A California judge has blocked Los Angeles County's ban on outdoor dining in a sharply worded opinion that cites both a lack of evidence for the policy's efficacy in controlling the pandemic and public health officials' failure to consider the costs of closing down on-site dining for some 30,000 restaurants.
The county's ban "is an abuse of the [Health] Department's emergency powers, [and] is not grounded in science, evidence, or logic," wrote Los Angeles Superior Court Judge James C. Chalfant in a tentative decision in a lawsuit brought by the California Restaurant Association (CRA) challenging the policy.
Though Chalfant's Tuesday-issued decision will have limited practical effects—it doesn't touch an identical state prohibition on outdoor dining—his ruling is a harsh rebuke of local policy makers' ability to impose new COVID-19 restrictions without the backing of specific "science" and "data."
"I, and a lot of other people who operate restaurants, do feel vindicated," says Kat Turner, who owns the Highly Likely café in Los Angeles. "I think the [county's outdoor dining ban] was made in a hasty attempt to corral the virus without giving too much thought to the after-effects."
Chalfant's ruling comes two weeks after Los Angeles County public health authorities, in response to a sharp rise in new infections, closed outdoor dining for the entire 10-million-person county. That decision—which at the time went beyond the restrictions imposed by the state—provoked a storm of protest.
Individual restaurants have said they wouldn't comply with a ban on outdoor dining, and county sheriffs have said they won't enforce one. One café even labeled its diners "peaceful protestors" in a nod to an exemption in current restrictions for outdoor political expression. Several municipalities within Los Angeles County registered their dissent by vowing to create their own health departments.
Even those business owners who haven't been pushed into civil disobedience are still fuming at the county's sudden decision.
One restaurant operator interviewed by Reason last week said that he'd poured hundreds of thousands of dollars into shifting his business to be all outdoors, only to be shut down again. Others told the Los Angeles Times the ban could put them out of business for good.
Turner says that the county's policy has forced her to lay off two staff members, and cut the hours for her remaining employees. In addition to the financial hit, the outdoor dining ban destroys some of the intangible benefits her restaurant provides the neighborhood, she tells Reason.
"We're restauranters, we love hospitality, we love caring for people, and being able to provide a safe environment for our community to get together. You can't put a price on that," Turner says.
In its lawsuit, the CRA argued that county public health officials hadn't shown any specific evidence that outdoor dining was responsible for Los Angeles' surging caseload. It pointed to Los Angeles County Health Department data finding that only 3 percent of new cases could be traced back to restaurants, and to Centers for Disease Control and Prevention (CDC) guidance ranking outdoor dining as a lower risk activity when paired with masks and spaced out seating.
The county argued in response that there was plenty of evidence that behaviors associated with outdoor dining—including diners removing their masks to eat and drink and mixing with members of other households—increased the risk of spreading COVID-19, and thus justified the ban.
That more general evidence, Chalfant ruled, wasn't enough to sustain the county's prohibition without it first conducting a more thorough cost-benefit analysis.
"A significant number of restaurants will shutter their doors completely as they will be uncertain as to the future," his decision reads. "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."
Most courts have been wary of striking down restrictions on business and individual behavior during the pandemic, preferring to give state and local governments wide discretion in crafting their own responses. Where legal challenges have succeeded, they've generally been on separation of powers grounds. Judges have proven more willing to strike down governors' emergency orders for usurping the powers of state legislatures, for instance.
The decision blocking Los Angeles County's outdoor dining ban is unusual in that it actually examined county officials' justifications for its policy, as well as its potential costs.
"It's an encouraging development that courts are starting to scrutinize the data that's underlying these restrictions that are taking away people's livelihoods," says Luke Wake, an attorney with the Pacific Legal Foundation, which is currently suing Gov. Gavin Newsom and state public health officials over their pandemic restrictions.
Wake says that Tuesday's decision, coming from a county superior court, will have little immediate effect on restaurants' ability to reopen given the existing state prohibition on outdoor dining in Los Angeles County. Should the case be appealed, he says, a higher court ruling affirming it could set a precedent that helps to undo the state's ban.
Legal consequences aside, Chalfant's decision could undermine the political will of the governor and state public health officials to bring back March-style lockdowns in their full restrictive glory.
Already, the state has backed off some of the restrictions it imposed as part of its new stay-at-home order. This week, it allowed outdoor playgrounds to reopen following intense pressure from parents and lawmakers. Grocery stores have also been allowed to operate at 35 percent capacity, up from the 20 percent cap imposed by the state last week.
Turner says Tuesday's ruling could help convince state officials to reverse course on their outdoor dining ban as well.
"The optimist in me thinks if it can happen here then perhaps it can happen at a state-wide level. L.A.'s a huge county and that's a pretty major ruling for us," she says, adding that "I think it also takes the community to support it as well. A lot of community members were also outraged with the outdoor dining ban."
In California, business owners, judges, and the general public suffered through one round of lockdowns in the spring with relatively few complaints. Nine months into the pandemic, they're proving less willing to do it all over again.