahoots with two other Democratic lawmakers: Todd Gloria in San Diego and Catherine Blakespear in Encinitas.

“It didn’t go unnoticed to me that the timing of the request tonight was approximately around Christmas,” Hall said. “Shortly after that, the mayor of San Diego came in, very strongly worded, about what he was going to do, and almost simultaneously we had another mayor, in Encinitas, also start down the path of restrictions. So to me, when I start looking at this motion and looking at collaborating with others, it seems this has already been politically cast — other mayors and other people have already had this conversation. So to say we’re going to work with others is going to be a real challenge….”

Schumacher had no comment. Instead, she promptly made a second motion for her original request, asking the council to adopt a resolution “under the city’s emergency powers for increased enforcement of the public health orders, including administrative citations and fines.”

Schumacher: “I would like to move that resolution … if I can just see if I have a second….”

A moment of awkward silence, then:

Hall: “I don’t see a second.”

At that point, Councilmember Priya Bhat-Patel, a fellow Democrat who represents the third district, jumped in and made a very clear break from Schumacher: “I did not call this meeting. I am not in support of more restrictions than what we already have in place.”

Schumacher later told this reporter that it was never her intention to crack down on restaurants offering outdoor dining. “The request in the tweet revolved specifically around indoor dining,” she said. “I’ve never said anything about outdoor dining and I was the main advocate for right-of-way permits for our restaurants, including exploring closing State Street to support outdoor dining and shopping, back in May when I presented it to council as a recommendation of my District 1 task force. There have been so many assumptions and inflammatory accusations.”

Then why didn’t she say as much during the January 5 council meeting? “My letter was to bring an agenda item forward to discuss increased enforcement of the public health order,” she said. “This is the exact same thing I have been asking for since July 14. Any additional specificity would be in violation of the Brown Act. This unfortunately allowed the narrative to go off the rails with little ability for me to rein it in until the night of the discussion.”

But even then, Schumacher never spoke in support of outdoor dining. During her closing remarks, she merely said she wanted the city to have more power to crack down on health order violations and referenced an agenda item from September that specifically mentioned private gatherings and indoor gatherings.

She then chided me, “I hope you keep this in mind, T.K. Objectivity in the midst of high emotion is hard, but the facts are there, including the follow-up in my newsletter stating: ‘This motion would have immediately given our staff an additional and flexible tool for our local enforcement efforts to protect the health and safety of our community. The tool could have been used selectively at the discretion of staff on indoor dining and certain indoor gatherings, for example.’”

She also lashed out at Mayor Matt Hall, maintaining that his “paranoia and conspiracy theories, his egging people on during council meetings, and his support of individuals who I have had to place myself at great financial risk in order to protect myself and my wife from, is deeply disturbing and dangerous. It’s exhausting.”

Postcript

On January 19, the Carlsbad City Council reversed course and voted to crack down on restaurants operating outdoor dining after all, in two ways: complaining to landlords and threatening to revoke permits to use city property – sidewalks and curbside parking – for outdoor seating.

Ironically the vote came five days after Chicago Mayor Lori Lightfoot called on the governor of Illinois to allow the city’s bars and restaurants to re-open for indoor service “as soon as possible” because they provide citizens of the city with a safe alternative to private gatherings, a significant source of Covid-19 spread.

According to a story in the Chicago Tribune, “Lightfoot said restaurants are highly regulated, receive regular inspections and have gone ‘above and beyond to put in mitigation controls inside of the restaurants.’”

“They are going to be one of the safer places,” Lightfoot said.