"I'm following their rules, but I am challenging them through the court system," said Corey Katz, owner of Bar Cava Whiskey, Wine and Eatery in Martinez.
Like most restaurant and bar owners, he said the past few months have been a roller coaster with many starts and stops.
"I can't sit back anymore," he said.
His lawsuit is modeled after one filed in Los Angeles County. The LA County Public Health Department closed outdoor dining in November due to increasing COVID-19 cases.
But on Tuesday, an LA County judge tentatively ruled in favor of the restaurants, writing the county "failed to perform the required risk-benefit analysis'' before enacting the ban.
WATCH: Restaurant owner shares her frustration over Los Angeles County dining ban in emotional video
However, because LA County remains under the state's regional stay-at-home order, even if the decision were finalized, outdoor dining would not be allowed under state regulations.
On Sunday, Contra Costa County was one of five Bay Area counties to preemptively enact the regional stay-at-home guidelines, even though the region had not yet crossed over the 15% ICU bed threshold. Nevertheless, the decision by the counties forced restaurants to operate in a takeout only fashion, closing all outdoor dining.
Katz said he doesn't want to be reckless or the source of an outbreak. But he wants to see data from the county about transmission of the coronavirus from outdoor dining.
"Show me the data, or let us be," he said.
RELATED: Is it necessary to ban outdoor dining in California's regional stay-at-home order? Doctor explains COVID-19 risk
Unlike in LA, if he were to get a judge to agree, it could have an immediate impact on outdoor dining Contra Costa County, as no state regulations currently prohibit it. As of Tuesday, the Bay Area region had a 24.5% ICU capacity.
Other restaurants and bars have been reaching out in support, he said, including Enrique Montero who runs Retro Junkie in Walnut Creek.
"It's very disheartening that it happened so quickly. We have perishables. We just got a letter from the city today to remove everything and spend more money to put it into storage," said Montero.
His businesses converted their parking lot into an outdoor drinking and dining venue over the summer. Without that, they have no other form of revenue as they don't do takeout.
"We've thrown everything we have and the kitchen sink at it, thinking this was a viable option to get through this pandemic and now here we are with the rug pulled out from under us with no relief in sight from congress," said Montero.
INTERACTIVE: Here's the reopening status of every Bay Area county
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Meantime, state and local health officials continue to advise against non-essential activities.
"The dark COVID winter that we feared would come has arrived in the Bay Area," said Dr. Chris Farnitano, Contra Costa County health officer. "I and other county health officers in the Bay Area don't think we can wait for the state's new restrictions to go into effect later this month. We must act swiftly to save as many lives as we can. This is an emergency."
Katz said he plans to file the lawsuit later this week.
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