Restaurant Owner Can’t Overturn California Outdoor Dining Ban

In a video that went viral, the restaurant owner explained that her outdoor patio, which was closed by state health orders, sat empty as a film production’s exterior dining area continued operating.

Screenshot from a viral video posted by Los Angeles County restaurant Pineapple Grill and Saloon. (Image via Courthouse News)

LOS ANGELES (CN) — Declining to overturn California’s outdoor dining ban, a federal judge said Wednesday that the state had a “legitimate governmental interest” in stopping the spread of Covid-19.

Officials had limited restaurants and other dining establishments to takeout orders last year as Covid-19 cases surged across the Golden State. In regions where health care system capacity improved, though, restaurants may have been allowed to partially reopen.

Restaurant owners were frustrated by the process; some became enraged when, after spending money to create outdoor dining patios, they were limited again to takeout or delivery when a surge in Covid-cases triggered new restrictions.

The owner of Pineapple Hill Saloon and Grill in Sherman Oaks, California — which had modified its dining operations multiple times over the past year to comply with public health guidelines — had enough.

Pineapple Hill and owners Calm Ventures brought a federal lawsuit and sought a preliminary injunction overturning the outdoor dining ban, claiming it should be blocked because it fails to show how it prevents viral spread. 

Angela Marsden, its principal owner, claimed in the case that Governor Gavin Newsom had acted unlawfully in December when he issued a regional stay-at-home order putting LA County restaurants under tighter restrictions, including a total ban on outdoor dining.

Before going to court, though, Marsden had posted a video that went viral on social media where she filmed herself decrying the juxtaposition of her shuttered dining patio next to a functioning NBC Universal production’s outdoor dining area. 

Her video expressing frustration with state officials — and the special exemptions to health orders that Newsom doled out for the film production industry — led to tens of thousands of dollars in donations to the restaurant.

The lawsuit cited U.S. Centers for Disease Control and Prevention guidelines saying risks of viral spread in restaurants can be mitigated by separating tables and that very few Covid-19 infections have stemmed from outdoor dining.

Attorneys for California said in court papers defending the health order that the risk of Covid-19 transmission is elevated when maskless people sit across from each other at a table, especially when members of different households mix while dining.

In a 15-page ruling issued Wednesday, U.S. District Judge John Walter sided with the state, finding that health officials had an interest in preventing the spread of the novel coronavirus.

Using a rational basis review standard, Walter determined the outdoor dining ban part of California’s Blueprint for a Safer Economy was “rationally” tied to that public health interest.

“Fighting a deadly pandemic is plainly a legitimate governmental interest,” Walter wrote in the order. “The rationale articulated within the Blueprint and related orders themselves—bolstered by defendants’ scientific evidence and common sense—compels the result that the challenged orders are rationally related to this goal and, thus, lawful.”

Attorneys for Marsden and Calm Ventures, Mark Geragos in Los Angeles and Harmeet Dhillon in San Francisco, did not immediately respond to a request for comment.

Walter wrote that even with the recent availability of vaccines, doses are not yet universally available and the deadly virus continues to mutate while already having claimed the lives of over 500,000 Americans.

“Consequently, measures that limit physical contact, such as restrictions on places where people gather and physical distancing, are the only widely-recognized, effective ways to slow the spread,” Walter wrote. “Clearly, California has a legitimate interest in attempting to slow this horrific death toll.”

Attorneys for California successfully demonstrated that the Blueprint is based on sound scientific evidence about the risks associated with outdoor dining, the ruling said.

“The Blueprint distinguishes between different activities and business sectors and imposes restrictions based upon the relative risk they pose of spreading COVID-19,” Walter wrote. “ For restaurants, the risk is heightened by the fact that eating and drinking require the removal of masks, making transmission more likely. Additionally, restaurant patrons often drink alcohol with their meals, making them less likely to observe social-distancing protocols.”

Walter also weighed in Marsden’s complaint about the film production’s outdoor dining area, saying the state is allowed to focus “incrementally” on how the pandemic affected various economic sectors. 

“Regardless, restaurants and film crews alike can now both conduct outdoor dining, meaning that plaintiff’s anecdote is irrelevant for the purposes of this motion,” Walter wrote. “Finally, as discussed infra with respect to the equal protection claim, the current safety precautions in the film industry are much more rigorous than those imposed on plaintiff’s business.”

A spokesperson for Newsom’s office did not immediately respond to a request for comment on the ruling.

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