Judge Wants More Evidence for LA County Ban on Outdoor Dining

Diners have lunch on the street in Old Pasadena, a pleasant perk from the novel coronavirus as cities block off lanes of traffic to accommodate restaurants and state-mandated outdoor dining. (Courthouse News photo / Bill Girdner)

LOS ANGELES (CN) — A Los Angeles County judge upheld a ban on outdoor dining for the second time Wednesday, though county health officials will need to show why the ban — meant to slow the spread of the novel coronavirus — should remain while the rest of California allows restaurants to serve customers outdoors. 

LA County Superior Court Judge James Chalfant’s order comes amid a surge of infections and hospitalizations across the state and just one day after LA County reported nearly 7,600 new Covid-19 cases over a one-day period. 

While the rest of the state sees similar surges, LA is the only county to ban outdoor dining — leaving restaurant owners and employees at the mercy of the health order.

But according to county health officials, outdoor dining allows people to be in close contact with strangers and to socialize with people outside their households without wearing face coverings.

LA County, like the rest of California, went into a lockdown this past spring at the onset of the pandemic. In June, the county gradually allowed businesses to reopen. 

But reopening spurred a summer surge of new cases, hospitalizations and deaths that has lasted well into the fall. In November, LA County’s daily case average surpassed 4,000, triggering the outdoor dining ban proposed by the Department of Public Health and approved by the County Board of Supervisors.

The California Restaurant Association (CRA), a trade group representing several LA restaurants, sued to block the ban shortly before it was to take effect, calling it arbitrary and capricious.

Chalfant denied the request to block the ban but asked the restaurant trade group to provide more evidence to support its case.

Association members, medical professionals and economists weighed in, saying the ban on outdoor dining would devastate a restaurant industry forced to rely on takeout orders and a pared staff.

Restaurant owners also submitted declarations, including the elegant beachfront Japanese restaurant Nobu, a Round Table Pizza owner and many more. The trade group also cited two studies that found the risk from outdoor dining was minimal when compared to eating indoors.

On Wednesday, Chalfant said the county’s health order would stand for now. But he wanted to know how the county’s health experts arrived at their conclusions and what led to the decision to issue its ban on outdoor dining in the first place.

The county, Chalfant said, provided a declaration from Public Health Chief Medical Officer Dr. Jeffrey Gunzenhauser. He said the county could be overwhelmed with Covid-19 patients but didn’t offer anything to back up his conclusion.

The basis for those conclusions are vital to the county’s argument, Chalfant said.

“What’s the hospital capacity? How loaded are you? What is the current risk of overwhelming the health care system?” asked Chalfant.

According to the LA County Department of Public Health, hospitalizations increased 93% from Nov. 13 to Nov. 26. As of Tuesday, the county reported over 2,300 people hospitalized due to Covid-19.

The county’s attorney Amnon Siegel told Chalfant it would be difficult to provide the “type of scientific certainty and precision” on data the court seeks because infections and hospital bed availability are based on projections that often change.

Chalfant agreed it’s a fluid situation, but not when it comes to intensive care unit beds.

“Those are fixed. It’s not hard to estimate the number of ICU beds,” said Chalfant.

Chalfant said the county also did not provide any evidence it took a risk-benefit analysis on the harm its health order could have on the economy and the mental well-being of Angelenos who lost jobs or can’t go out to eat at a restaurant.

“Which is frankly a big hole” in the county’s case, said Chalfant.

While he said he doesn’t put much emphasis on daily case numbers, Chalfant noted the importance of hospitalizations. He said the county health department has the authority to issue orders to avoid overwhelming the health care system and to safeguard its residents.

“It’s a horse race is what I’m saying,” he said.

But he asked why the county didn’t have more information on the risks of outdoor dining, nine months into the pandemic. He asked whether the ban was based on field investigators who see people without masks at restaurants over extended periods of time.

Siegel said the county might know more about the virus than it did in March, but there is still a risk when people eat outdoors without masks on next to strangers.

“It’s happening at 30,000 restaurants every day,” said Siegel, referring to the number of restaurants in LA County that served patrons outdoors before the ban went into effect.

California Restaurant Association attorney Dennis Ellis called LA County’s health order an outlier in the state and the nation.

“We’ve lost critical time during the Thanksgiving holiday for the 31,000 restaurants in Los Angeles County,” said Ellis. “It has gone on too long.”

Chalfant ordered the parties to return to court in the next week so the county can answer his questions on why it’s the only California county with an outdoor dining ban and what impact the surge will have on hospital bed availability and mortality rates.

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