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Owners of many restaurants, including Marmalade Cafe in Malibu, above, went to great lengths preparing parking lots and other outdoor areas for safe dining during the pandemic, only to see Los Angeles County temporarily ban the practice during the holidays. Scott Steepleton/Surfside News
Scott Steepleton, Editor
6:12 am PST March 4, 2021

A California appeals court ruled that Los Angeles County’s temporary outdoor dining ban at restaurants was lawful, saying a lower court erred in putting the ban on hold until the county performed a risk-benefit analysis.

The December 2020 order was met with outrage from the public, restaurant owners and restaurant employees who said there was no scientific basis for the ban, which affected 31,000 establishments. Owners further argued they’d spent money making outdoor dining spaces safe, including social distancing, despite there being no evidence that outdoor dining contributed to the spread of COVID-19.

But in a 26-page opinion issued Wednesday, three justices from the 2nd District Court of Appeal in Los Angeles said that such a test was not necessary given the expertise of the health officials who issued the ban — and the majority vote by the Board of Supervisors approving it — and ordered the lower court to reverse its action.

As a practical matter, the ruling does not change anything because outdoor dining returned as cases of the virus dropped.

However, the ruling paves the way for county Public Health Department officials to make another similar order should cases rise again.

“Although (Public Health) and its leadership had no study specifically demonstrating that outdoor restaurant dining contributes to the spread of the disease, they had a rational basis to believe it does,” Justice Brian Currey wrote in the opinion, with Presiding Justices Nora Manella and Thomas Willhite.

Undisputed, the panel said, is that the disease spreads through airborne transmission “from an infected person (who may be asymptomatic) to an uninfected member of the community, if the latter receives a sufficient dose to overcome his or her defenses.”

“The risk of transmission thus increases when people from different households gather in close proximity for extended periods without masks or other face coverings,” the panel continues. “The risk also increases with unmasked talking and laughter. These conditions are often all present when people dine together in restaurants, whether indoors or out.”

Courts should be “extremely deferential” to public health authorities, the panel said, “particularly during a pandemic, and particularly where, as here, the public health authorities have demonstrated a rational basis for their actions. Wisdom and precedent dictate that elected officials and their expert public health officers, rather than the judiciary, generally should decide how best to respond to health emergencies in cases not involving core constitutional freedoms.”

“Courts should intervene only when the health officials’ actions are arbitrary, capricious, or otherwise lack a rational basis, or violate core constitutional rights, which demonstrably is not the case here.”

The county Wednesday evening issued an unsigned response to the decision.

“This ruling will help public health officials continue to protect the health and safety of all Californians,” it said. “Importantly, the Court of Appeal found that the trial court stepped outside of a court’s appropriate role by ‘mandating a nebulous risk-benefit requirement’ on public health decision-making.”

The appeals court acknowledged “the plight of restaurant owners and their employees (and) those in so many other sectors who have had their livelihoods taken away and personal finances decimated by the pandemic.”

“But whether, when and how a risk-benefit calculus should be performed, and whether existing orders should be altered to mitigate their costs, is a matter for state and local officials to decide.”

The Board of Supervisors voted 3-2 approving the ban, with Malibu’s representative Sheila Kuehl in the majority, calling outdoor dining “a most dangerous situation.”

“This is a serious health emergency and we must take it seriously,” Kuehl said. “The servers are not protected from us, and they’re not protected from their other tables that they’re serving at that particular time, plus all the hours in which they’re working.”

Hours later, Kuehl was having dinner outdoors at her favorite Italian restaurant in Santa Monica.