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Law360 (January 25, 2021, 10:47 PM EST) -- A California appellate court has held that state and local officials could enforce COVID-19 safety restrictions on live adult entertainment during the pandemic and chastised a lower court for issuing an "overbroad" injunction that blocked restaurant restrictions even though the adult entertainment venues in the suit hadn't challenged those limits.
Pacers Showgirls International and Cheetahs Gentlemen's Club had alleged that the state and San Diego County restrictions on live entertainment violated their First Amendment rights, according to the case. Those restrictions were later loosened, but the state and county issued new limits on restaurants.
A San Diego County Superior Court recently granted a sweeping preliminary injunction blocking the county, its public health officer Wilma J. Wooten, the California Department of Public Health and Gov. Gavin Newsom from enforcing the restaurant restrictions.
But the adult entertainment venues had never even raised the restaurant restrictions in their case — they were not looking to reopen their restaurants without the live entertainment, California's Fourth Appellate District said Friday. And that's where the lower court erred, according to the order.
"Despite the focus of the injunction — and the interest it generated from third parties seeking to provide amicus briefs — this lawsuit was never about restaurant restrictions or the ability to dine outdoors in San Diego County," the three-judge panel said.
The state and the county had no notice or opportunity to address the restaurant restrictions because they were never part of the adult entertainment business' claims, the panel said. The panel vacated the injunction, adding that it was also "unreasonably vague."
In particular, the Fourth District noted that the lower court's injunction still allows the state and county to enforce "protocols that are no greater than is essential to further defendants' response to control the spread" of the virus. But it doesn't specify what protocols would count as "essential," the panel said.
"[T]he 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," the Fourth District said.
The panel added that on remand, the adult entertainment businesses may try to amend their claims to address restaurant restrictions. "We express no opinion on the subject," it said.
As for the only claims actually raised by the businesses — the limitations on live entertainment — those are "valid, content-neutral restrictions on expressive conduct," the panel said.
"Under well-established law, they do not run afoul of the First Amendment," it said.
The order was handed down a few days before Newsom on Monday suddenly eased COVID-19 restrictions across the state, lifting stay-at-home orders as case numbers trended in the right direction.
"Today, we can lay claim to starting to see some real light at the end of the tunnel as it relates to case numbers," Newsom said Monday.
He added that the state is expecting a significant decline in cases, positivity rates and hospitalizations.
According to the businesses' suit, Pacers and Cheetahs closed their doors in March, as COVID-19 ramped up. As local restrictions were relaxed, the businesses said that neither the state nor the county had offered any guidance for reopening adult entertainment establishments.
Both clubs ended up reopening with safety protocols in place, according to the suit. But about a month after reopening, a professional baseball player was stabbed in the parking lot of Pacers, per the suit. That incident drew negative attention to Pacers and its operations, and prompted local officials to send cease-and-desist letters to both Pacers and Cheetahs. The establishments were accused of violating an order prohibiting live entertainment, according to the complaint.
Pacers and Cheetahs sued in October, claiming that the cease-and-desist letters were based on "false news reports" related to the stabbing. In the suit, they accused the county of allowing other restaurants and businesses to have live entertainment.
During the state's and county's appeal of the injunction, the court received amicus briefs from restaurants opposing the restaurant restrictions.
"We acknowledge the concerns raised by these parties, but this appeal is not the proper mechanism to address these concerns given the limited issues before us," the panel said in Friday's order.
Counsel for the parties didn't immediately return requests for comment Monday.
California Appellate Judges Patricia Guerrero, Judith Haller and Joan Irion sat on the panel for the Fourth District.
Pacers and Cheetahs are represented by Victoria E. Fuller and Rupa G. Singh of Niddrie Addams Fuller Singh, Jason P. Saccuzzo of Vivoli Saccuzzo and Steve Hoffman of the Law Office of Steve Hoffman.
San Diego County is represented in-house by Thomas E. Montgomery and Jeffrey P. Michalowski.
California is represented by Thomas S. Patterson, Anthony R. Hakl, Kristin A. Liska and Patty Li of the Attorney General's Office.
The case is Midway Venture LLC et al. v. County of San Diego et al., case number D078375, in the Court of Appeal of the State of California, Fourth Appellate District.
--Editing by Michael Watanabe.
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