Comment by mehrdadn | Hacker News Reader

Comment by mehrdadn | Hacker News Reader

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> California Health and Human Services Agency Secretary Mark Ghaly on Tuesday acknowledged the state’s regional prohibition on outdoor dining has more to do with preventing gatherings and limiting movement than the activity itself. “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, not a comment on the relative safety of outdoor dining,” he said at a press briefing.

> "By failing to weigh the benefits of an outdoor dining restriction against its costs, the County acted arbitrarily and its decision lacks a rational relationship to a legitimate end," wrote Judge James C. Chalfant.

In what sense is there a lack of a rational relationship between "restricting outdoor activity" and "reducing mass gathering" here? Whether or not the approach is ultimately a good one, the reasoning behind it seems pretty rational and simple to understand: they're restricting outdoor activity to reduce people's incentives to gather and reduce COVID-19's chances of spreading (which seems like a pretty legitimate end). What am I missing?

The county was asked by the court to submit evidence of their claim that outdoor dining contributed to cases, relative to other allowed forms of gathering, and failed to do so. It sounds as though the county could have prevailed if they had been able to demonstrate that closing outdoor dining kept people home in a way that prevented cases, relative to closing other businesses.

Why any more proof than an "it's simple" shrug is required apparently has to do with the limits of emergency powers. They are apparently not able to make any arbitrary pronouncements.

If the county was right that closing outdoor restaurants in particular was one of the more important measures to rule, then they have cost lives--or will cost lives if the state's measures expire--by failing to successfully argue the case. They knew that this was coming their way.

The state order supersedes the county's order, so despite the restaurants winning the case wrt to the county order they remain closed.

Seems like they should just be able to roll this tape:

https://www.google.com/amp/s/losangeles.cbslocal.com/2020/12...

Many people not wearing masks. Distancing and putting others are risk.

Adults going out to dinner in a supposedly free country?

What an absolute travesty!

I think the most troubling thing I've seen throughout this entire pandemic is just how many people think they should be allowed to dictate what others do. It's a proposition completely at odds with freedom.

The erosion of the idea of personal responsibility in favor of the idea social responsibility. Combined with a complete and utter disregard for the livelihoods of the millions of people impacted by these decisions.

That is before we even consider the long term health consequences of what we're doing to people. Stress kills, too.

They aren't restricting all outdoor activity- banning outdoor dining puts an arbitrary burden on restaurants that didn't exist elsewhere.

For example, see the Pineapple Hill video (or whatever the place was called). In this case, the restaurant was forced to shut down, while a film crew set up their catering right across the street from her.

Here, the state determined the entertainment industry to be "essential workers", rather than the county, but the basic point stands.

It wasn't even across the street. Same parking lot. The city or county attempted to justify it by saying film production staff are tested regularly (can't make this up!)

Is that not significant though? All of the people eating together in one setting are tested multiple times per week and screened each day. All of the people eating on the other patio have no oversight of testing and screening. Whether I agree with it or not, I can't deny those are very different risk profiles.

(Layman here, take everything with a truckload of salt.)

I'm actually not sure they're "very" different risk profiles, though it isn't unreasonable to assume that before you analyze the situation further. My reason is that contagiousness peaks around 2-3 days before symptoms appear, and the false negative rate for a test is 100% just 4 days before symptoms appear. [1]

Now consider that tests themselves normally take around 3 days to come back. That means if you find out your test results just 1 day before symptoms appear, they'll be based on your viral load from three days prior, where (as mentioned above) the test would've had a ~100% chance of producing a false negative! (Things improve a little for a 2-day turnaround, not that much.) In other news, the only time you can really expect useful results is on (or after) the day of symptoms... at which point you would already be staying home.

I do see 2 places where this argument breaks down:

- For asymptomatic carriers. I don't know what the rates are like, but asymptomatic people won't know to stay home without a test, so tests would seem to have some value there for the purpose of making public gathering safer. However, intuitively, I wouldn't expect it to be a game-changer—I'd only expect it to stretch the runway a little bit (say, get you a few extra days/weeks), but you'd still be back at square 1 having to shut things down afterward.

- For people who aren't cautious and would go out to dine even amidst symptoms, but wouldn't go if they test positive. Which seems ironic because you could say reckless behavior here would (in some sense) seem to create a positive feedback loop justifying more reckless behavior. That not only seems like a questionable way to justify public policy, but it also seems to suffer from the same problem as the last item: it'd only delay the inevitable by a few days/weeks.

- For rapid tests (< 1 day, preferably < 1 hour). I don't expect rapid tests will be available to the masses for everyday activities.

So, at least on my end, with traditional testing that takes 2-3 days to come back, it's entirely plausible (and moreover, likely) to me that testing has low utility for these particular purposes. But I would love to hear an expert's explanation that takes all these factors (and more) into account.

[1] https://medical.mit.edu/covid-19-updates/2020/07/when-should...

Beyond the regular testing, I imagine the contact tracing would be easier for a production set than a restaurant.

Are diners in American restaurants required to register name and contact details before entering? We have that in South Australia (takes a few seconds via QR code), and we currently have no active cases state-wide.

Last time, they showed a list of particular hot spots (bus stops, shopping centres, schools) and asked if we'd been at any of those locations recently. Though I imagine there wouldn't be much of the US right now that isn't some level of hot spot!

You might bump into equal protection issues with that.

No you wouldn't. A different testing regime and day-to-day tracking easily meets the rational-basis standard for discrimination based on objectively different conditions.

I would feel a lot better about outdoor dining if I knew that the people at the table 2 feet away were being tested 3x per week and that I'd hear about it if they tested positive in the next few days

Where are the spit tests? 36-48 hours for PCR results isn't practical for the kind of testing regime needed for restaurants, and bars.

Gyms, shops, shopping malls are open. No testing and no limits.

States have a legal and ethical pubic health obligation. They're also on the hook financially via lost sales taxes and medicaid costs. Each covid case is bad for states. But they can't pay businesses to close. And they federal government won't pay even though they could.

A 10 minute spit test would make this allot more doable.

The spit tests aren’t all rapid - some are PCR.

from what i have seen most places have bubbles over each dining table. its still a gathering though.

Wow, I haven't seen that anywhere. The closest I've seen is the places that cram all the tables together under a giant test. Here in LA the inspectors found that about 80% of restaurants weren't following guidelines for things like table distance

But they are tested regularly. Each production is also supposed to have a dedicated person to handle Covid-19 compliance with final authority on such matters and separation/segmentation of bubbles/zones for those that closely or without masks and the rest of production. http://www.publichealth.lacounty.gov/media/Coronavirus/docs/...

They're in essence, supposed to work in as much of a bubble as they can whereas you cannot say the same about a restaurant. It's an unfortunate situation, but they really are quite different.

I'd argue that there is a substantial difference - if the staff of a film production (or any business, really) are already working on-site together, then them also eating lunch together does not create additional "connections" like a dining place that's open to the general public does.

The policy goal is to minimize the number of people you meet. You meet your household, if you have to work non-remotely, then you meet some coworkers (preferably a limited amount and always the same, separating a company in teams/"bubbles") and ideally that's it - it makes all sense that places where you'd be eating together with random strangers should be restricted much more than work lunches where outsiders are excluded.

Maybe the restaurants should be in the catering business then instead of running a business that requires people to take their masks off in proximity to other people in public.

That, or hire customers to each say a little something on film. They all get to be essential workers!

If you’re in the “thirty mile zone” you might not even have to feed them!

They aren’t restricting all outdoor activity. They are restricting one form of outdoor activity while allowing others. There is one group (restaurants) that is inordinately harmed by this restriction.

For instance, I walked by the Presidio parade grounds in SF this past Sunday. Plenty of people were picnicking on the grass there. They were eating and drinking without masks while social distancing. It’s basically a restaurant level risk without the restaurant.

That activity is allowed but outdoor dining isn’t.

Another example. I went to downtown Burlingame the week before to get my phone fixed. There was a lot of outdoor dining but more interestingly there were many people walking or standing around with masks down while sipping drinks. Those sidewalks don’t permit 6 ft social distancing.

That is still not restricted but outdoor dining a few feet away would be.

These restrictions don’t make much sense. The problem is that the behavior that is causing most of the spread is something that they cannot effectively ban without massive policing.

I've been seeing people packed in quite densely in many outdoor dining setups; other than the fact that they're outside there seems no risk awareness at all. It's very unfair to restaurants that do make an effort to limit table sizes and space people out as much as possible.

The problem with this virus is that most people aren’t going to die from it. Therefore, from a self interest standpoint, those least vulnerable don’t feel that they should make a sacrifice for those more vulnerable.

Similarly, the economic effects aren’t being felt evenly.

I think more and more people have come to this realization.

If you are poor and likely to get it, then why shouldn’t you give it to the rich? Likewise if you are rich, you aren’t feeling the economic effects and may be for lockdowns. If you are a teen why should you be inconvenienced by masks? I think we are seeing both play out.

> those least vulnerable don’t feel that they should make a sacrifice for those more vulnerable.

Young people will be hit the hardest, if there's an economic recession in the coming years. It will be especially hard for young people to find jobs.

most people don't project the consequences of their decisions out that far. "I want to spend time with friends" does not lead to "this may cause me difficulty in finding a job later on" because the causal relationship is systemic and related to the independent decisions of many actors, not their own singular decision.

Or in other words, it's a tragedy of the commons.

Yea, if anyone has actually seen these schemes restaurant owners have come up with, especially as the weather gets cold: It's a joke. Four clear vinyl walls and a ceiling. It is essentially indoor dining but in a parking lot. You're not fooling anyone. They're obviously designed to comply with the exact letter of the law, not its spirit or intention. When I look at them and the people in them sitting shoulder to shoulder, all I can think of is "super-spreader". I'm shocked that they were allowed to operate in this way.

Also, the "but other businesses..." argument fails to recognize that dining is a special case activity: The nature of eating food requires you to be unmasked and using your mouth. It's not the same as shopping for clothes.

That is an argument for enforcing safe outdoor dining rather than banning it altogether. There is a distinction.

It’s no different from people standing in the middle of the sidewalk or people who stand right behind you in line.

Maybe it was earlier in the summer. But, as the weather has grown colder, many restaurants have gradually enclosed their "outdoor dining" areas to the point that they're practically indoors again.

It is different, because people standing in line on the sidewalk are generally maintaining an approximate 6 foot distance (unless they're from the same household). I'm talking about (some) restaurants arranging people with only 1-2 feet of separation between diners. Plus people standing in single file are going to circulate air differently to people sitting abreast of each other, as well as wearing rather than doffing masks. Also, sit down meals tend to last at least 20-30 minutes, and I have not spent that much time in line on the sidewalk for anything during COVID - perhaps once back in March when social distancing was first being figured out, but definitely not since.

Lines into Trader Joe’s are easily that long but that is why I just drive away if I see a line that long.

The obvious difference is that nobody wears a mask while eating...

> Presidio parade grounds in SF this past Sunday. Plenty of people were picnicking on the grass there.

If they are from the same household and keeping their distance from people in other households this is entirely fine. It’s relatively low risk if outdoors, especially someplace relatively windy.

If they are from different households and crowding together eating then they are technically violating SF’s local health orders. Enforcement is difficult of course.

> Burlingame [...] many people walking or standing around with masks down while sipping drinks [...] That is still not restricted

I would guess that these people are violating their local health orders (they certainly would be in SF), but again it’s a lot harder to enforce this one than shutting down restaurants.

The judge only struck down the county's ban on outdoor dining. The state-determined ban Ghaly was commenting on, which prohibits outdoor dining in the county based on specific metrics indicating ICUs are at risk of overload, is separate and still in effect.

(One might point out that this is a very strange legal technicality, and... yeah, kinda.)

This seems strange at this moment, where one ban has been struck down but not the other. But within a few weeks the state ban will likely also be challenged.

Even though the trial court judge's ruling in the first case isn't binding precedent in a subsequent case (only higher courts can create binding precedent), it will nonetheless carry some weight as the state decides whether to back down.

You can’t strike them down both in the same case.

Anyway these bans have a tendency to turn into some idiotic measures race where authorities compete on ‘toughness’, of course preferably applying it in situations where someone else bears the costs.

Striking down poor local rules helps against that.

When you sue the county, that does not make the state a party to the lawsuit, even if the state is doing something similar. That's not a technicality; it's really fundamental to how lawsuits work.

You’re missing the main point of the judge’s decision, which is that this strategy doesn’t factor in the severe pain caused to people’s financial livelihoods.

I’m trying to figure out the point in human history where the well-being of individuals or industries was prioritized over the well-being of the entire population.

Someone’s financial livelihood should not be more important than a population’s health.

The state has never given us an end in sight. It is a perpetual lockdown and they decide when it’s over. That’s arbitrary and capricious, and it should be overturned. At what point do you lose so much liberty that you say enough is enough?

Well that's too bad, isn't it? We don't have an end in sight because morons didn't take the first lockdown seriously and its almost 2021 with the number of new cases increasing daily.

I agree with this.

I also feel (perhaps cynically) that banning is a good thing as a taxpaying citizen. Ban it, get the rule on the books but don't actually actively enforce it.

It highly limits the state's liability if it does turn out late next year that outdoor gatherings due increase probabilities. Otherwise the state is on the hook for unlimited lawsuits related to criminal negligence for giving improper guidance which lead to loss of life.

Its just like jaywalking rules. Its rarely enforced but prevents lawsuits in the event there is a fatality.

That's not how this works.

The government cannot have "liability" for action or inaction because of sovereign immunity. No private person can sue the state without the state's permission.

The rule is default deny. There is legislation that allows you to sue the government in specific, narrow circumstances, but nothing really relevant to this situation. I'm sure someone will try anyway, but the suit will certainly be dismissed.

https://en.wikipedia.org/wiki/Sovereign_immunity_in_the_Unit...

Ultimately monies get paid out if a whiff of wrong-doing is found.

Perhaps not "liable" in the official lawyer sense but expensive settlements paid by the states are definitely fair game.

Some random examples:

https://www.usnews.com/news/best-states/texas/articles/2020-...

https://www.expressnews.com/news/education/article/Harlandal...

The post you replied to was correct. Your reply shows you didn't understand it. I suggest you look up sovereign immunity if you want to learn more.

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