San Diego businesses await ruling in lawsuit against state, county

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SAN DIEGO – A ruling is expected Monday in a lawsuit filed by four local businesses hoping to reverse some of the restrictions of the purple tier so they can resume indoor operations.

The lawsuit was filed against the county and state last Thursday on behalf of Cowboy Star Restaurant and Butcher Shop, Home and Away Encinitas, Fit Athletic Club and Bear Republic.

A hearing lasted about two hours Friday with strong arguments from both sides. In the end, the judge and attorneys agreed they did not want to rush a ruling.

“Obviously we would like it today, but I think we would prefer to have a rational written decision,” said Bruno Katz, who is representing the businesses.

Katz has argued the businesses have very sanitary practices in place and a low case count tied to their industries, which should allow them to stay open.

“When the blueprint for a safer economy came out, there was no recognition of that. There was no transparency, there was no explanation as to the random and arbitrary nature of how the governor and his leadership designated restaurants and gyms, as well as any other industry,” he said.

He 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.

The state acknowledged the financial loss for businesses being partially or totally closed during the pandemic but argued that doesn’t justify keeping indoor service going at a time when COVID-19 cases are rising. 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Saying the lawsuit was based on outdated figures, Eisenberg cited a study submitted to the court which he said indicated full-service restaurants and gyms are “the top spreader locations” of virus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.

“He’s asking you to free thousands of restaurants and gyms in the middle of the worst part of a pandemic to go back to practices that the top public health officials in the state have said are unhealthy and will lead to mass deaths. Those are the stakes,” Eisenberg said.

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.”

San Diego Superior Court Judge Kenneth J. Medel said he expected to issue a written ruling by about noon Monday.

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