The Burden

[Mark Kindt]

Reckless and Irresponsible

It is simply reckless for the Planning Commission to continue to accept applications and then grant conditional use permits for outdoor drinking/dining on City property while general immunity legislation is pending; since such general immunity would "gut" the protection of the liability insurance required from the applicant for the permit.

Further, depending on the factual circumstances, granting these permits in a reckless or careless manner might "gut" the City's own protection under the general immunity legislation as currently proposed.

This Deck presentation over the past two days, illustrates that there are more than enough reasons for the City to retreat from its expanded outdoor dining program.

[Mark Kindt]

The Easiest Way To Think About This

Covid-19 and the Server

A server working for a bar or restaurant with a conditional use permit for service on City property is unlikely to have employer-sponsored health insurance and any hospitalization due to Covid-19 may cost tens of thousands of dollars and place this employee at risk of both job loss and bankruptcy.

If Ohio adopts a general immunity law, a server who contracts Covid-19 will have no legal or civil rights under the law to seek recovery for costs or injuries suffered during their course of employment or while working on City property (sidewalks, etc.)

Covid-19 and the Diner

The diner (or diners) who contract Covid-19 on City property in use under a conditional use permit have much the some outcome, but they might have a better chance of having health insurance coverage.

The burden is both one of an unknown disease and its largely unknown complication as well as a fundamental deprivation of the ordinary legal right to sue for damages.

How can this municipal program be either safe or successful? It is simply a disaster waiting to happen.

With knowledge that an immunity statute is likely to be passed, bar owners can expand service on their own patios and onto public property knowing that they will be immune from lawsuit from the injuries and damages incurred by Covid-19 victims on these private and public premises.

Why, in God's name, should it be the public policy of the City of Lakewood to facilitate these injuries and damages and this likely and understood limitation on fundamental legal and civil rights as a matter of public policy on public property.


It is a game of Russian Roulette. It is unfair to residents, visitors, and employees who now think that because guidelines are in place that they are safe, insured or have legal rights.

On the contrary, they are all sh*t-out-of-luck!

[Mark Kindt]

Lakewood Has An Easy Defense

The State of Ohio is also doing everything that it can to assist businesses (bars) and communities (Lakewood) in the expansion of outdoor dining. This is apparent from the Twitter account of the Governor today; describing new flexibility at the Department of Liquor Control.

Of course, Lakewood will also benefit from the likely suspension of civil tort liability (until December 31, 2020) for those who may be injured on public property during the expanded outdoor dining period.

I do appreciate the steps taken by our local government to protect the residents from Covid-19, but I believe that they have embraced an illusion of safety in contrast to an actual enforceable public health policy for outdoor dining expanded onto public property.

If I actually believed that expanded outdoor dining in Lakewood was generally safe, I would be dining on a patio this week. --I for one, will not take that risk.

After witnessing local private outdoor patio dining/drinking (mostly drinking), how would anyone think that compliance with advisory guidelines would protect one from the asymptomatic transmission of Covid-19 on public property during a pandemic that has been in a growth mode for 4 months and still cranks on.

Once the civil tort liability is suspended, advisory guidelines will be mostly worthless, and liability insurance held by bars/restaurants will no longer be accessible to victims of negligence for Covid-19 injuries or damages.

[Mark Kindt]

Mr. Costa has reminded all of us that our hospital cannot be "un-demolished". He is quite correct.

But unlike a demolished hospital, the policies associated with expanded outdoor dining can be changed, modified, and adjusted to reflect new pressing and dire developments since May 2020.

I encourage all of our elected and public officials to re-evaluate expanded outdoor dining on public property and take a step-back to ensure that it can be reasonably safe during this pandemic situation that changes almost daily.

It is as simple as that.

[Mark Kindt]

Mr. Costa has reminded all of us that our hospital cannot be "un-demolished". He is quite correct.

But unlike a demolished hospital, the policies associated with expanded outdoor dining can be changed, modified, and adjusted to reflect new pressing and dire developments since May 2020.

I encourage all of our elected and public officials to re-evaluate expanded outdoor dining on public property and take a step-back to ensure that it can be reasonably safe during this pandemic situation that changes almost daily.

It is as simple as that.

As a part of this re-evaluation, I would encourage elected and public officials to review the timing and frequency of reported Covid-19 cases for those businesses that have been granted conditional use permits for expanded outdoor dining onto public right of ways. So far, as reported by others here, several have temporarily closed due to Covid-19 cases. We can all appreciate their diligence in closing and wish those exposed a prompt and safe recovery.

[Matthew Lee]

In my opinion, focusing on the few with outdoor eating permits is not the problem. The problem is the huge number of people who don't care and go to restaurants/bars anyways. It's not the four tables that Cleveland Vegan did or the six tables at El Carnicero. It's the masses of people other places that really should be the focus. Just my thoughts but I don't think closing those outside tables really matters in the large scheme of things.

Stay safe. Stay distant. Wear a mask. Disinfect.

[Jim O'Bryan]

In my opinion, focusing on the few with outdoor eating permits is not the problem. The problem is the huge number of people who don't care and go to restaurants/bars anyways. It's not the four tables that Cleveland Vegan did or the six tables at El Carnicero. It's the masses of people other places that really should be the focus. Just my thoughts but I don't think closing those outside tables really matters in the large scheme of things.

Stay safe. Stay distant. Wear a mask. Disinfect.

Matthew

I do not believe that Mr. Kindt is begrudging a couple tables or chairs. I actually saw him at one yesterday enjoying lunch.

But this is where Tom Bullock and club are headed...



Eating in the streets. First the sidewalks, and parking lots. I would say we all think it's their parking lot. Why shouldn't Mr. Hero turn their lot into tables? Privately owned, no issues.

City owned parking lots? Hmmmmmmm who is libel, and what are the rules, and the rent?

Street parking spaces as originally outlined, look at it. Really seems safe like a seat in the bullring.

Now go one step further as supported by 3 on council, perhaps some for of wire barrier between the diners and the cars. Huh? Like in NASCAR? Those cars weigh far less than your average van or small car. Those barriers can cost millions, and insurance is still high. Who is paying for Bullock's Master Plan of a drink on every corner?

Mark will speak for himself, but there is why I rang the warning bell.

.

[Matthew Lee]

I get it, but that is definitely not what is causing the surge. At least in my opinion. It's not the onesy/twosy outside seating. It's the people that don't care and congregate by the hundreds at other places. I could be wrong. But my vitriol would not be spent on the outside sidewalk dining but on the inside/outside everywhere dining where nobody seems to care.

[Mark Kindt]

Establishments are doing the right thing and closing due to Covid-19 to protect employees and customers, but no traffic safety engineering studies have been completed and no traffic safety infrastructure has even been deployed yet.

Expanded outdoor dining is not even reasonably safe from a traffic safety standpoint; no business is going to invest in it during a national pandemic that already has them risking insolvency.

The issuance of conditional use permits should be halted and the entire program should be suspended until the City of Lakewood can provide confident and competent evidence that the program can be conducted in a manner that is reasonably safe to the general public.

I enjoy outdoor dining just like everybody, but to fulfill even the most minor obligation I now have to wear a mask, stand six feet away, and wash my hands routinely.

Unlike the members of City Council and members of the Planning Commission, I am not prepared to dine outdoors on public property.

If they are dining outdoors on public property; I would ask them, for their own safety and that of their family, not to.

[Mark Kindt]

I get it, but that is definitely not what is causing the surge. At least in my opinion. It's not the onesy/twosy outside seating. It's the people that don't care and congregate by the hundreds at other places. I could be wrong. But my vitriol would not be spent on the outside sidewalk dining but on the inside/outside everywhere dining where nobody seems to care.

Mr. Lee is correct here. I agree with him. It is my intention in my writing here to be both accurate and blunt. No vitriol is intended. Bar crowds and Covid-19 are a recipe for disaster.

I am also concerned that local elected and other public officials have not appreciated the true gravity of the pandemic that has disrupted our lives and our livelihoods over the past 4 months or so.

As a citizen, I selected the one issue where I felt that I might have a useful impact to the benefit of others.

[Matthew Lee]

Establishments are doing the right thing and closing due to Covid-19 to protect employees and customers, but no traffic safety engineering studies have been completed and no traffic safety infrastructure has even been deployed yet.

So let me ask, why are you so concerned about outdoor dining but not about indoor or other dining? I really don't understand the obsession with outdoor legislation but don't see anything regarding eating indoors. My apologies if I am misunderstanding, but I see lots of posts against the new outdoor dining legislation but nothing mentioning current outdoor/indoor dining.

[Dan Alaimo]

Establishments are doing the right thing and closing due to Covid-19 to protect employees and customers, but no traffic safety engineering studies have been completed and no traffic safety infrastructure has even been deployed yet.

So let me ask, why are you so concerned about outdoor dining but not about indoor or other dining? I really don't understand the obsession with outdoor legislation but don't see anything regarding eating indoors. My apologies if I am misunderstanding, but I see lots of posts against the new outdoor dining legislation but nothing mentioning current outdoor/indoor dining.

It could be that I misunderstand, but my sense of it is that indoor restaurant dining is so dangerous in terms of Covid, there is nothing to discuss unless we are talking about an almost empty room. The droplets travel farther and remain in the air longer than first thought so even early social distancing guidelines are inadequate. Also research into recirculation by a/c is not complete. The thinking is that outdoor dining is the only option worth even discussing. That's my take on it.

[Mark Kindt]

Establishments are doing the right thing and closing due to Covid-19 to protect employees and customers, but no traffic safety engineering studies have been completed and no traffic safety infrastructure has even been deployed yet.

So let me ask, why are you so concerned about outdoor dining but not about indoor or other dining? I really don't understand the obsession with outdoor legislation but don't see anything regarding eating indoors. My apologies if I am misunderstanding, but I see lots of posts against the new outdoor dining legislation but nothing mentioning current outdoor/indoor dining.[/quote]

I am addressing municipal legislation and its implementation. To my knowledge, there is no municipal legislation related to indoor dining. If there were and if it were being misrepresented as "safer", I would likely address it.

You may disagree with my positions, but as a citizen of Lakewood my "obsession" in the time of the Covid-19 is the public health and safety of all of us.

Let me be abundantly clear, I have no local legal clients, I have no personal or business interests in this issue other than basic public health and safety, nor am I running for office.

I would be happy to send you a Washington Post article on Covid-19 autopsies, if you'd like. I'm around all day, give me a call (216) 521-6024. I think you are reading too much into my presentation. It is what it says. I write vigorously, that is my profession. I argue just as vigorously as I write. --That you can take to the bank.

[Mark Kindt]

All Bad News -- No Lakewood News

Plain Dealer, Saturday, July 11, 2020 at page A10

Headline: "New Virus Infections hit record highs"

Quote: "Young people between ages 20 and 29 make up the largest portion of suburban cases, with one-in-five cases attributed to that age group."

Factoid: Intensive Care Unit (ICU) occupancy at 82%.

I have no information about conditions in Lakewood aside from bar/restaurant closing noted by others.

My conclusions are pretty basic:

1. Dining or drinking in a local bar/restaurant is not safe at this time for anybody.

2. Dining or drinking outdoors at a local bar/restaurant while being misrepresented as "safer" is at best "less unsafe".

3. Regardless of age or condition, the downside risk of Covid-19 contagion is both too uncertain and too severe to dine or drink locally.

[Mark Kindt]

Mostly Bad News In July -- Plan Into Worsening Conditions

I started this Deck essay on July 1st. Today is July 31st. What have we seen?

1. Ohio reported a record number of new cases yesterday.

2. Last week the State issued a state-wide mask order.

3. Today we learn that bars and restaurants will have to stop serving alcohol after 10pm.

4. I encourage all of our local officials to plan consistent with worsening conditions as they shape policy and legislation related to the mitigation and containment of Covid-19 contagion.

This is a difficult challenge for all of us. I wish each of you the very best.