Why is outdoor dining banned at restaurants but not movie sets?

A video taken by the owner of a Sherman Oaks restaurant showing a production studio set's outdoor dining setup next to her closed outdoor dining patio has raised the question of why restaurants must close outdoor dining while movie and TV productions studios and other sectors like retail may continue their operations.

One prominent entertainment attorney said the difference is that those in the TV and movie industry have political clout.

"I don't fault the film business for looking out for its own economic benefit or well being and for working with the state to develop safety protocols," said Robert M. Schwartz, partner and co-chair of the media and entertainment industry practice at Quinn Emanuel Urquhart & Sullivan LLP. "That's being responsible. That's a good thing. What I don't understand is how you can fail to do the same for an industry that employs far more people and that serves far more members of the public."

Asked what makes production sets safer than restaurants, the California Department of Public Health stated that it was not a matter of which sector was riskier, but did not explain the reason for the difference in regulations.

The video showed The Pineapple Hill Saloon & Grill owner, Angela Marsden, walking toward large white tents with tables and chairs set up in a socially distant manner by a production studio just feet from her outdoor dining patio that was forced to close by Los Angeles County's order in late November and Gov. Gavin Newsom's new regional order that is based on critical hospital care capacity.

"Tell me that this is dangerous," Marsden said as she pointed to her outdoor patio in the 2-minute video that has since been posted online and reshared widely. "But right next to me is a slap in my face."

The Department of Public Health email stated: "We have reached a point where COVID-19 is so widespread in California that just leaving the house is a risky behavior, which is why we adopted the regional stay at home order. This is not about which sector is riskier than another sector, it's about that fact that any mixing among households presents a risk of disease transmission."

The department did not respond to requests for clarification as to why one sector was allowed to operate while the other was not allowed to operate its outdoor dining operations and why the risk of mixing households was not applied to both sectors.

Commenting on the dichotomy, Schwartz said, "I have become very cynical this year as a California resident in terms of watching the way our officials are dealing with the problems of COVID-19, where it feels like, at least in my opinion, that if you have political clout, you get treated better than people who don't. And whether it's right or wrong, the entertainment industry has political clout."

The industry's clout at the state and county level is not so much from the studios, but from the industry's unions that believe their members have been put out of work unnecessarily, he said.

"There was a lot of negotiation between public health officials ... and the entertainment industry to come up with protocols that involve all aspects of resuming physical production and filming and one of them obviously is food services," Schwartz said.

The Motion Picture Association emailed a statement Tuesday saying: "The strict and effective health and safety protocols developed collectively last summer with the unions and guilds and their successful implementation across the country is why we have been able to return to work. We have made significant investment and worked closely with relevant stakeholders - including government officials, unions and health experts - to ensure a safe return to work. Those protocols have benefited our workers greatly, resulting in an average .05% positivity rate on COVID tests administered during production."

An audio leaked Wednesday of Tom Cruise berating the crew of the "Mission Impossible 7" set for failing to follow virus-mitigation protocols underscored the issues the film industry is facing, and the lengths it is going to try to continue production.

Cruise told the crew that he was on the phone every night with studio chiefs and insurance companies. "They're looking at us and using us to make their movies," he said. "We are creating thousands of jobs."

As of now restaurants' outdoor dining operations will remain closed until the governor's regional order is lifted.

Restaurants did achieve a win in court last week regarding Los Angeles County's ability to shut down outdoor dining in the future.

The county's ban expired Dec. 16 and if the county wanted an extension, it would have to conduct a cost benefit analysis and a study to support its position that outdoor dining poses an increased risk of COVID-19 transmission, according to Dennis S. Ellis, partner at Browne George Ross O'Brien Annaguey & Ellis LLP, who represented the California Restaurant Association in the lawsuit. California Restaurant Association Inc. v. County of Los Angeles Department of Health, 20STCP03881 (L.A. Sup. Ct, Nov. 24, 2020).

"What we believe is there is a lack of any evidence or support that outdoor dining poses a greater risk for transmission of COVID-19 to other activities that are being permitted by the county of Los Angeles," Ellis said in an interview. "Los Angeles Superior Court Judge James C. Chalfant was convinced of that and stated that the decision process of the county public health departments are not free from judicial scrutiny. While their decisions are entitled to great deference, they are not afforded unbridled ability to fashion orders."

Mark J. Geragos of Geragos & Geragos said he would soon file an action against the state on behalf of restaurants he represents "because it's now apparent that this is arbitrary and capricious. There is no science to back up any of this and basically they're willy-nilly picking winners and losers."

Geragos represented Marks Engine Company No. 28, a restaurant he owns, in a lawsuit against the county that also sought to halt the dining ban.