DA was right not to charge Fresno restaurants over COVID-19 health order violations
When Fresno County District Attorney Lisa Smittcamp decided not to bring criminal charges against four local restaurants for violating state COVID-19 rules, it was not necessarily an applause-worthy decision, but an understandable and right one.
Meaning this: Smittcamp could not, under the requirements of criminal law, prove that the restaurants were criminally liable.
That is not to say they did not earn the violations that the state has accused them of, and that they could still have to answer for. They may still have to appear before an administrative law judge to face complaints over things like allowing indoor dining at a time when only outdoor services are allowed.
But restaurant owners and managers won’t have to go to Superior Court because, as Smittcamp explained in an interview with The Bee, she simply did not find enough evidence to warrant misdemeanor charges. Her decision was based on what could she prove with the evidence she was given by state Alcoholic Beverage Control investigators.
That she had to determine the issue at all suggests that the restaurant operators — Pismo’s Coastal Grill and Culichi Town in Fresno, House of JuJu and Luna’s Pizzeria in Clovis — were not operating under the limitations they must to maintain public health in a time of a historic pandemic.
Who to cite
For one thing, Smittcamp said it was not clear in some of the cases who was to be charged, and criminal law requires an identifiable defendant.
In other ways, the evidence itself was unclear or unconvincing, she said. The restaurants might have violated the governor’s order, Smittcamp said, but not in egregious ways. “It was not like a frat party. It wasn’t some big party hall. People were spaced out,” she said of customers spread out in dining areas.
Also significant to her was the fact that the restaurants were working with county health officials to come into compliance.
Rather than bring criminal charges, she pushed the cases back to the state for civil actions, like fines. Smittcamp noted that escalating fines brought by Fresno officials against the Waffle House restaurant ultimately got that owner to quit indoor dining for the indefinite future.
In the end, district attorneys, like the cop on the street, are given discretion under the law. The cop can pull a driver over and decide to issue a warning or write a ticket. Smittcamp weighs a host of factors in her decision making, not the least of which is that she has 100 prosecutors who have to review more than 40,000 cases a year.
Did she politicize it?
In her news release announcing her decision, Smittcamp also referred to the illogical acts of letting criminals convicted of murder out of prison because they might contract COVID-19 vs. her having to charge small business owners for breaking pandemic orders.
In the interview she did not back away from that critical tone leveled at California’s Democrat-dominated politics.
“We have a Legislature that has outlawed plastic straws for the environment yet are giving people heroin needles. We have decriminalized violent crime, theft crime, drug crime, yet they want to prosecute business owners.”
It’s about public health
Politics aside, there are fundamentals for dealing with the coronavirus pandemic that should be non-negotiable to everyone: Stay home and avoid social gatherings, especially if one is elderly or with compromised health. Wear masks in public, and stand apart from others.
To the degree that the restaurants did not honor those basics, they should face judgment, in whatever form that takes.
Here’s hoping that no Fresno eatery so flaunts the rules that Smittcamp will have ample reason to prosecute.