“The issue here is,” Judge James Chalifant declared yesterday, “is shutting down outdoor dining going to help in any significant way, or is it just something to do?” After warning earlier that the county had better show a rational basis for its closure of outdoor dining, Chalifant ruled that it mostly appeared to be the latter. He ordered a three-week limit on the ban and told state officials they had until the day after Christmas to come up with a full risk-benefit analysis that includes the risks to business owners, employees, and their well-being.
There’s just one problem with this order, and that’s … Gavin Newsom:
A judge has limited Los Angeles County’s outdoor dining ban to three weeks, even as a state order will keep the restrictions in place past Christmas, according to a ruling issued Tuesday.
At a court hearing, the latest to address a pair of challenges to the ban, L.A. County Superior Court Judge James Chalfant said county public health officials must conduct a risk-benefit analysis if they want to extend the ban past its current end date, Dec. 16.
“The county should be prevented from continuing the restaurant closure order indefinitely.” Chalfant said in the decision.
The county health department imposed a three-week ban as coronavirus cases began to soar. It went into effect Nov. 25, but was superseded late Sunday by a sweeping regional stay-at-home order that banned all in-person restaurant dining across most of California. Triggered when available intensive care unit capacity in a given region falls below 15%, the state order will last for at least three weeks.
Fox LA reporter Bill Melugin tweeted out a copy of the order yesterday afternoon. In it, Chalifant scolds Los Angeles County for having no factual basis for the order:
BREAKING: Judge James Chalfant issues tentative decision in the CRA/Mark Geragos' lawsuit vs L.A. County re: outdoor dining ban. Judge GRANTS a preliminary injunction, writing that the County "acted arbitrarily" and "failed to perform the required risk-benefit analysis." @FOXLA pic.twitter.com/3W3sOZ8ey0
— Bill Melugin (@BillFOXLA) December 8, 2020
“The department’s own data provide no support for the planned shutdown of outdoor restaurant operations,” Chalifant ruled. Of the 204 non-residential locations where three or more confirmed COVID-19 cases has been identified, “fewer than 10% are restaurants.” The percentage is even lower among the full list of locations — “fewer than 5%.” Chalifant scolds county health officials for employing a “syllogism” instead of a rational basis for forming policy, especially concerning outdoor activities, which Chalifant notes that the CDC describes as only a “moderate risk.”
Furthermore, Chalifant ruled that health officials have to use a balance of interests that include business owners in making these decisions in the future. “By failing to weigh the benefits of an outdoor dining restriction against its costs,” Chalifant wrote, “the County acted arbitrarily and its decision lacks a rational relationship to a legitimate end.”
Unfortunately, Chalifant can’t extend that to the statewide order, so his ruling will have no immediate impact. Also perhaps unfortunately but certainly understandably, Chalifant doesn’t want to make himself the Health Department, either. He’s not enjoining the ban outright because Chalifant feels — correctly — that those decisions belong to competent authorities rather than the judiciary. He does, however, want competent authorities to act in a competent manner.
Chalifant is giving the county three weeks to clean up its act, essentially. Once the state loosens its restrictions on outdoor dining (or another legal challenge enjoins those), Los Angeles County will have to prove that a ban on outdoor dining is both necessary and factually based, plus doesn’t do more harm than good by creating economic devastation that has public-health consequences of its own. It’s the kind of analysis that counties and states should do before imposing lockdowns and shutdowns in the first instance. Perhaps by Boxing Day, independent restaurant owners like Angela Marsden and their employees might get a belated Christmas gift.