San Diego County restaurants, including strip clubs that serve food, can remain open and make their own determinations about providing a safe environment for dancers and patrons during the pandemic, a judge ruled Wednesday, dealing a setback to Gov. Gavin Newsom’s health order that calls for such establishments to be shuttered due to the coronavirus pandemic.
The ruling is the latest in a legal battle brought on by two San Diego strip clubs, Pacers Showgirls International and Cheetahs Gentlemen's Club, against the governor, and state and county health officials.
The scope of San Diego Superior Court Judge Joel Wohlfeil's preliminary injunction extends far beyond the two clubs that sued the state to all of the thousands of restaurants in San Diego County, the state's second-largest county after Los Angeles.
Wohlfiel said the injunction applies to “San Diego County businesses with restaurant services,” including the strip clubs, and that it exempts them from shutdowns and “any related orders” that ban live adult entertainment and go beyond protocols “that are no greater than essential” to controlling the spread of COVID-19.
At a Thursday hearing, Wohlfiel clarified the terms of the injunction, saying "All businesses that provide restaurant service are encompassed within the court order."
The judge noted that Pacers International Showgirls and Cheetahs Gentlemen's Club operated for five weeks during the pandemic under their own safety measures, which included keeping strippers 15 feet (4.6 meters) from tables, allowing no more than one stripper per stage and requiring them and other employees to wear masks.
The county responded late Wednesday, saying it, along with the state, were "analyzing the scope of the ruling and discussing next steps which includes seeking clarity from the court."
The county said until it has more from the court, it will be suspending public health order enforcement against restaurants and live entertainment establishments.
Governor Gavin Newsom appealed the ruling Thursday as expected. The County Board of Supervisors will meet in closed session Friday to determine their next steps
"Also, as of this moment, county will NOT enforce public health orders until the matter is settled," the spokesperson said.
Several local restaurants took the ruling as a greenlight to reopen for on-site dining, both indoor and outdoor, Thursday with respect to some COVID-19 safety guidelines.
"With record numbers of new infections, deaths, and ICUs at capacity, we want to remind everyone to do your part. Please don’t gather, socially distance, wear a face covering, and wash your hands," the county's statement continued.
County Supervisor Jim Desmond tweeted the judge failed to see a link between COVID-19 transmission and "a wide array of business and other activities including gyms, fitness center, yoga studios, bars, restaurants, spas, fraternities and sororities, religious entities and entertainment centers.”
"Amazing! Our pressure has worked once again!" another tweet from the supervisor read. Desmond has been a vocal opponent of commercial restrictions and has even organized rallies in protest of state and county public health orders.
Jason Saccuzzo, a lawyer for Pacers, referred to the order's precise language when asked about its scope, saying it was “a difficult question to answer.”
Steve Hoffman, an attorney for Cheetahs, said he was “very pleased” with the ruling and had no comment on whether it extended to other strip clubs and restaurants.
“Cheetahs and Pacers will continue to operate in a manner that takes all appropriate and essential measures to prevent the spread of COVID-19 while at the same time providing a means for their staff to earn a livelihood,” he wrote in an email.
The ruling, which takes effect immediately, comes after Newsom's Dec. 3 stay-at-home order in response to a surge of coronavirus cases that has hammered hospitals across the state.
California Attorney General Xavier Becerra said in a “cease-and-desist” order to both clubs last week that they were violating the state’s new policy, which bars indoor and outdoor dining and prohibits social gatherings that bring together people of different households in an effort to limit the spread of the coronavirus.
Becerra wrote that he was acting on behalf of Newsom, a fellow Democrat, and the state health department and that he will pursue legal action if the companies didn’t comply.
Wednesday's ruling followed more than an hour of spirited argument about whether state authorities overreached or acted within the law to protect public health.
“What's going to happen next when there is some greater emergency? Are we all going to be under house arrest? Are we going to even have a Constitution?” said Saccuzzo, the Pacers lawyer. “I fear that we may end up in a country that we don't even recognize.”
The clubs sued San Diego County in October after they were ordered to close.
Last month, a judge in another case denied a request to temporarily lift some restrictions on San Diego County restaurants and gyms. The California Restaurant Association did not immediately respond to a request for comment on Wednesday's ruling.