San Diego County eateries weigh reopenings as state plans to appeal ruling that exempted them from closure order

Notorious Burger owner Brian Gruber said he felt like he was giving an early Christmas gift to his employees when he called them back to work following a California judge’s ruling that cleared the way for all restaurants in San Diego County to resume on-site dining.

He was holding his breath that the ruling would stick as California’s 4th District Court of Appeal was scheduled Friday to hear an appeal by Gov. Gavin Newsom’s office of the ruling that exempted two strip clubs and all restaurants from his stay-at-home order.

The case brought by two San Diego strip clubs handed the biggest victory yet to California businesses fighting public health orders that they say have crippled them economically.

Gruber said business shot up 200 percent Thursday as diners returned to his mobster-themed eatery in the beach community of Carlsbad, compared to the previous week when his restaurant was restricted to takeout and delivery services.

Other restaurant owners were still weighing whether to buy food and schedule staff amid the possibility that the victory could soon be reversed. Some establishments were still opting to not offer on-site dining amid a record number of coronavirus cases, figuring the financial and health risks were not worth it.

“I’m hoping for some sort of sanity in the system,” Gruber said as he prepared for a second-day of on-site dining at his restaurant, which leaves doors open and requires patrons to wear masks and socially distance as they eat indoors and outside. “If you can trace the virus back and prove this is coming from restaurants then absolutely, let’s close. I don’t want to be the super-spreader or what-not. But until that happens, you can’t mess with people’s livelihoods.”

San Diego County Superior Court Judge Joel Wohlfeil said his ruling Wednesday was “straightforward” in going beyond the strip clubs that sued the county and state — Cheetahs Gentlemen’s Club and Pacers Showgirls International. County officials requested a subsequent hearing to clarify its scope.

“It is intended to encompass all restaurants within the county of San Diego,” Wohlfeil said in a brief hearing that lasted just eight minutes.

The county Board of Supervisors was scheduled to meet Friday in closed session to discuss next steps. The board voted 3-2 last week to appeal any adverse ruling on the strip clubs but that decision didn’t cover restaurants, rending it moot.

“The state of California is already appealing the decision, so whether the county joins it or not will have no impact on the outcome,” said county Supervisor Nathan Fletcher, who backs restrictions..

San Diego Mayor Todd Gloria said the city was working closely with the state to understand the implications.

“No one wants our small businesses to be closed, but the science and data are showing a dire trend in hospitalizations and deaths,” Gloria said.

An air of uncertainty hung over restaurant owners.

Some will reopen only for outdoor dining, said Miles Himmel, spokesman for county Supervisor Jim Desmond, who opposes state restrictions. Others are reluctant to do anything before the appeal is heard since it may force them to close again.

Hours after the injunction was issued Wednesday, officials had suspended enforcement of restrictions barring indoor and outdoor dining and live entertainment in the county of 3 million people, the state’s second-most populous.

It marked a major, if temporary, setback to the governor’s stay-at-home order to slow the spread of the virus before the state runs out of beds in its intensive care units. California registered a record 379 coronavirus deaths and more than 52,000 new confirmed cases Thursday.

Wohlfeil said in Wednesday’s ruling that the state had failed to show restaurants and strip clubs contributed to the spread of the virus or shortage of hospital beds.

“San Diego County businesses with restaurant services,” including the strip clubs, are exempt from shutdowns and “any related orders” that bar live adult entertainment and go beyond protocols “that are no greater than essential” to controlling the spread of COVID-19, the judge said.

He noted that before being ordered to close in October, the two strip clubs operated for five weeks under their own safety measures — including keeping strippers 15 feet (4.6 meters) from tables, allowing no more than one stripper per stage and requiring them and other employees to wear masks.

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