Public Health Order restrictions

Court Extends Stay in Strip Club/Restaurant Suit; Businesses Remain Limited to Takeout

Cheetahs Gentlemen's Club in Kearny Mesa.
NBC 7

A state appeals court on Wednesday announced it would extend a stay blocking a San Diego judge's temporary injunction allowing county restaurants to reopen on-site dining and would hear oral arguments in the case in mid-January.

Last Friday, the California Court of Appeals first blocked the San Diego judge's temporary injunction, reducing them, once again, to takeout services only.

The appellate court's initial ruling came just days after restaurants, which were reduced to to-go services only under Southern California's recent stay-at-home order, were apparently given the green light to serve food indoors and outdoors, and apply COVID-19 safety protocols as they saw fit.

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On Wednesday, the 4th Appellate Court of California announced it was continuing the stay issued last week.

"We have considered the request for a stay, the opposition, the amicus curiae brief, and the limited record before us," court papers released Wednesday stated. "We conclude the stay should continue in place until this court can address the important legal and constitutional issues raised by the parties regarding the injunction."

County Supervisor Nathan Fletcher addressed the public before a closed session meeting with county leaders to mull a judge's surprise temporary injunction that allowed for restaurants to reopen.

Wednesday's decision acknowledged the importance of the court's role: "This appeal highlights the incredible hardships that so many people are suffering as a result of the global pandemic, and it requires us to consider the scope of the government's authority to impose restrictions designed to curb the pandemic and protect public health. We are aware of the delicate balance of interests at stake, and we understand that reasonable minds can differ on the appropriate balance to strike."

Oral arguments in the case are now set for Jan. 19.

The court saga started when two San Diego strip clubs, Pacers International Showgirls and Cheetahs Gentlemen's Club, sued county and state leaders over cease-and-desist orders forcing them to close.

On Dec. 16, San Diego Superior Judge Joel Wohlfeil issued an injunction exempting the two strip clubs from shutdowns, but surprised many, including the San Diego County Board of Supervisors, by extending the ruling to "All businesses that provide restaurant services."

The county said last week that it would temporarily suspend pandemic-related public health order enforcement at restaurants and live entertainment businesses while it determined its next steps. Two supervisors went on record saying they were blindsided by Wohlfeil's inclusion of restaurants in his order.

NBC 7's Dave Summers reports from Little Italy where many restaurants have reopened indoor and outdoor dining.

"The ruling grew out of a lawsuit related to strip clubs, not restaurants," Supervisor Dianne Jacob said. "… If the litigation had included restaurants, I would have never supported the county's legal challenge related to the suit."

California Gov. Gavin Newsom requested an immediate stay of the ruling on Dec. 18, which the state Court of Appeals accepted hours later. The court on Wednesday acknowledged Newsom's request as well as a response by an unnamed local restaurant.

"The state parties -- Gavin Newsom, in his capacity as governor, and the California Department of Public Health-have requested a temporary stay of the injunction," the court papers issued Wednesday stated. "We previously granted a stay, on an emergency basis, and solicited and received an opposition from the adult entertainment businesses. We also received an amicus curiae brief on behalf of a San Diego restaurant."

Supervisor Nathan Fletcher said last week that "the stay means Judge Wohlfeil’s ruling is not in effect and right now San Diego County remains under the State of California’s stay-at-home guidance."

The San Diego County Board of Supervisors will meet Friday in a special session to discuss the impact of a judge's ruling on the pandemic restrictions surrounding local restaurants. NBC 7's Nicole Gomez reports.

The Board of Supervisors met in closed session on Dec. 18, before the appellate court's stay order, and agreed to a partial appeal of Wohlfeil's injunction.

"The Board voted to appeal the order," a statement from Board President Greg Cox read in part. "But the board directed county counsel to only argue that the order is incorrect as it relates to the continued operation of strip clubs and the allowance of indoor dining. We support outdoor dining with appropriate safety protocols that have been previously established."

A judge has clarified a ruling stating that all restaurants can resume onsite dining. NBC 7's Alexis Rivas has more.
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