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Judge Rejects Restraining Order Bid to Move Restaurants, Gyms Back Indoors

Some San Diego Operators Seek Relief from Pandemic Restrictions

By Lou Hirsh CoStar News

November 23, 2020 | 9:59 P.M.

A San Diego County judge has rejected a move by local restaurant and gym operators intended to immediately override California’s prohibition of indoor business services, after San Diego and other counties were moved by state health officials into the most restrictive “purple” tier for pandemic closures.

Superior Court Judge Kenneth Medel ruled Monday that the public health impact of removing portions of the state’s coronavirus response “outweighs the economic harm to Plaintiffs,” at least pending further examination in any future public hearings.

Medel sided with California Deputy Attorney General Jonathan Eisenberg, who argued in court last week that although the state recognizes that businesses are experiencing financial harm, that does not justify reopening indoor service as the pandemic is “spiraling out of control.” With recently spiking coronavirus cases, there is potential for more infections and death, Eisenberg said.

Local commercial brokers said the pandemic is continuing to put pressure on businesses to survive as options for serving customers are limited by changing government restrictions that vary among jurisdictions.

“I think for both restaurants and gyms it is tougher now given the weather is not as nice as summer where all wanted to sit outdoors,” said Mike Moser, principal in brokerage Retail Insite, who was not involved in the legal case. “Some locations and centers will do their best to adapt and try to survive through this with outside service, but it will be much tougher given the winter season.”

The suit was filed by restaurants Cowboy Star and Home and Away, and the gyms Fit Athletic and Bear Republic. It named the state and county as defendants.

Representatives from the parties did not return requests for comment by CoStar News.

The operators of the two San Diego area restaurants and two gyms filed the suit seeking a temporary restraining order against the latest state-imposed restrictions that prevent them from indoor operations, which they said was on behalf of all businesses in those industries.

Plaintiffs asked the court to let businesses to continue to operate indoors at limited capacity, as they had been doing for the past several weeks in the less restrictive red tier, despite the recently imposed purple tier designation, signifying widespread risk for coronavirus infection.

The suit argued that restaurants and gyms are not to blame for recent statewide increases in coronavirus cases that have prompted state officials to crack down. The filing contended that those two industries should be treated like other industries, such as hair salons and barbershops, that have been allowed to continue operating indoors with proper protocols, even in the purple tier.

While a restraining order was denied, the court said plaintiffs are entitled to a future hearing on the larger general question of whether to allow indoor operations at those businesses. However, county and state pandemic guidelines for San Diego could also change in the future, allowing those indoor operations to return without a court decision.

A spokesman for one of the restaurants told the San Diego Union Tribune that plaintiffs were considering their next moves.

The latest San Diego County health data showed the category that includes restaurants and bars making up 9.2% percent of the region’s coronavirus cases, with gyms representing 0.4%.

The purple tier allows only outdoor operations for businesses including restaurants, gyms and movie theaters. California generally allows individual counties to make pandemic guidelines more restrictive than those of the state, but not less restrictive.

In San Diego and other regions, weather, space availability and other factors have made it difficult for many businesses to feasibly transition to outdoor services and make up for business lost during the pandemic over the past eight months.

“I have heard from a number of landlords and tenants that [some tenants] are now not able to pay rent, and I believe we will see more bankruptcies and permanent closures,” Moser said.

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