UPDATE: DECEMBER 8, 2020 – L.A. County Superior Court Judge James Chalfant put a limit on a county-level band on outdoor dining in a ruling issued on Tuesday. The county ban on service will remain in place for the three weeks that were originally ordered, expiring on December 16, but it cannot be extended as it currently stands after that date. A state-imposed ban on outdoor dining, which supersedes any county order, is not changed by the judge’s ruling.
Judge Chalfant concluded that county public health officials had not provided sufficient evidence that people gathering at outdoor dining establishments could be irrefutably linked to the current surge in COVID-19 cases and hospitalizations.
“Is it going to help, or is it just a drop in the ocean of a much bigger problem? And I don’t know, it’s not my job to make that decision, it’s the public health officials’ job,” he said at a hearing prior to issuing his ruling.
Public health officials argued that they were relying on the best available research amid a fluid, quickly moving situation, and claimed they had in fact provided the required risk-benefit analysis, evaluating both the economic and social consequences of the temporary ban as well as how it could impact case loads.
“There is no admission by the county that they have failed to conduct the proper balancing analysis,” Amnon Siegel, an attorney representing the county, told the Los Angeles Times. “They haven’t conducted the analysis that the court would like them to conduct, but the court’s not in the business of policymaking.”
Siegel claims that the type of data analysis that Judge Chalfant wanted to see “puts a value on long-term illness and death” that could be compared more directly to economic losses from restaurant closures and, he said, producing such an analysis is “not even feasible.”
Some conservative lawmakers have celebrated the ruling, which they hope will set a precedent for future executive actions made by public health officials.
“It’s a sign that the judicial branch is finally starting to check these emergency powers, and they need to do so,” Assemblyman James Gallagher told Politico. “We all agree that this is a serious pandemic and emergency responses need to be taken but that doesn’t mean we undermine the foundational principles of our democracy.”
DECEMBER 2, 2020 – A Los Angeles County Superior Court judge has ordered public health officials to present additional data and science to support the recent closure of outdoor dining at restaurants. For now, dining patios will remain closed, pending a second hearing.
On November 22, L.A. County health officers announced an order which would prevent local establishments from providing on-premises table service from November 25 to December 16. That order, which is stricter than the state’s minimum requirements for Purple Tier counties, was met with resistance and lawsuits, including one submitted by a downtown L.A. restaurant, Engine Co. No. 28, and one filed by the California Restaurant Association, a large industry trade group representing restaurant owners.
In his order, the Los Angeles Times reports, Judge James Chalfant noted that counties wishing to enact rules that are more restrictive than state guidelines are required to demonstrate a risk-benefit analysis that justifies the move.
“You have to do a risk-benefit analysis for public health. You don’t just talk about the risk of spreading disease. You have to talk about the benefit of keeping restaurants open,” the judge stated.
Amnon Siegel, representing the county, noted the increased risk associated with an activity where people from multiple households share a space, effective distancing is impossible to maintain, and many people do not wear masks.
According to a CDC study released on November 24, “full-service restaurants were associated with the greatest increase in infections in re-opening scenarios.” A previous CDC study found that adults who test positive for COVID-19 are twice as likely to report having dined at a restaurant than those who test negative.
Because both CDC studies were conducted nationally, the data does not specifically break-out indoor versus outdoor dining. In Los Angeles County, where only outdoor dining has been permitted, health officers have reported recently that since allowing outdoor dining to reopen, incidents of workplace COVID-19 outbreaks among restaurant staff have tripled.
Siegel noted that the county does take concerns about economic consequences into consideration when developing public health policy.
“We understand the pain and hardship that people have gone through over the last nine months and that does absolutely play a role,” he said.
County representatives will return to court on Tuesday to provide additional data, specifically about any potential relationship between the operation of restaurants and the likelihood that local health care facilities will soon be overwhelmed, a situation that is projected to occur in the near future.
“There will likely be shortages in hospital beds and especially ICU beds in the next two weeks,” Dr. Christina Ghaly, director of L.A. County’s Department of Health Services, which oversees hospitals, noted at a briefing last week.
Today’s ruling comes as Santa Clara County, hard hit by the virus, announces that hospitals there are nearly full due largely to the COVID-19 surge, with five or fewer beds currently available at every hospital in that county.
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