50 Bay Area restaurants sue Newsom over outdoor dining ban

Roughly 50 Bay Area restaurants sued Gov. Gavin Newsom over his regional bans on outdoor dining.

The Wine Country Coalition for Safe Reopening based their four causes of action on state law and the California Constitution. They are seeking to enjoin Newsom's December ban on outdoor dining and wine tasting. The complaint, filed Tuesday, also names state Public Health Director Tomas J. Aragon. Wine Country Coalition for Safe Reopening v. Newsom, 21CV000065 (Napa Super. Ct., filed Jan. 19. 2020).

"It's a more narrowly focused lawsuit than many of the others out there," said Thomas A. Harvey, who signed the complaint as a partner with Coblentz Patch Duffy & Bass LLP in San Francisco.

In their prayer for relief, the coalition requested the ban on outdoor dining be rescinded for the entire 10-county Bay Area region, or just in Napa and Sonoma Counties. Newsom's December order divided the state into regions and imposed stricter measures in areas where intensive care unit capacity in at least one county is reported to have dropped below 15%. Capacity dropped below 1% in the Bay Area about a week ago, according to the state.

But the complaint also attacks the way the state calculates intensive care capacity, claiming it uses adjusted numbers that make capacity appear worse than it is.

The complaint cites the state Constitution's equal protection and due process clauses, and its protections for private property and limits on police powers. It joins several other cases challenging outdoor dining bans and other limits on restaurants. While complaints challenging limits on in-person religious services have mainly cited the U.S. Constitution in federal court, Harvey said there is greater variety to the cases filed by restaurants.

"It's been a mix of state cases and federal cases," Harvey said. "I wouldn't say either one is dominant. ... We just think it's pretty straightforward from the California law perspective and we don't need to wade into the federal issues."

Restaurant revenues, hours and staff income have dropped 75% during Newsom's shutdown orders, according to the complaint. Several restaurants involved in the case have closed permanently. The plaintiffs also cite the ongoing costs they face, including state and local fees that have not been suspended even as restaurants were forced to close.

"State agencies like the Departments of Environmental Health and Alcoholic Beverage Control continue to impose full fees, even while the ban prevents them from running their businesses," the complaint noted.

Several lawsuits have also specifically challenged these state and local fees. Brian S. Kabateck of Kabateck LLP in Los Angeles has filed cases on behalf of restaurants challenging fees in Los Angeles, Orange, San Diego, San Francisco and Sacramento counties.

The fees issue has also captured the attention of some state lawmakers. AB 259, introduced on Friday, would create a tax credit for up to half the cost of an annual alcohol license for qualifying bars and restaurants for 2020 and 2021. Freshman Assemblywoman Laurie Davies, R-Laguna Niguel, a former restaurant manager, introduced the bill, also known as The Protecting Our Restaurants Tax Credit.