California Allows Localities to Reopen Certain Businesses Consistent with State Guidance

Modified Stay-Home Order
The May 8 modified Stay-Home Order permits local jurisdictions to begin gradual movement into Stage 2 to allow certain sectors to resume limited operations consistent with the order. Retail businesses—including bookstores, jewelry stores, toy stores, clothing stores, shoe stores, home and furnishing stores, sporting goods stores, antique stores, music stores, and florists—may now offer curbside pickup and delivery. Retailers, manufacturers and logistics centers that support these businesses may also resume operations. Later in Stage 2, additional businesses will be permitted to reopen, such as shopping malls, car washes, pet grooming, tanning facilities, and certain dine-in restaurants, museums and galleries, and office-based businesses.

The additional sectors, businesses and establishments permitted to open will be announced on a rolling basis. Businesses and sectors specifically not permitted to reopen in Stage 2 include nail salons, tattoo parlors, gyms, bars, movie theaters, sports venues, libraries, community pools, playgrounds, picnic areas, religious services, concert venues, theme parks and hotels. As businesses reopen, individuals will be permitted to leave their homes to work at, patronize or otherwise engage in activities at those businesses. Additional permitted activities for individuals will also be announced on a rolling basis, but all social distancing directives will continue to apply.

Before reopening, all facilities must: perform a detailed risk assessment and implement a site-specific protection plan; train employees to limit the spread of COVID-19 and screen themselves for symptoms; and implement screenings, disinfecting and physical distancing protocols.

Local variance requirements
The order permits local jurisdictions to apply for a variance to reopen later Stage 2 businesses more quickly if local health circumstances warrant it. To do so, the county must notify the California Department of Health of the intent to seek a variance and certify through a written attestation that the county has met the readiness criteria established by the state, which include number of positive cases and deaths in the last 14 days, protection of essential workers, testing capacity, and hospital capacity, among others. The written attestation must be submitted by the local public health officer, accompanied by a letter of support from the County Board of Supervisors, and a letter of support from local hospitals or health care systems.

County-level Reactions
In addition to allowing for a variance to relax stay-home directives more quickly, the May 8 statewide order also specifically provides that local jurisdictions may implement or continue more restrictive health measures if that jurisdiction’s conditions warrant it. This means stricter or longer county stay-home orders will control.

San Francisco’s Mayor Breed has announced the city will permit certain Stage 2 retail businesses to begin curbside operations on May 18. Los Angeles also announced a plan for reopening Stage 2 businesses on May 8, as well as a modified roadmap for proceeding to later stages.

Other rural counties, however, are defying the statewide directive and guidance, and permitting businesses to reopen doors to the general public. Modoc, Sutter and Yuba counties have already announced the reopening of bars, restaurants, churches, malls, gyms, salons, massage parlors and tattoo shops—all businesses specifically not permitted to open under the statewide order. Although state officials have spoken out against these rural counties’ approach and warned that reopening too soon may result in the counties jeopardizing their disaster funding, there is no indication yet whether the state will take steps to enforce the statewide order.

For more information, please reach out to your regular Pillsbury contact or the authors of this client alert.

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