Judge allows strip clubs to stay open, county stops enforcing restaurant restrictions

A San Diego Superior Court judge on Wednesday, Dec. 16, ruled two strip clubs can remain open and operating during the most recent COVID-19 shutdown orders from the state, in a ruling that appeared to extend to the county’s beleaguered restaurant industry and allow those businesses to reopen to some extent.

The ruling by Superior Court Judge Joel Wohlfeil came in a case filed by two San Diego strip clubs. And while the clubs prevailed in earning an injunction that allowed them to continue to offer live dancing, the judge went a significant step further and said the injunction can apply across San Diego’s restaurant sector that has been crushed by the COVID-19 pandemic.

Wohlfeil’s ruling prevents local officials from enforcing the latest set of restrictions that went into effect in San Diego County on Dec. 3, not only against the two strip clubs — Pacers and Cheetahs — but also “San Diego County businesses with restaurant service” that abide by health and safety protocols that “are no greater than is essential” to control the spread of COVID-19.

The ruling is effective immediately. What precisely that means is unclear.

San Diego County officials also were uncertain about the meaning, but said Wednesday night, Dec. 16, that the county would halt enforcing restrictions against restaurants.

“The State and the County are analyzing the scope of the ruling and discussing next steps which includes seeking clarity from the court,” county Communications Director Mike Workman said in a statement. “Until we have clarity, we have suspended enforcement activities against restaurants and live entertainment establishments.

“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 COVID-19 metrics that measure a case rate and a percentage of positive COVID-19 tests performed over a seven-day period puts it in the state’s tier of “widespread” infection, and triggered a mandated closure or operating restrictions on many businesses. Currently, restaurants are allowed to only offer take-out food, with no indoor or outdoor dining allowed.

Wohlfeil’s order seems to peel back those restrictions for restaurants, but to what extent is unclear.

The judge said that there was no compelling evidence that allowing restaurants to operate, with health and safety restrictions, adds to the risk of spreading COVID-19.

“Given every opportunity, the County has provided the Court with no evidence that San Diego County businesses with restaurant service, such as Plaintiffs’ establishments, who’ve implemented protocols as directed by the County, present any risk — much less a greater risk than before Governor Newsom issued his December 3, 2020 Regional Stay at Home Order — to the spread of COVID,” he wrote.

While he said he was empathetic to county leaders put in position to enforce state health orders or risk losing funding, he also said the businesses were vital.

“These business establishments provide sustenance to and enliven the spirits of the community, while providing employers and employees with means to put food on the table and secure shelter, clothing, medical care, education and, of course, peace of mind for they and their families,” he wrote.

The ruling constitutes a sharp rebuke to the sweeping stay-home orders that limit or shut down businesses and entire sectors of the economy. Newsom and local leaders have said those restrictions were necessary as a surge in COVID-19 infections and hospitalizations is swamping the state, straining health care systems.

It came on a day when San Diego County reported 2,807 new cases of infection and another 23 deaths, and 301 patients in intensive care beds. Hospitals are starting to curtail procedures like organ transplants and cancer surgeries because of the strain on the system, county officials reported Wednesday, Dec. 16.

The capacity of available intensive care beds in San Diego and 10 other counties that comprise the state’s “Southern California Region” was under 1 percent Wednesday, Dec. 16. Despite those dire figures Wohlfeil said repeatedly there was no “nexus” between restaurants offering dining, the spread of the disease and the state restrictions.

The state and county, he said, had not shown that “businesses with restaurant service, such as Plaintiffs’ establishments, who’ve implemented protocols as directed by the County, have impacted ICU bed capacity throughout the Southern California Region (much less in San Diego County).”

Local restaurateurs reacted with cautious optimism to a ruling they think may give them the green light to reopen for indoor and outdoor dining. Up until the recent regional stay-at-home order eateries in San Diego County were allowed to serve customers outdoors.

“The overall category in the ruling is ‘businesses with restaurant service,’ and I think Cowboy Star is a business that provides restaurant service,” said Jon Weber, co-owner of Cowboy Star in downtown San Diego. “You could read the ruling a couple of different ways, depending on your bias. At Cowboy Star, we’re going to keep doing what we’ve been doing, which is takeout. We’re not making any decisions tonight.”

Cowboy Star was one of the plaintiffs in a lawsuit filed last month on behalf of San Diego County restaurants and gyms who were seeking a temporary order that would have immediately let them return to indoor operations. Superior Court Judge Kenneth J. Medel, however, turned down their request, siding with county and state officials, who were the defendants in the case.

Chad Cline, co-owner of the Waterfront Bar & Grill in Little Italy and a number of other nightlife venues and restaurants, said Wednesday, Dec. 16, he hopes the ruling in the Pacers case means he can reopen his businesses to dining but is unsure precisely what Judge Wohlfeil’s wording means.

“It kind of says that restaurants can reopen but the caveat there may be that someone has to be stripping, which seems so wild to me,” Cline said. ”If that’s what it takes for us to reopen our businesses — taking off our clothes, I’ll do it.”

Marco Li Mandri, chief executive administrator of the Little Italy Association who has been leading a coalition of restaurateurs pressing the county Board of Supervisors to let them reopen outdoor dining by this weekend, was heartened by the court ruling.

“The ruling gives additional backup to the fact that the state has overstepped its bounds and the county too so we would strongly encourage the Board of Supervisors to challenge the governor’s order and allow for outdoor dining the week before Christmas and beyond,” he said.

For the two clubs the ruling was a significant win. On Nov. 6 Wohlfeil had issued a temporary injunction allowing the clubs to remain open. His ruling Wednesday, Dec. 16, extended that while the suit brought by the clubs against the orders continues.

In that earlier ruling Wohlfeil sided with the clubs who argued that live adult dancing has been recognized as constitutionally protected free speech by courts, and said the restrictions posed an “irreparable harm” to the businesses.

Jason Saccuzzo, the lawyer for Pacers, said he was happy with the ruling and that if it applied to other businesses that was fine. “Clearly it applies to us and if other businesses look at it and want to run with it, that’s their decision. We fully support all restaurant owners and if our little case does anything to help them out, that’s great.”

— Greg Moran and Lori Weisberg are reporters for The San Diego Union-Tribune