The California Court of Appeals blocked a San Diego judge's temporary injunction allowing county restaurants to reopen on-site dining, reducing them, once again, to takeout services only.
The appellate court's ruling comes 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.
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 Wednesday, 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 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 Judge Wohlfeil's inclusion of restaurants in his order.
"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."
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California Gov. Gavin Newsom requested an immediate stay of the ruling Friday, which the state Court of Appeals accepted hours later.
According to Supervisor Nathan Fletcher, "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."
"This is the right decision to protect our communities given the severity of cases and hospitalizations we are experiencing in San Diego County. Everyone should stay home unless it is absolutely essential," Fletcher said.
The Board of Supervisors met in closed session Friday afternoon, before the appellate court's stay order, and agreed to a partial appeal of Judge 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."
It is unclear if or when public health order enforcement at restaurants and live entertainment businesses will resume.
"We remind everyone that the virus is still out there. Please continue to cover your face, wash your hands and avoid gatherings," Cox's statement continued.
On Friday morning, Fletcher, who's been the most vocal supervisor in support of business restrictions during the pandemic, criticized the basis for Wohlfeil's ruling and accused the judge of dismissing scientific studies and San Diego County's own experience with surging COVID-19 cases.
“To have a judge come out and say that there is no data to support that restaurant settings are more dangerous, is defying thousands of pages of research, our own experience with what we went through in June and July, along with the information of who’s contracting it and I fear it causes a significant impact in our ability to respond," Fletcher said.
Following the county's decision to appeal the injunction, Fletcher said, "I vehemently disagree with the recent judicial decision allowing strip clubs and all restaurant activities to resume and I support appealing the entirety of the recent court ruling. It is a positive step that our board voted unanimously to join the state in the appeal as it relates to strip clubs and indoor dining.
Restrictions surrounding many business entities in San Diego County, especially restaurants, have flipped and flopped several times over throughout the pandemic. Many restaurants took advantage of the enforcement suspension Thursday, seating customers outdoors and indoors with capacity limits, and other safety protocols once mandated by local and state governments, apparently at their own discretion.
After hearing they'd have to close again after being open for onsite dining for just two days, restaurant owners were feeling deflated.
"We were just able to open up halfway through our hours yesterday and it looks like we gotta close back after tonight again," Secon Change Brewery CEO Virginia Morrison said. It will be her sixth time closing her doors due to pandemic restrictions.
"Frustration is is mild understatement but we're on television so I will leave it at that," she told NBC 7.
Supervisor Jim Desmond, who has been outspoken against commercial restrictions during the coronavirus pandemic and has even organized rallies for business owners to protest them, said Wohlfeil's ruling "strikes a better balance."
A day later, after the appellate court's ruling effectively closed restaurants again, Desmond said it was a tragedy.
San Diego Mayor Todd Gloria said in a statement on Friday the city is "working closely" with the county and state on the matter.
"No one wants our small businesses to be closed, but the science and data are showing a dire trend in hospitalizations and deaths," he said in the statement. "Over 1,200 have died in San Diego County and the ICU capacity in Southern California has dropped to zero."
“We have a collective obligation to accept the personal responsibility of keeping each other safe," Gloria's statement continued. "I am asking San Diegans to continue to stay home as much as possible, wear a mask, avoid large gatherings, and order to-go to support small businesses. The health of our local economy hinges on the health of San Diegans.”.
