In-N-Out COVID vaccine fight may trigger California battle

An In-N-Out Burger sign in San Francisco.

Oct. 20, 2021 9:01 AM PT

SAN FRANCISCO — As cities up and down the state increasingly move to require proof of COVID-19 vaccinations in an assortment of public places, a cherished California restaurant chain has become an unlikely flashpoint.

San Francisco officials announced earlier this month that an In-N-Out Burger location was forced to temporarily close after failing to comply with such a local rule.

It’s unclear whether In-N-Out will ultimately prove a harbinger for a larger pushback from businesses that don’t want to screen their patrons’ inoculation status. But the issue isn’t likely to go away anytime soon.

Communities across California have imposed a number of vaccine-verification requirements in hopes of slowing the spread of the coronavirus and encouraging more people to get vaccinated.

But the rules are a patchwork, differing from county to county and city to city. And enforcement is still another issue.

Contra Costa County, which includes East San Francisco Bay cities such as Richmond and Walnut Creek, has passed rules allowing indoor diners to either show proof of vaccination or a recent negative coronavirus test.

But none of the In-N-Out locations in Contra Costa County has publicly come into conflict with public health agencies.

In Los Angeles County, though, the rules are less rigorous. Public health officials highly recommend — but do not require — that restaurants check indoor dining patrons for proof of full COVID-19 vaccination.

During the first weekend that L.A. County mandated some indoor businesses to verify the COVID-19 vaccination status of their customers, health inspectors didn’t issue a single citation for noncompliance. But they did provide additional training to staff members at nearly one-fifth of the sites they visited.

Separately, the L.A. City Council has approved an ordinance requiring proof of vaccination to enter not only indoor restaurants, but also shopping malls, movie theaters and many other venues. Those rules go into effect Nov. 8 and include escalating penalties for businesses that don’t enforce them.

Here is what we know:

Why was the San Francisco In-N-Out closed?

On Oct. 14, representatives of San Francisco’s Department of Public Health shut down the chain’s location at Fisherman’s Wharf, according to a statement by Arnie Wensinger, In-N-Out’s chief legal and business officer.

Public health officials told employees they were being shut down because they weren’t stopping customers who didn’t have proper vaccination documentation from coming inside, Wensinger said.

In a statement issued to The Times, the city’s Department of Public Health said it issued a “final notice of violation and a notice of closure” to the In-N-Out location for failing to comply with the city’s public health order.

The property’s owner was also issued a notice of violation, according to the city’s statement.

“Since the notice of closure was issued, the business has taken steps to comply and has since resumed operations for outdoor dining and takeout only,” according to the public health department’s statement.

What is the company saying?

Wensinger said that the location “properly and clearly” posted signs telling patrons about the local vaccine requirements but that public health officials told employees they had to “actively intervene” and demand proof of vaccine and photo identification from every customer.

If customers couldn’t provide the proof and an ID, they were to be turned away, the In-N-Out executive said.

“As a company, In-N-Out Burger strongly believes in the highest form of customer service and to us that means serving all customers who visit us and making all customers feel welcome,” he said. “We refuse to become the vaccination police for any government.”

Wensinger called San Francisco’s mandate unreasonable, invasive and unsafe for employees to “segregate customers” into groups who can and can’t be served.

“We fiercely disagree with any government dictate that forces a private company to discriminate against customers who choose to patronize their business,” he said. “This is clear governmental overreach and is intrusive, improper and offensive.”

What have the inspections been like in L.A. County?

Los Angeles County now requires proof of COVID-19 vaccination at indoor bars, wineries, breweries, distilleries, nightclubs and lounges. Patrons and employees need to show they have had at least one vaccine dose, and starting Nov. 4, they must be fully vaccinated.

Two weekends ago, county health inspectors visited 129 businesses that were subject to the new requirement. Of those, 24 needed training related to implementing the mandate.

At “all of the sites that got visited ... folks were eager to figure out how they could, in fact, go ahead and make sure that they were creating this extra layer of protection,” county Public Health Director Barbara Ferrer said.

However, with thousands of establishments in the county now under such mandates, inspectors have visited only a relative handful. And as has been seen throughout the pandemic, some businesses have fiercely resisted public health requirements or publicly flouted them.

Though it’s still early, Ferrer said the county hasn’t encountered that kind of resistance.

“There are some places where there wasn’t good compliance and a good understanding of exactly how the compliance needed to work and what the systems might be that could be put in place,” she said.

L.A. County also has implemented new rules requiring patrons of outdoor events with 10,000 or more people — including venues such as Dodger Stadium, SoFi Stadium, Universal Studios Hollywood and Six Flags Magic Mountain — to show proof of vaccination or a recent negative coronavirus test.

What documentation do I need?

To comply with most vaccine-verification rules, individuals can show their physical vaccination card, a photo of it or a digital record — such as those provided by the state through its online portal, or which L.A. County offers through its partner, Healthvana.

What’s next?

Another test could come when the city of L.A.’s strict vaccine verification rules go into effect next month.

Under that law, businesses must require proof of vaccination when customers enter indoor facilities, including coffee shops, gyms, museums, bowling alleys, spas and a range of other venues.

The L.A. rules allow customers to submit written exemptions for religious or medical reasons, but businesses must require those customers to use outdoor facilities, or to show evidence of a recent negative coronavirus test to come inside if no outdoor facilities are available. Customers who have no proof of vaccination or exemption can still enter briefly to use the restroom or pick up a takeout order, according to the ordinance.

Businesses that don’t follow the rules can face escalating penalties, starting with a warning for a first violation, then a $1,000 fine for a second violation, eventually reaching a $5,000 penalty for a fourth or subsequent violation. The fines would be enforced starting Nov. 29, according to the ordinance.

Does San Francisco stand by its action?

Yes.

“Vaccines remain our best tool to fight this disease and come out of the pandemic,” a statement from the San Francisco Department of Public Health said. “Vaccination is particularly important in a public indoor setting where groups of people are gathering and removing their masks, factors that make it easier for the virus to spread. That is why San Francisco requires proof of vaccination for indoor dining.”

In-N-Out Burger representatives were warned multiple times about the requirement, including during an official visit on Sept. 24 after a complaint to the city’s 311 line, according to a statement.

Inspectors followed up on Oct. 6 and found the Fisherman’s Wharf location was still not complying with the proof-of-vaccine mandate, the statement said.

“Since then, public health inspectors had attempted multiple times to bring the business into compliance with the health order,” the statement said. “In-N-Out Burger had not complied by the time the final notice of violation and a notice of closure was issued.”

Lin reported from San Francisco and Yee and Money reported from Los Angeles.