In a first, San Diego DA charges gym owner for violating California’s COVID-19 shutdown orders

RAMONA —  San Diego County Disty. Atty. Summer Stephan has charged a Ramona gym owner with five misdemeanors for operating during the state’s shutdown orders, the first criminal charges the office has filed against a business owner for violating public health orders aimed at slowing the spread of the coronavirus.

The charges were filed against Peter San Nicolas, owner of Ramona Fitness Center, who said he had to stay open in order to save a business he has owned for two decades.

A county spokesman said Monday that other referrals to the district attorney for criminal charges against business owners are pending.

Last week, county code enforcement officials served closure notices or cease-and-desist orders to at least three workout facilities in Pacific Beach, Oceanside and Vista. The Pacific Beach fitness center, known as the Gym, was the site of an outbreak after it reopened its doors in violation of state and county health orders.

As of last Thursday, five out of 235 of the county’s outbreaks — when three or more people test positive — had been linked to gyms.

San Nicolas, 42, said in a phone interview Monday that Ramona Fitness Center, which opened in 1989 and which he has owned for 20 years, has not been linked to any coronavirus outbreaks.

As of Monday, the virus had had killed 565 people in San Diego County among the more than 30,000 who have tested positive for COVID-19.

He said he closed his gym in March when first ordered to do so, and it remained closed for 85 days. He said he reopened the gym in early June, a few weeks before state and local officials briefly allowed gyms and other businesses to reopen, though many indoor businesses were shut back down just weeks later.

“We lost over a quarter-million dollars,” San Nicolas said Monday, adding that when told by sheriff’s deputies in early June that he was violating COVID-19 related shutdown orders, he considered shutting down again.

“But if we would have closed down, we would never have opened our doors again,” San Nicolas said, adding that his mother-in-law’s daycare and preschool, which has operated in Ramona for nearly 40 years, has likely shut down for good due to the pandemic.

Tanya Sierra, a spokeswoman for the district attorney’s office, wrote in a statement that prosecutors “understand and sympathize with the significant hardship placed on businesses who are required to remain closed.”

“But public health orders are in place to safeguard the health of everyone in our community amid this deadly pandemic,” Sierra’s statement read. “Along with our law enforcement partners, we work with businesses to give them opportunities to achieve voluntary compliance. But when the public health order is ignored and the law is broken, the public’s health is at risk and we will file charges.”

The complaint against San Nicolas charges him with refusing and willfully neglecting to obey the shutdown order on three dates in June and two dates in July. San Nicolas said those dates corresponded with dates when sheriff’s deputies came to the gym to inform him he was violating public health orders.

Each misdemeanor carries a possible sentence of up to six months in jail and a fine up to $1,000, according to the complaint.

The county Sheriff’s Department, in its role enforcing the public health order, referred the case against San Nicolas to the district attorney, according to county spokesman Michael Workman. Dr. Wilma Wooten, the county’s public health officer, was aware of and consulted about the charges.

Workman wrote in an email that other referrals for criminal charges against business owners were pending.

“We continue to hope for voluntary compliance,” Workman said.

Kerry Armstrong, a San Diego defense attorney who is not involved in the case, said he had mixed feelings as a defense attorney, and as a citizen who wears a mask and does everything he can to keep himself and others safe.

“The law is very broad, possibly over-broad, and laws have to be narrowly tailored,” Armstrong said, adding that a defense attorney could “go after the law itself.”

Armstrong said the “hodgepodge” of state and local orders, and where the state orders do or don’t apply, have made compliance confusing at times, and that a business owner charged criminally might make a necessity defense, claiming they had no other means to make a living. Armstrong said a defense against such charges could also take into account that patrons willfully visit the gym.

San Nicolas — who is also a real estate agent and previously wrote a regular fitness column for the Ramona Sentinel newspaper, which is owned by the San Diego-Union-Tribune — organized the “Ramona Back to Business Main Street Rally” in early May to advocate for small businesses like his gym to be allowed to reopen.

On Monday, he said he’s not the type of person who believes the coronavirus is a hoax or that people are not being sickened, but he questioned whether the threat was serious enough for the business closures that remain in place.

“My mission statement is to help people’s health through fitness,” San Nicolas said. “I’m not trying to hurt people by being open — if people were getting sick here left and right, I wouldn’t want to be open.”

San Nicolas said he’s limiting capacity at the facility to 45 people at once, and that he’s getting about 100 customers per day, compared to about 400 per day before the pandemic. He said he has hired cleaners who sanitize the facility all day, enforces social distancing and mask wearing, and offers patrons spray bottles with hospital-grade disinfectant.

San Nicolas said he hasn’t decided what to do next, but that moving operations outdoors in Ramona’s summer heat, as some other gyms in the county have done, puts those working out in danger of heat exhaustion.