MARTINEZ (KPIX) – The latest stay-at-home orders have drawn criticism and even outright defiance from some businesses, but in Contra Costa County a group of restaurants is taking a different approach. They are taking the county to court.

When the Bar Cava Wine Bar and Eatery, in Martinez, had its outdoor seating area shut down, owner Corey Katz’s income quickly went to almost nothing.

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“I made $25 last Wednesday,” he said.

Katz says he hasn’t seen any data that shows outside dining is spreading COVID-19 so he and three other restaurant owners in the county filed a lawsuit, Friday, to overturn the ban. His attorney, Joseph Tully, says the county has failed to prove harm.

“All laws must be based in reason and they can’t be arbitrary,” he said. “And here they’re saying all outdoor dining has to be shut down but they’re not citing any science that would allow for that.”

In response to the legal claim, the county said because the restaurants can still do takeout sales, they also haven’t suffered “irreparable harm.” So, in a hearing on Monday, a judge told the businesses they have to prove they’ve been hurt by being shut down.

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“The proof is there!” said Katz. “The proof is all the rent checks that are late, right? There’s so much proof out there that, in a sense, it’s kind of ridiculous that we even have to do this.”

After all the layoffs, bankruptcies and emergency bailout programs the county is making the restaurants prove that being shut down is bad for business.

“To us, there’s no doubt and to the government there should be no doubt,” said co-counsel Nathan Dondi. “However, nothing’s a shock to me when it comes to injustice at the hands of the government.”

Katz said he will start compiling the numbers to show his losses in time for the next court hearing on Christmas Eve.

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The lawyers say they don’t know if they’ll prevail but a similar lawsuit was successful just last week in overturning an outdoor dining ban in Southern California. They believe if they are successful it will be a precedent that will have to be honored throughout Contra Costa County.