San Diego Restaurants, Gyms Plead Case Against Indoor Restrictions

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A group of San Diego restaurants and gyms fighting the county and the state to stay open indoors will have to wait at least two more days for a decision.

The ruling has major implications for the entire county. Should a judge grant the temporary restraining order requested by the businesses, it would allow all restaurants and gyms to operate indoors despite the county’s current status in the purple tier.

"We're in the middle of an unprecedented surge in this pandemic,” Deputy Attorney General Jonathan Eisenberg said in defense of the state's restrictions. “Numbers are getting worse and have been for a number of weeks."

Eisenberg argued that allowing restaurants and gyms to keep operating inside, despite soaring case numbers, is a "matter of life and death."

Bruno Katz, the attorney representing the businesses -- including the Cowboy Star restaurant and butcher shop, the Home & Away Encinitas bar/restaurant, the Bear Republic gym and Fit Athletic Club --  countered that the state's tier system is based on "junk science" and that even the county's public health officer, Dr. Wilma Wooten, last week asked the state not to punish some businesses like restaurants, saying the number of cases in that particular setting is not driving a spike in local cases.

Eisenberg argued that Wooten later retracted those remarks before the San Diego Board of Supervisors but did not enter that transcript for judicial review until Friday’s hearing, saying he assumed the county would do so.

But the county did not submit that transcript. In fact, the county didn’t submit anything to the court for review and did not speak at Friday’s hearing, despite being a named defendant – something both Eisenberg and the judge made a point of noting.

In order for Superior Court Judge Kenneth J. Medel to grant the restraining order, the plaintiffs need to prove that the businesses will suffer irreparable harm without it. Katz also needs to show a probability of winning his suit against the state and county. That suit claims the tier system is irrational and an example of government overreach.

"To say that takeout is the answer is not reasonable,” said Katz. “For eight months, restaurants have been trying to survive. Not every restaurant can operate with takeout, and there is no help coming."

Medel said he plans to reach a decision by Monday.

As for a hearing on the merit of the lawsuit against the county and state, a hearing will be scheduled for January or February.

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