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Appeals Court Overturns Injunction Reopening Restaurants Amid Pandemic

Patrons dining outside Mr. Moto Pizza in SeaPort Village on Jan. 1, 2021, in violation of the regional stay-at-home order.
Alexander Nguyen
Patrons dining outside Mr. Moto Pizza in SeaPort Village on Jan. 1, 2021, in violation of the regional stay-at-home order.

UPDATE: 3:44 p.m., Jan. 22, 20201

An appeals court Friday overturned a San Diego judge's ruling allowing county restaurants to reopen amid COVID-19 restrictions, finding that he issued "an overbroad injunction that was unsupported by the law."

The appellate panel decision concerned last month's preliminary injunction issued by San Diego Superior Court Judge Joel R. Wohlfeil prohibiting the state of California and San Diego County from enforcing pandemic restrictions on all county restaurants.


The injunction, which stemmed from a lawsuit brought by two San Diego strip clubs challenging the state's pandemic restrictions, was expanded to encompass all county restaurants through Wohlfeil's injunction, a decision that was quickly appealed by the state and county.

“Those restaurant restrictions are unrelated to the suppression of speech and therefore do not run afoul of the First Amendment,” the 47-page ruling said.

A three-justice appellate panel ruled that the state and county were not provided a proper opportunity to make arguments regarding restaurant restrictions, as that was not the subject of the case filed by Cheetahs Gentleman's Club and Pacers Showgirls International.

The ruling states that Wohlfeil "violated due process by enjoining the state and county parties from enforcing restaurant restrictions, and that portion of the preliminary injunction must be reversed."

Wohlfeil had previously granted a temporary restraining order on the strip clubs' behalf, but the appellate panel notes that their arguments and the subsequent restraining order were limited to the issue of live entertainment, not restaurants.


The panel wrote that the strip clubs may amend their claims to address restaurants restrictions, but because the original complaint concerned only live entertainment and not dining, the injunction should be overturned.

According to the appeals court, the injunction was also "unreasonably vague" as to what pandemic protocols public health officials would be permitted to enforce. Wohlfeil's injunction permitted the restaurants and strip clubs to operate "subject to protocols that are no greater than essential to further defendants' response to control the spread of COVID."

The panel wrote that Wohlfeil's ruling does not provide guidance on what protocols would be considered essential and thus enforceable, nor does it address to what degree restaurants would be allowed to reopen. At the time of his injunction, California's regional stay-at-home order was — and still is — in effect, limiting restaurants to take-out, pick-up or delivery service only.

Nathan Fletcher, chair of the San Diego County Board of Supervisors, issued a statement supporting the appeals court's decision, saying it "reaffirms strip clubs should not be open during a global pandemic and that public health orders can be enforced."

Fletcher, who previously said he "vehemently" disagreed with Wohlfeil's injunction, said the appellate ruling "should put this issue to rest and allow us to move forward on lowering our case count and administering vaccines."

A coalition of county restaurants and gyms are continuing to fight the closure orders in a separate lawsuit. A different San Diego judge denied their request for a temporary restraining order prohibiting enforcement of pandemic restrictions in November. Hearings on a preliminary injunction in that case remain scheduled for next month.