Orange County officials, attorneys angry at governor’s beach ban

Gov. Gavin Newsom announced a "hard close" of only Orange County beaches Thursday, apparently changing at the last minute his plan to close access to the ocean statewide, according to Southern California officials who were angry about the announcement and suggested possible court challenges.

"The governor apparently has a very expansive view of his authority upon the declaration of a state of emergency, but the parameters of that authority to the extent that they're challenged will need to be resolved through the courts," said Philip Douglass Kohn, partner at Rutan & Tucker LLP, who acts as city attorney for Laguna Beach.

On the other hand, he said, "There is no doubt or hesitation that if the governor orders a statewide shutdown of beaches and public parks, the city of Laguna Beach will comply with that order." Governor emergency orders have the force and effect of law, he said.

"Governor Newsom just doesn't seem to get it," state Sen. John Moorlach, R-Costa Mesa, said in statement. "Orange County residents have been responsible. They've followed health care officials' prudent recommendations and respected the science. The county hasn't seen the 'surge' in its hospitals."

"The images we saw on a few of our beaches were disturbing," Newsom he said at his daily lunchtime press conference on the coronavirus response. "We're working with the county. But specific issues on some of those beaches have raised alarm bells."

Although he only mentioned Orange County, the California Police Chiefs Association circulated a memo to members on Wednesday night, warning law enforcement agencies would need to prepare to begin closing beaches statewide beginning Friday.

San Diego Mayor Kevin Faulconer's chief of staff, Aimee Faucett, said in a tweet that the policy appeared to change overnight. "For the record, last night Mayor Faulconer's administration was notified by Governor Newsom's administration that he would be announcing the closure of ALL CA beaches," Faucett wrote. "Minutes before today's press announcement Mayor's office was notified this would only apply to Orange County.

Harmeet K. Dhillon of Dhillon Law Group in San Francisco, who has filed several suits challenging the state and local emergency orders as unconstitutional tweeted in response to the police chiefs' memo: "This order is unconstitutional -- Governor Newsom, it's not your beach, and we are not your serfs! Time to take this state back through massive civil disobedience of unconstitutionally overbroad orders! No more!"

In an interview with the Daily Journal on Thursday, Dhillon predicted, "For the governor to override the better judgment of local authorities there will be a legal and political price to pay at some point. I don't think the Health Code goes there. It's not constitutional to override the Bill of Rights of individuals to move, to travel, to gather, to petition the government, to worship."

"While the Coastal Commission regulates uses and building on the coast, it would not be constitutional for the governor to say, 'You the people cannot enjoy the public property indefinitely.' There has to be some legal justification for that," Dhillon said. "All of this is being done in the name of the Health Code. The Health Code doesn't provide for the quarantining of people who aren't sick or shown to be exposed to a communicable disease."

The governor's memo declaring the closures contains a link to sections in the Health Code that appear to allow for police to contain the spread of infectious disease and enforce the social distancing rules laid out in the governor's March 12 stay-at-home order. The link also citied sections of the Government Code allowing for peace officers to suppress riots and breaches of the peace that might arise from such an order. The sections are: Health Code 120175, 101029, 120295, and 131082; and Government Code 26602 and 41601.

But Kohn, among others, doesn't think the state has much authority to jump in and disperse peaceful crowds even if the cities choose to open their beaches or public spaces without setting an "active use only" rule to stave off sunbathers and large gatherings.

"The attorney general's office has the ability to bring both civil and criminal enforcement of state laws," Kohn said. "I don't know if they could take over a city or county's law enforcement workforce. But they have the ability to seek a court order to compel a county or city, ordering them to do something or refrain from doing something. The attorney general would have to point to some requirement of law and say these conditions are in violation of some statute of the governor's executive order."

More than 40,000 beach goers were reported last weekend in Newport Beach, where officials closed parking lots but kept the shoreline open. Pictures of packed beaches went viral and provoked Newsom's condemnation. "We want you to see sunsets. We want you to enjoy again activities outdoors," he said Thursday. "The only thing we don't want you to do is linger outdoors in ways where you're mixing, where you're congregating." He added, "The only thing that will set us back is behavior."It was also widely noticed that Newsom already has a history of battling with Orange County cities during since his first weeks in office. Attorney General Xavier Becerra sued the City of Huntington Beach last year at Newsom's behest, accusing it of failing to meet state home building mandates.

Huntington Beach has also been a hotbed of the types of protests against stay-at-home orders that have been taking place around the country. The group Re-Open California announced this week there would be another protest in Sacramento today, this one taking place by car in order to get around a new California Highway Patrol policy barring any large outdoor gatherings at the Capitol.

Several attorneys and city officials decried the blanket, county-wide beach ban, saying individuals city councils carefully considered measures to protect their residents' safety while allowing use of beaches and parks.

"In San Clemente's case we assume that city action in violation of those orders [by the governor] would create liability concerns," said Scott C. Smith, a partner with Best, Best & Krieger LLP and the city attorney for San Clemente and Aliso Viejo. "The standard for liability is almost always the standard for legal compliance. The governor's order does allow people to get out and exercise, which is why we've decided to open the beaches to active recreation," he said in an interview the day before the governor closed the county's beaches.

In Newport Beach, the city council rejected a proposed ordinance 5-2 to close the beach on Wednesday during a special session that arose from concerns about weekend crowds.

What was said during the meeting was summarized in a public notice released the same day: "The council majority expressed a strong desire to keep most public beaches, parks and open spaces accessible for the mental health and physical wellbeing of residents. Council members supported having city staff manage the beaches at a level similar to the crowded 4th of July weekend, and issue citations for those in violation of the social distancing order."

It then added the city had little to no control over the people gathered on the beach and offered no remedy to the situation other than to make it harder to find parking. "While most of the beach goers last weekend were practicing responsible social distancing, the volume of out-of-town visitors generated significant neighborhood impacts and ran counter to guidance from California State Parks order to 'stay close to home when you get outdoors. This is not the time for a road trip to a destination park or beach,'" the notice said.

Attached to the April 28 council agenda was a 149-page document filled with emails written by frustrated Newport Beach residents demanding that the beach remain open.

"I am asking on behalf of WE THE PEOPLE to open the beaches back up," one resident wrote, "They have medications, UV lighting, and Heat eradicating this Covid-19 now."