SAN DIEGO (CN) — A pair of strip clubs became the unlikely heroes in the business industry’s fight against California’s pandemic-induced stay-at-home orders Wednesday when a state court judge found they could continue operating even as Southern California’s ICU capacity dropped to less than 1%.
San Diego Superior Court Judge Joel Wohlfeil issued a 9-page preliminary injunction order in favor of the strip clubs less than an hour following oral arguments in the case.
The injunction also applies to restaurants in San Diego County, which, under the order are protected from enforcement of stay-at-home orders temporarily closing outdoor and indoor dining in Southern California.
He found San Diego County and California public health officials should be blocked “from enforcing the provisions of the cease and desist order, or any related orders including the State’s Regional Stay Home Order, that prevent 1) plaintiffs from providing live adult entertainment; and 2) San Diego County businesses with restaurant service, such as plaintiffs’ establishments, from continuing to operate their respective businesses, subject to protocols that are no greater than is essential to further defendants’ response to control the spread of COVID.”
Wohlfeil also found “Plaintiffs have been devoid of covid, have done nothing to contribute to the spread of covid, and have honored their representations to Dr. Joel Day and the county.”
The pair of strip clubs — Pacers Showgirls and Cheetah’s — sued the County of San Diego and its public health officer Dr. Wilma Wooten, Governor Gavin Newsom and the California Department of Public Health within a week of receiving cease and desist orders in October ordering the strip club/restaurants to cease live entertainment operations to comply with state guidance issued Aug. 28.
Wohlfeil issued a temporary restraining order blocking public health officials from enforcing the county’s cease-and-desist orders, which was set to expire Wednesday.
“The State and the County are analyzing the scope of the ruling and discussing next steps which includes seeking clarity from the court. Until we have clarity, we have suspended enforcement activities against restaurants and live entertainment establishments. With record numbers of new infections, deaths, and ICUs at capacity, we want to remind everyone to do your part. Please don’t gather, socially distance, wear a face covering, and wash your hands,” county spokesman Michael Workman said.
Over the weekend, Attorney General Xavier Becerra also sent separate cease-and-desist orders to the strip clubs for violating the new stay-at-home policy which was implemented about a month after Wohlfeil’s injunction was issued.
The new stay-at-home order bars indoor and outdoor dining, social gatherings and live entertainment of all kinds, including adult entertainment, comedy shows, concerts and the like.
Deputy Attorney General P. Patty Li said during the court hearing Wednesday the temporary restrictions on live entertainment are content-neutral and do not single out First Amendment activities by strip clubs.
“The restriction is based on the risk and characteristics of the type of activities — for live performances, you have people gathered in close proximity. There is no targeting of expression here,” Li said.
She noted Southern California’s ICU capacity “is essentially at 0% — it was at 0.5%” and ambulances in San Diego County were turned away from bringing patients to full emergency rooms over the weekend.
The state also ordered 5,000 additional body bags Monday as Covid-19 deaths have increased, Li said.
“This is the most serious moment in this pandemic in the state, in the nation so far. While this is going on, plaintiffs are open and operating indoors, with close contact and no physical distancing,” Li said.
Li also pointed out Wohlfeil’s initial restraining order blocking enforcement of the county’s cease and desist order “was issued under very different circumstances” when San Diego County was classified under the “Red Tier” system which allowed indoor dining under limited capacity.
Attorney Jason Saccuzzo, representing the strip clubs, told Wohlfeil his clients “are being treated far less favorably than other forms of speech” including worship and political expression, which are activities permitted outdoors under the regional stay-at-home order issued Dec. 3.
“This is a discrimination against adult entertainment establishments. There’s no apparent reason people cannot gather for adult entertainment, but they can shop until they drop.” Saccuzzo said, suggesting mall parking lots during the holiday season “are packed.”
Saccuzzo said the state’s suggestion that Pacers and Cheetah’s could do their live adult entertainment on the internet was not a reasonable alternative.
“The defendants submit no statistics on increased risk from live adult entertainment because there are none … No single covid case has been traceable to either of plaintiffs’ establishments,” Saccuzzo added.
He commended Judge Wohlfeil for issuing the initial temporary restraining order, saying “This court’s TRO accelerated an important conversation on the limits of executive power in what has turned out to be, in the state of California, an endless emergency,” Saccuzzo said.
“If courts don’t look at these issues and put some restraints on the executive, what’s to come next — are we all going to be under house arrest? Will we even have a Constitution? This is an issue that involves strip clubs, but it involves an even bigger issue,” he added.
County Supervisor Jim Desmond, a critic of Covid-19 restrictions on business operations in San Diego and California, tweeted following the ruling: “Amazing! Our pressure has worked once again!”
“I hope it’s not too late for the many restaurants hanging on! God bless you and thank you for your courage,” Desmond tweeted.
County of San Diego Senior Deputy Attorney Timothy White said the county receives 500 complaints every day for businesses not complying with Covid-19 operating restrictions. It has sent cease-and-desist letters, once violations have been documented and verified, to gain voluntary compliance from businesses ranging from comedy shows, churches, sororities and fraternities and other businesses, White said.