A group of businesses in Contra Costa County filed a lawsuit Friday against the county’s health department to overturn its ban on outdoor dining.

Providence Bar and Eatery in Oakley, Bar Cava Wine Whiskey and Eatery in Martinez, Retro Junkie Arcade Bar in Walnut Creek and Leila in the Bay in Hercules are the plaintiffs, and their attorneys said they expect more businesses to join.

Although Contra Costa County isn’t required by the state to shut down outdoor dining until its hospitals have fewer than 15% of their ICU beds available, it joined other Bay Area counties in doing so last week in an effort to slow the exploding spread of COVID-19.

As part of its argument, the lawsuit quotes a June order of Contra Costa Health Services order that says outdoor dining poses a “relatively low risk of transmission.”

“We used the government’s own words and findings against them in our motion,” Joseph Tully, one of the plaintiffs’ attorneys, said in a statement.

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The lawsuit suggests the ban on outdoor dining will bring “further misery to an already beleaguered industry” during an otherwise busy winter season for restaurants and bars.

Contra Costa Health Services did not immediately provide comment for this story.

East Bay businesses sue to overturn COVID-19 outdoor dining
ban 1A chef specials bocadillo sandwich is photographed at Bar Cava in Martinez, Calif., on Thursday, April 6, 2017. The wine bar in downtown Martinez is a plaintiff in a lawsuit filed Friday challenging Contra Costa County’s latest ban on outdoor dining. (Doug Duran/Bay Area News Group) 

The lawsuit follows an earlier act of defiance this week against Contra Costa County health officials when a dozen restaurants in Danville declared they will remain open outdoors despite the county’s latest health order.

And in the wake of a similar court challenge in Southern California, a judge earlier this week ruled that Los Angeles County acted “arbitrarily” in enacting its own outdoor dining ban. Because the Southern California region’s ICU bed availability is now below 15%, however, state restrictions prevent restaurants and bars from reopening outdoors there.

In the Bay Area, about 17% of cumulative ICU beds are currently open, but Contra Costa and several other counties in the region chose to ban outdoor dining now rather than wait another week or two for the inevitable filling of available beds.

Tully said a judge could rule on the local businesses’ lawsuit as early as Monday.

“All laws must have a rational basis to be valid,” he said in a statement. “There is no scientific evidence to support a link between the County’s ban on outdoor dining and the spread of Covid-19.”

The science is unclear whether outdoor dining poses a greater risk of COVID-19 transmission, though health officials across the state warn that unmasked gatherings of any kind with people outside one’s household unit are unsafe.

In a press conference this week, California Health and Human Services Secretary Mark Ghaly said the state’s inclusion of outdoor dining in its latest stay-home order was “not a comment on the relative safety” of that kind of gathering, but an “effort to keep people home.”

The lawsuit cites Ghaly’s words in declaring there’s “no nexus” between outdoor dining and the “purported grave consequences of COVID-19.” It describes various measures the plaintiff restaurants have taken to ensure the safety of customers, including physical distancing, sanitizing and temperature checks.

“There has not been a single COVID-19 case traceable to Plaintiffs’ restaurants since the inception of the pandemic to their knowledge,” the lawsuit states.

A county task force is assessing fines charged to businesses that have violated the county’s health orders.

In the past month, several gyms in Contra Costa County have received fines for breaking the rules, and a District Attorney’s office spokesman said last week that criminal charges may be considered.

Staff writer Nate Gartrell contributed to this story.