The Impossible Task, The Unreasonable Demands

Restaurateurs and regulators are wary as dining returns to outdoor spaces

For reasons that are inexplicable, California has outdoor dining again. Gov. Gavin Newsom says his sudden reversal of the ban has nothing to do with the recall effort that was sparked by pandemic closures, but he hasn’t been able to muster a coherent alternate explanation. Given recent reports of more contagious variants of the Covid-19 virus, ICU occupancy rates topping 85 percent across the state and short supplies of vaccines, there certainly hasn’t been any rational reason to reduce caution.  

As is often the case when something happens for opaque reasons, a variety of individuals and organizations are claiming credit. A group of winery owners who filed a lawsuit demanding the end of restrictions are claiming this as their victory. This is despite the fact that the lawsuit is generally regarded as a PR stunt with almost no chance of success. Restaurant associations, entertainment companies and other pressure groups have also cited the change as evidence of their clout. It’s convenient for them that there’s no way to disprove their claims.  

Though the decision to open has been made, it’s worth considering the arguments on both sides. At one end of the spectrum are people who see the decision to relax restrictions as a cave to special interest groups and a setback for getting the disease under control. They’re not likely to patronize restaurants inside or out, but are affected if they are called back to work and threatened with job loss if they don’t show up. On the other end are people with many reasons for advocating reopening. Some are fans of conspiracy theories that the pandemic is a hoax in order to justify dictatorship. Some advocate “herd immunity” despite the unanimous horror of the medical profession, and others are restaurant and small business owners who are desperate to pay their bills.   

The most extreme of these are rebels who defiantly did what they opened their businesses to do: serve food to customers who came there to dine. The owners said they had no choice, because revenue from serving everything to go was too low. They railed against regulations they characterized as “one size fits all,” so that their outdoor tables are treated differently than the same seating in a nearby park. Resistance to these restrictions ranged from subtle to confrontational. When outdoor dining was allowed, some restaurants skirted the rules, defining indoor spaces with big windows as outdoor patios and serving until they got caught. Governor Newsom’s lavish dinner in just that sort of environment got him a well-deserved slagging in the press while giving ammunition to his critics. 

Some didn’t even pretend to follow the rules. Dana Tanner at Restauration in Long Beach openly and publicly defied the orders, going so far as to publicize a New Year’s Eve dinner with a DJ and open bar. Other owners took legal action, like a Bay Area coalition that filed a lawsuit claiming unequal treatment because malls and big box retailers were allowed to remain open.

Regulators and law enforcement leaders counter these arguments by pointing out that the Centers for Disease Control studies show a high correlation between dining out and disease spread. They point out that interactions in retail stores can be arranged with little or no contact between employees and customers, and a mask can be worn at all times in a retail store, neither of which is true in a restaurant dining situation. 

After looking at both arguments in detail, one comes to an uncomfortable conclusion: they’re both right. 

On the restaurant side, there’s no question that overall traffic is much lower, and customers who order take-out are spending much less in each transaction. In a normal dining situation people around a table will order extra appetizers, sides, desserts, and drinks as the meal progresses, and restaurants lose those impulse buys in a to-go environment. Alcohol sales, which are the difference between profit and loss for many establishments, have been particularly affected. So have sales of fresh seafood and shellfish, which are high-ticket items almost everywhere that they are served. When it comes to the dining environment, eatery owners argue that a blanket ban on both indoor and outdoor dining is unfair, because it doesn’t take the situation at their establishment into account. 

Regulators counter that the problems with decreased traffic aren’t their prime concern while public health is. Most agree that closing all restaurant dining areas isn’t a perfect solution and point to the impossibility of assessing risks and enforcing bans on an individual basis. 

Suppose someone devised a metric by which restaurant spaces could be judged on airflow, distance between diners, and other concerns, and those that were judged safe were allowed to have on-site dining. The amount of data that would need to be collected and the number of in-person inspections required to verify that data are insurmountable barriers. They would involve measurements taken in each area of each room of every restaurant, plus all outdoor spaces and waiting areas. 

Given that there were 70,000 eating and drinking establishments in Los Angeles County at last count, the number of inspectors that would be required to conduct evaluations is enormous. Restaurants currently only see a health inspector between one and three times a year, and that is to conduct a far less rigorous survey of health conditions. 

The most confrontational restaurant owners now face a business risk rivaling the pandemic closures thanks to their actions. Regulators have been citing scofflaws, revoking health permits, and having utilities turned off. It’s an open question whether those businesses will have their service restored. It’s also an open question how long the reopening will last, since a closure that was both enacted and repealed on short notice may be reinstated again.   

If it is, the group of winery owners will undoubtedly resurrect their lawsuit, but its prospects are questionable. An attorney who has looked at the case, David Bosko, says “I don’t think the restaurants’ argument is that strong,” even though “Pandemic fatigue has infiltrated judgment, even within the judiciary. The government cannot act in an arbitrary and capricious way, but this is not exactly arbitrary and capricious. We know that people getting together increases risk.  The mere fact that life is not fair, and that some things are open and some things are not, may not be sufficient to show this is arbitrary. The government is doing its best. It cannot close everything so it closes what it can.”

When asked about the difference in customer behavior between restaurants and retail environments, Bosko affirmed that it is a weak point in their case. 

“[The lawsuit] boasts that coalition members have provided masks and mandated them for customers and employees. But it says nothing about the point you raise – that customers simply cannot wear their masks while eating and drinking. This is another significant reason supporting the argument that the ban is not arbitrary and capricious that I would expect a court to consider.”

The argument on both sides is escalating in stridency and theatrical strategies. Even during the complete closure, some restaurants went underground and ushered customers inside via back doors and alleyways, after covering their windows so passers-by couldn’t see inside. Because these culinary speakeasies are illegal and hidden, the windows are shut tight and the risk of disease transmission correspondingly greater. The staff are in a bind; they have bills to pay so keep working but live in fear of both the knock at the door that means a shutdown, and the fever that indicates that they worked one shift too many. 

Dining outdoors is open for now, but as health professionals advocate for tighter restrictions, restaurateurs are surely working out strategies to evade them. The only thing that can be said with certainty is that like the pandemic itself, the argument about how to react to it won’t be over any time soon.