Robert -- you are not saying the same thing as what is written.
First, consumer fraud does not require intent. See page 24:
http://www.stroock.com/SiteFiles/Pub168.pdf
The city attorney response is saying the restaurant owner needs to know that revenues and expenditures are not matching up. If on day one the owner doesn't know how much he will spend on healthcare, and sets an arbitrary surcharge amount, there isn't any fraud. When he reviews the revenue / expenditure ratio and sees it is not in balance, then he has knowledge at that point if revenue is not being spent on healthcare. At that point, he has the obligation to correct any imbalance. Failure to do so constitutes fraud. The DA amended that wording to say that you can't retroactively call the surcharges from the earlier time fraud, but going forward if the business does not correct the imbalance, then that would be fraud.
That isn't the same thing as saying all the owner has to do is continually follow HCSO mandates. A restaurant owner can't simply say he was just following HCSO guidelines and didn't intend to deceive anyone -- he has the specific responsibility to make sure the revenue is being used for the stated purpose, under all circumstances.
The DA comment last September is something different. It's saying that some restaurants are modifying the wording of their surcharge tax to get away from the whole issue. Restaurants are basically saying "I'm going to charge you xx% more, and not tell you exactly what it's for." It's certainly a valid comment -- but I can't see why anyone would support restaurants engaging in this kind of behavior, or defend those practices.
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