January 18, 2021

DCTRS

Damascus Center for Theoretical and Civil Rights Studies

L.A. County appeals court’s order barring renewal of outdoor dining ban

Los Angeles County on Thursday appealed a judge’s decision that barred an extension of its temporary ban on outdoor dining, calling the ruling “plainly erroneous and directly contrary to governing law.”

L.A. County Superior Court Judge James Chalfant ruled last week that the county should not be allowed to continue the ban indefinitely and would need to provide a risk-benefit analysis to justify the restriction if it wanted to extend the ban beyond its initial three weeks, which ended Wednesday.

The Department of Public Health, which issued the order in late November, said the law is clearly on its side.

“The law says that in a public health crisis, the health officer must act urgently and swiftly to stop the transmission of disease and to protect public health and safety,” department officials said in a statement.

The county, like much of the state, is in the midst of the worst wave of the coronavirus to date. Just this week, the county public health department has reported 272 deaths and nearly 41,000 cases. On Thursday, the availability of intensive care unit beds reached 0%.

County officials said these numbers are justification enough to take the measure.

Although the county ban is now expired, a state order prohibiting in-person dining remains in place, meaning outdoor dining will remain off-limits until at least Dec. 28, when the state rules will either expire or be extended.

Outdoor dining had offered a lifeline to some restaurants struggling amid the pandemic. The California Restaurant Assn. had sued to stop the county’s ban, with a downtown L.A. restaurant, Engine Co. No. 28, filing a similar suit.

During a hearing that grew heated at times, Chalfant castigated county officials for providing only generalized arguments before deciding to implement restrictions affecting more than 30,000 restaurant owners and their employees.

Officials “in nine months have not seriously looked at outdoor dining, and then … impose a restriction preventing outdoor dining,” Chalfant said at the hearing. “That’s just shocking.”

Mark Geragos, an attorney for the downtown restaurant, which he also owns, called the county’s appeal galling.

They’re “doubling down on no data, tripling down on paying outside lawyers and law firms, while tens of thousands of businesses in the county go under,” Geragos said by phone Thursday.

Counsel for the county accused Chalfant of substituting his own opinion of the ban instead of deferring to health experts, as they say is required by law.

“It is not a court’s prerogative to second-guess the county’s response to a public health crisis and to prescribe the evidence upon which public health officials may and may not rely,” the suit states.

At the hearing last week, Chalfant acknowledged it was hard for him to quash his personal reaction to what he saw as misguided policy.

“I have trouble trying not to allow my personal beliefs to intrude in the analysis because … I would do it differently,” he said, adding: “But it isn’t my call. I recognize that.”