From California to Massachusetts, businesses continue to suffer as a result of restrictions enacted to prevent the spread of COVID-19. Certain businesses have been subjected to more strict regulations for operating in today’s pandemic. Restaurants, to be precise, prescribed time limits for customers in addition to capacity limits, that is, if they are not restricted to only offering takeout or delivery. As for those restaurants with indoor or outdoor seating, are they all recognized purely for the quality of food or is the ambience more important to their patrons? Two daring businesses would argue that ambience is what brings people to their door. See Midway Venture LLC et al. v. County of San Diego, et al. (01/22/2021) D078375.
The owners of two gentlemen’s clubs in San Diego County, Midway Venture LLC and F-12 Entertainment Group Inc. (collectively “Plaintiffs”), challenged the constitutionality of the state’s prohibition on the types of services restaurants may provide. Specifically, the “Blueprint for a Safer Economy” as of August 2020 established a 4-tier system for applying restrictions to businesses based on the respective county where they are located. Three of the tiers allowed restaurants to operate indoors while the fourth tier mandated restaurants could only provide outdoor seating. None of the tiers permitted live entertainment at restaurants, whether indoor or outdoor, but prior to its enactment, Plaintiffs drafted proposals for reopening that adhered to public health guidelines relating to social distancing.
Approximately one month after resuming business, Plaintiffs received cease-and-desist letters (the “Letters”) from San Diego County’s public health officer directing them to “discontinue live entertainment.” The Letters included a warning that continued violations would result in fines, criminal misdemeanor citations, and potential closure orders. In response to the Letters, Plaintiffs filed a lawsuit against the County and the State of California alleging that prohibiting live entertainment infringed upon their First Amendment rights to “free speech and free expressive association” and further deprived them of equal protection of the law. The lawsuit requested injunctive relief against the County and the State, preventing them from enforcing provisions in the Letters and completely banning “live adult entertainment.” The trial court held that “the harm to Plaintiffs if the preliminary injunction is denied is greater than the harm to Defendants if the preliminary [injunction] is granted” and issued a temporary restraining order preventing the County and State from enforcing the cease-and-desist orders as well as any related orders.
However, the County and State appealed the trial court’s issuance of the temporary restraining order and applied for an emergency temporary stay pending appeal which was granted. On appeal, it was determined that the trial court improperly enjoined the County and State from enforcing “restaurant restrictions” where such restrictions were never at issue. Instead, Plaintiffs arguments focus on First Amendment implications of the ban on live entertainment. The primary support for Plaintiffs’ arguments rests in their allegation that exceptions were made for religious and political gatherings. In turn, Plaintiffs alleged that the regulation favored political and religious speech while silencing non-religious and non-political speech. The appellate court was not persuaded and reasoned that Plaintiffs’ businesses involve “expressive conduct, not simply speech.” The court did not discuss how political and religious speech is often accompanied by the expressive conduct they encourage, gathering. Rather, the court held that the public health order was a generally applicable regulation on all public and private gatherings which neither arose from conduct having a significant expressive element nor does it single out expressive activity. Therefore, the First Amendment was never involved in the eyes of the appellate court.