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Lawsuit brought by Kern County restaurants against Gov. Gavin Newsom heading to court next week

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Posted at 1:23 PM, Dec 24, 2020
and last updated 2020-12-28 11:25:45-05

BAKERSFIELD, Calif. (KERO) — A civil suit involving nearly three dozen local restaurants will return to the courtroom next week as attorneys argue the validity of the governor's order that shutdown in-person dining.

It took several days to find a judge to hear the case since several had to recuse themselves because they knew one or more of the 35 restaurant owners in the lawsuit. The case is now being heard in Ridgecrest.

Judge Kenneth Pritchard needed more time to go over the suit.

The case will be back in court early next week.

Tom Anton, who is representing the restaurants, issued the following statement on Thursday:

The Law Offices of Thomas Anton & Associates represent thirty-five (35) Kern County Restaurants, each of which are facing financial ruin because of the Governor’s Orders regarding in or out door dining. If allowed to stand, our Clients will not be able to operate their businesses and will be forced to lay off more than 800 men and women. Our clients seek a Temporary Restraining Order enjoining the Governor (“Defendants”) from enforcing the Orders preventing outside dining in restaurants pending an Order to Show Cause Re: The Issuance of a Preliminary Injunction.

Our Clients serve food inside and outside of their facilities. Before the current shut-down, they “ . . . implemented and followed all provisions of California’s Industry Guidance for Restaurants, Wineries and Bars, including, but not limited to, individual control measures, screening, cleaning, disinfecting protocols and physical distancing.” Our Clients have always followed the guidelines promulgated by the Department of Public Health whether serving in or outside. Yet, the Governor has taken away without offering one cent of compensation to the owners of restaurants and bars and has thrown out of work more than 800 employees, depriving them of their ability to earn a living.

The Governor’s “on again/off again process” has caused great damage and confusion to our Clients, as well as to the public. Therefore, injunctive relief is called for because our Clients remain under the constant threat that one or more of the Orders will be enforced.

The obvious question is in the absence of evidence, can the latest Order limiting restaurants to serve only "take-out, pick-up, or delivery enforceable? This case is by no means “a first.” At least 7 other matters have been decided in several Superior Courts throughout the state. In a San Diego matter, the Superior Court issued an Order, dated 12/16/2020, in Midway Venture LLC vs County of San Diego. The Court held that the State, after being given every opportunity, it provided no evidence that San Diego County businesses with restaurant service, such as our Clients who've implemented the protocols heretofore directed by the State, “ . . . present any risk – much less a greater risk than before Governor Newsom issued his December 3, 2020 Regional Stay at Home Order - to prevent the spread of COVID.” The Court declared that in the absence of such evidence, “penalizing . . . restaurants and gyms . . . is wrong.” It also declared that the State had “ . . . not . . . shown that granting the applications (to operate) will harm the public.” Clearly, that is the situation in Kern County.

Neither the Governor, the Department of Public Health, nor the Attorney General have even claimed that dining inside can or has resulted in the spread of the disease. In fact, the State cannot show that public health will be imperiled if the less restrictive measures is imposed.

Finally, there are also important constitutional issues in this case. Even in a pandemic, the Constitution cannot be put away and forgotten. The restrictions in the Order have effectively barred both restaurant owners, their employees and the patrons from working or eating out. In short, an entire industry has been successfully decimated. Before allowing this to continue, we ask the Court conduct a serious examination of the need for such drastic measures.

We will prove that our Clients will soon exhaust their capital trying to comply with Defendants’ “endless and bewildering” Orders. They are already sustaining significant, if not draconian, losses, and are in fearful that their businesses may be closed permanently if the latest Order is not enjoined. Like the other cases, the Defendants, will not be able to provide any evidence that Plaintiffs providing out door dining and limited in-door dining who've implemented the existent protocols directed thus far, present any risk – much less a greater risk than before the Governor his December 3, 2020 Regional Stay at Home Order - to the spread of COVID. Indeed, the State in all of the other cases have not presented any evidence that by providing restaurant service, any restaurant has impacted the ICU bed capacity anywhere in California.