Claims “Restricting Religious Gatherings to 12 Participants Unconstitutionally Violates Right to Equal Protection”

“…the County’s Order violates federal and state law while unashamedly discriminating against houses of worship.”

On Wednesday, June 10, 2020 a formal legal letter was by attorney Harmeet Dhillon, founder of the Center for American Liberty, to members of the Contra Costa County Board of Supervisors, to ensure county health services staff follows through with their commitment to change the requirement to a recommendation that places of worship gather names and contact information of those who attend services and provide it to the county upon request. (See related articles, here, here and here). In addition, the letter points out that the county’s health order limiting indoor services to 12 people also violates the Constitution. 2020.06.10_HDhillon CAL Letter to Contra Costa County

June 10, 2020

Contra Costa County Board of Supervisors

651 Pine Street

Martinez, CA 94553

Re: Unconstitutional Contra Costa Health Services Order No. HO-COVID19-17, Specifically Regarding “Additional Businesses” (section 3 of Appendix C-1, Updated June 5, 2020)

Dear Board of Supervisors:

We write today, on behalf of clients in Contra Costa County, to demand the immediate rescission of Contra Costa Health Services Order NO. HO-COVID19-17 (the “Order”). The Order is concerning for two reasons: (1) Its requirement that houses of worship—and only houses of worship—keep and upon request disclose “a record of attendance” to Contra Costa Health Services violates both state and federally protected rights of associational privacy; (2) Restricting religious gatherings to no more than 12 participants violates First and Fourteenth Amendment protection. And while we appreciate the County’s recent announcement that it plans to revise its requirement that houses of worship keep and disclose attendance lists, until such plans manifest, we reiterate our objection over its current text.

1. Restricting Religious Gatherings to 12 Participants Unconstitutionally Violates First Amendment Rights

The First Amendment to the U.S. Constitution prohibits government actors from enforcing any “law respecting an establishment of religion, or prohibiting the free exercise thereof.” U. S. Const. amend. I; see also Cantwell v. Connecticut, 310 U.S. 296, 303 (1940) (applying the First Amendment to the States through the Fourteenth Amendment). Under strict scrutiny, the government cannot burden religious activity unless it first establishes (1) a compelling interest for imposing such burdens, and (2) that the burdens are the “least restrictive means” necessary to further that compelling interest. Federal courts routinely enjoin the enforcement of laws and policies under this standard. See e.g., Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah 508 U.S. 520, 524 (1993).

The County’s Order severely burdens religious expression. The Order’s restriction on indoor religious services—limiting the number of participants to 12 persons or 25% of the building’s capacity, whichever is less—does not survive exacting scrutiny in that it is not the least restrictive means to accomplish the County’s interest in public health. Simply put, there are better ways for the County to accomplish its interest in public health that do not burden religious expression as much. For example, restricting participation on a percentage basis only—with respect to facility seating capacity—is a better solution. Twelve people in a sanctuary that holds one thousand looks very different from twelve people in a sanctuary that holds one hundred people.

In other words, percentage-based restrictions accommodate larger houses of worship while satisfying the County’s interest in public health and social distancing.

1. Restricting Religious Gatherings to 12 Participants Unconstitutionally Violates Right to Equal Protection

The Fourteenth Amendment of the Constitution provides that “[n]o State shall . . . deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const. amend. XIV, § 1.

Equal protection requires the state to govern impartially—not draw arbitrary distinctions between

individuals based solely on differences that are irrelevant to a legitimate governmental objection. City of Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432, 446 (1985).

Here, the County’s 12-person limit on religious gatherings is nothing if not arbitrary. This is more restrictive than statewide health guidelines, according to the California Department of Health for places of worship, which currently limits attendance to 25% of building capacity or a maximum of 100 attendees, whichever is less; it is unclear where Contra Costa County’s “12 person” idea originates.

Additionally, no other establishment in Contra Costa County is subject to these more restrictive and draconian requirements. Costco, laundromats, marijuana dispensaries, and countless other purely secular entities are not burdened by this arbitrary, 12-person limitation.

On April 14, 2020, the United States Attorney General, William Barr, issued a statement addressing the disparate treatment being afforded to houses of worship.

As we explain in the Statement of Interest, where a state has not acted evenhandedly, it must have a compelling reason to impose restrictions on places of worship and must ensure that those restrictions are narrowly tailored to advance its compelling interest. While we believe that during this period there is a sufficient basis for the social distancing rules that have been put in place, the scope and justification of restrictions beyond that will have to be assessed based on the circumstances as they evolve.

Religion and religious worship continue to be central to the lives of millions of Americans. This is true more so than ever during this difficult time. The pandemic has changed the ways Americans live their lives. Religious communities have rallied to the critical need to protect the community from the spread of this disease by making services available online and in ways that otherwise comply with social distancing guidelines.

The County may not treat houses of worship as second class entities; at a minimum, it must treat them equitably with respect to secular counterpart. Contra Costa Health Services Order NO. HO-COVID19-17 does the opposite—it targets houses of worship with more burdensome restrictions.

III. The Order Infringes Upon Constitutionally Protected Right to Privacy Under State Law

The right to privacy is an inalienable right under California law.3 This privacy interest irrefutably extends to participation in religious gatherings.

In Church of Hakeem, Inc. v. Superior Court, Alameda County, 110 Cal. App. 3d 384 (Ct. App. 1980), the court expressly declined to mandate disclosure of member names and addresses, even after allegations of criminal activity or wrongdoing by the church. In City of Carmel-by-the-Sea v. Young, 2 Cal. 3d 259 (Ct. App. 1970), the court affirmed a list of freedoms afforded constitutional protections, such as the freedom of association and privacy in one’s associations, encompassing privacy of the membership lists of a constitutionally valid organization. In Pacific Union Club v. Superior Court, 232 Cal. App 3d 60 (Ct. App. 1991), the court provided a robust analysis of associational rights and ultimately upheld a private club’s right not to disclose member lists.

Applied here, Contra Costa County’s Order requiring houses of worship to create and preserve the names and contact information of those in attendance at a worship service or ceremony, and then disclose such information “immediately upon request” unconstitutionally violates privacy rights while chilling religious expression. Whether gathering for political, social, or religious reasons, the right of association is sacrosanct. Unfortunately, the County’s Order deprives Californians their right to pray, worship, repent, and seek spiritual guidance privately. Rather, the Order subjects their most intimate religious activities to potential publication.

3 “All people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy.” Cal. Const. Art. 1 § 1

1. The Order Violates Right to Privacy Protected by Federal Law

The “Court has recognized the vital relationship between freedom to associate and privacy in one’s associations.” Nat’l Ass’n for Advancement of Colored People v. State of Ala. Ex rel. Patterson, 357 U.S. 449, 462 (1958). Citing American Communications Ass’n, C.I.O., v Douds, 339 U.S. 382, 402 (1950), the Court explained,

‘A requirement that adherents of particular religious faiths or political parties wear identifying arm-bands, for example, is obviously of this nature.’ Compelled disclosure of membership in an organization engaged in advocacy of particular beliefs is of the same order. Inviolability of privacy in group association may in many circumstances be indispensable to preservation of freedom of association, particular where a group espouses dissident beliefs.

Here, Contra Costa County’s Order tramples Californians’ right to privacy and in doing so, violates the Due Process Clause. Similar to the state of Alabama in NAACP v. Alabama, Contra County is requiring houses of worship to disclose the identities of congregants gathering to worship. And similar to the state of Alabama, this mandatory disclosure of religious expression “curtails the freedom to associate,” “denying “the ‘liberty’ assured by the Due Process Clause of the Fourteenth Amendment,” and is “subject to the closest scrutiny.” Id. at 460-61.

1. Attendance Recordation Requirement Violates Equal Protection Protected by Federal Law.

By the Order’s express terms, the Order discriminates against places of worship by requiring places of worship to create and maintain attendee lists, yet the Order places no other such burdens on any other non-religious establishment whatsoever. As the United States Supreme Court has noted, “a law burdening religious practice that is not neutral or not of general application must undergo the most rigorous of scrutiny.” Church of the Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520, 546 (1993). Further, “A law is not generally applicable if its prohibitions substantially under include non-religiously motivated conduct that might endanger the same governmental interest that the law is designed to protect.” Stormans, Inc. v. Wiesman, 794 F.3d 1064, 1079 (9^th Cir. 2015) (citing Lukumi, 508 U.S. at 542–46). So, “In other words, if a law pursues the government’s interest ‘only against conduct motivated by religious belief,’ but fails to include in its prohibitions substantial, comparable secular conduct that would similarly threaten the government’s interest, then the law is not generally applicable.” Id.

The County fails this standard. Houses of worship are uniquely burdened by this public disclosure requirement. And again, no other entity appears to be subjected to this standard.

In conclusion, we believe the County’s Order violates federal and state law while unashamedly discriminating against houses of worship. For these reasons, the Center for American Liberty respectfully requests that Contra Costa Health Services Order NO. HO-COVID19-17, requiring houses of worship to record and disclosure attendance at religious services, be either rescinded or amended to cure its constitutional defects. We look forward to hearing your response.

Regards,

Harmeet K. Dhillon

cc: John Gioia, Candace Anderson, Diane Burgis, Karen Mitchoff, Federal D. Glover

By Allen Payton

Contra Costa County health officials are backing down on their requirement in the latest order issued June 5 that places of worship gather names and information of all attendees, keep it for 14 days and provide it to the county immediately upon request. According to a statement issued Tuesday morning, “health officers will be working with county attorneys to revise the order to reflect this as a recommendation but not a requirement.”

The action comes following a series of email exchanges between the Herald and county supervisors and staff over the past several days about the requirement, an article and public outrage on social media challenging the constitutionality of the requirement, the inconsistent and unfair application to only places of worship, and no other organization or business, including protesters or restaurants offering outdoor dining in which people sit for extended periods of time with their masks off in order to it.

A legal effort was in the works as of Monday, with several residents agreeing to sign on to a legal demand letter to be sent to the county. But that now appears to be unnecessary.

Following is the Statement Regarding Requirements for Religious Gatherings

“In the health order issued June 5 by Contra Costa Health Services, religious organizations were required to maintain a list of attendees at religious services and cultural ceremonies in the event of an outbreak of COVID-19. The intention was to facilitate quick, complete contact tracing if a participant at the event tests positive.

Health officers will be working with county attorneys to revise the order to reflect this as a recommendation but not a requirement. If a participant tests positive for COVID-19, the host will be asked to assist CCHS with contact tracing associated with the gathering.

To mitigate the risk of transmission to the greatest extent possible, CCHS encourages participants to wear face coverings at all times, maintain social distance when possible, practice good hand hygiene, and stay home if sick.”

According to Kim McCarl, Assistant to the Director of Contra Costa Health Services for Communications, “As we revise the language, the recommendation will apply to any allowed gatherings.”

According to Kim McCarl, the county health services communications assistant, the “guidelines will be the same as the state’s”. No word on if the requirement to create lists of the names and contact information of all attendees to be given to the county upon demand will still be included. (See related article)

By Allen Payton

In his Friday, June 5, 2020 order, Contra Costa County Health Officer Dr. Chris Farnitano now allows religious services to hold outdoor worship services of up to 100 people and indoor worship services of up to 12 people. (See related article)

However, buried deep within the order, in Section 3, Subsection B3 of “Appendix C1 – Additional Businesses” the order requires “A record of attendance, including the names and contact information for each attendee at a service or ceremony, must be created and preserved by the Place of Worship for a minimum of 14 days, and provided to Contra Costa Health Services immediately upon request in the event that a COVID-19 case is linked to the event.”

An email was sent to all five members of the County Board of Supervisors and county health services communications staff, in an attempt to reach Dr. Farnitano, Saturday evening with the following questions.

• Are you also requiring protest organizers to provide a list of those who attend them?
• Or restaurants to provide you a list of diners who enjoy outdoor dining at their locations?
• How would anyone know a COVID-19 case was linked to an outdoor worship service of up to 100 people or an indoor one of up to 12 people?
• Don’t you think you’ve infringed on the First Amendment rights of people of faith in our county enough already?
• Don’t you think this goes way too far?
• Was the county counsel consulted before this was included in the order?

Four of the members of the board were also sent text messages asking them to check their emails for the message.

Supervisor John Gioia, who was an attorney before being elected to the board in 1998, responded first via text message with, “Yes. It’s to keep track of people who are in contact with someone who tests positive. For contact tracing. And have them isolate for 14 days if they test positive.”

When asked again if protesters are required to give their names and information and what about restaurants that serve outdoor diners, he simply responded, “It’s a fine balance. I understand the arguments on both sides.”

Board Chair Candace Andersen responded by email with, “Karen (Mitchoff) and I chair at COVID Ad Hoc Committee each Thursday at 1:30 pm (available to all via Zoom). This week we had Dr. Farnitano explain this provision at our meeting. It’s simply there so that if there is a COVID outbreak, a church could make the names of attendees available so that they could be traced/tracked and notified that they may have been exposed. The only time these names would be requested is if there was, in fact, someone who came down with COVID in the congregation.”

“In a workplace or at a school the Health Department would also request the names of everyone who was present and exposed to someone who tested positive for COVID. In those settings the names would already be available because of the nature of the business,” she continued. “I will ask our Health Team to put an FAQ up so that its purpose can be clarified.”

In response, another email was sent to Andersen, Mitchoff, and the county health services communications staff, asking for answers to the questions from the first email that were not answered by Andersen.

The requirement from the June 5th order was shared on social media and almost all the comments about it were negative such as, “Do businesses with thousands of people going in and out need to record all of this? I go to many businesses and my name is never recorded, unless it is a dentist or something,” and “That is so crazy…are we still in the USA? Or is this a bad dream?”

Another commenter asked, “How about the names of the thousands of…protestors before they go out and the looters too?” Another comment reads, “I’ve wondered how they are tracking all the people at Walmart, Target and Home Depot. They don’t take attendance there.”

“Ridiculous! Control! Why not other businesses? Only churches?” asked another commenter. “I won’t attend until that changes. My name isn’t going on any list,” wrote another.

One pastor wrote, “That’s too far” and another wrote, “I’m not doing that. They don’t do that with Walmart, Home Depot, etc.”

The Bill of Rights are limitations on the power of government. It can be argued that the requirement in the county’s health order violates both the First and Fourth Amendment rights religion, peaceful assembly and privacy, of both the worship service attendees and those of the places of worship.

The First Amendment mentions religion first in the list of rights, because that is the first reason our nation was founded, going back to the Pilgrims in 1620. It reads “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” That applies to any state law, county or city ordinance, regulation or order, as well.

The Fourth Amendment refers to what is described as the right to privacy. It reads, “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” So, a church or other place of worship could require the county to provide a warrant to obtain the information the order requires.

6/7/20 UPDATE: Chair Andersen Responds

In an email received by the Herald on Sunday afternoon, June 7, Board of Supervisors Chair Candace Andersen offered the following responses to some of the questions posed to her and the rest of the board members and Dr. Farnitano:

“How would anyone know a COVID-19 case was linked to an outdoor worship service of up to 100 people or an indoor one of up to 12 people? That’s why we have contract tracing in place. We would track/trace people at both venues to make sure others who were exposed are tested, thus preventing a serious outbreak.

Don’t you think you’ve infringed on the First Amendment rights of people of faith in our county enough already? In a worldwide pandemic of this scope we are continually balancing the health of the community versus any limitations we need to impose upon the public. I really miss going to church. For my entire life I have gone every single Sunday unless I was home sick. However, I can see how it is for the greater good to NOT have live church services where we could potentially be exposing each other to a horrible virus. And, I continue to worship at home with my family, with fellow church members via Zoom and YouTube, through reading scriptures, listening to uplifting music, and finding new ways to connect spiritually. Yes, it’s different than it was, but I also know it is only temporary. More importantly, “the State” is not telling me how or who I should be worshipping, only that it is unsafe to gather as a congregation right now. As you know, the State Supreme Court has agreed that in this emergency we’re in, this is an acceptable limitation.

Don’t you think this goes way too far? Was the county counsel consulted before this was included in the order? All Health Orders have County Counsel’s review before they are implemented. I would be concerned if churches were mandated to report attendance each week, but they’re not. No one is reviewing the attendance or calling out who is or is not there. Churches are just being asked to be in a position to identify who was present at a service so that if there is an outbreak, the affected people can be notified and tested.”

However, the recent ruling in the case before the Supreme Court had nothing to do with government requiring places of worship to collect the names and contact information of those who attend worship services and provide it upon request.

A more complete question was sent to her and Dr. Farnitano asking, “how would anyone know a COVID-19 case was linked to an outdoor worship service of up to 100 people or an indoor one of up to 12 people if that same attendee participated in a number of other activities, both indoor and outdoor, during the week?

Possible legal action can be expected against the county in the very near future.

Please check back later for any updates to this report.

From Contra Costa Health Services

Contra Costa County residents may again enjoy outdoor swimming pools, outdoor seating at restaurants and dog parks under a new health officer order released today.

The order, effective 5 p.m. today, also allows for outdoor religious services of up to 100 people, indoor religious services of up to 12 people, use of outdoor picnic and barbecue spaces, and overnight camping for people belonging to the same household.

Because of the progress made in the fight against COVID-19, Contra Costa health officers feel confident opening additional businesses and activities. The State of California has determined that while counties can move slower than state in reopening, they cannot move more quickly. The openings announced today bring Contra Costa County in closer alignment to state guidelines. It also aligns with other Bay Area counties taking similar steps.

“We have made great progress slowing COVID-19 in our county,” said Candace Andersen, chair of the Contra Costa Board of Supervisors. “I want to offer a heartfelt thank you to all who suffered and sacrificed to follow these health orders throughout this pandemic. I know it has not been easy. But you have helped save lives.”

This order follows a modification earlier this week that allowed offices and many retail businesses to reopen and created guidance for small gatherings including people from different households.

Previous health orders requiring physical distancing and face coverings in public spaces remain in effect. Contra Costa residents should also continue to emphasize handwashing and other hygiene measures in their daily lives to reduce their risk of becoming infected.

“COVID-19 is still circulating in our community, and we need to take precautions to prevent outbreaks,” said Dr. Chris Farnitano, the county health officer. “Another way we can keep ourselves and our families safe is to get tested, even if we feel well.”

The new order includes guidance for safely conducting the newly permitted activities, including requirements for businesses. Details, including the full text of the order, are available at cchealth.org/coronavirus.

By Allen Payton

Following the words of Jesus in Matthew 10:27 who said, “What I tell you in the dark, speak in the daylight; what is whispered in your ear, proclaim from the roofs”, according to an Antioch resident and parishioner, “all the Sunday Masses at Most Holy Rosary Catholic Church this weekend, 7:30am, 10:30am, 12:30pm, and 6pm, will be celebrated from the rooftop of the detached garage while parishioners will be in their cars parked socially distanced in the surrounding parking lots.  Eucharist will be distributed after Mass as the cars exit the parking lots.”

The church is located at 1313 A Street in Antioch. For more information visit https://holyrosaryantioch.org/.

But no churches until June 15 and only outdoor events

By Dr. Chris Farnitano, Contra Costa County Health Officer & Anna Roth, Contra Costa County Health Director

May 30, 2020 – If we continue to make progress in our fight to contain COVID-19, Contra Costa County will be relaxing more restrictions on businesses and social activities in the coming days and weeks. Details will be announced on June 2. Below are some of the most significant changes being considered:   Effective Wednesday, June 3

Businesses

• Office-based businesses (telework remains strongly encouraged)
• Services that don’t require close customer contact, such as housekeeping, car washes, pet grooming and plumbing
• Outdoor museums, and open gallery spaces and other public spaces with modifications
• Indoor retail stores, including shopping malls and swap meets

Activities

• Childcare, including child and youth educational activities and camps for all children, not just essential and allowed workers
• Small outdoor social gatherings with social distancing (household support bubbles and child extracurricular activities)

Effective Monday, June 15

These are higher risk activities and thus restrictions would be relaxed at a later date.

• Limited-capacity religious services and cultural ceremonies up to 100 people. These would be limited to outdoor events only.
• Protests up to 100 people; limited to outdoor events only

The state has a timeline for opening higher risk activities like swimming and salons, which can be found at covid19.ca.gov.

Spiritual counseling is allowed in county, church services still aren’t; waiting for update next Tuesday to determine new orders

By Allen Payton

During the meeting of the Contra Costa County Board of Supervisors’ Ad Hoc Committee on COVID-19 Economic Impact and Recovery on Thursday, May 28, 2020, Board Chair Candace Andersen, Supervisor Karen Mitchoff, and County Health Officer Dr. Chris Farnitano heard from frustrated county residents on reopening the county. According to the agenda, the meeting was to “Consider the impacts of COVID-19 on religious gatherings and discuss pathways that may allow them to resume, if possible, within the limitations established by” Farnitano.

General Public Comments

A variety of residents spoke during public comments on issues not on the agenda

“Take back control from the Contra Costa County health officer and move on to Phase 3,” said Gertrud Jeffries.

Brentwood Vice Mayor Joel Bryant said he was, “asking our Supervisors of the Board to tell the county health officer to follow the governor in the guidelines.”

A woman who identified herself as “They Call Me Non-Esssential” spoke about the information provided by a doctor at John Muir Medical Center in Walnut Creek about more suicides than COVID-19 deaths in the county. “Dr. Farnitano said he hadn’t seen that data,” she said.

Robert Jackson, owner and CEO of Proforma Health Club in Walnut Creek, asked for guidance for health clubs that have a large outdoor area, and “more clarity on timeliness for reopening…after the expiration.”

Ric Campos of Campos Family Vineyards in Byron said, “We’re very involved in our community…hosting fundraising events and we have a tasting room. We can meet all the protocols. We submitted them to the supervisors. We also have a church that meets here, on Sundays. These numbers just don’t add up.”

“I understand Dr. Farnitano has a job to do. But he’s focusing on the medical. I’m asking our supervisors to look at the big picture, because this virus is hurting our businesses,” Campos continued. “Only 37 have died, which is horrible. But most of them are over 80 and 90 years old and others are over 70 years old. I’m asking our supervisors to step up. You have the authority to override the doctor. Something has to be done. It’s getting bad. So, please…”

“help this community we’ve elected you to oversee,” said Michelle Campos, concluding her husband’s remarks.

Patricia McBroom spoke of “a community pool we can accommodate small groups. I would like the county to follow the CDC guidelines on small housing…for them to schedule their own uses. It doesn’t make sense to have one category.”

Tricia Wilkalis said, “I want to talk about these small businesses, I’d rather shop at them than the large retailers. I think they’re more safe.” She then spoke of mental health and a young man who attempted suicide. “I want you to reevaluate this lockdown and what it’s doing to our citizens.”

“There are exceptions to wearing masks,” said Supervisor Candace Andersen.

Dr. Farnitano, “About wearing masks, this is about changing science and recommendations from the Centers for Disease Control. Most transmissions are from people without symptoms. Universal face coverings have a big effect on limiting the spread. People with medical conditions where wearing masks restrict their breathing, we need to let business owners know not to interfere with them not wearing masks.”

A question about dance, gymnastics and camps was asked.

“Where do you see dance classes coming in from the state order?” asked Andersen.

“The state has not provided guidance on that, yet. Our current order allows outdoor activities that allow for six feet apart, like Tai Chi classes,” Dr. Farnitano said. “I haven’t seen any differentiation, yet.”

He was then asked by Andersen about suicides, and that “the shelter in place does cause a huge emotional strain.”

“When we see recessions in general, that causes physical stress that leads to mental stress,” Dr. Farnitano said. “The shelter-in-place is causing a tremendous amount of stress. Looking across the county we’re not seeing a change in suicides. We’re reaching out to the hospitals to gather the data. It is a concern.”

Andersen encouraged people to dial 2-11 for crisis intervention or health services, for counseling and for help.

“This issue has been dominant in our calls between supervisors and health staff,” said Supervisor Karen Mitchoff. “Our sheriff will be gathering 24 months of data. There have been additional numbers of suicide in the count. But he’s not seeing a trend there. We don’t have that data, today.”

Andersen asked about outdoor dining, tasting rooms. When do you anticipate…where do you see that falling in, Chris?”

“Seated dining as opposed to take-out is in the state’s Phase 3. The state’s order doesn’t allow that anywhere in the state, yet,” Dr. Farnitano said. “A lot of health officers are talking about outdoor dining, first, because of the air flows and the spacing. It’s probably coming and the state’s going to be coming up with guidance on that.”

“We’re almost at two weeks next Tuesday since the last loosening of restrictions. What will the new order include…so businesses can prepare,” Andersen.

“We are working with the Bay Area. We are one human ecosystem…because a lot of people shop and work among the counties,” Dr. Farnitano explained. He then spoke of “expanding childcare to all folks not just those who are working, but people who are seeking childcare. We are looking at some services that don’t require close customer contact, like house cleaning, car washes, outdoor museums. But the higher risk, like the indoor retail…when to address the religious gatherings, which we know are high risk…there’s a large desire for that. The state just came out with guidance on those in the last few days.”

“We can’t make decisions without data and we need at least two weeks of data to see where the trends are heading,” he continued. “We are looking at next Tuesday, and if the data shows we aren’t looking at a new surge, then we will consider more opening.”

“Will we know before Tuesday so businesses can prepare?” Andersen asked.

Shelter-In-Place Order Doesn’t Expire on May 31st

“The current order expires May 31st” said Mitchoff.

“No, the current order doesn’t expire. It was extended indefinitely,” Dr. Farnitano responded. “Until we get two weeks of data which is Tuesday. We could put out something on Monday that this may be coming. When you put out an order, there is some lag time for it going into effect.”

Asked about a community pool with a small number of houses using the pool, maybe people can sign up with this household using the pool from 9:00 to 9:30 a.m., etc.?” Andersen.

“The state order does not allow for them. The local order cannot be more loose than the state. But I can look into guidance from the state,” Dr. Farnitano replied.

Asked about opening up playgrounds, he replied, “The two concerns about playgrounds are transmission from surfaces, which are difficult to be wiped down between uses and the closeness of those who gather. These prohibitions may be looked at in the future.”

Supervisors Can’t Authority to Override Health Officer

“We were asked about the authority to override the county health officer,” Mitchoff stated. “We do not have the authority to override a health officer according to state law. We have repeatedly check with legal authorities. You can imagine that when there is a public health issue you don’t want politicians interfering with that.”

Asked about housecleaners returning to work in Contra Costa County

“That is something we do have consensus on…and those services that don’t have close contact between the customer and the service provider. “Piano tuners would fall in with that, as well,” Dr. Farnitano replied.

Asked about football teams practicing and preparing for the fall season he said, “There is a lot of outdoor…conditioning that doesn’t require a lot of contact. Throwing back and forth of a football between two people, like throwing a baseball or playing tennis…those are the kinds of things you can stay far apart. Those are the kinds of things that are allowed. There are a lot of…conditioning things you can do.

Religious Gatherings

Andersen then steered the meeting toward the main topic of focus, religious gatherings.

“If we can’t go to the full 100 like the governor’s order…there may be some ways we can allow people to meet in person for worship services,” said Andersen.

Shawna Garvin spoke first during public comments on the item, said she attends “Golden Hills Community Church, a large church, 100 people, I don’t know how we would make that work. But I do know one way we could make it work, small groups. A consistent group of people, four to six people, ours is 14 to 16 people in our group. We are not supposed to be apart and separated in our faith.”

“Hebrews 10:24 and 25 reads ‘we should not make it a habit not to meet together’. This is a command,” she continued. “How can we meet in small groups? Sitting six to 10 feet apart. I’m not going to have my freedoms totally stretched.”

Wendi a member of Community Presbyterian Church in Danville said, “I’m totally in line with not opening churches. But I’m totally in line with what Shawna said about small groups.”

“Personally, I’m dying inside, not just spiritually,” she continued. “This goes for me as a Christian, but this goes way beyond this…about community…waiting for county orders to allow small groups. As if the county health officer can’t decide. He’s the one who decides. We’re stricter than the state.”

Chuck said, “our church has a capacity of 1,200. Why would we have to have seat coverings when restaurants don’t? The 100-person limit, frankly is arbitrary. What I’ve seen is people are starting to disregard rules, period. When you don’t have rules that make sense…that’s more dangerous. You need to relax the rules, now.”

A Mr. Cottle said, “Last Sunday I was in Sacramento and ate inside a BJ’s. It was nice. In addition to being a scientist that deals with infectious disease in healthcare…54% of churches have less than 100 people who attend on a Sunday. I’m privileged to pastor a small church…we seat 177. We could seat 35 people easy with social distance.”

“Back on the 11th you opened up a small group gathering for a graduation event,” he continued. “Allowing one and not allowing the other is a constitutional violation.” Cottle then called for “opening up churches along the state guidelines immediately.”

A member of St. Agnews Church in Concord said they have about 125 who attend their services. “When we put a 100-person limit would we have a problem if those extra 25 people sit outside and listen to the service, while social distancing? I challenge you to show data where people sitting six-feet apart outdoors is a problem from a healthcare perspective.”

“I’m really urging our supervisors to encourage, as well as Dr. Farnitano to really look at this, again,” said Joel Bryant. “As an elected official I feel personally responsible for everyone in my community.”

He then spoke of the need for counseling for those in need. “I encourage opening up and at least match the state…to eliminate some of these tragedies that are being brought on because of the COVID-19 situation.”

Jared Thompson, pastor of a Christian church in Walnut Creek said he was, “Asking what is permitted for me as a pastor. I have people suffering from depression in my congregation. I was told to try to deal with it virtually. We’re a church without a permanent facility. We rent Valle Verde Elementary. As soon as all this went down our services were cancelled.”

He referred to “outdoor fitness where people are six feet apart, I’ve even heard that singing is a deterrent. If a community group can be six feet apart, why can’t a small church meet outdoors? I wish there were more clarity. There are other churches that meet at schools and none of us know what we can do. And the disparity. We’ve been praying for you all as you make these decisions.”

A woman named Barbara said, “I’m from North Creek Church, but I’m not representing them. I’m a counselor there. We have 50 counselors. We’ve seen an increase in counselees…that have a lot of issues that are going on. I’ve been Zooming for 10 weeks, now, two-and-a-half to three hours. Zooming is not enough. You can’t read body language. When you have 0.11% of Contra Costa County that has been affected by COVID this really doesn’t make sense. Mental health is a big thing we deal with…we’re just ignoring that aspect. Also, let our pastors shepherd their flock and let them be responsible.”

Michelle Campos then said, “Doctor, I would like to challenge you. Suicides, violence, child molestation, these are things happening in Contra Costa County because you are keeping us locked down and that goes against how our Father has designed us. I’m not understanding why liquor stores, smoke shops, abortion clinics are deemed essential, but our churches…are not essential.”

“We’ve done our part Zooming for 10-12 weeks,” she continued. “We were not designed to live on science and data. I implore our supervisors to do something.”

“37 deaths, come one,” said her husband Ric Campos. “Doctor, please look at the big picture, not just the science and data. This is killing our society. I’m seeing him (Farnitano) do videos and 99% of the people are asking you to reopen and you just ignore us.”

Michael Weisman spoke of suicides in Contra Costa County and referred to a Bay Area TV news report in which the John Muir doctors presented the information. “Why would two doctors…lie?” he asked.

Weisman then spoke of the statistics from a couple months ago that showed, “3.4% of those who have died. The latest CDC statistics show 10% of that. I believe it is now time for the health official to reconsider his position. The supervisors should make a change in that position. The health officer doesn’t seem to care about our faith.”

Kent Dresdow, Senior Pastor at North Creek Church asked about their 1,200-person sanctuary. “To have a 100-person limit is pretty restrictive for us,” he said. “We want to follow our authorities. We are people waiting on both sides. We can meet with 25% capacity. Not the 100-person or less.”

“Would it allow for us to meet 100 people at different spaces on campus at the same time?” Dresdow asked. “My main concern is to be in compliance and super safe. Other churches…will have the same questions. Larger churches will.”

Igor Skaredoff said, “One of the reasons we have such low numbers of deaths…is because we have been practicing good social distances. But, listening to all these comments…I really commend your guidelines in a step by step fashion. The coronavirus takes two weeks to show up. If you continue to operate the same way…we can get there without losing too many people.”

A man named Stan said, “I hear a complete lack of flexibility in enforcing the rules. I don’t know if Dr. Farnitano can be more strict, or more relaxed. Do you have discretion? Whose interests do you have in mind? What I’m hearing ii your complete lack of flexibility…it’s big brother in Sacramento. To the pastor who wants to have an outdoor service, tell them you’re going to have an outdoor workout.”

Robert said “A lot of what you’re hearing is fairness. Fairness is really, really difficult to see in this. If we’re going to open up churches to 100 people, why are we all suffering so much and ruining our businesses? It’s like why can’t I go exercise at my health club but I can go to McDonald’s. It doesn’t make sense.”

Denise Porchia from Clayton said, “Karen you are my servant, government supervisor.”

“Uh, huh,” responded Mitchoff.

“We the people believe that God is the Creator of as us acknowledged in the Declaration of Independence” which she then read. “Let’s not forget we the people are creators of government…we demand our servant government…of the jealously guarding of our unalienable rights.”

A woman named Karen then said, “We remind you of the oath that you have…sworn when you became our public servants,” and then read the oath of office all elected officials take in California. The Constitution of the U.S. is the supreme law of the land…for every level of government.” She then quoted Alexander Hamilton from Federalist 78.

Paul Taylor then said, “The Supreme Court of the United States…that no law is contrary to the Constitution is valid. Our state is ruling outside of its control. Government is servant to the people not the master. Servant is not authorized to force the people to wear masks…to stay at home…to close their businesses. It does not matter if the servant believes such mandates will keep the people safe or that most people want it. Let us never forget that the Constitution guarantees to each state a Republican form of government where the rights are supreme.”

Michelle O’Connor asked, “Do you know if the de facto orders upon the people are legal? Or do you rely on the advice of the people. If you don’t know the supreme law how do you know if you’re violating them? Do you know what the penalty is for violating them? There is not immunity for acting against the contract. You will be held accountable.”

Scott Bennett a former U.S. Army Officer said he was notifying the supervisors of violating the rights of the people.

“They shall be fined…and imprisoned no more than 10 years” he stated. “I hereby give legal notice…if an rights or any citizens of the United States of wearing a mask, or taking a vaccine…you will be criminally prosecuted and civilly prosecuted. You have been notified.”

Supervisors Respond, Mitchoff Defends Herself

The two supervisors then took up the matter.

Mitchoff spoke first saying, “Candace as a matter of protocol, we have another Zoom meeting at 3:00 p.m. We have to leave ample time for remarks…” from her, Andersen and Dr. Farnitano.

“Some of the questions put to Chris are directed at us,” said Mitchoff. “I found some of the comments to be personal attacks on Dr. Farnitano, which I find to be inappropriate. He has no personal stake in this order. He is using his best medical and scientific background in coordination with other Bay Area health officers. Personal attacks are inappropriate.”

“People who are either for or against an issue appear to be in the majority because they’re engaged, when people speak to it, it appears more or for or against it,” she continued. “We are a representative government, not servant government. We can’t just listen to the loudest voices in the room. Someone said…he was ignoring their pleas. That’s not true.”

“What we have told Dr. Farnitano is to be more consistent with the state,” Mitchoff said. “I’m a faith-oriented person. I know Candace is and the rest of our board is. We are sharing the same concerns you are. So, we understand the issue. I’d love for any of you to take my place and to have any other issue. I’m very aware of what the Constitution says, and I’d be more than happy to be put under scrutiny that I’ve followed the laws of the state of California.”

“There are five indicators issued by the state of California. We don’t even meet three of them,” she said. “Relative to church services…I know it’s hard. My church probably holds 400 people. The smaller number would be the 25% of square footage. We can talk to our health officer about different types of church services. I’m looking at a variety of churches that have a number of different buildings. Church services can be staggered. I feel I must do what is best for everyone in this county.”

“We can have our faith-based communities come together sooner rather than later,” said Supervisor Andersen.

Dr. Farnitano Responds

“I want to thank everyone who has offered me their prayers,” said Dr. Farnitano. “We have passed two key milestones in the last day or so. There have been over 100,000 deaths in the U.S. We have only had 37 deaths in our county…that is because our community has followed the guidelines. If we had the same statistics as the country, we would have had over 300 deaths. We know that Contra Costa County is older than the U.S. and we know that age is a factor in the mortality rate. The other milestone is 100,000 cases in California. The Bay Area put the shelter-in-place order sooner. It has opened up step by step but slower than the state. If we had the same rate of cases as the State of California, we would have had double the cases.”

“Contra Costa County is a more dense county than a lot of the state,” he continued. “We have to look at the deaths that have occurred but also those we have prevented.”

“Worship is really important to me, too,” Dr. Farnitano said. “My church has been doing Zoom services for several weeks, now and I understand it’s not the same. One issue is around spiritual counseling…it’s part of mental health. Spiritual counseling is allowed. I want to make sure our FAQ’s are clear and include that.”

As for churches holding services, again he said, “There’s a lot of science that outdoor meetings are less of a risk. Indoor meetings are more of a risk. There was an outbreak in Mendocino County because of a church service. We can look at following the state guidelines in allowing church services.”

“We have a data team looking at data state by state, what’s leading one state without a surge, are they opening up completely or in stages, has there not been enough time, or testing,” Dr. Farnitano explained. “We’re trying to learn from that. We tried to learn from China’s and Asia’s experience, Europe’s experience, and now the other states’ experiences.”

“Each area is unique. Contra Costa County has unique industries…density,” he stated. “We are also looking across the Bay Area at some surges. In Alameda County we are starting to see a surge in hospitals to the levels in March.”

Dr. Farnitano mentioned patients being transferred from a hospital in Richmond to one in Alameda County. “Some of those hospital numbers in Alameda County are residents of Contra Costa County,” he added.

“These decisions are mine…but I’m not looking at them in a vacuum,” Dr. Farnitano stated. “I’m taking input from meetings such as this. I have several deputy health officers. I take input from the Board of Supervisors…also hearing from businesses. Also talking with other health officers across the Bay Area and at the state.”

“We want to open safely and not have another surge,” he said.

“We want to open as soon as we can,” Andersen said. “We won’t get back to normal. We are hearing from several of you about opening up. We are close to families getting back together.”

“We really are looking at with the state these expanded bubbles…small support groups in the church, having a more expanded group, your extended family, your small groups. We are looking at ways to have that happening,” Dr. Farnitano concluded.

“I do believe we will have more information from the state on their order. Maybe half of the agenda (for next week’s Ad Hoc Committee meeting) can be devoted to the new order that will be coming out,” said Mitchoff. “I do want to address dance and other recreation. I’d like to talk about restaurants. But I don’t think we’re there. I’d like to start with businesses with the least amount of impact.”

With that, Supervisor Andersen concluded the meeting.