Appeal panel reverses reprieve for LA outdoor dining

Reversing a trial judge, a state court of appeal ruled that Los Angeles County could ban outdoor dining because of the pandemic.

The county already had lifted the ban, pointing to declining COVID-19 infection rates and more hospital capacity, but legal experts said the appellate decision makes it harder to challenge pandemic-related restrictions.

"They can just say that because this COVID ban might decrease transmission rates in theory and as long as we recognize, yes, there exists some negative impacts, in theory, that's enough," said Eric S. Boorstin, partner at Horvitz & Levy LLP, who filed an amicus brief supporting the restaurants. "There doesn't have to be any formal effort to measure the size of the benefits, measure the size of the costs and compare the two."

In a lengthy decision issued Dec. 8, Superior Court Judge James C. Chalfant sided with lawyers for the California Restaurant Association Inc., who argued that the county failed to provide scientific data supporting the ban. Chalfant consolidated the association's case with a separate suit against the county filed by Marks Engine Company No. 28.

On Monday, the appellate court instead said that it is undisputed that the virus spreads through airborne transmission, and that the conditions at outdoor dining increase the risk of infections. Trial courts should be "extremely deferential to public health authorities, particularly during a pandemic, and particularly where, as here, the public health authorities have demonstrated a rational basis for their actions," the court of appeal said.

The restaurant association's attorney, Dennis S. Ellis of Browne George Ross O'Brien Annaguey & Ellis LLP, said on Tuesday he is disappointed with the court of appeal's decision.

"Without a consideration of the true risk of transmission of COVID in an outdoor dining setting and the certainty that many restaurants would close as a result of an outdoor dining ban, with many employees losing their jobs, the county could not, and did not, adequately assess the consequences of its decision to order a complete shutdown," Ellis said.

Ellis agreed that courts should show some deferential treatment to public health authorities. However, courts still have a role in reviewing county departments' decisions to make sure they are grounded in science, he said.

"When the lower court and the trial court looked at what the county had decided to do, it found the basis for the county decision lacking and we naturally agreed with that," Ellis said. "The county hasn't taken the steps that were required to really balance the harm that it was unquestionably putting on restaurants and businesses and their employees."

When Chalfant enjoined the county's order, restaurants in California were still prohibited from offering outdoor dining under Gov. Gavin Newsom's statewide ban. But Newsom lifted the restrictions on Jan. 25, after ICU capacity increased, following a decline of COVID-19 cases.

The County of Los Angeles said in a statement it is pleased that the appellate court preserved the Department of Public Health's ability to protect the safety of Los Angeles County residents.

"From the onset of the pandemic, Los Angeles County has been intensely committed to protecting the health and safety of its residents and it has been responding in real time to a deadly virus that has tragically claimed the lives of 21,000 people just in Los Angeles County and sickened more than a million others," a county statement said.