RULING MONDAY ON ORDER TO LOOSEN CLOSURES
Attorneys for businesses, state square off at hearing
San Diego County restaurants and gyms hoping for a reprieve Friday from COVID-19 restrictions barring them from operating indoors will have to wait until Monday, when a judge is expected to rule on their request for a temporary restraining order against the state and county.
Superior Court Judge Kenneth J. Medel had hoped to deliver his decision Friday, but following a nearly two-hour hearing, he told the lawyers arguing the case it was likely he would need until Monday to issue the ruling, along with a detailed analysis. Later in the day, a court spokesperson confirmed that the decision would definitely be coming Monday.
The sometimes spirited hearing Friday afternoon was an outgrowth of a lawsuit filed a week ago by four local businesses seeking to reverse some of the tougher restrictions aimed at curbing the spread of COVID-19. They are asking for a temporary restraining order that would, if granted, let them return to indoor operations, which are currently prohibited under the county’s purple tier designation for restaurants, bars that serve food, gyms, churches and movie theaters.
Targeted in the lawsuit are various state officials, including Gov. Gavin Newsom, and the county of San Diego. A lawyer for the county said Friday that it is not taking a position on the request for a tem
porary restraining order.
The businesses’ plea to the judge was simple, they said. Allow them to continue operating under the safety protocols of the red tier, the second most restrictive level, which San Diego County had been in up until a week ago.
Restaurants and gyms, the suit argues, are not the culprits in the rising infection rates. They buttressed their argument with an earlier appeal to the state made by Dr. Wilma Wooten, San Diego County’s public health officer, who had pointed out at the time that San Diego’s increased cases were not due to those sectors where indoor operations are no longer allowed.
“The restaurants are not asking for anything other than being treated in a similar fashion as to other industries,” said attorney Bruno Katz, who is representing the two restaurants and two gyms who filed the suit, claiming that state and county orders shutting
down indoor operations interfere with their rights and violate the California Constitution.
“For some reason, the state has believed that the restaurants and gyms are somehow more problematic than other industries. And they have no data to support that. They can wish it all they want, but wishes are not facts ... The good actors, the people who have been trying to make a living in an area that they didn’t cause, a virus they didn’t cause, have been castigated as somehow evil by the state in the way that they’ve done it.”
The net effect of the tighter restrictions, the lawsuit argues, will be “complete loss of revenue, financial ruin and potentially permanent closure.”
Deputy Attorney General Jonathan Eisenberg countered that while the state recognizes the financial harm being suffered by partially closed businesses, he said it doesn’t justify reopening indoor service at a time when far more people could be infected and potentially die.
“We are in a spike unlike anything we’ve seen in this pandemic,” Eisenberg said. “The pandemic itself is the worst pandemic, something we haven’t seen in over 100 years. We’re in a very dangerous situation that is spiraling out of control, and plaintiffs have come in here and asked you to take dramatic action changing the wellconsidered rules and regulations and orders of top public health officials in the state.”
To alter the standards used by the state in designing its color-coded, tiered framework for a phased reopening of businesses could mean the difference between life and death, he added.
“We are not disputing that these businesses are facing hardships but they have to show immediate, irreparable harm, and they have not even come close to doing that ... The balance of harm here is overwhelmingly in favor of keeping these restrictions in place.”
The lawsuit was filed by Cowboy Star and Butcher Shop; Home and Away Encinitas, also a restaurant; and two gyms, Fit Athletic Club and Bear Republic. The legal action, filed on behalf of all San Diego County restaurants and gyms, sought an initial order that would allow them to immediately reopen indoor operations until a later hearing could be held on the question of issuing a preliminary injunction that would permit the businesses to remain open indoors for a longer period of time.
Medel said that whichever way his ruling goes, he would still schedule a hearing on the question of whether there should be a preliminary injunction.
The pending ruling comes as San Diego County and the rest of the state are seeing a dramatic rise in cases. On Friday, the county announced a new single-day record of 1,091 new coronavirus cases as some hospitals were starting to see heavier burdens on their intensive care units.
Katz pointed to earlier county data showing that restaurant and gym settings account for only a small fraction of individuals getting infected. The most recent COVID-19 Watch report from the county states that restaurants and bars made up 9.2 percent of COVID-19 cases, while gyms accounted for just 0.4 percent.
Eisenberg noted that it’s unclear how accurate those numbers are when infected individuals are being questioned as to where they believe they were infected.
“What if they had the information wrong when they were interviewing people,” Eisenberg suggested. “The state is being even-handed in enforcing the rules. Because of this unprecedented surge in cases, San Diego is not being singled out, it is not being treated with less rationality or less of a focused decision. When the numbers change, San Diego will move back into the (less restrictive) red tier.”
In the meantime, San Diego County law enforcement agencies are continuing to crack down on those businesses that are choosing to defy current purple tier restrictions. As of Friday, the county had issued 82 ceaseand-desist orders, according to its website.