What A New COVID-19 Legal Order Means for San Diego County’s Hospitality Industry
By Procopio Hospitality Industry Group Leader Brook Barnes
A significant order impacting San Diego County businesses could mean a welcome respite for local restaurants and other hospitality businesses. The Honorable Joel R. Wohlfeil issued an order December 16, enjoining the County of San Diego, California Governor Gavin Newsom, and the California Department of Public Health (“government agencies”) from shuttering Midway Venture LLC, which does business as Pacers Showgirls and Pacers Showgirls International. Specifically, the order stops the government agencies from enforcing the provisions of the cease and desist order, or any related orders including the State's Regional Stay Home Order, that prevent San Diego County businesses with restaurant service from continuing to operate their respective businesses, subject to protocols that are no greater than is essential to control the spread of COVID-19. The Court found that a complete shutdown exceeded what was required to control the spread of COVID-19. This order could profoundly boost the bottom line of many hospitality businesses abiding by San Diego County Reopening Protocols that have ceased indoor and outdoor dining services because of the recent shutdown orders.
Importantly, the court found that “[b]usinesses with restaurant service [. . .] serve the public interest. These business establishments provide sustenance to and enliven the spirits of the community, while providing employers and employees with means to put food on the table and secure shelter, clothing, medical care, education and, of course, peace of mind for they [sic] and their families.” For the owners, workers, staff, and clients that comprise the robust San Diego County restaurant industry, this order provides peace of mind, and a long-awaited piece of justice.
We encourage restaurant operators to work with human resources and legal counsel to make sure that their businesses are compliant with the San Diego County Reopening Protocols for restaurants. There are also potential liability issues business owners should discuss with counsel. For example, a patron alleging they contracted the virus at a restaurant would not be covered by the company’s workers’ compensation plan for employees.
Please note that this order comes a month after San Diego Superior Court Judge Kenneth Medel denied a request for a temporary order that would have immediately allowed restaurants to return to indoor operations. In addition, the government agencies may appeal Judge Wohlfeil’s order to the California Court of Appeal and, possibly, the California Supreme Court. However, Judge Wohlfeil’s order will remain in effect unless and until it is reversed on appeal.
Brook Taylor Barnes is the leader of Procopio’s Hospitality Industry Group. He represents employers in all aspects of labor and employment litigation including claims for improper wage deductions, failure to pay wages, failure to pay overtime wages, failure to provide meal periods and rest breaks, misclassification of employees, inaccurate wage statements, commission calculations, wrongful termination, Private Attorney General Act (“PAGA”) claims, class actions, and retaliatory and discriminatory employment actions.