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Kern DA's Office resists state's request for criminal charges in restaurant cases

20201206-bc-restaurants

In this file photo from December 2020, Bakersfield attorney Thomas Anton speaks to local restaurant owners at Salty's BBQ & Catering in southwest Bakersfield about legal action aimed at allowing them to continue serving customers during the pandemic. Legal action was filed later that month and is pending in Kern County Superior Court.

In a county like Kern where it's not hard to find a restaurant or bar operating in apparent violation of California's 11-month-old pandemic health order, the agency responsible for coming down on offenders hasn't been shy about pursuing criminal charges. But neither has it been successful.

Nine times since last summer the state Department of Alcoholic Beverage Control has asked the county District Attorney's Office to bring criminal misdemeanor charges over an alleged violation. The most recent request arrived Wednesday.

But so far, at least, the D.A.'s Office has chosen not to pursue criminal charges. It cites a number of reasons for this reluctance, from its hesitation to go after lower-level employees to a desire to prosecute only the most flagrant repeat offenders.

"If we filed misdemeanor charges against every (alcohol-serving) business, we'd make criminals out of every business owner. A lot of them, anyway," Assistant District Attorney Joseph A. Kinzel said. He added the office also insists on higher standards of evidence than the ABC has been able to meet.

The absence of criminal charges does not mean businesses violating the state order are in the clear. A dozen businesses in the county have been accused by the ABC of breaking the state's operating restrictions. Only one of those cases, among the first, from early July, has been fully adjudicated.

Plus, the state says it continues to build up evidence, and the D.A.'s Office says it may yet decide to file charges against accused individuals.

The situation partly reflects competing ideas about who should be held to account for alleged operating violations — an individual such as a manager or business owner, or the license-holder, which is often a limited liability company or corporation.

Business owners have voiced deep frustration at the situation. The state has changed its set of restrictions several times, they note. Restaurants and their advocates also say the state has failed to produce data to back its assertion COVID-19 is easily spread by indoor dining — or serving outdoors, as the case sometimes has been.

Potential repercussions of being caught breaking the rules can vary widely, depending on the violation and the mode of enforcement. The ABC's administrative penalties can range from probation to a revoked liquor license, which can cost a restaurant a great deal of money in lost sales. Sometimes a business can opt to pay a fine in lieu of suspension.

But if a matter becomes a misdemeanor criminal case, as the ABC sometimes proposes, a defendant might have to pay a fine of up to $1,000 — and get a lasting criminal record.

ABC spokesman John Carr said by email the department sometimes takes both tracks, pursuing administrative remedies and criminal charges alike, even.

The only Kern County restaurant whose case has been fully adjudicated has basically been placed on probation, which the state says is common.

In July, an Arvin restaurant named Jarritos Y Mariscos Los Juanes Y Mexican Food was accused of offering indoor dining in violation of the state's health order. The state ordered its license suspended for 15 days, but the penalty was stayed for a year, meaning it won't have to close as long as it continues to abide by state restrictions.

"The business can stay open, sell alcohol, but has agreed not to violate health orders for the next year or the license could be suspended," Carr wrote Wednesday.

The Kern County Public Health Department, for its part, said its role in such matters is to provide education as opposed to enforce rules. The Kern County Sheriff's Office has said it, too, sees its role as educating violators.

One reason the state seeks criminal charges, it says, is that the licensees it regulates aren't easily found on the premises. The decision to pursue a misdemeanor has nothing to do with the severity of the case, Carr wrote. The state generally tries to go after business owners instead of employees.

Most Kern County restaurants and drinking establishments have come into compliance after being issued a warning, he noted, adding those that don't face enforcement measures.

Kinzel, at the D.A.'s Office, said the county isn't generally interested in penalizing a minimum-wage restaurant worker just because two people were seated inside on a cold day. Those cases get turned away, he said.

Plus, the office in some cases prefers the focus to be on licensees, not necessarily individuals, he said, which is best handled through the ABC's licensing powers.

"The way that we've looked at it is, we have a pretty strong preference for this to be handled administratively," Kinzel said.

However, he said, 40 people crammed inside a restaurant on a Friday night can pose a problem that deserves a closer look, providing the ABC has evidence such as videotape and careful records that can stand up in a criminal prosecution.

Kinzel said the D.A.'s Office may yet be persuaded to file charges against a local restaurant owner.

"We're looking at all of (the cases ABC presents) and we're making decisions on them," he said.