Judge Says LA County “Acted Arbitrarily” In Closing Outdoor Restaurant Dining

Los Angeles County officials suffered a legal setback today in county Superior Court, with Judge James Chalfant issuing a tentative decision that says, in part, county officials at the LA Department of Public Health and Board of Supervisors “acted arbitrarily” when deciding to close outdoor dining back on November 25. Fox 11’s Bill Melugin was the first to share the tentative decision; a more formal potential injunction is likely to be announced this afternoon.

So what does this new legal announcement really mean? A few things:

First and foremost, this does not mean that restaurants under the purview of the LA County Department of Public Health (which is every restaurant in the county except for those in Pasadena and Long Beach proper) can open today for on-site outdoor dining. The state’s regional stay at home order, set forth on Sunday at midnight as area ICU bed capacity continued to fall to alarming levels, still supersedes any regional decision.

The judgement does say that County officials have a specific duty to “perform the required risk-benefit analysis” when making decisions about things like restaurant closures. Per Melugin:

The judge writes that L.A. County “could be expected to consider the economic cost of closing 30,000 restaurants, the impact to restaurant owners and their employees, and the psychological and emotional cost to a public tired of the pandemic.”

Furthermore, the decision against the County specifically says that officials cannot shut down the restaurant sector indefinitely, and so has set a current cap for the modified public health order’s action against restaurants for December 16. Again, owners will not be allowed to reopen in the county for on-site outdoor dining until the state’s stay-at-home order is lifted, but barring further challenges in court (which are likely) it seems that when that state order is lifted, on-site dining would be allowed to resume.

Overall, Judge Chalfant says that more data and/or a stronger argument from the county is needed in court to support any future ban of on-site outdoor dining of indeterminate length. The county’s argument that restaurants are higher-risk spaces because people gather, unmasked, and spread COVID via expelled droplets, Chalfant says, “only weakly supports closure of outdoor restaurant dining because it ignores the outdoor nature of the activity, which the CDC says carries only a moderate risk (and less with mitigations).”

Don’t expect this to be the last time anyone hears from either the California Restaurant Association/Mark Geragos (of Downtown LA restaurant Engine Co. No. 28) side, or from the LA Department of Public Health and Board of Supervisors. Broadly speaking, public officials are given wide berth when operating under emergency orders — which the city, county, and state has been doing since the start of the pandemic — to make rulings that are believed to be for the public benefit, like curfews and stay-at-home directives, and so on. Today’s tentative decision is in some ways a legal challenge to that authority, and could have larger ramifications down the line.

Restaurant owners, diners, local politicians and industry association groups, meanwhile, continue to push back in their own ways against regional shutdown orders. Some are staying open in defiance of the public health order, others are protesting in front of the homes of politicians or pushing for an industry-wide rent strike, but one thing is certain: fatigue and resistance continue to grow, even as the state of California crests north of 34,000 daily COVID-19 cases and 20,000 deaths.

• Where Is the Data to Support Closing Outdoor Dining in LA? It’s Complicated [ELA]