Law360 (March 10, 2021, 2:59 PM EST) --
Although states, counties and cities have begun lifting these restrictions as case numbers improve, questions about the legality of the bans and the restaurant industry's ability to challenge public health decisions linger as challenges to previous bans are still being considered by the courts.
In a March 1 opinion, the California Court of Appeal for the Second Appellate District, Division Four, indicated that these challenges are unlikely to succeed in California and reversed a lower court's preliminary injunction against a now-expired ban on outdoor dining in Los Angeles County.
In County of Los Angeles Department of Public Health v. The Superior Court of Los Angeles County and California Restaurant Association Inc., the appellate panel overturned a December 2020 preliminary injunction order by the trial court and called for a highly deferential standard to public health restrictions on dining.
The Los Angeles Dining Ban and Preliminary Injunction
Between March and November 2020, the County of Los Angeles Department of Public Health issued several restrictions on dining in Los Angeles County as part of public health measures to curb the pandemic. These restrictions included reducing maximum dining capacity and closing indoor dining.
The restrictions culminated in the department's Nov. 22, 2020, order temporarily prohibiting all on-site dining at restaurants, breweries, wineries and bars due to a surge in COVID-19 hospitalizations and deaths. The order permitted restaurants to continue offering takeout, delivery and drive-through services. Other businesses, including retail, were permitted to continue operating.
After the department issued the order, the California Restaurant Association and Mark's Engine Company No. 28 Restaurant filed separate lawsuits challenging the order. The actions were later consolidated.
Both actions alleged that the order shut down outdoor dining without relying on any competent scientific evidence of the risk of transmission of COVID-19, and that the order was an abuse of the department's emergency powers.
While proceedings about the order were ongoing, the state of California issued a regional stay-at-home order effective Dec. 5, 2020, which superseded the Los Angeles order. This statewide order prohibited indoor and outdoor dining until ICU availability equaled or exceeded 15% of total capacity.
California Superior Court in Los Angeles County Judge James C. Chalfant considered the arguments about the county order and ruled in favor of the California Restaurant Association, holding that the department acted arbitrarily in issuing the order.
Judge Chalfant held that the department had not provided any specific scientific studies directly tying outdoor dining to the spread of the COVID-19 pandemic. Rather, the scientists pointed to the high rate of transmission leading up to the order, and stated that in their judgment, temporarily shutting down outdoor dining was necessary to combat the surge in COVID-19 cases.
On Dec. 15, 2020, Judge Chalfant entered an order enjoining the county from enforcing or enacting any county ban on outdoor dining unless and until the department conducted an appropriate risk-benefit analysis, including a scientific survey highlighting the specific risks of outdoor dining.
The county immediately petitioned the appellate court for a writ of mandate to stay the preliminary injunction, which the court issued on Dec. 18, 2020.
Mootness Exception Due to Ongoing Pandemic
On Jan. 25, 2021, when the writ petition was pending, California Gov. Gavin Newsom lifted the state's regional stay-at-home order based on improved COVID-19 statistics. The department announced that it would reopen outdoor dining on Jan. 25.
Although the outdoor dining ban was no longer in place at the time the appellate panel issued its decision, the panel held that the issue was not moot because COVID-19 conditions could change, creating a renewed need to issue restrictions on outdoor dining.
In these circumstances, the panel held that the case fell "squarely within an exception to mootness" and it was appropriate to make a decision.
The appellate panel overturned the preliminary injunction, holding that the department had a rational basis to believe that outdoor restaurant dining contributed to the spread of COVID-19 even though the department had no study specifically demonstrating that this was true.
The panel held that the plaintiffs were not entitled to injunctive relief because they had not met the high burden of demonstrating that the order was arbitrary, capricious or without rational basis.
Extreme Deference to Public Health Orders
The panel ruled 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."
Additionally, it found that the nebulous risk-benefit requirement imposed by the trial court was inconsistent with the court's appropriate role.
The panel concluded that the trial court erred in issuing the preliminary injunction because under the correct deferential standard, there was no likelihood that either the California Restaurant Association or Mark's would prevail on the merits of the claim and the issuance of a preliminary injunction was an abuse of discretion on the part of the trial court.
The panel issued a peremptory writ of mandate directing the trial court to set aside its preliminary injunction order and to deny the plaintiffs' motions for preliminary injunction.
Rare Restaurant Victory Overturned
The appellate panel's decision indicates that challenges by the restaurant industry to government restrictions on dining for public health reasons are unlikely to prevail in California. The trial court's initial decision to issue a preliminary injunction was significant in that it was one of very few victories nationwide challenging public health orders on dining.
The appellate court's total rejection of the trial court's actions throws cold water on future challenges. The decision confirms precedent in California that restrictions on business activity are permissible if there is a rational basis for making them, even if the science behind these restrictions is susceptible to challenges.
No Requirement for Specific Scientific Studies
The appellate panel soundly rejected the argument that specific scientific studies showing the impact of dining on COVID-19 transmission were required to support the ban. Instead, public health departments will be given wide discretion based on general pandemic numbers to use their judgment to set dining restrictions.
Restaurants Singled Out
Restaurant industry advocates have repeatedly argued that public health restrictions that single out restaurants and bars for closure while permitting malls, retail stores and churches to remain open at limited capacity are irrational and fundamentally unfair. The trial court judge responded to this argument, but the appellate panel rejected it.
While challenges by religious groups to public health bans on services have prevailed because of First Amendment factors, the appellate panel in this case indicated that the restaurant industry's business interests would not prevail over public health considerations.
It is likely that restaurants and bars will continue to be the focus of pandemic restrictions if numbers change.
Due process and First Amendment arguments are likely to fail as long as restaurants are permitted to offer takeout and delivery service.
Court Cases Lag Behind Pandemic Realities
The rapidly changing nature of the pandemic means that cases making their way through the courts lag behind the current situation. In this case, the Los Angeles County dining ban was first superseded by state orders, and then expired due to improvements in case numbers.
Challenges to public health orders will inevitably be decided after some of those measures have expired or been modified. However, the panel's decision indicates that courts will still decide these cases rather than dismissing them as moot.
Local Government Advocacy
Dining restrictions continue to be modified and reduced during this stage in the pandemic. However, it is now clear that objections to pandemic-related measures will be more effective if made to local government officials and health departments rather than the courts. Businesses should make sure to participate in Board of Supervisors meetings and be aware of pending changes.
Courts have shown that they do not want to get involved with second-guessing decisions made by public health officials. Therefore, close involvement with these officials is key for restaurants seeking to understand and shape pandemic restrictions.
Seesawing pandemic restrictions and bans have uniquely affected the restaurant industry. Challenges to these bans have largely failed, and the appellate panel's decision means that courts will continue to defer to public health officials rather than evaluating restrictions on their own merits.
Pooja Nair is a partner at Ervin Cohen & Jessup LLP.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
 Cty. of Los Angeles Dep't of Pub. Health v. Superior Ct. of Los Angeles Cty., No. B309416, op. at 1 (Cal. Ct. App. Mar. 1, 2021).
 Id. at 4.
 Id. at 1.
 Id. at 8.
For a reprint of this article, please contact firstname.lastname@example.org.