On a recent Thursday afternoon, restaurants up and down State Street in Carlsbad had their doors open to customers.
It would have been a quintessentially California scene – sunshine, open-air dining, bartenders pouring beers and the ocean humming in the background – if it weren’t also a violation of the state’s stay-at-home orders, which forbid counties in the purple tier of coronavirus restrictions from operating indoor and outdoor dining.
Restaurants like Oak + Elixir, Vigilucci’s Cucina Italiana, Shorehouse Kitchen, The Compass, Mas Fina Cantina, Cluckheads and the Daily News Café have nonetheless been open for on-site outdoor dining.
There are, of course, other restaurants around the county that are defying the orders – but many of those places appear to be quietly offering indoor dining or maintaining that they’re only offering to-go services while passively allowing to diners to use outdoor tables. Carlsbad is notable for having such a high concentration of restaurants openly, publicly flouting the rules.
Many of them insist they’re simply engaging in a “peaceful protest” against the restrictions and have suggested that labeling their defiance as such means they’re not actually violating the rules.
Signs outside of Oak + Elixir and Mas Fina Cantina, for example, read: “This space is being used as a peaceful protest to protect the rights of restaurants and small businesses.”
Those businesses have been aided and cheered on by people like Supervisor Jim Desmond, who encouraged them to violate the rules and has argued restaurants and other businesses should be allowed to open, and attorney Michael Curran, who represents several businesses countywide and nearly 60 in Carlsbad that are pushing back against state guidelines. Curran has been encouraging businesses to open and follow protocols like requiring customers to wear masks indoors and to call it a peaceful protest.
“Constitutional rights don’t go away in the event of the pandemic,” he said. “We’re calling it a constitutionally protected peaceful protest. We know protests are typically people holding signs and walking around a government building, but we found a way to take that form of protest and apply it here.”
But other legal experts, and the people tasked with enforcing the order, disagree with that interpretation.
“The mere fact that you are violating the law does not automatically mean that you are expressing opposition to the law,” said Aaron Caplan, a professor at LMU Loyola Law School in Los Angeles who teaches First Amendment law. “I can go rob a bank. And I suppose that expresses my disagreement with the laws against bank robbery, but nobody’s going to say that robbing a bank is expressive conduct.”
The First Amendment to the U.S. Constitution protects American’s freedom of expression, religion and their right “peaceably to assemble, and to petition the Government for a redress of grievances.” Those rights are what Curran and local businesses are nodding to when they label their actions a “peaceful protest.”
But Caplan said restaurants casting their violations as a protest might be more of a PR strategy meant to persuade the public that its actions are noble than it is a legal one.
“I think the most important thing to recognize is, if somebody says, but wait, my restaurant is open – it is a form of peaceful protest. That’s a political statement. It’s not a legal statement,” he said.
That’s because in order for an action to qualify for legal protections ensuring freedom of expression, it has to be clear what the expression is – and he doesn’t believe a restaurant serving food is a clear expression of its distaste for state laws, Caplan said.
“Saying, well, I’m going to continue to stay in business, I’m going to continue to sell food – would anybody look at that and say, ‘Oh, I get it, they’re expressing something’?” he said.
Indeed, some of the businesses claiming they’re taking part in a “peaceful protest” have made clear that their decision to remain open is actually a financial one.
“Takeout business alone is not sustainable for our employees, many of which have families that depend on their income to pay rent, mortgages, utilities, and food: the basic necessities that we all work very hard to provide,” Vigilucci’s wrote in a sign posted on its door next to a statement that it’s engaged in a peaceful protest. “We firmly believe that the virus is real, and will continue to follow the health and safety protocol while continuing to operate under the guidelines set forth by the CDC and county health office. We have always had the safety and well being of our customers and employees at the top of our priorities. Please consider the moral and financial dilemma we face.”
David Snyder, executive director of the First Amendment Coalition, said even if the businesses are engaging in a protest, doing so typically comes with an acknowledgement that you could be punished.
“When people engage in civil disobedience, they are by definition accepting the fact that they may be arrested, taken away or cited for violating the law,” he said. “The idea is to express, ‘We violate the law because we don’t believe that it’s valid.’ But what that means is that you may be punished for violating the law.”
Countywide, there’s a process in place for when a business doesn’t abide state health orders.
When a police officer witnesses a business or organization operating outside the health orders, the police department is supposed to notify the San Diego County’s Safe Reopening Team. That team is in charge of sending a cease-and-desist order to the business.
If the business or organization continues to willfully disobey the health orders like many in Carlsbad are, an officer is supposed to create a report that is sent to the San Diego County District Attorney’s Office for review and further action.
A spokesman for the district attorney’s office wouldn’t say directly whether the office takes into account a business’s assertion that it’s engaging in a protest when evaluating compliance cases.
“We review the cases submitted to us by law enforcement and make charging decisions based on the law, the facts and the evidence. When making a charging decision we apply the same principles that are applied to any criminal case – proof beyond a reasonable doubt that the law was violated,” Steve Walker wrote in an email.
Curran said he’d probably consider a narrow and limited shutdown allowing restaurants to only host outdoor dining OK, but he believes there’s a big problem with shutting restaurants down just to discourage people from going out, and that it’s unconstitutional for the state and county to shut down non-essential businesses in a “non-essential way.”
He argued that there’s no science and data pointing to restaurants being the cause of the spread of coronavirus, and that most cases are happening at nursing homes and in-home gatherings. A San Diego judge found some merit in that argument  when he allowed restaurants to briefly defy the state order before an appellate court blocked that decision.
But notably, Curran’s argument about a lack of science behind the order, and the judge’s reliance on that point, have nothing to do with the First Amendment or freedom of expression.
“They might make arguments that the law itself is invalid and therefore should not have been enforced, but that’s not really a First Amendment defense,” said Snyder. “The First Amendment doesn’t provide a shield against violating otherwise valid and evenly applied laws.”
Since December, the Carlsbad Police Department has sent 19 reports of businesses violating public health orders to the district attorney’s office for review, said Jodee Reyes, a spokeswoman for the department. Of the reports the DA’s office has received of restaurants and gyms willfully violating health orders as of Jan. 8, more than half came from Carlsbad, said Tanya Sierra, a spokeswoman for the district attorney’s office. Since December, 29 of the 32 cases referred to the DA’s office came from North County.
The San Diego County Board of Supervisors voted last week to increase enforcement against businesses and other entities that are not complying with coronavirus-related public health orders. The board turned down further proactive enforcement in August, but agreed to it last week because of the significant surge in coronavirus cases, hospitalizations and deaths in recent weeks.
Now, the county’s Safe Reopening Compliance Team is tasked with conducting proactive inspections, investigating complaints and citing businesses violating the rules. The new policy says businesses not in compliance with public health orders will not be eligible to receive county relief funding.
The team has served 32 cease-and-desist orders in Carlsbad since December, Reyes said.
Desmond, who has positioned himself  as the most high-profile skeptic of the coronavirus and the biggest opponent of coronavirus-related restrictions, voted against proactive enforcement.
“These businesses are barely hanging on and not being able to receive funds will push them over the edge,” he wrote in an email to constituents.
Desmond represents large swaths of North County, including Carlsbad, Oceanside, San Marcos and Vista.
In an email to constituents sent before the county’s decision to ramp up enforcement, Desmond praised The Compass and other Carlsbad restaurants defying the public health orders. “The Compass is a great example of staying open and doing it safely!” he wrote, alongside a photo of himself and the owners seated inside, inches apart.
One Carlsbad councilwoman has tried to increase citations for businesses that choose to not comply, but so far hasn’t been able to secure enough support from her colleagues. Business owners and their supporters appeared in masses outside of a special meeting called by Councilwoman Cori Schumacher on Jan. 5 when she proposed the city impose stricter restrictions on dining and other businesses that defy public health orders by increasing citations. None of the other Council members seconded her motion, and the motion failed. The Council did agree in a 4-1 vote to a comprehensive approach to educate and incentivize compliant businesses.
While restaurants in Carlsbad have managed to remain open, others in neighboring Encinitas have closed since Mayor Catherine Blakespear threated to rescind permits that allowed businesses to offer outdoor dining in city sidewalks, streets and parking spots if a restaurant is caught breaking the rules. Still, some restaurants like The Roxy in Encinitas were open for outdoor dining last week.
“I’m grateful for the sacrifices made by our restaurants, which are largely complying with the county’s public health order to do take-out only. Last week the city communicated that right-of-way encroachment permits could be revoked for restaurants that weren’t adhering to the order, and most restaurants moved into compliance,” Blakespear wrote in a recent newsletter to constituents.
Correction: An earlier version of this post misspelled Michael Curran’s last name.