Politico

California judge says L.A. officials 'arbitrarily' set outdoor dining ban


SACRAMENTO — A judge on Tuesday dealt a rebuke to Los Angeles County public health officials racing to control Covid-19’s spread, blocking an indefinite ban on outdoor dining announced late last month.

“By failing to weigh the benefits of an outdoor dining restriction against its costs, the County acted arbitrarily and its decision lacks a rational relationship to a legitimate end,” wrote Los Angeles Superior Court Judge James C. Chalfant in a tentative ruling issued Tuesday to a legal challenge from the California Restaurant Association.

The tentative ruling to block the open-ended ban won’t have immediate practical consequences for Los Angeles-area restaurants, as the county is now under a temporary stay-home order tied to the region’s quickly diminishing ICU capacity. But it marks a symbolic and legal victory for those challenging the emergency powers flexed by state and local officials — and a rare setback for public health authorities facing a worsening crisis.

L.A. County Public Health Director Barbara Ferrer, who was named in the lawsuit, declined to comment about the case when asked during a briefing Monday. A spokesperson for Los Angeles County said in a statement Tuesday that “Los Angeles County is committed to protecting the health and safety of its residents from a deadly virus that has claimed the lives of nearly 8,000 of our friends, family and neighbors and that has sickened more than 450,000 people just in L.A. County.”

The nation’s most populous county, with more than 10 million residents, reported 8,547 new cases on Tuesday alone. Its five-day average shot to nearly 9,000, almost double the five-day average for the day after Thanksgiving that triggered the local order. The county also for the first time reported a daily hospitalization tally exceeding 3,000.

California Health and Human Services Agency Secretary Mark Ghaly on Tuesday acknowledged the state’s regional prohibition on outdoor dining has more to do with preventing gatherings and limiting movement than the activity itself.

“The decision to include among other sectors outdoor dining and limiting that — turning to restaurants to deliver and provide takeout options instead — really has to do with the goal of trying to keep people at home, not a comment on the relative safety of outdoor dining,” he said at a press briefing.

“We have worked hard with that industry to create safer ways for outdoor dining to happen — to keeping tables further apart, to ensuring masking happens as much as possible, to create opportunities for air circulation to continue — all of those factors make sectors like outdoor dining lower risk,” he said.

But Ghaly said the current levels of transmission mean Californians should reduce their risks by leaving home as little as possible. The state on Tuesday reported 23,727 new cases Monday — an increase from about 11,000 just two weeks ago — and a seven-day positivity rate of 10.1 percent. Hospitalizations have jumped nearly 71 percent and intensive care unit admissions are up 68.7 percent in the two-week period.

The exploding case count prompted Gov. Gavin Newsom last week to issue a new stay-at-home order that divides the state into five regions and imposes new restrictions, including the closure of outdoor dining, based on regional ICU admission rates. State health officials moved two of the regions — Southern California and the San Joaquin Valley — into the new lockdown on Sunday evening when their ICU capacities dropped below the 15 percent trigger.

Five Bay Area counties plus the city of Berkeley on Friday moved preemptively to abide by the order through Jan. 4, even though the region’s capacity hovers at 24.5 percent. The regions required to adhere to the new order must do so for at least three weeks.

“Right now, we’re seeing such high levels of transmission that almost every activity — I should say every activity — that can be done differently and keep us at our homes, not mixing with others, is safer,” he said. “Those are going to be the tools that help us get this under control.”

But Ghaly did not directly address a reporter’s question about the Los Angeles judge’s request for more specific data that shows that outdoor dining is riskier than other outdoor activities that are still permitted. Brett Giroir, assistant secretary for health at U.S. Health and Human Services, told Fox News Monday that he hasn’t seen “any data that says you need to shut down outdoor dining or outdoor bars.”

Ghaly noted that the order still allows restaurant pickup and delivery and reiterated that “now is not the time to spend additional time outside of your household, potentially mixing with others, transmitting the illness far and wide.”

He said the hope is that if the restrictions continue for “a short period of time” that the spread will be reduced enough for outdoor dining to resume. He said “we look forward to moving beyond the surge, having that industry and many other sectors reopen for business and really to move beyond the period we are in now.”

The California Restaurant Association tried to block the county order last month before it took effect. Chalfant denied that request but ultimately ordered the county to submit evidence to support its decision. The restaurant trade group argued that the rule was arbitrary and unfair to businesses that had invested in outdoor dining spaces to weather the pandemic.

“Countless times in recent weeks, we’ve heard public health experts say that the key sources of spread of coronavirus currently are holiday gatherings and other private, household events, which are unregulated,” said the association’s president, Jot Condie, in a statement Tuesday. “Without evidence, it is unconscionable that the county can close businesses entirely and put thousands of restaurant employees out of work during the holidays.”

Assemblyman James Gallagher (R-Nicolaus) compared the Los Angeles court ruling to a lower-court decision in a lawsuit he and Kevin Kiley (R-Rocklin) filed to challenge Newsom’s use of emergency powers to shape the November election, including the order that every voter be mailed a ballot. Sutter County Superior Court Judge Sarah Heckman agreed that Newsom had exceeded his powers. Newsom appealed, and the case is being argued in a California appeals court.

“There still has to be a nexus between what you are mandating and actually curbing the spread of the virus,” Gallagher said. “It’s a sign that the judicial branch is finally starting to check these emergency powers, and they need to do so. We all agree that this is a serious pandemic and emergency responses need to be taken but that doesn’t mean we undermine the foundational principles of our democracy.”

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