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San Diego County restaurants to remain closed as appeals court extends stay of judge’s reopening order

Owner Ben Clevenger (left) takes the temperature of /lead bartender Curtis Schussler at Eastbound Bar and Grill in Lakeside.
Owner Ben Clevenger (left) takes the temperature of manager/lead bartender Curtis Schussler before he starts his shift at Eastbound Bar and Grill on Thursday, Sept. 24, 2020 in Lakeside.
(Eduardo Contreras / The San Diego Union-Tribune)

The ruling means that, for now, restaurants and live entertainment venues must remain closed to indoor and outdoor dining

A state appeals court on Wednesday, Dec. 23, extended an order issued last week, blocking the county’s restaurants and live entertainment venues from reopening at least through the rest of the holiday season.

That means that, for now, those businesses must remain shut down, with restaurants providing take-out only, until the matter can be heard in the 4th District Court of Appeal in January.

The order comes after a flurry of court activity last week in a case initially centered around two San Diego strip clubs — Cheetahs and Pacers — 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 they were operating safely, with reduced capacities and heightened safety measures, and that no COVID-19 cases had been tracked back to the businesses.

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

San Diego Superior Court Judge Joel Wohlfeil granted an injunction last Wednesday in that case 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 any risk to the spread of COVID-19.

Restaurant owners, harmed by revenue and job losses stemming from the shutdowns, reacted warily last week. That Thursday, just one of eight restaurant operators contacted by The San Diego Union-Tribune was preparing to reopen. Many restaurant owners said they were waiting for more information before deciding how to proceed.

On Friday, the appeals court issued a stay of the judge’s ruling — meaning restaurants had to once again close — 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 Wednesday, 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.

Newsom’s office on Thursday welcomed the news that the stay would remain in place.

“It’s good to see that the public health restrictions we know are needed to keep people safe will continue and we look forward to appellate review from the court,” Newsom’s office said in a statement.

The original request for the stay argued that Wohlfeil overreached his authority when he issued the injunction Dec. 16. 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 back to Pacers or Cheetahs, pointing to strict pre-pandemic health and safety regulations that the clubs have boosted even more during the coronavirus pandemic.

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

The decision to keep the stay in place did not come as a surprise to restaurateur Johan Engman, although 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,” he continued. “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 acknowledged that he kept some of his restaurants open over the weekend after the state appeals court issued the stay late last Friday. He did so, though, not to make a political statement, but rather to give his employees two more days of work and sell all the food he had ordered after learning of the Superior Court ruling that allowed restaurants to continue serving diners.

By Monday, the eateries were closed down and limited to takeout only.

“I was super disappointed they granted the stay so quickly,” Engman said. “I was hoping it would happen some time 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 predicted that while the stay remains in place pending a decision, “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.”

Wednesday’s decision came the same day county officials announced 39 additional COVID-related deaths — a new record just nine days after the record hit 32.

There were 2,598 new cases listed in San Diego County’s latest daily COVID-19 report for Tuesday, similar to the 2,381 tests that came back positive Monday.

But, as public health officials have warned for months, hospitalizations, ICU admissions and deaths lag infections by weeks. Total local COVID-related hospitalizations hit 1,405 Tuesday, now representing about one-third of the 4,601 people who were in hospital beds.

— Alex Riggins and Lori Weisberg are reporters for The San Diego Union-Tribune

— Staff writer Paul Sisson contributed to this story.

Updates

12:57 p.m. Dec. 24, 2020: This story was updated with a comment from Gov. Gavin Newsom’s office.

12:57 p.m. Dec. 24, 2020: This story was updated with additional details.

12:57 p.m. Dec. 24, 2020: This story was updated with additional information.


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