January 17, 2021

DCTRS

Damascus Center for Theoretical and Civil Rights Studies

Court allows L.A. County to keep outdoor dining ban in place

Los Angeles County can keep its outdoor dining ban in place until at least early February if it chooses, regardless of state rules, under an order issued by the California 2nd District Court of Appeal.

A three-judge panel for the appeals court paused a Los Angeles County Superior Court judge’s ruling that would have required county public health officials to conduct a risk-benefit analysis of the temporary ban enacted in late November in order for it to remain in effect. A hearing on the matter will be held Feb. 10.

Brett Morrow, director of communications for the county Department of Public Health, said the most recent legal action, filed Dec. 18, allows the county to continue protecting residents from the spread of the coronavirus as hospitals struggle to accommodate COVID-19 patients amid an unprecedented surge in the illness.

“The law is on the side of protecting public health and safety, and we are grateful for the court’s decision,” Morrow said in an email, adding that state law permits the public health officer to act “urgently and swiftly” during a health crisis.

County officials suspended outdoor dining on Nov. 25 — the day before Thanksgiving — as coronavirus cases began to tick up. The California Restaurant Assn. sued to stop the county’s ban, with a downtown L.A. restaurant, Engine Co. No. 28, filing a similar suit against the initial suspension, which was meant to last for three weeks, expiring Dec. 16.

But a state-mandated stay-at-home order for the Southern California region, enacted Dec. 6, superseded the county’s decision to close outdoor dining, forcing the shutdown of all in-person dining across 11 counties. Still, the two groups sought to overturn L.A. County’s dining ban, and Superior Court Judge James Chalfant said the county would be limited to its initial time period of three weeks unless it provided additional analysis.

“The county should be prevented from continuing the restaurant closure order indefinitely,” Chalfant said in the Dec. 8 decision.

County officials appealed Chalfant’s decision on Dec. 17, the day after the county’s outdoor dining ban expired. But with the overriding state mandate, there was no immediate practical effect.

The appeal’s court order, however, now permits the county to keep the dining ban in place for the immediate future, even if the state order is lifted — which is unlikely in the near future. On Tuesday, the stay-at-home order was extended. It was not immediately clear whether the county would renew its ban.

Jot Condie, president and chief executive of the California Restaurant Assn., said the restrictions have devastated restaurant owners and their employees, who were already struggling amid the pandemic. Outdoor dining had offered a lifeline for some, and restaurants invested thousands of dollars to be able to offer it, he said.

“We always believed that the county’s aim is to have unfettered power in this matter — to continue to unjustly and arbitrarily extend their ban on outdoor dining far beyond the timeline of any stay-at-home order,” Condie said in a statement. “Their decision to appeal confirms our suspicions.”

Dennis Ellis, an attorney for group, said he thinks the case will ultimately hinge on whether the county needs to provide scientific evidence to back up the ban.

“This is about the rule of law,” Ellis said, “and whether or not the county has to show justification for its orders.”

Mark Geragos, an attorney for Engine Co. No. 28, the downtown L.A. restaurant he owns, is also fighting the ban at the state level.

The lawsuit was filed last week on behalf of the Pineapple Hill Saloon and Grill in Sherman Oaks. The owner, Angela Marsden, was seen in a viral video fighting back tears over the ban, which had forced the closure of her restaurant even as an outdoor dining area was set up by a Hollywood movie crew a short distance away.

“The state health director admitted they had no data to support the outdoor closures, and the governor has obviously lost any moral authority due to his rank hypocrisy,” Geragos said, referring to Newsom’s dinner last month at the French Laundry.