Judge says no to letting San Diego County restaurants, gyms reopen indoors amid rise in coronavirus cases

A San Diego Superior Court judge Monday dashed the hopes of restaurants and gyms that were hoping to reopen indoors, turning down their request for a temporary restraining order that would have lifted the county’s current order allowing outdoor-only service.

Acknowledging the need to weigh both the financial harm being suffered by the local businesses as well as the health and safety of the populace amid a widening pandemic, judge Kenneth J. Medel concluded that “the impact on public health of dismantling a portion of the state’s COVID-19 response designed to reduce community spread outweighs the economic harm to Plaintiffs at least pending further examination of these issues in any upcoming hearing on preliminary injunction.”

Even with Medel’s denial of the restraining order, the restaurants and gyms are still entitled to a hearing on the larger question of whether a preliminary injunction should be issued, allowing the resumption of indoor operations. The parties will confer next month on when to set a date for that hearing, Medel said.

The judge made his ruling following a nearly two-hour hearing Friday during which attorneys on both sides argued their case.

Local restaurants and gyms had filed suit asking for a temporary order that would have immediately let them return to indoor operations, which are currently prohibited under the county’s purple tier designation for restaurants, bars that serve food, gyms, places of worship and movie theaters.

Filing the suit on behalf of all San Diego County restaurants and bars were Cowboy Star and Butcher Shop; Home and Away Encinitas, also a restaurant; and two gyms, Fit Athletic Club and Bear Republic.

Targeted in the lawsuit were various state officials, including Gov. Gavin Newsom, as well as the county of San Diego. The county, however, had stated that it is not taking a position on the request for a temporary restraining order.

The restaurants and gyms had argued that they are not the main source of rising rates of infection. In fact, they asserted, data from the county shows that they represent a small fraction of cases where sources have been tracked. They have also claimed that state and county orders shutting down indoor operations interfere with their rights and violate the California Constitution.

Judge Medel, however, pointed out in his ruling that the current statistics tracking sources of infections may not remain where they are today.

“Further, while there may be evidence that shows a current minimal COVID-19 spread in the restaurants and gyms of San Diego County, that does not necessarily mean that restrictions in these sectors going forward are unwarranted,” he wrote. “Based on the State’s evidence and given the acceleration of the pandemic, the State’s order to temporarily prohibit San Diego County restaurants and bars from indoor operations under the purple tier appears to have general support in science and reason. This undermines a finding at this time that the State order in question is ‘arbitrary and capricious.’”

Deputy Attorney General Jonathan Eisenberg, in his oral argument on Friday, told Medel that while the state recognizes the financial harm being suffered by partially closed businesses, it doesn’t justify reopening indoor service amid a raging pandemic that could lead to far more people being infected and potentially dying.

On Saturday, San Diego County reported another single-day record of COVID-19 cases — the second consecutive such record — with 1,478 new infections and six new deaths. Friday’s case number was 1,091.

Cowboy Star co-owner Jon Weber, who has had to shut down his restaurant entirely because he does not have the wherewithal to offer outdoor dining, said he was both disappointed and frustrated by Medel’s ruling, in part, because restaurants, bars and gyms are being treated differently than other businesses, which are allowed to continue operating indoors.

“We have team members that rely on us, and I feel like we’ve let them down,” said Weber. “It’s frustrating because out of all this, the state is going to pick winners and losers in this pandemic, and for whatever reason, restaurants and gyms are on the wrong side of that battle. We’re using data from San Diego County for our case, and the state’s argument was more based on simulations of transmission and fears.”

Weber said that the businesses who filed suit will confer with their attorney before deciding how next to proceed.

In Los Angeles County, where restaurants have not operated indoors since the initial pandemic lockdown in March, a surging number of cases prompted public health officials on Sunday to call for a suspension of outdoor dining at restaurants, breweries, wineries and bars, starting Wednesday.

The order came after the county observed an average of 4,097 new cases among its 10.2 million residents over the past five days. San Diego, by comparison, logged an average of 881 new cases over that same five-day span, according to county records. When adjusted for local populations, San Diego actually had a higher case rate than Los Angeles did from Nov. 17 through Nov. 21, with 206 cases per 100,000 residents compared to 201 per 100,000 for LA.

It’s a bit of a change for San Diego which, throughout the pandemic, has seen case rates that have generally come in lower than those in the state’s largest county.

Looking back 30 days from Saturday, the most recent day for which daily totals were available Monday morning, San Diego has seen a case rate of 518 per 100,000 compared to 691 in Los Angeles. It’s the same picture for the entire pandemic to date: 2,144 per 100,000 in San Diego compared to 3,579 in Los Angeles.

Has the recent increase in per-capita case rate, as compared to its neighbor to the north, pushed local public health officials to consider a similar closure of outdoor dining? An emailed response sent by a county spokesman Monday morning said: “Not at this time.”

—- Lori Weisberg is a reporter for The San Diego Union-Tribune. Staff writer Paul Sisson contributed to this report.