Judge Denies San Diego Businesses' Request to Issue Order to Allow Indoor Operations

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A judge denied a request Monday from four San Diego County businesses seeking to resume indoor operations following the county's recent slide into the purple tier of the state's coronavirus reopening plan.

San Diego Superior Court Judge Kenneth J. Medel denied issuing a temporary restraining order that would halt the prohibition on indoor operations in San Diego County. The businesses argued that San Diego County's increased case numbers are not a result of exposures at restaurants, gyms and other types of businesses impacted by the closures and that they would greatly suffer due to the closure of indoor operations.

"In the Court's mind, 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," Medel wrote in his decision.

NBC 7's Bridget Naso heard reaction to the judge's decision from some of the plaintiffs in the lawsuit.

The co-owners of Cowboy Star Restaurant and Butcher Shop were saddened by the ruling.

"Our entire Cowboy Star family is heartbroken, we believe that we had science and data on our side," cp-owners Angie and Jon Weber, and Victor Jimenez said in a statement. "We also believe in our County Health Director Dr. Wooten and trust her judgment on what is right for San Diego, Restaurants and gyms are not the problem but we are being unfairly punished. We have installed measures above and beyond what most businesses have, things like UV antibacterial lighting in our HVAC systems, our indoor air is arguably better than being out on a busy street, but for some reason the state refuses to acknowledge our efforts. We will focus on our team for the next week and how to take care of them during this devastating time,"

The court also ruled that California Gov. Gavin Newsom is not outside his authority to shut down businesses when the California Emergency Services Act is being utilized.

Four San Diego business owners filed the lawsuit against the state and the county. NBC 7's Bridget Naso has more.

A hearing will be scheduled for January or February 2021.

Medel heard arguments Friday on the lawsuit, which was filed earlier this month on behalf of Cowboy Star Restaurant and Butcher Shop, Home & Away Encinitas, Fit Athletic Club, and Bear Republic, shortly before indoor operations were suspended for nonessential businesses in the county due to rising COVID-19 case numbers.

The lawsuit cited figures indicating restaurants/bars, retail businesses, places of worship, schools and gyms make up a small percentage of infections and confirmed community outbreaks.

If the temporary restraining order was approved it could have had major implications for the entire county, by allowing all restaurants and gyms to operate indoors despite the county’s current status in the purple tier.

During Friday afternoon's hearing, attorney Bruno Katz, representing the businesses, referenced an adjudication request submitted to the state by San Diego County Public Health Officer Dr. Wilma Wooten, which sought to have
San Diego County remain in the red tier. The request was rejected.

“Penalizing the impacted sectors for case increases is wrong, as these sectors continue to do the right things, while trying to weather the ongoing pandemic and the back and forth of reopenings,'' Wooten's request states.

Deputy Attorney General Jonathan Eisenberg, representing the state, said Wooten's conclusions were based on case numbers that have since increased and cited statements Wooten made during a Nov. 17 San Diego County Board of Supervisors meeting, which drew a different conclusion.

During the meeting, Wooten said “the numbers have expanded'' since she made her request to the state.

“We couldn't in good conscience create that same argument since that adjudication submission was sent to the state,” Wooten said while answering
questions from the Board of Supervisors.

Eisenberg called the recent spike in cases “an unprecedented surge” with record numbers being reached at the state, local and national level.

Saying the lawsuit was based on outdated figures, Eisenberg cited a study submitted to the court which he said indicated full-service restaurants and gyms are “the top spreader locations” of virus infections.

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

Katz argued that study was created early on in the pandemic and without taking the sanitation measures businesses have implemented into account.

Katz argued Friday that restaurants and gyms are being punished despite adhering to the state's guidelines and said the state's reopening plan has applied its restrictions to restaurants and gyms in an arbitrary manner, which he claimed wasn't backed by science.

The businesses allege in their complaint that they may be forced to close permanently if indoor operations don't resume, and that outdoor and takeout service will not make up for the economic losses incurred thus far.

"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."

While Eisenberg acknowledged that businesses are suffering from “great economic hardship,” he said “the balance of harms here is overwhelmingly in favor of keeping these restrictions in place.”

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