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Law360 (July 20, 2020, 10:00 PM EDT ) Several hotel trade groups seeking to overturn San Francisco's recently enacted Healthy Buildings Ordinance, which is said to help contain the COVID-19 virus, sued the city and county in state court Monday, accusing them of putting employees and guests at risk and flouting industry safety protocols.
The emergency ordinance approved on July 7 by the San Francisco Board of Supervisors and signed on July 17 by Mayor London Breed, supposedly designed to establish cleaning and disease prevention standards in tourist hotels and large office building, conflicts with the state's industry guidance, according to the California Hotel & Lodging Association, the Hotel Council Of San Francisco and the American Hotel & Lodging Association's suit.
Some ordinance provisions actually increase the risk of exposure to the coronavirus, according to the suit. They require workers to clean rooms daily for guests making multiple-night stays unless guests opt out, a protocol that flies in the face of industry guidance from the state's Department of Public Health and the California Division of Occupational Safety and Health, as well as the U.S. Centers for Disease Control and Prevention, the suit claims.
"The Healthy Buildings Ordinance actually increases employee and guest exposure to COVID-19 because it will inevitably lead to more employees being required to spend protracted periods in guest rooms for daily cleaning, increasing the risk of transference from employee to guest or guest to employee," according to the complaint.
In addition, the suit says that while the Board of Supervisors showed unanimous support for the law, it's "telling" that city and county government buildings that meet the ordinance's square footage criteria aren't subject to it.
"More telling is that it appears that the city and county of San Francisco may not have even reached out to local and state health authorities to confirm that the measures in the Healthy Buildings Ordinance would achieve the stated goal of keeping the public safe from COVID-19 in hotel settings," the complaint alleges.
If San Francisco follows the letter of the law, it could construe the ordinance to require the cleaning of "literally every surface in public and employee areas," which would effectively shut down hoteliers who can't afford the cost of compliance, the complaint says.
The ordinance will cost San Francisco's 215 hotels $220,000 each on average, totaling $47 million annually, the hotel groups estimate.
Chip Rogers, president and CEO of the American Hotel & Lodging Association, called the ordinance "unnecessary and dangerous" in a statement, saying it would force hotels to remain closed, some of them forever, and result in the layoff of thousands of workers.
"The hotel industry already has launched an industry-wide, enhanced standard of health and safety protocols, called Safe Stay, designed in accordance with the CDC to meet the needs of the current public health crisis and assure our guests and our employees that hotels are safe," Rogers said.
The suit asks the court to declare that the Healthy Buildings Ordinance is unlawful and unenforceable. It claims that the ordinance violates the due process clauses of the U.S. and California constitutions.
John Coté, communications director for the office of City Attorney Dennis Herrera, told Law360 in an email Monday, "We'll review the lawsuit once we've actually been served with it, and we'll address it in court."
The hotel groups are represented by Jeffrey R. Thurrell, Jason A. Geller, Aaron F. Olsen and Darcey M. Groden of Fisher & Phillips LLP.
Counsel information for San Francisco was not available.
The case is California Hotel & Lodging Association, Hotel Council Of San Francisco and American Hotel & Lodging Association v. City and County of San Francisco in the Superior Court of the State of California for the County of San Francisco. The case number was not immediately available.
--Editing by Gemma Horowitz.
For a reprint of this article, please contact reprints@law360.com.
