Onsite dining in S.D. County must remain closed as appeals court extends stay of judge’s reopening ruling

Court gavel

A state appeals court Dec. 23 extended an order issued last week blocking San Diego County’s restaurants from offering onsite dining, at least through the rest of the holiday season.

That means restaurants can only provide takeout and delivery service until the matter can be heard in the 4th District Court of Appeal in January.

The new restrictions for the Southern California region go into effect at 11:59 p.m. Sunday, Dec. 6, and must stay in place for at least three weeks because the region’s intensive care capacity has dropped below 15 percent.

The order came after a flurry of court activity last week in a case initially centered around two San Diego strip clubs — Cheetahs Gentlemen’s Club and Pacers Showgirls International — that had filed a lawsuit seeking to prevent state and local authorities from enforcing certain restrictions aimed at slowing the spread of COVID-19.

The strip clubs argued that they were operating safely, with reduced capacities and heightened safety measures, and that no COVID-19 cases had been traced to the businesses.

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

San Diego County Superior Court Judge Joel Wohlfeil granted an injunction in that case Dec. 16 that not only allowed the strip clubs to reopen but also “businesses with restaurant service.”

Wohlfeil wrote in his initial decision that the county had “provided the court with no evidence that San Diego County businesses with restaurant service” that implemented the county’s health protocols posed a risk to the spread of COVID-19.

Restaurant owners, harmed by revenue and job losses stemming from the shutdowns, reacted warily last week, though some did reopen onsite dining.

On Dec. 18, the appeals court issued a stay of Wohlfeil’s ruling — meaning restaurants had to again stop indoor and outdoor dining — in response to an emergency application from the state attorney general’s office for Gov. Gavin Newsom and the state Department of Health.

Attorneys for the strip clubs filed a response in opposition to the stay. On Dec. 23, the appeals court issued a ruling extending the stay and scheduled oral arguments for Jan. 19.

“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,” the appeals court said.

The original request for the stay argued that Wohlfeil overreached his authority when he issued the injunction. The state argued the move jeopardized the health of county residents because it undercut public health orders.

Attorneys representing the strip clubs argued in their response that no COVID-19 cases have been traced to Pacers or Cheetahs, pointing to strict pre-pandemic health and safety regulations that the clubs have boosted because of the coronavirus.

They also argued that attorneys for the state had opened the door for Wohlfeil to extend his decision to restaurants by introducing evidence from a separate but similar case involving local restaurants and gyms.

The decision to keep the stay in place did not come as a surprise to restaurateur Johan Engman, though the ruling is no less difficult to bear, he said.

“Obviously it’s horrible for us. I feel the worst for the employees,” said Engman, founder of Rise and Shine Hospitality Group, which owns 16 restaurants in San Diego County, including 10 Breakfast Republics. “I feel like they’re toying with people’s lives.

“I just think there’s a big double standard out there. I can’t see how it’s safe to go to a mall where it’s like a zoo now, yet I can’t serve you with sanitized tables six feet apart on an outdoor patio. That just makes no sense.”

Engman said he kept some of his restaurants open over the weekend after the appeals court issued the stay Dec. 18. He did so, he said, not to make a political statement but rather to give his employees two more days of work and sell the food he had ordered after learning of the Superior Court ruling that allowed restaurants to open onsite dining. By Dec. 21, the restaurants were limited to takeout.

“I was super disappointed they granted the stay so quickly,” Engman said. “I was hoping it would happen sometime this week and we’d buy ourselves some time. But I wasn’t holding my breath they’d remove the stay.”

Jason Saccuzzo, an attorney for Pacers, said he and his client “are disappointed the stay will not be lifted before Christmas so as to provide much-needed relief for all those suffering under the closure orders.”

Saccuzzo said he expects that while the stay remains in place, “it will be demonstrated that the spike in COVID-19 cases has nothing to do with adult entertainment venues or restaurants, which have taken extraordinary measures to avoid the spread of COVID-19.”

The decision to extend the stay came the same day San Diego County officials announced 39 additional COVID-related deaths — a new record nine days after the record hit 32.

There were 2,598 new cases listed in the county’s daily coronavirus report for Dec. 22, similar to the 2,381 reported the day before.

Total local COVID-related hospitalizations hit 1,405 on Dec. 22, representing almost one-third of the 4,601 people who were in hospital beds.

— San Diego Union-Tribune staff writer Paul Sisson contributed to this report.