A glass of wine is photographed on the bar at Bar Cava in Martinez, Calif., on Thursday, April 6, 2017. The wine bar in downtown Martinez is one of several plaintiffs challenging Contra Costa County’s latest ban on outdoor dining. (Doug Duran/Bay Area News Group)
MARTINEZ — A judge will likely issue a decision on Christmas Eve about a lawsuit filed by a group of restaurant owners to overturn Contra Costa County’s temporary ban on outdoor dining.
The lawsuit, filed in state court in Contra Costa County by Bar Cava Wine Whiskey and Eatery in Martinez, Retro Junkie Arcade Bar in Walnut Creek, Leila in the Bay in Hercules and Providence Bar and Eatery in Oakley, seeks to halt a provision in the county’s recent health order that bans until Jan. 4 any dining onsite — indoor or outdoor — at restaurants and bars.
The lawsuit argues that the ordinance will bring “further misery to an already beleaguered industry” during what is normally a busy season for restaurants. The attorneys for the plaintiffs, Joseph Tully and Nathan Dondi, said in a court hearing Monday that the ordinance poses “immediate danger” to the business owners’ livelihood.
Kathleen Kizer, deputy county counsel who is representing the health department in the case, argued Monday that “the health officers’ order was not arbitrary or speculative.
“It has been established that three key risk factors — close proximity to others for an extended period of time without wearing a mask — all of these things happen with outdoor dining,” she said.
The rate of COVID-19 tests that came back positive reached 7.6%, according to the most recent available county data.
Health officers in five Bay Area counties earlier this month issued orders to close a slew of business activities ahead of a statewide restriction that calls for shutting down activities based on regional ICU capacity. Bay Area health officers, including in Contra Costa, said they wanted to enact the restrictions earlier to try to mitigate strain on the counties’ hospitals.
Tully also argued that with Contra Costa’s ICU capacity at 25% Monday — above the 15% that would trigger the state’s order — the county order is an unnecessary overreach.
Kizer said the plaintiffs had not submitted sufficient evidence to prove that irreparable harm will result from the county’s order.
Superior Court Judge Steve Austin said that he was inclined to agree thus far but invited each side to submit any further evidence and legal arguments over the next few days and scheduled a hearing for 11 a.m. on Dec. 24 to decide whether he will grant a preliminary injunction to halt the order and allow the restaurants to resume outdoor dining.
Last week, a judge ruled that Los Angeles County acted “arbitrarily” and without a proper “risk-benefit” analysis when it barred outdoor dining at restaurants in its own effort to slow the spread of COVID-19.
If the court rules similarly for Contra Costa, the county’s restaurants could still be subjected to the state’s order if ICU capacity drops to 15% or lower.
