Westly claims that Congress’ intent on writing ERISA was to allow companies to have one healthcare benefit administrative program.

"If San Francisco is allowed to write a mandate, other municipalities will also write their own employer spending mandates. So, instead of one, employers could end up with a different administrative program in every jurisdiction that they do business in. If this ruling stands, then the intent of ERISA will be nullified. [Ninth Circuit Judge William Fletcher] wrote that there is a minimal administrative requirement, we disagree."

But Fletcher’s ruling describes ERISA as, “a compromise between employers and employees,” that was passed “to safeguard employees from the abuse and mismanagement of funds that have been accumulated to finance various types of employee benefits."

“To that end, it established extensive reporting, disclosure and fiduciary duty requirements to provide a uniform regulatory regime over employee benefit plans, thus easing the administrative burden on employers and plan adminstrators, thereby reducing costs to employers,” Fletcher observes.

Noting that he was going to read Fletcher's judgment carefully before deciding what to do next, Westly added that
the answer to the healthcare crisis is a national solution so that every Amerian could get health care access when needed, including preventative care.

"The way things are, billions of dollars in profits by pharmaceutical and health insurance companies being taken from the system.," Westly said."That doesn’t work for the average American.”

And even though Westly hates the City's employer spending mandate, he did have some positive things to say about the City’s Healthy San Francisco program:

“Everyone who registers has a medical ‘home’ and a computerized medical record, so if someone is diabetic and goes to a clinic, their records can easily be pulled. So there are better patient outcomes for less money. But we don’t think there is an umbilical cord between Healthy San Francisco and the employer mandate.”

“Gavin would tell you,” Westly added, “that the reason for the mandate is to prevent employers from dumping their employees out of preexisting healthcare plans. But the problem with the City’s ordinance is that is changes responsibility to the employer on a local basis. That may cost Americans their national healthcare system, as employers choose to simply put employees into the local clinic system, which is better than not having treatment, but worse than having insurance.”

“My grand hope, six months ago,” Westly continued, “was that Hillary and Obama would do a deal, whereby Hillary would be President for one term, and Obama would be Vice President, and then she’d endorse Obama for President. That way she could have enacted a national healthcare program, since it would take real courage in face of lobbying pressure of pharmaceutical companies and HMOs. It’s a difficult challenge, but I don’t think San Francisco should accept a flawed piece of legislation, though well-intended.”

Back in 2006, when San Francisco was deliberating its healthcare acess legislation, GGRA proposed a quarter penny sales tax idea to fund Heathy San Francisco “legally and sustainably without burdening local business.”

“But unfortunately, the powers that be didn’t think that was a good idea,” Westly recalled.

Asked if he had data on how many businesses had been negatively impacted by the City’’s health access ordinance, Westly said it’s difficult to show that any single factor contributes to a business going under.

“It’s the accumulative effect of all these fees and mandates for restaurants that are marginal in their profitability, and this is a really difficult time, for lots of reasons,” Westly stated, citing how when the Rubicon closed this year, after 14 years in business, it said it was because “It can’t afford the cost of doing business in San Francisco.”

GGRA has 10 days to file en banque with the Ninth District, but Westly claims that he’s also optimistic about GGRA's chances should the case be taken up by the Supreme Court.

“The Fourth Circuit in Virginia ruled that state of Maryland’s employer mandate was illegal,” Westly claimed. “So you have two appellate courts in the federal system with opposing views. That makes this issue ripe for the Supreme Court.”

But Judge Fletcher's September 30 ruling indicates that the situation in Maryland, where the state sought to get Wal-Mart to increase its healthcare benefits, is, in fact, entirely different from the one in San Francisco.

As Fletcher writes, “Unlike the Maryland law, which was intended to force Wal-Mart to increase its spending in healthcare benefits rather than pay monies to the State, the San Francisco ordinance provides employers with a legitimate alternative to establishing or altering ERISA plans."

Fletcher's ruling has Sup. TOm Ammiano believing that the City is "in really good shape," should GGRA decide to pursue an appeal.

“Given the decisions coming down the way they have, it makes anything at the Supreme Court level highly unlikely, but favorable, if and when it comes to that,” Ammiano said.

Harvey Milk LGBT Democratic Club President Rafael Mandelman believes that the Ninth Circuit’s ruling is "great" and GGRA should not challenge it.

“I’m an interested consumer, who believes in Universal health care,” Mandelman said. “There’s a surprising number of people I meet each day that don’t have any insurance and don’t qualify for MediCal. For them, the prospect of catastrophic illness, or even the flu, is very stressful.”

Mandelman thinks GGRA may be threatening to appeal, "because some members don’t want to make additional investments into their own workers."

“The restaurants here depend on the incredible wealth of San Francisco, and I love being in San Francisco and able to go to fancy restaurants,” Mandelman said. “The costs of the employer spending mandate are clearly being passed on. Restaurants are putting announcements about it on their bills. And consumers in this city should be happy to pay. If you’re going to Zumi, that’s a wonderful luxury and a great privilege. And this ordinance absolutely shores up our public investment in healthcare for everyone. It’s absurd, given the wealth of the city, that we think we can’t provide healthcare, particularly with the attacks on health programs that are going on within the budget.”

Maria Medina, a Mexican immigrant who now works at a laundromat, said that until San Francisco’s healthcare ordinance passed, she didn’t have any coverage, and that during the previous decade, when she worked in a restaurant, her employers never offered her any healthcare.

“I would show up sick with sniffles and never once did they say I could take time off or have access to a doctor,” Medina told me, speaking through a translator, Diane Enriquez of the Young Workers United, as she recalled the ten years she spent without access to health care, while preparing food and working as a cashier in a taqueria.

Medina believes the City’s ordinance not only benefits all the workers who finally have access to healthcare, but also benefits restaurants and other business owners.

“Sick people don’t work well. If workers are sick, they won’t work as hard and bring in as much business. This program could defend customers from the risk of contamination.”