State appeals court overturns injunction that allowed restaurants to reopen

Bill Lutzius, owner of Brooklyn Bar & Grill smokes a cigarette and watches movies at the bar on Dec. 15, 2020
Bill Lutzius, owner of Brooklyn Bar & Grill in San Diego, smokes a cigarette and watches old movies alone at the bar on Dec. 15. The restaurant closed temporarily because of state regulations intended to slow the spread of the coronavirus.
(Sam Hodgson / The San Diego Union-Tribune)

The unanimous ruling by the 4th District Court of Appeal says an injunction issued by a San Diego County Superior Court judge erred by including all county restaurants.


An appeals court Jan. 22 reversed a San Diego County Superior Court judge’s December order that briefly allowed restaurants in the county to reopen.

A unanimous three-judge panel of the California 4th District Court of Appeal said Judge Joel Wohlfeil’s preliminary injunction Dec. 16 went too far, roping in restaurants in the county in a lawsuit brought by two strip clubs contesting COVID-19 restrictions by the state and county limiting live entertainment.

The appellate court also said Wohlfeil’s ruling was too vague and was unfair to state and county officials who were not expecting the judge to include restrictions on restaurants.

“In sum, the trial court erred by entering an overbroad injunction that was unsupported by the law and which violated the due process rights of the state and county,” Associate Justice Patricia Guerrero wrote in a 47-page opinion.

Wohlfeil’s injunction was in effect only until the state got the appeals court to issue an emergency stay Dec. 18. During the brief window, some restaurant owners reopened to allow in-person dining, while others were more wary that the injunction would be short-lived and remained closed.

Wohlfeil’s ruling came in a case brought by strip clubs Pacers Showgirls International and Cheetahs Gentlemen’s Club that challenged state and county public health orders that restricted live entertainment. The clubs contended that courts have recognized that adult nude dancing is protected under the First Amendment right of free expression, and they argued that the regulations infringed on that right.

When Wohlfeil issued the injunction barring enforcement of the orders relating to the clubs, he included “San Diego County businesses with restaurant services” under the order. That took state and county lawyers, who had not argued or presented evidence about restaurants, off guard.

The appeals court said including restaurants was an overreach by Wohlfeil. But the court also noted it was not passing judgment on the validity of restaurant restrictions themselves and said the clubs could add those claims to the existing lawsuit going forward.


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