Update: This story was originally published with the headline “Judge Rules Restaurants Can Open—But It's Complicated.” Two days after this story was posted, an appeals court overruled the judge’s ruling that restaurants could stay open. In simpler terms, restaurants must now stop outdoor dining and obey the state of California’s stay-at-home order. This battle will likely go back and forth. Below, Foshee explains how that unpredictability makes this a bigger struggle for restaurants.
What a wild ride. On Wednesday the fate of San Diego restaurants became forever tied to strip clubs. A San Diego Superior Court judge ruled that two adult entertainment venues could remain open despite the stay-at-home order in place in California. In doing so, Judge Joel Wohlfeil said restaurants could also reopen. The county of San Diego responded by saying it will not enforce the stay-at-home order against restaurants and live entertainment venues while it analyzes the ruling.
Some restaurants have reopened immediately. Some are remaining closed for public health reasons and to see how this all shakes out. I was talking with one of San Diego’s most established chefs this morning about the development. Trey Foshee, chef and partner at George’s at the Cove for over 20 years, said he was not reopening—yet.
There are a lot of unknowns, and Foshee gave some good insight into how this has affected high-end restaurants and their employees.
Troy Johnson: Why are you choosing not to reopen?
Trey Foshee: A couple of reasons. It costs quite a bit of money to reopen for business. If on Monday they shut us down again, was it worth it for two or three days? In my opinion it’s not. We’d have to bring back 70 employees. They would have to stop their unemployment. And if we closed again, they’d have to refile and wait another three weeks to get their checks again. Hopefully we’ll have some clarification from the county in the next few days. But right now we don’t know how long that’s going to take—a week? Three weeks?
Is it good news for the industry?
Any clarification is good news. But I don’t see one judge in the US or in the state saying it’s okay to seat people indoors, when we have been told for months that eating and getting together indoors is not suggested.
How hard has it been to get clarity during all of this?
One of the challenges has been the moral implications, plus the desire to follow the guidelines and the rules. There are differences of opinion and differences of understanding about what those rules are. For example, the CDC guidelines. I’m not pointing fingers at them. I understand why they had to make blanket guidelines. At California Modern, we invested in UV lights for our HVAC system, but it’s got low ceilings and no windows except one facing the street. That’s treated the same as Galaxy Taco, which has 12-foot ceilings and an entire wall that’s open-air.
What happens if an employee tests positive?
We have to do our own contact testing. We have to identify who they were in close contact with in the last 24 hours. Whoever was in close contact, they have to quarantine and use their COVID sick pay (EPSL). Once you use your eligible EPSL, then you’re out. This is supposed to expire December 31, but OSHA has also required us to pay the employee if they are out for COVID reasons if it’s a work-related exposure. So if an employee needs to quarantine due to exposure outside of work and has already used their EPSL, they need to file for unemployment. If it happens to that employee again, they don’t get COVID sick pay. So as an employer, you’re forced into the position of “I know this guy has been quarantined once and is out of his EPSL money—am I going to sweep this under the rug because it’s not totally clear?” It’s the employees’ livelihood at stake. We’ve never had anyone get sick at the restaurant. The only employees that have tested positive were infected by personal interactions outside the restaurant. It’s always been “Oh, my mother tested positive,” and then they test positive. Those that were quarantined due to working in close contact have never shown symptoms or tested positive. I attribute this to proper hygiene and mask wearing at work. We were open all summer and we didn’t have one case.
What’s the most frustrating thing you wish was changed?
I think outdoor dining. Show me proof that it’s unsafe. If we find proof, shut us down. I’m not opposed to a total shutdown if that’s what we need to do. But I ran a very big restaurant all summer long. We were doing 500 to 600 covers a day, and I didn’t have employees getting ill or any customers that we know of.
There’s been a big push to buy gift cards to help restaurants. Is it working?
Gift card sales are way down this year. We used to do a lot of corporate gift cards, where a business would buy thousands of dollars of cards for their employees—and that’s not happening.
How’s takeout and delivery doing?
It’s less successful this go-around, and I’m hearing that from everybody. Partly it’s because a lot of restaurants didn’t follow the shutdown guidelines and they were blatantly open and people are choosing that experience over takeout. Our to-go business is a regular group of people who always order. We did really well for Thanksgiving, and we’re doing well for Christmas, too.
Do you resent the restaurants that blatantly stayed open?
Not really. It doesn’t piss me off. I get it. I feel for them. We’ve been around a long time, so we’re really lucky to not have any debt. But if I was a small-business owner and I had debt, and you’re telling me I have to shut down my only source of income and I don’t have a landlord who’s willing to work with me and I don’t have a nest egg? It becomes a matter of survival. The bad part is that if you’re a restaurant who’s managed your business well and followed the guidelines, you’re lumped into the same pool as the ones who aren’t. I have seen plenty of places that don’t practice safe distancing rules, but the customers are just as much to blame. The restaurant is just giving them a space to behave the way they want to behave. And now we have to put our police hats on.