California's Health Secretary Concedes There Is No Empirical Basis for the State's Ban on Outdoor Dining

This week a Los Angeles County judge ruled that a local ban on outdoor dining at restaurants, ostensibly aimed at reducing transmission of the COVID-19 virus, was "not grounded in science, evidence, or logic." Around the same time, California Health and Human Services Secretary Mark Ghaly admitted that the same thing is true of a state ban on outdoor dining that currently applies to all of Southern California, including Los Angeles County. Ghaly said that ban, which is one of many restrictions that are triggered when a region's available ICU capacity drops below 15 percent, is "not a comment on the relative safety of outdoor dining" but is instead aimed at discouraging Californians from leaving home.

"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," Ghaly said during a briefing on Tuesday. He noted that "we have worked hard with that industry to create safer ways for outdoor dining to happen."

The precautions include "keeping tables farther apart," "ensuring masking happens as much as possible," and maximizing air circulation. "All of those factors make sectors like outdoor dining lower risk," Ghaly said. "But right now, with the levels of transmission that we're seeing, we advise against anything that you can do in another way, in a lower-risk way, that avoids you either leaving your home or…leaving your home in a way that…cause[s] you to mix with others."

Ghaly's premise that prohibiting outdoor dining will encourage Californians to eat "in a lower-risk way" seems pretty dubious. While that policy may cause some people to have food delivered and consume it at home with no one outside their households, others, deprived of a relatively safe dining option, may instead privately get together with friends and relatives indoors, a much higher-risk setting.

Ghaly was responding to a reporter who asked whether there are "any data" to support a ban on outdoor dining, such as evidence of outbreaks linked to that specific setting. His answer implicitly conceded that there are no such data. The ban, he said, is based not on a determination that outdoor dining is especially dangerous but on a desire to keep people from leaving their homes.

That high-handed rationale has to be galling for restaurateurs who have invested in expanding outdoor dining and complying with government guidelines. Many of these businesses are barely hanging on, and the ability to offer outdoor dining has been crucial to keeping them viable.

"I personally feel like we're being punished," Kat Turner, co-owner of the Highly Likely Café in L.A.'s West Adams neighborhood, recently told Reason's Zach Weissmueller, referring to the county ban on outdoor dining. "The data to support that COVID is being spread through outdoor dining, I think, is extremely flimsy. I just don't understand the agenda that's being pushed."

David Combes, CEO of Botanical Group, which owns two restaurants in West Hollywood, told Weissmueller the company had spent "hundreds of thousands of dollars" to shift its business to outdoor dining. The investment included "additional staffing required, security required to manage patrons and make sure that there's distancing applied, barriers, and sanitizers." During compliance checks by local health inspectors, Combes said, his restaurants "sailed through with flying colors," although the effort "certainly has made our life challenging and profitability an impossibility."

Restaurant owners like Turner and Combes jumped through all the hoops the government set up for them, and Ghaly concedes their safeguards created environments where the risk of virus transmission is low—so low that neither the county nor the state has been able to cite any evidence suggesting that outdoor dining poses a significant public health hazard. Yet now the government is telling them all the effort and expense was for naught, because Gov. Gavin Newsom—who a month ago was caught enjoying fine dining in a higher-risk indoor setting while flouting his own rules regarding masks and social distancing—has decided that Californians should not be eating out, period.