A Los Angeles judge today issued an injunction overturning L.A. County's ban on outdoor dining at restaurants — but California's regional stay-at-home order also includes an outdoor dining ban, which overrides the countywide order, and county health inspectors can enforce the state's ban.
L.A. County health inspectors can tell a restaurant that's offering outdoor dining, "Stop, you're violating a state of California order" but they can't say, "Stop, you're violating an L.A. County order."
No word on whether the plaintiffs in today's case plan to file a separate lawsuit challenging the outdoor dining ban in California's regional stay-at-home order. Either way, don't expect to eat outside at your favorite restaurant anytime soon. (Unless you're in Manhattan Beach.)
In an intense hearing conducted remotely this afternoon, L.A. Superior Court Judge James Chalfant heard passionate arguments from both sides on the issue.
The plaintiff, the California Restaurant Association, asserted that because L.A. County officials have not proven a connection between outdoor restaurant dining and COVID-19 transmission, the outdoor dining ban is "arbitrary and capricious," a phrase that got tossed around a lot at today's hearing.
An attorney for L.A. County argued that we know when people gather outside their households, especially without masks, as they do when they eat and drink, the risk of contracting coronavirus and infecting others goes up.
The county's lawyer also said that conclusively proving the link between outdoor dining and rising coronavirus cases was "borderline impossible." Because California (and most of the rest of the United States) hasn't leaned into contact tracing, determining the precise source of COVID-19 transmission is difficult.
The judge had little sympathy for the county's arguments and sided with the CRA. At one point, Chalfant said the county's arguments about being unable to confirm a link between outdoor dining and coronavirus might have flown early in the pandemic but not anymore.
"I am shocked that in nine months, [government officials] have not looked seriously at outdoor dining," Chalfant said. "I am not laying this at the county's feet but that is a failure of government."
In a fine point of legal wrangling, co-plaintiff Mark Geragos, a prominent attorney who also owns the Engine Co. No. 28 restaurant in downtown L.A., argued that the outdoor dining ban is part of a broad strategy to keep people at home so they don't spread COVID-19 rather than a targeted strategy based on evidence that outdoor dining causes an increase in COVID-19 transmissions.
Although Judge Chalfant appeared sympathetic to county officials struggling to make sure the healthcare system has enough hospital beds, he hammered home the need for a risk/benefit analysis and asked, "Can you make that link to outdoor dining?"
Amnon Siegel, an attorney for L.A. County, countered that you could make that same argument for any business or business sector. "It's like playing a game of whack-a-mole," he said.
Siegel also said Chalfant seemed to be giving declarations from the plaintiffs' experts a great deal of weight while not giving declarations from the county's experts as much significance.
Attorneys for the plaintiffs claimed the outdoor dining ban would do little or nothing to stop the rising tide of coronavirus cases. Geragos called the outdoor dining ban "feel-good political theater."
Judge Chalfant appeared to agree with that sentiment. At one point, he told L.A. County's attorney, "You want to look like you're doing something so you're restricting outdoor dining."
Chalfant also expressed skepticism about the dangers of coronavirus.
"I think one of the problems with the pandemic is that government agencies, including the media, are driving the fear. And the evidence shows that healthy Americans need not fear... The average healthy American is not seriously at risk here of dying," Chalfant said early in the hearing.
L.A. County is currently experiencing some of the highest case numbers since the pandemic began earlier this year. So few ICU beds are currently available in the Southern California region — which groups L.A. County with 11 other counties — that the state's stay-at-home orders were triggered over the weekend. To date, more than 8,000 people in L.A. County have died due to COVID-19 and currently more than 3,000 people are hospitalized in the county. That's about double the number in early November.
Today's hearing stems from a lawsuit, filed by the California Restaurant Association and Geragos, that asks the courts to nullify the outdoor dining ban.
Last week, Chalfant refused to lift the ban but ordered county officials to present research supporting their position.
The three-week outdoor dining ban has been contentious from the start and L.A. County public health officials have faced tons of pushback. Several cities are so upset about it, they're threatening to start their own health departments.
