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Judge To Rule Monday On San Diego Businesses Lawsuit On Indoor Operations

Outdoor dining in Kearney Mesa on July 15, 2020. The city allowed restaurants...

Photo by KPBS Staff

Above: Outdoor dining in Kearney Mesa on July 15, 2020. The city allowed restaurants and retailers to expand into sidewalks and parking lots during the coronavirus pandemic.

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

San Diego Superior Court Judge Kenneth J. Medel heard arguments Friday on the lawsuit, which was filed last week in San Diego Superior Court 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 businesses are seeking a temporary restraining order halting the prohibition on indoor operations, and allege 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.

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

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 Tuesday's 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 daily case 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.

Katz argued Friday that restaurants and gyms are being punished despite adhering to the state's guidelines in terms of sanitation and other protective measures 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.

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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