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> California Health and Human Services Agency Secretary Mark Ghaly on Tuesday acknowledged the state’s regional prohibition on outdoor dining has more to do wit

> California Health and Human Services Agency Secretary Mark Ghaly on Tuesday acknowledged the state’s regional prohibition on outdoor dining has more to do with preventing gatherings and limiting movement than the activity itself. “The decision to include among other sectors outdoor dining and limiting that — turning to restaurants to deliver and provide takeout options instead — really has to do with the goal of trying to keep people at home, not a comment on the relative safety of outdoor dining,” he said at a press briefing. > "By failing to weigh the benefits of an outdoor dining restriction against its costs, the County acted arbitrarily and its decision lacks a rational relationship to a legitimate end," wrote Judge James C. Chalfant. In what sense is there a lack of a rational relationship between "restricting outdoor activity" and "reducing mass gathering" here? Whether or not the approach is ultimately a good one, the reasoning behind it seems pretty rational and simple to understand: they're restricting outdoor activity to reduce people's incentives to gather and reduce COVID-19's chances of spreading (which seems like a pretty legitimate end). What am I missing?

SpicyLemonZest 6y ago
The judge only struck down the county's ban on outdoor dining. The state-determined ban Ghaly was commenting on, which prohibits outdoor dining in the county based on specific metrics indicating ICUs are at risk of overload, is separate and still in effect. (One might point out that this is a very strange legal technicality, and... yeah, kinda.)
- deleted 6y ago
  [deleted]
- gnicholas 6y ago
  This seems strange at this moment, where one ban has been struck down but not the other. But within a few weeks the state ban will likely also be challenged. Even though the trial court judge's ruling in the first case isn't binding precedent in a subsequent case (only higher courts can create binding precedent), it will nonetheless carry some weight as the state decides whether to back down.
  - tinus_hn 6y ago
    You can’t strike them down both in the same case. Anyway these bans have a tendency to turn into some idiotic measures race where authorities compete on ‘toughness’, of course preferably applying it in situations where someone else bears the costs. Striking down poor local rules helps against that.
- AnimalMuppet 6y ago
  When you sue the county, that does not make the state a party to the lawsuit, even if the state is doing something similar. That's not a technicality; it's really fundamental to how lawsuits work.
1123581321 6y ago
The county was asked by the court to submit evidence of their claim that outdoor dining contributed to cases, relative to other allowed forms of gathering, and failed to do so. It sounds as though the county could have prevailed if they had been able to demonstrate that closing outdoor dining kept people home in a way that prevented cases, relative to closing other businesses. Why any more proof than an "it's simple" shrug is required apparently has to do with the limits of emergency powers. They are apparently not able to make any arbitrary pronouncements. If the county was right that closing outdoor restaurants in particular was one of the more important measures to rule, then they have cost lives--or will cost lives if the state's measures expire--by failing to successfully argue the case. They knew that this was coming their way.
- gamblor956 6y ago
  The state order supersedes the county's order, so despite the restaurants winning the case wrt to the county order they remain closed.
- supercanuck 6y ago
  Seems like they should just be able to roll this tape: https://www.google.com/amp/s/losangeles.cbslocal.com/2020/12/08/customers-dine-at-popular-agoura-hills-sports-bar-in-defiance-of-health-order/amp/ https://www.google.com/amp/s/losangeles.cbslocal.com/2020/12... Many people not wearing masks. Distancing and putting others are risk.
  - cwhiz 6y ago
    Adults going out to dinner in a supposedly free country? What an absolute travesty!
    - billylindeman 6y ago
      I think the most troubling thing I've seen throughout this entire pandemic is just how many people think they should be allowed to dictate what others do. It's a proposition completely at odds with freedom.
somethoughts 6y ago
I agree with this. I also feel (perhaps cynically) that banning is a good thing as a taxpaying citizen. Ban it, get the rule on the books but don't actually actively enforce it. It highly limits the state's liability if it does turn out late next year that outdoor gatherings due increase probabilities. Otherwise the state is on the hook for unlimited lawsuits related to criminal negligence for giving improper guidance which lead to loss of life. Its just like jaywalking rules. Its rarely enforced but prevents lawsuits in the event there is a fatality.
- josh3736 6y ago
  That's not how this works. The government cannot have "liability" for action or inaction because of sovereign immunity. No private person can sue the state without the state's permission. The rule is default deny. There is legislation that allows you to sue the government in specific, narrow circumstances, but nothing really relevant to this situation. I'm sure someone will try anyway, but the suit will certainly be dismissed. https://en.wikipedia.org/wiki/Sovereign_immunity_in_the_United_States https://en.wikipedia.org/wiki/Sovereign_immunity_in_the_Unit...
  - somethoughts 6y ago
    Ultimately monies get paid out if a whiff of wrong-doing is found. Perhaps not "liable" in the official lawyer sense but expensive settlements paid by the states are definitely fair game. Some random examples: https://www.usnews.com/news/best-states/texas/articles/2020-02-26/texas-teacher-who-sued-school-district-reaches-settlement https://www.usnews.com/news/best-states/texas/articles/2020-... https://www.expressnews.com/news/education/article/Harlandale-ISD-to-pay-700-000-to-its-former-15777131.php https://www.expressnews.com/news/education/article/Harlandal...
    - staticman2 6y ago
      The post you replied to was correct. Your reply shows you didn't understand it. I suggest you look up sovereign immunity if you want to learn more.
zdragnar 6y ago
They aren't restricting all outdoor activity- banning outdoor dining puts an arbitrary burden on restaurants that didn't exist elsewhere. For example, see the Pineapple Hill video (or whatever the place was called). In this case, the restaurant was forced to shut down, while a film crew set up their catering right across the street from her. Here, the state determined the entertainment industry to be "essential workers", rather than the county, but the basic point stands.
- us0r 6y ago
  It wasn't even across the street. Same parking lot. The city or county attempted to justify it by saying film production staff are tested regularly (can't make this up!)
  - bonestamp2 6y ago
    Is that not significant though? All of the people eating together in one setting are tested multiple times per week and screened each day. All of the people eating on the other patio have no oversight of testing and screening. Whether I agree with it or not, I can't deny those are very different risk profiles.
    - dehrmann 6y ago
      You might bump into equal protection issues with that.
      - anigbrowl 6y ago
        No you wouldn't. A different testing regime and day-to-day tracking easily meets the rational-basis standard for discrimination based on objectively different conditions.
    - mehrdadn 6y ago
      (Layman here, take everything with a truckload of salt.) I'm actually not sure they're "very" different risk profiles, though it isn't unreasonable to assume that before you analyze the situation further. My reason is that contagiousness peaks around 2-3 days before symptoms appear, and the false negative rate for a test is 100% just 4 days before symptoms appear. [1] Now consider that tests themselves normally take around 3 days to come back. That means if you find out your test results just 1 day before symptoms appear, they'll be based on your viral load from three days prior, where (as mentioned above) the test would've had a ~100% chance of producing a false negative! (Things improve a little for a 2-day turnaround, not that much.) In other news, the only time you can really expect useful results is on (or after) the day of symptoms... at which point you would already be staying home. I do see 2 places where this argument breaks down: - For asymptomatic carriers. I don't know what the rates are like, but asymptomatic people won't know to stay home without a test, so tests would seem to have some value there for the purpose of making public gathering safer. However, intuitively, I wouldn't expect it to be a game-changer—I'd only expect it to stretch the runway a little bit (say, get you a few extra days/weeks), but you'd still be back at square 1 having to shut things down afterward. - For people who aren't cautious and would go out to dine even amidst symptoms, but wouldn't go if they test positive. Which seems ironic because you could say reckless behavior here would (in some sense) seem to create a positive feedback loop justifying more reckless behavior. That not only seems like a questionable way to justify public policy, but it also seems to suffer from the same problem as the last item: it'd only delay the inevitable by a few days/weeks. - For rapid tests (< 1 day, preferably < 1 hour). I don't expect rapid tests will be available to the masses for everyday activities. So, at least on my end, with traditional testing that takes 2-3 days to come back, it's entirely plausible (and moreover, likely) to me that testing has low utility for these particular purposes. But I would love to hear an expert's explanation that takes all these factors (and more) into account. [1] https://medical.mit.edu/covid-19-updates/2020/07/when-should-i-be-tested https://medical.mit.edu/covid-19-updates/2020/07/when-should...
babesh 6y ago
They aren’t restricting all outdoor activity. They are restricting one form of outdoor activity while allowing others. There is one group (restaurants) that is inordinately harmed by this restriction. For instance, I walked by the Presidio parade grounds in SF this past Sunday. Plenty of people were picnicking on the grass there. They were eating and drinking without masks while social distancing. It’s basically a restaurant level risk without the restaurant. That activity is allowed but outdoor dining isn’t. Another example. I went to downtown Burlingame the week before to get my phone fixed. There was a lot of outdoor dining but more interestingly there were many people walking or standing around with masks down while sipping drinks. Those sidewalks don’t permit 6 ft social distancing. That is still not restricted but outdoor dining a few feet away would be. These restrictions don’t make much sense. The problem is that the behavior that is causing most of the spread is something that they cannot effectively ban without massive policing.
- anigbrowl 6y ago
  I've been seeing people packed in quite densely in many outdoor dining setups; other than the fact that they're outside there seems no risk awareness at all. It's very unfair to restaurants that do make an effort to limit table sizes and space people out as much as possible.
  - babesh 6y ago
    The problem with this virus is that most people aren’t going to die from it. Therefore, from a self interest standpoint, those least vulnerable don’t feel that they should make a sacrifice for those more vulnerable. Similarly, the economic effects aren’t being felt evenly. I think more and more people have come to this realization. If you are poor and likely to get it, then why shouldn’t you give it to the rich? Likewise if you are rich, you aren’t feeling the economic effects and may be for lockdowns. If you are a teen why should you be inconvenienced by masks? I think we are seeing both play out.
    - sampo 6y ago
      > those least vulnerable don’t feel that they should make a sacrifice for those more vulnerable. Young people will be hit the hardest, if there's an economic recession in the coming years. It will be especially hard for young people to find jobs.
ripberge 6y ago
You’re missing the main point of the judge’s decision, which is that this strategy doesn’t factor in the severe pain caused to people’s financial livelihoods.
- ecf 6y ago
  I’m trying to figure out the point in human history where the well-being of individuals or industries was prioritized over the well-being of the entire population. Someone’s financial livelihood should not be more important than a population’s health.
deleted 6y ago
[deleted]
underseacables 6y ago
The state has never given us an end in sight. It is a perpetual lockdown and they decide when it’s over. That’s arbitrary and capricious, and it should be overturned. At what point do you lose so much liberty that you say enough is enough?
- ecf 6y ago
  Well that's too bad, isn't it? We don't have an end in sight because morons didn't take the first lockdown seriously and its almost 2021 with the number of new cases increasing daily.

SpicyLemonZest 6y ago

The judge only struck down the county's ban on outdoor dining. The state-determined ban Ghaly was commenting on, which prohibits outdoor dining in the county based on specific metrics indicating ICUs are at risk of overload, is separate and still in effect. (One might point out that this is a very strange legal technicality, and... yeah, kinda.)

deleted 6y ago
[deleted]
gnicholas 6y ago
This seems strange at this moment, where one ban has been struck down but not the other. But within a few weeks the state ban will likely also be challenged. Even though the trial court judge's ruling in the first case isn't binding precedent in a subsequent case (only higher courts can create binding precedent), it will nonetheless carry some weight as the state decides whether to back down.
- tinus_hn 6y ago
  You can’t strike them down both in the same case. Anyway these bans have a tendency to turn into some idiotic measures race where authorities compete on ‘toughness’, of course preferably applying it in situations where someone else bears the costs. Striking down poor local rules helps against that.
AnimalMuppet 6y ago
When you sue the county, that does not make the state a party to the lawsuit, even if the state is doing something similar. That's not a technicality; it's really fundamental to how lawsuits work.

1123581321 6y ago

The county was asked by the court to submit evidence of their claim that outdoor dining contributed to cases, relative to other allowed forms of gathering, and failed to do so. It sounds as though the county could have prevailed if they had been able to demonstrate that closing outdoor dining kept people home in a way that prevented cases, relative to closing other businesses. Why any more proof than an "it's simple" shrug is required apparently has to do with the limits of emergency powers. They are apparently not able to make any arbitrary pronouncements. If the county was right that closing outdoor restaurants in particular was one of the more important measures to rule, then they have cost lives--or will cost lives if the state's measures expire--by failing to successfully argue the case. They knew that this was coming their way.

gamblor956 6y ago
The state order supersedes the county's order, so despite the restaurants winning the case wrt to the county order they remain closed.
supercanuck 6y ago
Seems like they should just be able to roll this tape: https://www.google.com/amp/s/losangeles.cbslocal.com/2020/12/08/customers-dine-at-popular-agoura-hills-sports-bar-in-defiance-of-health-order/amp/ https://www.google.com/amp/s/losangeles.cbslocal.com/2020/12... Many people not wearing masks. Distancing and putting others are risk.
- cwhiz 6y ago
  Adults going out to dinner in a supposedly free country? What an absolute travesty!
  - billylindeman 6y ago
    I think the most troubling thing I've seen throughout this entire pandemic is just how many people think they should be allowed to dictate what others do. It's a proposition completely at odds with freedom.

somethoughts 6y ago

I agree with this. I also feel (perhaps cynically) that banning is a good thing as a taxpaying citizen. Ban it, get the rule on the books but don't actually actively enforce it. It highly limits the state's liability if it does turn out late next year that outdoor gatherings due increase probabilities. Otherwise the state is on the hook for unlimited lawsuits related to criminal negligence for giving improper guidance which lead to loss of life. Its just like jaywalking rules. Its rarely enforced but prevents lawsuits in the event there is a fatality.

josh3736 6y ago
That's not how this works. The government cannot have "liability" for action or inaction because of sovereign immunity. No private person can sue the state without the state's permission. The rule is default deny. There is legislation that allows you to sue the government in specific, narrow circumstances, but nothing really relevant to this situation. I'm sure someone will try anyway, but the suit will certainly be dismissed. https://en.wikipedia.org/wiki/Sovereign_immunity_in_the_United_States https://en.wikipedia.org/wiki/Sovereign_immunity_in_the_Unit...
- somethoughts 6y ago
  Ultimately monies get paid out if a whiff of wrong-doing is found. Perhaps not "liable" in the official lawyer sense but expensive settlements paid by the states are definitely fair game. Some random examples: https://www.usnews.com/news/best-states/texas/articles/2020-02-26/texas-teacher-who-sued-school-district-reaches-settlement https://www.usnews.com/news/best-states/texas/articles/2020-... https://www.expressnews.com/news/education/article/Harlandale-ISD-to-pay-700-000-to-its-former-15777131.php https://www.expressnews.com/news/education/article/Harlandal...
  - staticman2 6y ago
    The post you replied to was correct. Your reply shows you didn't understand it. I suggest you look up sovereign immunity if you want to learn more.

zdragnar 6y ago

They aren't restricting all outdoor activity- banning outdoor dining puts an arbitrary burden on restaurants that didn't exist elsewhere. For example, see the Pineapple Hill video (or whatever the place was called). In this case, the restaurant was forced to shut down, while a film crew set up their catering right across the street from her. Here, the state determined the entertainment industry to be "essential workers", rather than the county, but the basic point stands.

us0r 6y ago
It wasn't even across the street. Same parking lot. The city or county attempted to justify it by saying film production staff are tested regularly (can't make this up!)
- bonestamp2 6y ago
  Is that not significant though? All of the people eating together in one setting are tested multiple times per week and screened each day. All of the people eating on the other patio have no oversight of testing and screening. Whether I agree with it or not, I can't deny those are very different risk profiles.
  - dehrmann 6y ago
    You might bump into equal protection issues with that.
    - anigbrowl 6y ago
      No you wouldn't. A different testing regime and day-to-day tracking easily meets the rational-basis standard for discrimination based on objectively different conditions.
  - mehrdadn 6y ago
    (Layman here, take everything with a truckload of salt.) I'm actually not sure they're "very" different risk profiles, though it isn't unreasonable to assume that before you analyze the situation further. My reason is that contagiousness peaks around 2-3 days before symptoms appear, and the false negative rate for a test is 100% just 4 days before symptoms appear. [1] Now consider that tests themselves normally take around 3 days to come back. That means if you find out your test results just 1 day before symptoms appear, they'll be based on your viral load from three days prior, where (as mentioned above) the test would've had a ~100% chance of producing a false negative! (Things improve a little for a 2-day turnaround, not that much.) In other news, the only time you can really expect useful results is on (or after) the day of symptoms... at which point you would already be staying home. I do see 2 places where this argument breaks down: - For asymptomatic carriers. I don't know what the rates are like, but asymptomatic people won't know to stay home without a test, so tests would seem to have some value there for the purpose of making public gathering safer. However, intuitively, I wouldn't expect it to be a game-changer—I'd only expect it to stretch the runway a little bit (say, get you a few extra days/weeks), but you'd still be back at square 1 having to shut things down afterward. - For people who aren't cautious and would go out to dine even amidst symptoms, but wouldn't go if they test positive. Which seems ironic because you could say reckless behavior here would (in some sense) seem to create a positive feedback loop justifying more reckless behavior. That not only seems like a questionable way to justify public policy, but it also seems to suffer from the same problem as the last item: it'd only delay the inevitable by a few days/weeks. - For rapid tests (< 1 day, preferably < 1 hour). I don't expect rapid tests will be available to the masses for everyday activities. So, at least on my end, with traditional testing that takes 2-3 days to come back, it's entirely plausible (and moreover, likely) to me that testing has low utility for these particular purposes. But I would love to hear an expert's explanation that takes all these factors (and more) into account. [1] https://medical.mit.edu/covid-19-updates/2020/07/when-should-i-be-tested https://medical.mit.edu/covid-19-updates/2020/07/when-should...

babesh 6y ago

They aren’t restricting all outdoor activity. They are restricting one form of outdoor activity while allowing others. There is one group (restaurants) that is inordinately harmed by this restriction. For instance, I walked by the Presidio parade grounds in SF this past Sunday. Plenty of people were picnicking on the grass there. They were eating and drinking without masks while social distancing. It’s basically a restaurant level risk without the restaurant. That activity is allowed but outdoor dining isn’t. Another example. I went to downtown Burlingame the week before to get my phone fixed. There was a lot of outdoor dining but more interestingly there were many people walking or standing around with masks down while sipping drinks. Those sidewalks don’t permit 6 ft social distancing. That is still not restricted but outdoor dining a few feet away would be. These restrictions don’t make much sense. The problem is that the behavior that is causing most of the spread is something that they cannot effectively ban without massive policing.

anigbrowl 6y ago
I've been seeing people packed in quite densely in many outdoor dining setups; other than the fact that they're outside there seems no risk awareness at all. It's very unfair to restaurants that do make an effort to limit table sizes and space people out as much as possible.
- babesh 6y ago
  The problem with this virus is that most people aren’t going to die from it. Therefore, from a self interest standpoint, those least vulnerable don’t feel that they should make a sacrifice for those more vulnerable. Similarly, the economic effects aren’t being felt evenly. I think more and more people have come to this realization. If you are poor and likely to get it, then why shouldn’t you give it to the rich? Likewise if you are rich, you aren’t feeling the economic effects and may be for lockdowns. If you are a teen why should you be inconvenienced by masks? I think we are seeing both play out.
  - sampo 6y ago
    > those least vulnerable don’t feel that they should make a sacrifice for those more vulnerable. Young people will be hit the hardest, if there's an economic recession in the coming years. It will be especially hard for young people to find jobs.

ripberge 6y ago

You’re missing the main point of the judge’s decision, which is that this strategy doesn’t factor in the severe pain caused to people’s financial livelihoods.

ecf 6y ago
I’m trying to figure out the point in human history where the well-being of individuals or industries was prioritized over the well-being of the entire population. Someone’s financial livelihood should not be more important than a population’s health.

deleted 6y ago

[deleted]

underseacables 6y ago

The state has never given us an end in sight. It is a perpetual lockdown and they decide when it’s over. That’s arbitrary and capricious, and it should be overturned. At what point do you lose so much liberty that you say enough is enough?

ecf 6y ago
Well that's too bad, isn't it? We don't have an end in sight because morons didn't take the first lockdown seriously and its almost 2021 with the number of new cases increasing daily.