Restaurateurs to argue no scientific reason to close them

Lawyers for the California Restaurant Association say they will again make the case at a court hearing Tuesday that no scientific evidence exists to justify closing restaurants.

A judge declined to block LA County's three-week outdoor dining ban last week.

The association says restaurants are no more to blame for the increase in coronavirus cases than any other business operating during the pandemic, and the impact of the ban will be devastating for restaurant workers and owners.

In a phone interview Wednesday, association attorney Dennis S. Ellis of Browne George Ross O'Brien Annaguey & Ellis LLP said the association plans to file an amended petition for writ of mandate Tuesday, specifically showing greater irreparable harm to the community and restaurant owners, per the judge's request.

"The California Restaurant Association continues to believe that there is no support for the notion that there is a risk of outdoor dining and that consistent with Gov. [Gavin] Newsom's blueprint, outdoor dining should be allowed," Ellis said. "The Los Angeles County Department of Public Health. . . in an open session acknowledged that they have no support for their order and therefore the California Restaurant Association intends to continue its litigation efforts to seek a stay of any order prohibiting outdoor dining unless and until such support is provided that it poses a reasonable risk to public health."

With the five-day average of new COVID-19 cases increasing this month to more than 4,000, the Los Angeles County health office announced it was banning outdoor dining.

"To reduce the possibility for crowding and the potential for exposures in settings where people are not wearing their face coverings, restaurants, breweries, wineries and bars will only be able to offer take-out, drive-thru, and delivery services," the statement read. "In person dining will not be allowed, at minimum, for the next 3 weeks."

By a 3-2 vote, the Los Angeles County Board of Supervisors upheld the dinning ban, but not without pushback from Supervisors Kathryn Barger and Janice Hahn. Barger and Hahn later introduced a motion seeking to maintain previous health orders allowing outdoor dining, arguing the ban will be too burdensome on restaurants already struggling to survive.

"These proposed measures by the Department of Public Health will further devastate local businesses and employees who have been asked to shoulder an unfair burden this year," Barger said. "Businesses throughout the county have invested thousands of dollars to ensure safety for their employees and customers only to be punished for the recent surge they have done everything in their power to prevent."

The association argues the department of health's own data provides no support for the dining ban and of the 204 non-residential locations identified by the county as having three or more confirmed cases, fewer than 10% are restaurants. California Restaurant Association, Inc v. County of Los Angeles Department of Health, 20STCP03881 (L.A. Sup. Ct., filed Nov. 23, 2020).

Despite ruling that not enough evidence was presented to halt the ban, Los Angeles County Superior Court Judge James C. Chalfant allowed the suit to proceed and asked the association to provide further briefing. If the association can bolster its argument that it suffered irreparable harm, the burden may shift to the county to justify the ban and the stay could be granted.

A county spokesperson declined to comment on the litigation.