By John Moot
In what could be the beginning of a reopening for restaurants hard hit by California’s new stay-at-home orders, two San Diego adult entertainment clubs have come to the rescue.
A San Diego Superior Court Judge on Dec. 16 granted a preliminary injunction enjoining any governmental entity or law enforcement officer from enforcing cease and desist orders including the state’s regional stay- at-home order against two well-known adult entertainment venues in San Diego who also serve food.
Using the United States Supreme Court’s recent decision allowing churches in New York to open for indoor services as a jumping off point, the court applied the First Amendment rights of adult entertainment establishments to find the state’s rational to close their business that included selling food to be woefully deficient.
In a careful analysis of the facts including the county’s own witnesses, the court found there was no evidence the adult entertainment clubs or their restaurant exposed patrons, its staff or employees to COVID-19. The court found no evidence that “businesses with restaurant services such as plaintiffs’ establishment who have implemented protocols as directed by the County, have impacted ICU bed capacity throughout the Southern California Region (much less San Diego County).
In what could be read as rebuke to the Governor’s overly broad orders lacking in factual support, the court, after noting essential businesses that were allowed to stay open, quoted Supreme Court Justice Gorsuch’s concurring opinion in the Roman Catholic Diocese of Brooklyn stating, “who knew public health would so perfectly align with secular convenience.”
In an ironic twist, a conservative Supreme Court majority has put adult entertainment clubs on par with churches as one of the few places Californians may be able to seek respite from the pandemic.
Restaurant owners’ glee however may have hit a roadblock. After the trial court clarified its ruling to apply to all restaurants not just ones in the adult entertainment clubs, the Appellate Court stepped in and stayed the ruling and will not consider the matter.
Under the First Amendment, governmental action that infringes on First Amendment rights are subject to higher judicial security. Will the Appellate Court limit the lower court ruling to “plaintiffs providing live adult entertainment” and businesses “with restaurant service such as plaintiffs?” Stay tuned. Either way a California court has let the cat out of the bag and has questioned COVID orders where the punishment does not necessarily fit the crime.