By CHRISTOPHER WEBER and BRIAN MELLEY, Associated Press
LOS ANGELES (AP) — Los Angeles County’s health director acted “arbitrarily” and didn’t prove the danger to the public when she banned outdoor dining at restaurants as coronavirus cases surged last month, a judge ruled Tuesday in a case other businesses may use to try to overturn closures and restrictions.
The county failed to show that health benefits outweigh the negative economic effects before issuing the ban, Superior Court Judge James Chalfant wrote. He also said the county did not offer evidence that outdoor dining presented a greater risk of spreading the virus.
“By failing to weigh the benefits of an outdoor dining restriction against its costs, the county acted arbitrarily and its decision lacks a rational relationship to a legitimate end,″ the judge wrote.
Chalfant limited the outdoor dining ban to three weeks and said once it expires Dec. 16 the Department of Public Health must conduct a risk-benefit analysis before trying to extend it.
It was the first victory for California restaurants challenging health orders that have crippled their industry. But there was no immediate relief for LA county restaurant owners because a more sweeping shutdown ordered by Gov. Gavin Newsom now is in effect.
The California Restaurant Association, which brought the lawsuit, had hoped the judge would lift the ban but still was pleased with the result.
“I do think that this is going to hold the county’s feet to the fire when they decide to close down an entire sector of economy,” association lawyer Richard Schwartz said. “You can’t have a cure that’s worse than the disease.”
Chalfant’s ruling clears the way for restaurants to return to operation when Newsom’s order expires. However, it’s not clear when that will happen since the governor’s order is in effect until “at least” Dec. 27.
The association didn’t say if it would challenge the state order in court. Lawyers for the county didn’t immediately respond to requests for comment.
Coronavirus cases and hospitalizations have reached record levels in Los Angeles County and much of the rest of California. LA County is the state’s largest with some 10 million residents and has a disproportionately large number of California’s cases, hospitalizations and deaths.
On Tuesday, the county recorded its 8,000th death. It is now averaging about 9,000 additional cases a day, more than double what it was two weeks ago.
More than 30,000 restaurants in Los Angeles County were closed to diners for months after a statewide shutdown order in March relegated them to offering takeout. They never fully recovered as they tried to navigate ever-changing regulations for reopening that eventually allowed dining on patios and makeshift seating areas in alleys, parking lots, sidewalks and blocked-off streets.
But as cases surged last month Public Health Director Barbara Ferrer cut the outdoor dining capacity in half and said it would be banned altogether if daily case counts exceeded 4,000. Ferrer didn’t anticipate the county hitting that number for weeks. It instead took just a few days. Now only takeout and delivery meals are allowed.
Cases continued to rise and after banning outdoor dining the county issued a stay-home order that included an overnight curfew and many more business closures. It was superseded by Newsom’s order, which took effect Monday.
While some churches have prevailed in court on claims that health orders limiting religious services violate the Constitution, it’s been rare for businesses to win. Restaurants and gyms in San Diego last month lost their effort to lift Newsom’s ban on indoor dining and workouts.
Those groups had challenged on grounds the governor didn’t have the data to back up the restrictions. More challenges now are likely, said Robert Lapsley, president of the California Business Roundtable.
“The entire statewide business community was watching what was happening today because of its implications for the future,” Lapsley said after Tuesday’s ruling. “The decision pierces the veil and provides some transparency. Whole sectors of the economy face ruin based on judgment and not data.”
Los Angeles officials had claimed that eating without a mask raises the threat of transmission of the virus. In a public meeting two weeks ago, a health officer cited a Centers for Disease Control and Prevention study that showed twice the risk of contracting the virus from eating at a restaurant.
But the study only looked at dining indoors where the virus is known to spread more easily.
“The best evidence is it’s not a significant risk,” Chalfant said at a hearing last week. “And the county has acted inconsistently with the governor’s order, which, by the way, requires a risk-benefit analysis.”
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