The governor who stole Christmas — and the California businesses fighting back

Small business owners across California have struggled to survive this year in the face of the coronavirus pandemic and related shutdown orders. But with the holiday season beginning, Gov. GavinNewsom, much like the Grinch, has stolen what little festive cheer remained.

California already had one of the nation’s more restrictive COVID-19 regimes after Newsom unilaterally implemented a color-coded reopening scheme that promised never-ending restrictions. To comply with the governor’s orders, many restaurants invested tens of thousands of dollars to create outdoor seating areas so they could continue serving their loyal customers. For many restaurants, business was barely enough to keep the doors open, but at least it was something.

Now Newsom’s latest idea has crushed even that small crumb of hope. 

Last week the governor announced that in regions where ICU capacity at hospitals dips below 15 percent, he would implement a draconian stay-at-home order banning outdoor dining, closing personal care services such as hair and nail salons, and severely curtailing retail store capacity. These restrictions are now in effect in Southern California, the San Joaquin Valley, and the Bay Area (at the request of the Bay Area counties). They likely will go into effect in the Sacramento region and Northern California in the next few weeks.

As Dr. Seuss speculated about the Grinch, it may be that the governor’s “head isn’t screwed on just right, his shoes are too tight, or perhaps his heart is just two sizes too small.” But whatever the reason, the newest order makes little sense. There is little to no evidence that outdoor dining or hair salons have contributed to the spike in COVID-19 cases, especially when customers and employees take the appropriate precautions, such as wearing masks, using hand sanitizers and paying attention to social distancing.

The appalling arbitrariness and inconsistencies of California’s shutdowns have generated intense public pushback. Case in point: A restaurant owner’s video went viral after her restaurant was barred from offering outdoor dining but a movie production company was allowed to set up an outdoor dining area in the same parking lot. Los Angeles Mayor Eric Garcetti apparently favors the wealthy entertainment industry over his hard-working constituents, who in many cases find their financial prospects hanging by a thread, at best.

Indefinite rule by emergency authority isn’t what the California Constitution allows. The legislative branch is the lawmaker for the state of California. The governor is not intended to be the sole decider setting policy for the whole state’s economy. And the governor does not have the power to shut down businesses throughout the state.

Although the Grinch’s heart grew two sizes when he heard the Whos down in Whoville singing their Christmas carols, Newsom does not appear likely to have a change of heart anytime soon. — but he soon may be held accountable for his unlawful exercise of power. 

This week, Pacific Legal Foundation will go to court on behalf of two Central Valley businesses that have been decimated by the governor’s actions: Ghost Golf, an indoor miniature golf facility in Fresno, and Sol y Luna, a Mexican restaurant in Bakersfield, to seek a preliminary injunction against the governor’s shutdown regime. We seek an order allowing our clients to reopen safely and a declaration that the governor does not have the authority to shut down other businesses in the state. 

When we hopefully prevail, we will be able to return a little bit of Christmas cheer to these and other small businesses throughout California.

Daniel Ortner is an attorney at Pacific Legal Foundation, which litigates nationwide to achieve court victories enforcing the Constitution’s guarantee of individual liberty. Follow him on Twitter @dortner1.