Appeals court issues stay, halting judge’s order allowing San Diego County restaurants to reopen

Gavel photo

State lawyers say the stay is needed to protect public health as the COVID-19 pandemic surges.


A state appeals court issued a stay Dec. 18 blocking a San Diego County Superior Court judge’s ruling that had allowed restaurant and live entertainment venues to reopen in the county. The stay closed a window of opportunity that opened briefly for an industry besieged by the COVID-19 pandemic.

The move by the California 4th District Court of Appeal came in response to an emergency application from the state attorney general’s office for Gov. Gavin Newsom and the state Department of Health. The stay means restaurants must again shut down onsite dining. They can be open for takeout and delivery.

The request for a stay argued that Superior Court Judge Joel Wohlfeil overreached his authority Dec. 16 when he issued an injunction prohibiting state and local officials from enforcing restrictions on dining that limited restaurants to providing only takeout service and banned live entertainment.

The state said the move jeopardized the health of county residents because it undercut public health orders aimed at mitigating the spread of the disease.

Wohlfeil’s ruling, which went into effect immediately, came in a lawsuit filed by owners of two San Diego strip clubs, Pacers Showgirls International and Cheetahs Gentlemen’s Club, who challenged public health orders that would have largely shuttered their businesses. But the judge took the step of not only siding with the clubs and prohibiting the state from enforcing the restrictions but also applying the order to all restaurants in the county, though no restaurants were involved in the lawsuit.

The ruling contended that the state had not provided evidence that open restaurants were contributing either to the spread of COVID-19 or the shrinking availability of intensive care beds across the 11-county Southern California region.

Lawyers for the state argued that to include restaurants that were not part of the case before him was “a clear abuse of discretion” by Wohlfeil.

“This unsolicited order against enforcement of basic public health precautions necessary to reduce the spread of COVID-19, at a moment when hospitals in San Diego County and across the state are being overwhelmed, requires immediate action by this court,” lawyers wrote.

State lawyers also contended that they were not “on notice that they needed to defend their public health restrictions generally applicable to restaurants.” If they had been, they would have provided evidence to support the restrictions, according to the filing.

In addition, the state argued that Wohlfeil was wrong when concluding the restrictions violated the First Amendment rights of the strip clubs, saying the closures were aimed not at restricting speech but protecting public health.

The appeals court gave the clubs until Wednesday, Dec. 23, to file a response. The state said it plans to fully appeal Wohlfeil’s injunction to eliminate it but told the appeals court it needed immediate action Dec. 18 to protect the public.

Jason Saccuzzo, the lawyer for Pacers, said he was disappointed with the stay and the fact that the performers at the club would have to be told they could not work.

“This is a huge blow to them right before Christmas, as well as for all restaurants in San Diego, in what has already been a very tight year for them financially, given all the uncertainty caused by the ever-changing orders of Gov. Newsom,” Saccuzzo said.

Several San Diego County restaurants, buoyed by Wohlfeil’s ruling, had reopened their venues for indoor and outdoor dining, only to learn that their good news was short-lived.

Following a Dec. 16 ruling and a clarification the next day from a San Diego County Superior Court judge that coronavirus-related restrictions limiting restaurants to takeout service were no longer applicable, several La Jolla restaurants reopened for onsite dining service.

Adding to the upcoming legal battle was a decision by the county Board of Supervisors, also a defendant in the strip club case, to appeal a portion of Wohlfeil’s ruling that applies to allowing live entertainment and indoor dining.

After a two-hour closed session, the board voted unanimously to appeal the injunction but also said outdoor dining should be permitted. Board Chairman Greg Cox issued a statement explaining that the board decided Wohlfeil’s ruling was incorrect only as it related to strip clubs and indoor dining.

“We support outdoor dining with appropriate safety protocols that have been previously established,” Cox wrote.

Meanwhile, the pandemic continued its relentless surge across the region. County health officials Dec. 18 reported a record number of new cases of the coronavirus that causes COVID-19 — 3,611 — 744 more than the previous high set Dec. 10. There were 14 more deaths reported, bringing this year’s total to 1,253.

The intensive care unit capacity in the Southern California region is at 0 percent amid a regional stay-at-home order that will last until the region’s capacity meets or exceeds 15 percent.

Restaurateur Ben Clevenger, president of the San Diego chapter of the California Restaurant Association, said the turn of events was not unexpected for the hospitality community.

“After the [lower court] ruling came out, we knew a stay order had a chance of happening,” said Clevenger, owner of Eastbound Bar and Grill in Lakeside. “It was 50-50, but obviously disheartening, and it drains us a little.”

Clevenger said he reopened his restaurant Dec. 17 and it was packed.

“That’s because people want to enjoy sit-down dining,” Clevenger said.

He said he hadn’t decided whether to remain open in the coming days, despite the stay from the appellate court.

“We will evaluate it and figure out what we want to do, but I’m leaning toward staying open,” he said. “It’s such a hard thing to be told one thing and then you call your staff back that you just laid off and then call them again and tell them they can’t come back. It’s exhausting.”

Staff writers Sara Butler and Jennifer Ianni contributed to this report.