Appeals court rules L.A. County can reimpose outdoor dining ban if it chooses

With outdoor dining in Los Angeles County back in full swing, a state appeals court ruled this month that county health officials can reimplement restrictions on restaurants if coronavirus cases spike again.

The opinion by the California 2nd District Court of Appeal reverses a lower court ruling on Dec. 8 that would have required the L.A. County Department of Public Health to conduct a risk-benefit analysis before it ordered restaurants to shutter their al fresco setups.

County health officials lauded the appeals court’s decision, saying it “will help public health officials continue to protect the health and safety of all Californians.”

Opponents of the initial ban have vowed to continue to fight to prevent future implementation of what they see as governmental overreach not backed by scientific evidence.

According to the March 1 opinion penned by Justice Brian Currey and supported by the two other justices, public health officials took logical steps to reduce the risk of transmitting a fatal disease.

“We now hold that courts should be extremely deferential to public health authorities, particularly during a pandemic and particularly where, as here, the public health authorities have demonstrated a rational basis for their actions,” Currey wrote.

The justices also rejected the notion that 1st Amendment issues were at play, differentiating restaurant dining from the U.S. Supreme Court’s decision in late November to strike down New York state’s restrictions on religious gatherings.

At the heart of the case are two lawsuits filed by the California Restaurant Assn. and a downtown L.A. restaurant, Engine Co. No. 28, against the county in late November seeking to lift a ban on outdoor dining instituted as COVID-19 cases began to surge.

Noted criminal defense attorney Mark Geragos, who is representing the L.A. restaurant, which he owns, said he plans to petition the California Supreme Court to review the appeals court ruling. If the state’s highest court declines to take the case, he said the next stop will be the U.S. Supreme Court.

According to Geragos, restaurant dining is “assembly” in the constitutional sense and should enjoy special protection.

“What the Court of Appeal did here is to allow an unconstitutional order to last in perpetuity by giving complete deference to an order that is not even remotely based on science,” Geragos said, adding that “history will at one point view it as being extremely unfortunate, and wrongheaded.”

Geragos is also helming a similar suit against Gov. Gavin Newsom in federal court on behalf of a Sherman Oaks restaurateur.

Jot Condie, president of the California Restaurant Assn., said his group is still weighing whether to take the case further.

County officials in late January announced outdoor dining could resume but with revised rules, including limiting capacity to 50% and spacing tables eight feet apart.

Condie said many restaurants, particularly small ones, are still hobbled by the rules.

“There is an element of desperation amongst many of these small independent restaurant owners that is starting to become more pronounced, even though the reopening is happening,” Condie said.