Judge lifts dining ban in LA county; state order remains

LOS ANGELES -- The government and media are "generating fear," about the coronavirus, a superior judge said during a virtual hearing Tuesday before enjoining the county from banning outdoor dining in restaurants indefinitely.

Los Angeles County can only restrict restaurants to outdoor dining until its current emergency dining ban expires Dec. 16, Superior Court Judge James C. Chalfant ruled, siding with attorneys for the California Restaurant Association who say the county has failed to provide scientific data supporting the ban.

"The problem with the pandemic is that government agencies, including the county and the media, are generating fear, and thrive on fear," Chalfant said. "The evidence shows that healthy Americans need not fear and I think that has been a tremendous failure on government agencies and spokespersons that have not adequately informed the public on the nature of this disease."

While Chalfant enjoined the county's order, restaurants in California will still be precluded from offering outdoor dining under Gov. Gavin Nesom's prohibition. If restaurants want to offer outdoor dining, they must challenge the state's outdoor dining ban.

Seeking to enjoin the county from implementing the dining restriction, the California Restaurant Association said 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 last week, Chalfant said the county's argument in favor of the ban had "many holes," including a lack of data demonstrating how outdoor dining posed a significant risk of transmission.

While the county provided evidence on one of the three issues Chalfant required in an order to show cause -- that hospitals beds are becoming scarce as COVID-19 cases continue to rise -- the county failed to show how outside dining specifically poses a significant risk of transmission and failed to conduct a cost-benefit analysis weighing health concerns with the impact on jobs and mental wellbeing, Chalfant said.

The county, represented by Amnon Siegal of Miller Barondess LLP, said it "vehemently disagreed" with the court. Chalfant erred in requiring the county to conduct a cost-benefit analysis before issuing the dining ban, Siegel said. Weighing all the economic, psychological and other impacts was not only unrealistic but not required by the law, Siegel argued.

"There is no admission by the county that it has failed to conduct the proper balancing analysis," Siegel said. "They haven't conducted the analysis the court would like them to conduct but the court is not in the business of policy making and what type of analysis has to be done."

The county is not required to show that it conducted a cost-benefit analysis of the restaurant closure order to meet the arbitrary and capricious standard of review, Siegel argued.

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 through, and delivery services, and in-person dining will not be allowed, at minimum, for the next three weeks, the county order stated.

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 month, in which supervisors voted 3-2 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., led Nov. 24, 2020).

Restaurant owners say the restaurant closure order is unreasonable because the risk of COVID transmission from outdoor dining is greatly outweighed by the devastating economic consequences.

"Mr. Seigel says that it is not the law to require a risk benefit-analysis. Well Mr. Siegel is wrong on that point as well," Ellis said. "The California Supreme Court ... says a court must ensure that an agency has adequately considered all the relevant factors and demonstrated a rational connection between those factors, the choice made and the purpose of the statute. In this case the order."

Ellis was joined Tuesday 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.

While Chalfant enjoined the county's order, restaurants in California will still be precluded from offering outdoor dining under Gov. Gavin Nesom's prohibition. If restaurants want to offer outdoor dining, they will have to challenge the state's outdoor dining ban, Ellis said.