LOS ANGELES (CN) — A Los Angeles County judge has overturned a county ban on restaurants serving guests outdoors as arbitrary and backed by weak scientific evidence, but restaurants won’t be opening their doors anytime soon.
A superseding state order forcing certain sectors to close and limiting restaurants to takeout and delivery went into effect Sunday in Southern California after available intensive care unit beds in the region fell below 15%.
An alarming surge in deaths and hospitalizations of people infected with Covid-19 has the county reeling from a record 10,500 new cases reported over the weekend.
In an effort to slow the spread of the virus, LA County imposed a ban on outdoor dining Nov. 25. Health officials said the risk of Covid-19 transmission is elevated when people sit closely at a table with no face coverings.
The California Restaurant Association — a trade group representing several area restaurants — sued, claiming county officials presented no evidence showing outdoor dining poses a significant risk for spreading Covid-19. The group also claimed the closures would devastate already struggling restaurant owners, solely to give the appearance of mitigating action by the county.
In a hearing Dec. 2, LA County Superior Court Judge James C. Chalfant allowed the county’s ban to remain in place but asked officials to share scientific evidence justifying the ban and to explain whether they assessed its economic impact.
County health officials responded with evidence of the increasing vulnerability of regional hospitals being overwhelmed with Covid-19 patients if public health orders aren’t imposed.
But Chalfant focused his analysis on how the order was issued, not its ultimate purpose.
In a 53-page tentative ruling issued Tuesday, Chalfant said the county failed to assess the economic impact the ban would have on more than 30,000 restaurants and the emotional toll on owners and their staff.
Chalfant told county attorney Amnon Siegel at a hearing Tuesday that while he agrees the county must protect hospital capacity, it cannot issue such an impactful order without assessing all the risks of enacting it.
“It’s not rational to make a decision without doing everything you’re supposed to do, and you haven’t,” Chalfant said. “You’re imposing restrictions but there’s no reason to believe it will help with ICU capacity.”
Siegel told Chalfant the county’s measure was in line with the state order and that the judge was creating a standard of review for health orders that isn’t required by law.
“When you look at the statistics, they are grim, scary and real, Your Honor. We are in scary new territory,” Siegel said of the county’s surge in Covid-19 cases and hospitalizations. “The assessment you’re requiring is a full-blown economic, psychological, societal analysis. I don’t think that’s fair to public health and I don’t think any court has said that.”
Chalfant told Siegel the county was using “fear” to drive its health policy.
“Government agencies and the media are generating fear and thriving on fear and the evidence shows that healthy Americans need not fear,” Chalfant said. “I think it’s been a tremendous failure of government agencies to explain the nature of the disease. People have died, but the average healthy American is not at risk of dying.”
Updated health data showed ICU capacity for the Southern California region fell to 10.9% Monday.
LA County’s daily positivity rate has surged from nearly 4% to 13% since Nov. 1, and the daily death rate has increased by 92% since Nov. 9.
For the first time since the start of the pandemic, the number of Angelenos hospitalized with Covid-19 has topped 3,100 and more than 1,700 health care workers have the virus, double from the figure reported last week.
California Restaurant Association attorney Dennis Ellis told Chalfant the county was wrong to issue the order without assessing its financial impact to the restaurant industry.
“That is not the law and more importantly that is not our country,” Ellis said. “The county can’t issue a ban until there’s a risk-benefit analysis.”
County officials said in court papers that while outdoor dining in well-ventilated areas carries a reduced risk of viral transmission, it is still not a safe enough activity to permit.
But the restaurant association argued county data also shows restaurants are responsible for just 3% of new infections, a fraction of the cases stemming from sectors that have not been shut down such as manufacturing, aviation and grocery stores.
Under Chalfant’s ruling, the county cannot extend the ban for an indefinite period and must limit it to its initial three-week framework ending Dec. 16. He ordered county officials to produce a public report using multiple health studies and expert opinions to assess both the economic and health implications of closing restaurants.
In a court brief filed last Friday, LA County health officer Muntu Davis said the county has more people hospitalized with the novel coronavirus than ever before and is facing a crisis in its health care system capacity.
“The county is in a midst of an alarming surge in new cases, hospitalizations and deaths from Covid-19,” Davis wrote in his brief. “The current spike in hospitalizations is especially concerning because it places increasing strain on the county’s health care system.”
Davis said the ban is critical to efforts to stop viral spread because outdoor dining can put people from different households in close contact without wearing face coverings.
A spokesperson for LA County did not immediately respond to a request for comment on the ruling.