Update: COVID-19 Update

Based on everything we had heard and read, it was our strong impression that Los Angeles County Public Health (DPH) would not be issuing the expected “safer at home” order until after the Thanksgiving Holiday weekend. However, apparently fearing that it would be unwise to wait that long, LA County issued that new order late Friday afternoon. As we predicted, recreational golf is permitted thereunder. However, the language DPH used to permit it has caused confusion. Allaying that “confusion” is the subject of this Update and its linked documents.

The full order has been posted, and while the Golf specific Health Order that has long been appended to the General Order is not specifically referenced thereon, it remains in force until such time as DPH either amends or cancels it. We’ll let you know either way. For those who care to keep both for reference, click here to read the full new health order and/or click here to read the latest iteration of the Golf Health Order, which was last amended early this month to permit double occupancy golf cars.

For those who want to quickly cut to the chase, click here to read Friday’s press release announcing the details of tomorrow’s “safer at home” order, which contains the details of recreational golf’s continuation thereunder.
For those of you interested in the language in the release that explicitly sanctions golf and other nonessential activities per certain new restrictions, here it is:

• Occupancy limits at various businesses; all individuals at these sites are required to wear face coverings and keep at least 6 feet of distance:
  
  • Essential retail – 35% maximum occupancy
  • Non-essential retail (includes indoor malls) – 20% maximum occupancy
  • Personal care services – 20% maximum occupancy
  • Libraries – 20% maximum occupancy
  • Fitness centers operating outdoors – 50% maximum occupancy
  • Museums galleries, zoos, aquariums, botanical gardens operating outdoors – 50% maximum occupancy
  • Mini-golf, batting cages, go-kart racing operating outdoors – 50% maximum occupancy
• Outdoor recreation activities all which require face coverings (except for swimming) and distancing:
  
  • Beaches, trails, and parks remain open; gatherings at these sites with members outside your household are prohibited.
  • Golf courses, tennis courts, pickleball, archery ranges, skate parks, bike parks, and community gardens remain open for individuals or members of a single household. Pools that serve more than one household may open only for regulated lap swimming with one person per lane.
  • Drive-in movies/events/car parades are permitted provided occupants in each car are members of one household.
• Schools:
  • All schools and day camps remain open adhering to re-opening protocols. K-12 Schools and Day Camps with an outbreak (3 cases or more over 14 days) should close for 14 days.
• Closed non-essential businesses/activities:
  • Playgrounds (with the exception of playgrounds at childcare and schools)
  • Cardrooms

We have included considerably more detail about permitted activities in addition to golf, because we want to emphasize that the many media accounts that have referred to Los Angeles County on “lockdown” or under a strict “stay at home” order are misleading to say the least. A number of nonessential activities, both outdoor and indoor, are permitted, albeit in forms more severely restricted than in previous weeks and months. This is hardly the stuff of a lockdown or a shelter in place order or a strict stay at home order.

Here is what we believe, and here is what we know.

First, what we know. Los Angeles County’s 20 county owned golf courses are set to open for business tomorrow under the new order per protocols similar, albeit not necessarily identical, to the protocols used when golf was reintroduced in Los Angeles County on May 8. Simply put, golf in groups of four by electronic reservation only/no walk-up play, separated by 10-minute tee intervals, no clubhouses, no food/beverage beyond takeout, no club/group/tournament play, no practice putting or chipping greens, no gatherings of any kind, no mingling of those groups of four, no hanging out in parking lots, contactless payment highly preferred, and face coverings at all times when anywhere on property.

With respect to whether the protocols regarding driving ranges and golf lessons (both private and groups of 6 or less) remain the same as of tomorrow, what we know is that until such time as the Golf Health Order Appendix is amended, those features remain in force as described in the Golf Health Order Appendix. Again, if and when that changes, we will do our best to inform you of that as quickly as possible. We base that conclusion on the following language drawn verbatim from Section 9 i) ii. of the actual order. it’s language that reposes additional requirements upon those outdoor activities like golf, tennis, pickleball, skate parks, and bike parks that are expressly enabled under the “safer at home” order:

“All persons must comply with any access or use restrictions separately established by the Health Officer, government or other entity that manages the area to reduce crowding and the risk of COVID-19 transmission.”

The Golf Health Order Appendix is just such a “separately established” restriction of the Los Angeles County Health Officer. Its terms and prescriptions apply to golf as it will be played in Los Angeles County tomorrow through December 20 until such time as they are amended, and that is what LA County Parks & Recreation has communicated to its course operators. Again, you can access that Appendix by clicking either here or in the 2^nd paragraph of this Update.

Here is what we believe. The “individuals” reference in the language covering golf, tennis, pickleball, community gardens, skate parks, bike parks, et. al., that has flummoxed many of you (us too) does not reflect DPH’s intent to actually limit skate parks to one skater at a time, one biker at a time, or one golfer at a time. Add to this the fact that pickleball and tennis cannot be played on a solitary basis, it is the clear intent of DPH to make sure that all of these permitted outdoor activities are conducted with maximal social distancing and common touch point control as the goal. Indeed, the face covering requirement is a dead giveaway on that point. There is no need for such a requirement were these activities to be permitted ONLY on a solitary basis or with members of one’s immediate household. Section 9 i) ii. of the actual “Safer at Home” Order quoted in bold type above is another dead giveaway. The very detailed prescriptions, prohibitions and qualifications contained therein make zero sense if it were DPH’s intent to reduce golf to one player per hole, which would of course, amount to a de facto closure of all municipal and daily fee golf courses in Los Angeles County and a few private clubs as well.

Conclude what you will from what we know and what we believe, but we think the upshot is clear.

Do we wish that DPH had used more precise language to indicate its clear intent re golf and the other permitted nonessential outdoor recreational activities? Do we wish that DPH would consult with County Parks to develop language capable of effectuating the clear intent of DPH while at the same time eliminating all possibility of confusion as to what golf courses need to do to comply therewith? Of course! But as we have written so often in other contexts – hard cases make bad law and crises make bad public policy, but hard cases must be decided, and crises must be addressed whether all the tools necessary to the task are available or not. We need to just move forward as best we can grateful that unlike so many other activities, sectors, and businesses, golf is peculiarly amenable to play during a raging pandemic. That and never forget that our ability to continue playing until various vaccinations are able to lead us out of this mess sometime in 2021 is 100% dependent upon golfers and golf facilities continuing to do what they have done so admirably thus far – strictly comply with all the rules and regulations of their respective public health authority.

Indeed, we have every reason to believe that LA County DPH has expressly sanctioned the continuation of recreational golf notwithstanding its concern over spiking caseloads and hospitalizations precisely because Los Angeles County’s public and private golf courses have been exemplars of strict compliance. A congratulatory shout-out to all of you, particularly those of you in the public sector, where compliance is the much more complicated task.

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Two final comments to put all of this in perspective.

• Roughly 13 million Americans are looking down the barrel of a financial abyss when the two federal unemployment programs that were established at the dawn of the pandemic to tide over those thrown out of work by COVID-19 expire December 31 with zero indication from this lame duck Congress or this lame duck President that they are in any way inclined to lift a finger to do anything about it. Myriad small businesspersons are seeing their life’s work evaporate.
• When this pandemic finally passes from our midst, hundreds of thousands of Americans will have lost their lives and millions more will have lost friends, family members, and loved ones.

May you stay safe, sane, and healthy during this Holiday season.