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More than 30 local restaurants sue the state over operating restrictions

20201206-bc-restaurants

Thomas Anton, a lawyer with Thomas Anton & Associates, spoke in December to local restaurant owners at Salty's BBQ & Catering in southwest Bakersfield about legal action intended to allow them to continue serving customers during the pandemic.

A group of 35 Bakersfield-area restaurant owners filed suit in Kern County Superior Court Wednesday accusing Gov. Gavin Newsom and four other top state officials of exceeding their authority by restricting diners' business operations during the pandemic.

The 26-page suit, one of several across the state to challenge guidelines that have decimated much of the industry, results from months of collaboration among local restaurateurs who say the state's actions are unreasonable.

As a legal remedy, the suit calls for stopping the state from banning outdoor service and allowing restaurants to offer indoor dining at up to 25 percent of their capacity or not more than 100 people "if the restaurant complies with all other regulations such as masking and distancing."

Plaintiff Jeff Salters, owner of Salty's BBQ & Catering, said he thinks it's time business owners "basically stand up for our rights."

"You have to stand up to your government," he said, "and I think we're going to see more and more people say there are things we do to protect people but there are things we do to protect ourselves and our families."

Named as defendants, along with Newsom, were state Attorney General Xavier Becerra; Sandra Shewry, acting director of the California Department of Public Health; Acting State Health Officer Erica S. Pan; and Joseph McCullough, chief deputy director of California's Department of Alcoholic Beverage Control.

Spokespeople for some of individuals named in the lawsuit said they were unable late Wednesday afternoon to respond to the lawsuit at a moment's notice. Others did not immediately respond and one referred questions elsewhere.

A key accusation in the lawsuit is that the state essentially took the defendants' property — their businesses — without offering fair compensation.

"It's confiscation. I call it legal extortion," said Tom Anton, the attorney who filed the suit Wednesday afternoon on the restaurant owners' behalf.

Anton said after authorities in Kern County declared they would not enforce the restaurant restrictions the state reacted by assigning ABC employees to visit and threaten eateries that continued to operate in violation of state guidelines.

He said the department has not issued a single citation to any of his clients and that none of them have received written notice to close. The state's enforcement seems to ebb and flow, he said, and "there needs to be a clear articulation from the governor that he's not going to enforce this order."

In one case, Anton said, a client ordered to close by an ABC representative refused to comply. He said the representative left the restaurant and returned shortly afterward with a Bakersfield police officer "who never said a word." Anton said the business owner then offered to close once clients already seated in the restaurant finished their meals.

The next morning the ABC official called to ask whether the restaurant was open — which it was not, Anton said — and the representative said to keep it that way.

"The lady didn't understand," Anton said, that the restaurant didn't open until 11:30 a.m. — "and it did."

The lawsuit said the state's order restricting restaurant operations is "over broad, vague and fails to detail any scientific evidence which supports the conclusion that outdoor dining will or even may expose person to the coronavirus." It adds that social dining provides overlooked psychological and physiological benefits and that the state's actions were motivated "to create merely the appearance of action."

The suit further asserts constitutional guarantees allow people to pursue a livelihood free of governmental interference.

Salters said he's looking forward to see what comes of the legal action.

"We're excited to see where this goes," he said.

Follow John Cox on Twitter: @TheThirdGraf