Judge appears likely to rule against lawsuit, maintain outdoor dining ban
MARTINEZ >> A judge indicated Monday he isn’t likely to halt Contra Costa County’s temporary ban on outdoor dining as requested in a lawsuit filed by a group of restaurant owners.
After a morning hearing, Superior Court Judge Steve Austin said he’s inclined to agree with the county’s argument that the ban isn’t causing irreparable harm. But he invited both parties to submit any further evidence and legal arguments before he decides on Christmas Eve whether to grant a preliminary injunction to halt the order and allow the restaurants to resume outdoor dining.
The lawsuit, filed in state court in Contra Costa County by Bar Cava Wine Whiskey and Eatery in Martinez, Retro Junkie Arcade Bar in Walnut Creek, Leila in the Bay in Hercules and Providence Bar and Eatery in Oakley, seeks to halt a provision in the county’s recent health order that bans until Jan. 4 any dining onsite — indoor or outdoor — at restaurants and bars.
The lawsuit alleges the order will bring “further misery to an already beleaguered industry” during what is normally a busy season for restaurants. The attorneys for the plaintiffs, Joseph Tully and Nathan Dondi, argued during Monday’s hearing that the order poses “immediate danger” to the business owners’ livelihood.
But Kathleen Kizer, a deputy county counsel who is representing the health department in the case, countered that the order was neither arbitrary nor speculative.
“It has been established that three key risk factors — close proximity to others for an extended period of time without wearing a mask — all of these things happen with outdoor dining,” she said.
The rate of coronavirus tests that came back positive reached 7.6%, according to the most recent available county data.
Health officers in five Bay Area counties earlier this month issued orders to restaurants and other businesses to curtail their operations ahead of a statewide restriction to do so once the availability of ICU beds drops below 15%. Bay Area health officers, including those in Contra Costa County, said they wanted to enact the restrictions earlier to prevent a further strain on hospitals.
Tully pointed out that with Contra Costa’s ICU capacity at 25% Monday, the county order is an unnecessary overreach.
Austin scheduled another hearing for 11 a.m. Dec. 24 for final arguments before he issues his ruling.
Last week, a judge ruled that Los Angeles County acted “arbitrarily” and without a proper “risk-benefit” analysis when it barred outdoor dining at restaurants in its effort to slow the spread of the coronavirus.
If the court rules similarly for Contra Costa, the county’s restaurants could still be subjected to the state’s clampdown if ICU capacity drops to 15% or lower.