Retro Junkie Arcade Bar's outdoor beer garden in Walnut Creek. (Photo courtesy of Retro Junkie Arcade Bar)

A lawsuit against Contra Costa County over early adoption of a health order banning outdoor dining at restaurants is on hold for now as a state health order has since gone into full effect, making the county’s earlier restrictions a moot point, an attorney for the plaintiff restaurants said Thursday.

The civil suit against Contra Costa County, filed Dec. 11 by four restaurants whose owners opposed the county’s early adoption of the COVID-19-related dining restrictions, is now scheduled to return to court sometime in April, said Joseph Tully, an attorney representing the restaurants.

The restaurateurs’ lawsuit has been rendered moot at this point, Tully said, because the state’s stay-at-home order went into effect Dec. 16, triggered by the availability of intensive care unit beds in the Bay Area going below 15 percent. The hope with restrictions, health officials have said, is to relieve crowded hospital emergency rooms to the extent possible.

As of Dec. 16, about 13 percent of ICU beds were available in Contra Costa, and across the nine-county Bay Area, according to Contra Costa Health Services. The state’s health order, Tully said, at that point superseded the county’s order, which the lawsuit was specifically challenging.

Other lawsuits are challenging the statewide order and its restrictions on outdoor dining, and Tully said “the battle goes on.”

On Dec. 14, Contra Costa County Superior Court Judge Steve Austin had said he would likely ultimately affirm Contra Costa Health Services’ assertion that the restaurant owners haven’t made a successful case that the ban is doing irreparable harm to those businesses. A hearing had been set for Thursday for final arguments in the civil suit, but Tully said the hearing has since been rendered moot.

The suit’s plaintiffs include Bar Cava Wine Whiskey and Eatery in Martinez, Providence Bar and Eatery in Oakley, Retro Junkie Arcade Bar in Walnut Creek and Leila in the Bay in Hercules. Other restaurants have shown interest in signing on to the suit, Tully said.

Contra Costa was one of five Bay Area counties that, earlier this month, shut down outdoor dining a few weeks ahead of the expected ICU bed capacity decrease kicking in. Health officials from those five counties had said with a shutdown inevitable, enacting it sooner could help slow mounting COVID-19 infections and hospitalizations sooner, and help slow the virus’s spread. All nine Bay Area counties have since come under the state’s stay-at-home order, which is set to lapse on Jan. 4 but could be extended.

While many health officials have said dining, indoors or out, involving multiple people is a key source of the spread of COVID-19, opponents of the dining ban have said there isn’t enough evidence of that to shut down outdoor dining.

Earlier this month, several restaurants in Danville openly defied the outdoor dining ban, absorbing citations rather than stop serving outdoor diners. There also has been at least one public rally in support of those Danville restaurants.