San Diego 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.
Bill Lutzius, owner of Brooklyn Bar & Grill in San Diego, smokes a cigarette and watches old movies alone at the bar in December.
(Sam Hodgson / San Diego Union-Tribune)

A San Diego appeals court reversed a Superior Court judge’s December order that allowed restaurants in the county to reopen.

A unanimous three-judge panel of the 4th District Court of Appeal said a preliminary injunction 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 ruling by San Diego Superior Court Judge Joel Wohlfeil was also too vague and unfair to state and county officials who were not expecting the judge to include restrictions on restaurants in the Dec. 16 ruling.

“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 for only a few days before the state got the appeals court to issue an emergency stay. During the brief window, some restaurants 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 the strip clubs Pacers International Showgirls and Cheetahs Gentlemen’s Club that challenged state and county public health orders restricting live entertainment. The clubs contended that courts have recognized adult nude dancing is protected under the 1st Amendment rights of free expression, and the regulations infringed on that right.

When Wohlfeil issued the injunction barring enforcement of the stay-at-home 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 its existing lawsuit going forward.

Moran writes for the San Diego Union-Tribune.