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THE CITY OF FRESNO BUSINESS CLOSURE SCAM EXPOSED

Much of what you think you know about the so-called mandated business closures within Fresno due to COVID-19 is probably false. Here is an overview of the general public perception of the situation:

  1. Governor Gavin Newsom has ordered certain types of businesses within California to be either partially or fully closed to the public.
  2. Mayor Lee Brand and City Manager Wilma Quan have ordered certain types of businesses within Fresno to be either partially or fully closed to the public.
  3. Business owners that remain open to the public in violation of these orders can be fined, have their businesses forcibly closed, or face a misdemeanor.
  4. Dozens of businesses within Fresno have already been issued fines for remaining open to the public.

All four of the previous statements are 100% false. The evidence for this will be fully presented, but first here is an overview of what is happening in fact:

  1. Governor Gavin Newsom has issued no formal orders that would compel a business to close to the public. He has, however, informally expressed his political will that certain types of businesses within California be either partially or fully closed to the public. Essentially all media reporting falsely states or implies that Governor Newsom’s informal expression of his political will is a formal order.
  2. Mayor Lee Brand and City Manager Wilma Quan have issued no formal orders that would compel a business to close to the public. They have, however, informally expressed their political will that certain types of businesses within Fresno be either partially or fully closed to the public. Essentially all media reporting falsely states or implies that City Manager Wilma Quan’s and Mayor Lee Brand’s informal expressions of their political will is a formal order.
  3. As there is no formal order from Governor Gavin Newsom or City Manager Wilma Quan that would compel a business to close to the public, neither is there any other applicable formal order or state statute or municipal code that would mandate the same, no fines can be issued for violations that don’t exist. Essentially all media reporting falsely states or implies that business owners that remain open in opposition to the political will of Governor Gavin Newsom, Mayor Lee Brand and City Manager Wilma Quan can be fined, have their businesses forcibly closed, or face a misdemeanor.
  4. No businesses operating in Fresno have been fined for remaining open to the public. Dozens of businesses that remain open to the public in opposition to the political will of City Manager Wilma Quan have been, however, targeted by code enforcement and received public nuisance citations unrelated to the business being open. The citations given are issued without a subsection reference that would indicate the exact cause of the code violation. Essentially all media reporting falsely states or implies these businesses have been issued fines for remaining open to the public.

On March 16, 2020, Mayor Lee Brand issued a proclamation declaring a state of emergency in accordance with Fresno Municipal Code 2-503. Three days later, the Fresno City Council passes Bill No. 10 which among other things adds this subsection into the municipal code:

“Any business ordered to close that remains open in violation of an Emergency Order of the city, shall alternatively be punishable by administrative citation. The city shall provide a warning, and thereafter noncompliance shall be subject to a fine of $1,000 for the first offense, $5,000 for the second offense, and $10,000 for the third or subsequent offense.”

FMC 2-514(l)

Mayor Lee Brand’s proclamation triggers a restructuring of city government, one result being City Manager Wilma Quan receiving the additional title of Director of Emergency Services. Under this title and position, Director Quan has several new powers, some specific and some broad. One of Director Quan’s broad new powers is the ability to make and issue regulations on matters reasonably related to the protection of life as affected by ‘the international COVID-19 pandemic’. Under the umbrella of this broad power, Director Quan has issued many orders, the most current order which may affect business closures being EMERGENCY ORDER 2020-17 REVISED (July 14, 2020). Director Quan’s emergency orders have reclassified all businesses in Fresno as “Authorized” or “Non-Authorized”. Authorized businesses may be open to the public. What businesses are Non-Authorized? Director Quan’s order describes them in this manner:

  • “businesses the State of California says should be closed”
  • “businesses that are not permitted to operate by the State of California at this time”

What businesses does the State of California say should be closed that are not permitted to operate by the State of California at this time? Currently, there are no businesses in California that are not legally permitted to operate at this time. Despite any media reporting and public perception, there is no order or law that prohibits a business in California from being open to the public. So then where does the confusion originate from?

Uploaded to the California Department of Public Health’s website are several unsigned administrative “Guidance” documents, the author(s) of which are not revealed. These guidance documents contain non-binding advice, recommendations and proposed actions. The most recent guidance document uploaded to the CDPH’s website proposing business closures is titled, “Guidance on Closure of Sectors in Response to COVID-19”. Here is the text of their “Proposed Action” regarding business closures within California:

“Proposed Action

Given current rates of disease transmission in some counties and the need to reduce gatherings where mixing with individuals outside of one’s household and disease spread occur, CDPH is requiring closure, within counties on the county monitoring list for three or more consecutive days, of indoor operations, while allowing outdoor operations with appropriate modifications, including physical distancing and face coverings, for the following sectors: • Dine-in Restaurants  • Wineries and Tasting Rooms  • Movie Theaters  • Family Entertainment Centers  • Zoos and Museums  • Cardrooms”

This “guidance” whose “proposed action” is to require business closures is legally unenforceable. There have been media reports which claim Governor Gavin Newsom has issued executive orders which require us to follow these guidance documents. Is this true? Here are the relative sections from the two executive orders in question:

“All residents are to heed any orders and guidance of state and local public health officials, including but not limited to the imposition of social distance measures, to control the spread of COVID-19.” (emphasis mine)

EXECUTIVE ORDER N-25-20

“To preserve the public health and safety, and to ensure the healthcare delivery system is capable of serving all, and prioritizing those at the highest risk and vulnerability, all residents are directed to immediately heed the current State public health directives, which I ordered the Department of Public Health to develop for the current statewide status of COVID-19.” (emphasis mine)

EXECUTIVE ORDER N-33-20

Governor Gavin Newsom has ordered that all residents “heed” any guidance, order or directive of local and state public health departments. We have not been ordered to follow, obey, or comply. To heed is to consider or pay attention to.

To sum up the State of California’s official stance on business closures: Governor Gavin Newsom has ordered all residents to “heed” “guidance” documents whose “proposed action” is to require business closures. Business closures are not mandated by the State of California. Business closures have been strongly suggested in a purposely confusing manner to maximize compliance to a political will.

Media reports claim or imply that Governor Gavin Newsom has ordered business closures, but if you try to find and read the official orders amongst his executive orders you discover they do not exist. So then what “orders” is the media referring to? The “orders” the media are referencing are Gavin Newsom’s expressions of his political will in the form of press conferences and ‘tweets’:

“Now we have worked together to put out the following new guidelines in the state. Certain sectors of the state we are now requiring they close their indoor operations due to the spread of the virus.” – Governor Gavin Newsom

July 1, 2020 press conference

Governor Gavin Newsom’s informal expressions of his political will, whether verbally in press conferences or via social media posts are not equivalent to lawful orders. Orders must be signed, dated and available for public examination – in absence of these no lawful order exists.

Turning our attention back to Director Wilma Quan’s local order, we can now sum up the following: Non-Authorized businesses, which are not allowed to be open the public, are businesses the State of California says should be closed and are not permitted to operate by the State of California at this time. However, the State of California via Governor Gavin Newsom’s executive orders has stated that residents are to heed guidance documents whose proposed action is to require business closures. Gavin Newsom, expressing his personal political will, and not through any official order has stated that the business closures must happen. So, in summation, no businesses within Fresno are “Non-Authorized” as defined by Director Quan’s order.

There is much evidence that City of Fresno officials are extremely aware that no businesses qualify as being “Non-Authorized” and Director Quan’s order is unenforceable as written. Here are some statements from city officials after the first emergency order was issued in Fresno:

“It is not MANDATORY. It is not a SHUT DOWN.” — Mark Standriff, City of Fresno Communications Director

“I just want to be clear with everyone that this order is not enforceable in its current state. It’s symbolic in nature and will only serve to panic an already uneasy and unstable community…We are talking about criminalizing our civil liberties and taking away the constitutional rights of our citizens.” – Andy Hall, City of Fresno Chief of Police

The proof that City of Fresno officials are aware that Director Quan’s business closure orders are unenforceable is shown through which ordinance of the Fresno Municipal Code businesses who remain open in opposition to these officials’ political will are cited under. Recall this Fresno Municipal Code subsection mentioned earlier:

“Any business ordered to close that remains open in violation of an Emergency Order of the city, shall alternatively be punishable by administrative citation. The city shall provide a warning, and thereafter noncompliance shall be subject to a fine of $1,000 for the first offense, $5,000 for the second offense, and $10,000 for the third or subsequent offense.”

FMC 2-514(l)

Since City of Fresno officials know that the emergency orders thus far issued do not, in fact, require any business to close, no business can be cited under this ordinance. Instead, businesses are targeted and cited under the Public Nuisance ordinance, FMC 10-605 via FMC-211(b). On the citations that Fresno business owners have let me examine, the code enforcement officers only cite “FMC 10-605” — without subsection — that would indicate the source of the infraction. (The City Attorney’s office has confirmed with me that the subsection they are citing businesses under is FMC 10-605(l) via FMC-211(b) and the Emergency Order.) Essentially businesses are being cited for “Any conditions or activities conducted or maintained contrary to the proclamation or orders are public nuisances.” If the businesses aren’t being cited for remaining open in violation of an Emergency Order of the city, what part of the Emergency Order could they possibly be violating?

According to media reports, the City of Fresno appears to be enforcing the penalty of non-offenders of FMC 2-514(l) with FMC 10-605. This is how the scam works: City of Fresno officials want to fine businesses who remain open in opposition to their political will, but legally cannot fine a business under FMC 2-514(l), because technically no businesses are required to close. So instead they cite the businesses under FMC 10-605 and mirror the fine amount to match FMC 2-514(l). The first time offender of the political will of city officials, (although under FMC 2-514(l) is a non-offender), is cited with a $1000 fine. If you are a second time offender of their political will, they give you a $5000 fine and so forth. The media reporting states or implies that the businesses are being fined for being open, and the fine amounts are made to match the fines under FMC-514(l) to help create this perception.

Knowingly enforcing an ordinance on an individual or business that does not apply to them is illegal. This is deprivation of rights under color of law. There can be civil and in certain cases criminal consequences for such crimes.

If city officials decide to target a pattern of individuals or businesses with code enforcement that have a different political belief than they do, (like a political opinion on business closures), then they might be guilty of discriminatory selective enforcement in violation of the Due Process Clause of the U.S. and California Constitutions.

There also appears to be an intent to violate our right to petition the government for redress of grievances. It seems reasonable to surmise that this is the primary reason that both the State of California and the City of Fresno did not plainly and simply mandate the business closures they desired. If the business closures were directly and officially mandated, the affected parties could petition a judge to issue an emergency injunction to stop the potentially unconstitutional order. Instead, affected parties may have extreme difficulty getting a judge to issue the injunction to block orders and guidance documents which only contain strongly worded suggestions. They have created an extra-legal mechanism to enforce what would otherwise be an unconstitutional and therefore illegal political will.

Several key individuals would almost certainly need to be involved to execute this criminal conspiracy to deny the citizens of Fresno our constitutionally protected rights. The two individuals that need to start answering questions first are Lee Brand and Wilma Quan. Here are some questions they need to answer:

  • Have any businesses been cited under FMC 2-514(l)?
  • Why are these businesses being cited under FMC 10-605 and not under FMC 2-514(l)?
  • Who is ordering code enforcement officers to issue citations to these businesses under FMC 10-605?
  • Is the citation of these businesses under FMC 10-605 official city policy? Do policy memos exist to this effect?
  • What subsection(s) of FMC 10-605 are the businesses being cited for?
  • Why is the subsection not listed on any of the business citations? Is this official policy? Do policy memos exist to this effect?

Something must be done to stop the City of Fresno officials from this gross abuse of power and attempted denial of the rights of the residents and business owners in Fresno. There may be additional ideas on how to proceed from here, but these are some ideas to start:

  • Spread awareness of what is happening with other people in Fresno, especially business owners affected or potentially affected by this scam. Share this article.
  • Any media person in a position to ask city officials about this should do so. Use the questions listed above or come up with your own.
  • Businesses being cited under FMC 10-605 for public nuisance when not in violation should protest the citation. The obvious risk is that the City of Fresno may decide to escalate the targeted harassment. We don’t know how far they are prepared to go to keep up the façade.
  • Various possible legal challenges or lawsuits from affected businesses.

If you are a business owner, attorney or city employee that can provide additional information or insight, please do not hesitate to contact me at fresnoscam@nym.hush.com.

It is also worth noting that this scam is being perpetuated in like manner around the state in other municipalities. If you live in an affected city or county, start to educate yourself by carefully reading the emergency section of the municipal code, any related recently created ordinances, local guidance documents, and the local emergency orders. Read the local media reports regarding which businesses are being cited and contact the business owners to discover which exact codes are written on their citations.

Stay free Fresno!

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