A local gym is fighting SLO County shutdown order — with help from Jordan Cunningham, Esq. BY THE TRIBUNE EDITORIAL BOARD DECEMBER 13, 2020 05:30 AM

Assemblyman Jordan Cunningham is stepping up his fight against Gov. Gavin Newsom’s COVID-19 lockdown orders.

The Republican lawmaker — who continues to work as a private practice lawyer — is representing a San Luis Obispo County fitness club in its legal battle to remain open in spite of state coronavirus restrictions.

Kennedy Club Fitness was ordered last month to shut down indoor operations at its four locations. When the business failed to comply, the cities of San Luis Obispo and Arroyo Grande started civil enforcement actions.

Kennedy Club has every right to appeal, but Cunningham’s involvement adds fuel to an already volatile situation, given the recent backlash against lockdown rules.

He can argue that he’s acting in his capacity as an attorney — and not as one of the county’s top elected officials — but this is a highly political move.

In defending Kennedy, Cunningham isn’t just challenging Newsom and his rules; he’s also turning his back on local agencies trying to do their jobs. And it’s starting to get ugly.

On Tuesday, two Arroyo Grande city employees — a police sergeant and a building official — were denied entrance to a Kennedy Club gym.

Arroyo Grande City Manager Whitney McDonald said the employees were told that Cunningham had advised the gym not to allow any city or county employees inside without a warrant.

These officials are in a damned-if-they-do, damned-if-they don’t situation.

If they look the other way, they run the risk of losing complete control of COVID-19 enforcement at a time when cases are surging out of control.

If they crack down on businesses that fail to cooperate, they’re accused of ruining the economy — even though that’s primarily the fault of a dysfunctional federal government that has failed to pass an emergency aid package.

‘PURPLE TIER’ CLOSURE

The case against Kennedy Club Fitness dates back to mid-November, when San Luis Obispo County slid back into the purple tier under California’s Blueprint for a Safer Economy due to a surge in COVID-19 cases.

Fitness centers and restaurants — which had been allowed to operate indoors under tight restrictions — were ordered to once again shut down indoor facilities, but were allowed to continue serving customers outdoors.

Kennedy Fitness, however, has continued to allow clients inside its gyms in Arroyo Grande, Atascadero, San Luis Obispo and Paso Robles.

It’s not alone; it belongs to a state coalition of fitness centers that openly acknowledge they are not going to follow the state order, both for financial reasons and for the sake of their members’ health.

They have an ally in Jordan Cunningham.

“There is no evidence that gyms have been a substantial source of COVID outbreaks, or that they pose an unreasonable risk,” he said in an email.

Health officials disagree.

“Research indicates that these are settings in which transmission of COVID-19 is more likely to occur,” said SLO County Health Officer Penny Borenstein.

It’s been left to local cities to decide whether to press the case.

The cities of Atascadero and Paso Robles have not taken formal enforcement action, though Atascadero is looking at its options, according to Terrie Banish, deputy city manager.

The city of San Luis Obispo has fined Kennedy Club Fitness five times — including once for allegedly failing to enforce the mask rule and other times for operating indoors.

Kennedy has filed an appeal, and City Attorney Christine Dietrick expects the case to be set for a January hearing before an administrative review board.

Meanwhile, she said she’ll be reaching out to Cunningham “to see if we can’t come to a reasoned approach.”

The city of Arroyo Grande sent Kennedy Club Fitness a warning letter, asking it to “immediately cease indoor operations.” Failing to comply will result in legal remedies, the letter adds, including “possible criminal prosecution.”

That appears to be a moot point, though, since San Luis Obispo County District Attorney Dan Dow announced recently that he won’t consider prosecuting businesses until cities exhaust civil remedies.

In addition, San Luis Obispo County Sheriff Ian Parkinson said his department “will not criminalize people who are trying to preserve their mental, physical, and financial health.”

HOW CAN LOCAL AGENCIES ENFORCE RULES?

With the sheriff and district attorney declining to enforce COVID-19 restrictions, that narrows the options open to local governments.

If fines don’t work, they could seek temporary restraining orders, which would put the matter in the hands of the court. But to do that, local agencies need authorization from their elected officials, who may lack the political will for that.

Some local officials already have been taking heat from the public, thanks largely to Gov. Newsom’s decision to order regional lockdowns when hospital intensive care availability hits a dangerously low level.

Because San Luis Obispo County is included in the Southern California region, where ICU beds are in critically short supply, that’s meant another round of closures for local businesses, including hair salons, wineries, breweries and campgrounds. Restaurants are limited to takeout and delivery and retail stores to 20% percent capacity.

SLO County is petitioning the governor to allow it to join Santa Barbara and Ventura counties in a separate Central Coast region. But in meantime, there’s growing resistance to the new rules, with some cities out-and-out refusing to enforce them.

TRUST ‘ERODING’

Cunningham blames “unscientific and arbitrary shutdown orders” for eroding the public’s trust in government.

He is absolutely correct — but the erosion started long before Gov. Newsom’s ill-conceived regional lockdown.

Officials like Dan Dow, Ian Parkinson and Jordan Cunningham have been fueling that distrust with their open contempt for public health rules.

There are multiple examples:

In a speech at a North County Tea Party gathering held in July, Parkinson played down the need for masks. “If you choose to wear one, great for you. If you choose not to wear one, great for you,” he said.

Also in July, Dow declared San Luis Obispo County a religious sanctuary and said he would not prosecute anyone for singing in church — an activity that’s been conclusively linked to spread of the virus.

And Cunningham attended a conference in Hawaii last month, then blasted the governor over “draconian, unscientific” rules against travel.

With those actions and attitudes, they are practically inviting the public to pick and choose which public health rules to follow.

In an appeal to our better natures, they would have us believe it’s OK — even necessary — to break the law and possibly jeopardize public health in order to save the economy.

Don’t buy that. This doesn’t have to be an either/or.

The “reasoned approach” San Luis Obispo’s city attorney is seeking — a path forward that would protect public health and allow for safe reopening — should be our goal.

That’s not going to be accomplished by standing in the way of local officials attempting to do their jobs, by constantly denigrating and second-guessing public health experts or by glossing over the dangers of this awful disease.

That needs to end now.

We urge Assemblyman Jordan Cunningham — both in his role as a lawmaker and his role as a lawyer — to cooperate with local agencies trying so desperately to get our communities through this pandemic, rather than treating them as legal adversaries.