LA County must produce data backing dine-in ban, judge says

LOS ANGELES -- While declining to block Los Angeles County's outdoor dining ban, a judge ordered public health officials to show concrete data justifying the heightened restrictions on restaurants during a hearing Wednesday.

Seeking a temporary restraining order to enjoin the county from implementing the ban, the California Restaurant 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.

Declining to grant the restraining order but issuing an order to show cause, Superior Court Judge James C. Chalfant said the county's argument in favor of the ban had "many holes," including a lack of data that would indicate outdoor dining posed a significant risk of transmission.

"The only evidence I have is that outdoor dining is not a significant risk," Chalfant said, referring to the fact that only the association had presented scientific reports directly studying transmission rates during outdoor dining.

"There is not any evidence that it is a risk, other than the common sense idea that sitting around with other people without your mask on while you're eating is a generalized risk," Chalfant continued.

This is the second time Chalfant declined to grant a move by the association to block the ban. Last week, the judge said the association failed to present enough evidence to grant an emergency motion to stay the county's health order. However after reading the association's amended briefs this week -- which included declarations from various doctors and epidemiologists all insisting that outdoor dining does not pose a significant risk -- Chalfant appeared open to the idea of an emergency injunction to block the ban.

Other than showing a surge in positive cases, the county must show data indicating hospitals are being overwhelmed, that risk of infection is significantly heightened during outdoor dining, and they must present a cost-benefit analysis, weighing health concerns versus jobs lost, Chalfant said.

"It's not just about the risk of infection, it's also about the risk of imposing restrictions and what that will do economically, psychologically, medically and other factors," Chalfant said.

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 restaurant 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 [judge] said in his rule that, even under an arbitrary and capricious standard, health professionals do not have unfettered rights to issue any order they want, even if well intended," Ellis said in a phone interview. "They must have some data, science, and information to justify the order, especially when converse and equally important issues are being affected, such as the closure of restaurants and the continued employment of those workers that are in the industry."

Ellis was joined Wednesday by Mark J. Geragos of Geragos & Geragos LLP, who represents Marks Engine Company No. 28 Restaurant in a separate suit against the county, also seeking a halt to the dinning ban. The county is represented by special counsel Amnon Siegal of Miller Barondess LLP.

Chalfant is expected to rule on the restraining order at the next hearing scheduled for Tuesday.

The county said in an email Wednesday it would not comment on pending litigation but "looks forward to presenting its case to the Court."