Restaurants will again try to stop LA’s dining restrictions

Anticipating Wednesday's showdown with Los Angeles County over its outdoor dining ban, lawyers for the California Restaurant Association filed a temporary restraining order Tuesday, seeking to enjoin the Public Health Department's move to further restrict restaurants.

Tuesday's filing came a week after Los Angeles County Judge James C. Chalfant declined to grant the association's emergency motion to stay the county's health order. Despite ruling there was not enough evidence to halt the ban, Chalfant allowed the suit to proceed and asked the association to provide further briefing, showing how restaurants could suffer irreparable harm if the order is not enjoined. Arguments will be heard Wednesday at a virtual hearing before Chalfant.

"Restaurant owners and employees in Los Angeles have already been irreparably harmed by months of shutdowns, re-openings, new restrictions, and costly investments in making patrons safe," the restraining order application reads. "[The County's] latest restriction was not based on any scientific or medical study or analysis."

With the five-day average of new COVID-19 cases increasing last month to more than 4,000, the health department and its director Barbara Ferrer announced they were increasing restrictions throughout the county.

"The persistent high number of cases requires additional safety measures that limit mixing in settings where people are not wearing masks," Ferrer said.

Restaurants, breweries, wineries and bars will only be able to offer take-out, drive-thru, and delivery services, and in person dining will not be allowed, at minimum, for the next three weeks, the county order states.

However, the association said county officials admitted "There is no scientific or medical evidence" to support the dining ban at a Board of Supervisors meeting last week, in which supervisors voted three to two to uphold it.

The only data County Health Officer Dr. Muntu Davis provided in support of the ban was a study by the Centers for Disease Control that, according to association attorney Dennis S. Ellis of Browne George Ross O'Brien Annaguey & Ellis LLP, is not specific to restaurants and fails to distinguish between indoor and outdoor dining. California Restaurant Association, Inc v. County of Los Angeles Department of Health, 20STCP03881 (L.A. Sup. Ct., filed Nov. 24, 2020).

"The Los Angeles County Department of Public Health ... in an open session acknowledged that they have no support for their order," Ellis said in a phone interview last week. "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."

The move by the board to uphold the ban received pushback from Supervisors Kathryn Barger and Janice Hahn, who 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.

"There is no data to support closing restaurants," Barger said. "This action was arbitrary and only further encourages private gatherings, which is where the virus is actually spreading."

If the restraining order is not granted, the association alternatively seeks an order to show cause that would shift the burden to the county to provide support for its order.

The city of Pasadena, which has its own independent public health department, decided to allow outside dining to continue despite the county's order. Pasadena Public Information Officer Lisa Derderian said in a phone interview Tuesday that since the city did not have data, "we did not want to single restaurants out."

The 5,150 new confirmed cases Monday is much higher than the county's peak number of daily cases during the summer surge, which averaged 2,950 cases on July 14, according to the health department.

The county said in an email Tuesday it would not comment on pending litigation.