APPEALS COURT BLOCKS JUDGE’S RULING, ORDERS RESTAURANTS CLOSED AGAIN

By Miriam Raftery

Photo, left:  Terra American Bistro, a farm to table eatery in San Diego just west of La Mesa, had moved outdoors but is now back to offering take-out taco Tuesdays and to-go Christmas dinners, among other offerings, as a result of the latest shutdown order.

December 19, 2020 (San Diego) – Beleaguered restaurant owners are once again ordered to shut down, after three justices on the Fourth District Court of Appeals on Friday issued a stay blocking an order issued Wednesday by Superior Court Judge Wohlfiel.  The Appeals Court, responding to an appeal filed by California’s Attorney General, found that Wohlfiel acted too broadly in expanding an order in a case filed by strip clubs to also include restaurants, which were not parties in the case.

The state argued that Wohlfiel’s order jeopardized the health of county residents by undermining public health orders aimed at curtailing spread of the disease at a time when the Southern California intensitve care units are full, with zero percent capacity.

Wohfiel has issued a temporary injunction prohibiting the state and county from enforcing COVID-19 shutdown orders at restaurants and strip clubs.  Many local restaurants swiftly responded by reopening for outdoor and in some cases, indoor dining.  But the reprieve proved short-lived; the Appeals Court action means that restaurants are once again ordered to shut down except for take-out and delivery services.

Any opposition to the Appeals Court action must be filed by Wednesday.

San Diego County Supervisors met in closed session Friday, voting to join the state in its appeal against Wohlfiel’s original decision – but only the portion that applies to strip clubs and indoor dining at restaurants. 

“We support outdoor dining with appropriate safety protocols that have been previously established,” a statement from Supervisor Greg Cox  reads. “We remind everyone that the virus is still out there. Please continue to cover your face, wash your hands and avoid gatherings.”

Supervisor Jim Desmond denounced the Appeals Court ruling in a statement Friday. “Today’s decision to close restaurants one day after they were allowed to open is tragic for San Diego’s workforce,” Desmond said. “The seesawing of people’s livelihoods one week before Christmas is devastating.”

Restaurant owners voiced disappointment on social media.  Some announced plans to beef up takeout for the holidays, pivot to carhop service, or in some cases, defy the latest shutdown orders.

Jeremy’s on the Hill near Julian, where the owner is Cordon-Bleu trained chef, is now touting carhop services. Customers are served in their vehicles in the popular eatery’s parking lot.  A post on the restaurant’s Facebook page shows a couple with a makeshift tailgate dinner and states, “Our customers know what dining out really means! In-car dining: We bring the magic to you. Reserve your spot!”

At Terra American Bistro, Chef Jeff Rossman, Restaurateur of the Year for the California Restaurant Association’s San Diego Chapter is touting Christmas Eve takeout packages including Christmas brunches, dinners, kids’ packages as well as kits to make Mimosas and Bloody Marys.

Hacienda Casa Blanca Mexican Restaurant and Cantina has pivoted several ties since the shutdowns began. Their first effort to move outdoors was disrupted when thieves twice stole umbrella tables and chairs. Later they built a more elaborate outdoor dining area with heaters, only to pivot to drive-through service when outdoor dining shutdown. For one day after Judge Wohlfiel’s ruling, they reveled in a return to indoor and outdoor dining.  After learning of the Appeals Court shutdown order, owner Cynthia Ann Gomez quipped that maybe she needed a stripper pole to stay open. The restaurant later posted, “Not going down without a fight. Staying open for outside dining.”  

A visit to the downtown districts in East County cities found a mixed bag, with some restaurants openly offering sidewalk or patio dining, others complying with the new rules and doing take-out only as well as selling goods ranging from bakery items to bottles of wine.  Some appeared to be closed completely, not even offering takeout.  At least two bars, one with boarded up windows, had patrons seated inside, albeit socially distanced, though others remained shuttered completely.

Pine Valley House   in Pine Valley, where the weather is too cold for outdoor dining, posted on Facebook that the restaurant is “choosing to keep its doors OPEN and is taking a stand in support of small businesses everywhere. The owners are choosing to peacefully protest and exercise their rights for equal protection under the law.

The restaurant is part of the Reopen San Diego Small Business Coalition https://reopensdsmallbiz.org.  The group had been planning to file a federal lawsuit to challenge shutdown orders, then suspended that action after Judge Wohlfiel’s ruling. It is unclear what impact the Appeals Court decision may have. 

The owner of Pine Valley house states, “ Many of these business owners are being left with no other choice and are acting out of desperation for the sake of their families, employees and communities.” She and others contend that the state’s orders violate their constitutional rights and lack a scientific basis. “We can no longer sit by and watch our small business community being further decimated and so many jobs being lost forever.”

A Stanford University study did find indoor dining to be a high-risk activity, but suggested that social distancing and limited capacity can limit spread. Locally, numerous outbreaks have been tied to restaurants, according to daily outbreak information published by the County Department of Public Health. But it’s unclear whether any of those were tied to outdoor dining, nor whether dining establishments with outbreaks were following state and county guidelines.

Miriam Raftery, editor and founder of East County Magazine, has over 35 years of journalism experience. She has won more than 350 journalism awards from the Society of Professional Journalists, San Diego Press Club, and the American Society of Journalists & Authors. Her honors include the Sol Price Award for responsible journalism and three James Julian awards for public interest reporting from SPJ’s San Diego chapter. She has received top honors for investigative journalism, multicultural reporting, coverage of immigrant and refugee issues, politics, breaking news and more. Thousands of her articles have appeared in national and regional publications.

East County Magazine gratefully acknowledges the Facebook Journalism Project for its COVID-19 Relief Fund grant to support our local news reporting including impacts on vulnerable communities during the COVID-19 pandemic. Learn more: #FacebookJournalismProject and https://www.facebook.com/fbjournalismproject/.

You can donate to support our local journalism efforts during the pandemic at https://www.EastCountyMedia.org/donate.