Carlsbad Village restaurant Oak + Elixir has posted a "peaceful protest" notice while remaining open to diners.

I’ve tried not to write about it, because I haven’t wanted to encourage readers to seek them out. But since December, despite state and local covid regulations restricting on-premise dining, hundreds of San Diego restaurants have been hosting customers anyway. They don’t just seat diners indoors, while regulations support outdoor dining only. Many have been seating indoor diners through this winter’s county-wide stay-at-home order, when restaurants were supposed to be doing takeout business only.

Some individual businesses have no doubt decided to disregard the public policy on their own, and some have been vocal about it in various media outlets. But the majority have banded together, part of a coordinated effort that began in Carlsbad Village. Pass by several dozen restaurants in the Village area, and you’ll notice signs in their windows announcing their part in a “peaceful protest.”

That’s the language they use to explain their actions: that their remaining open is a constitutionally condoned protest against restrictions intended to curb the spread of covid-19. Other printouts posted in their windows elaborate on the legal protections they claim in flouting the rule. The arguments have been provided by Encinitas attorneys Michael and Susan Curran, who coordinated the movement, beginning in Carlsbad, and pledged to offer pro bono defense, as needed, for restaurants and other retail businesses who joined the “peaceful protest.”

Customers eat at the counter at La Mesa's Beach Hut Deli.

When I spoke to Michael Curran in January, more than 400 businesses had already signed on, and it had grown far beyond Carlsbad. At the opposite end of county, where La Mesa meets Spring Valley, I recently entered the Beach Hut Deli sandwich shop to find diners seated at its counter. There, in the window, was the telltale printout, reading in part: “We join fellow restaurants… staying open as part of constitutionally protected, peaceful protest of unconstitutional, factually unfounded government orders.”

But, as Curran has it, “This is not a political decision for them, this is a survival decision.” He pointed to the number of permanent restaurant closings during the pandemic, which he blames largely on forced government closures. However, he contended that the agencies issuing such orders lack jurisdiction, and can’t legally enforce the orders.

A printout in the beach Hut Deli window, explaining its decision to serve indoor diners during the pandemic.

Furthermore, he believes the agencies lack constitutional authority. “The constitution didn’t go away during this pandemic,” he told me, and suggested the First Amendment right to public protest applies to retail and dining. “Can it only be locking arms as you walk down the street,” he said, “or can it be in the form of running your business?”

He told me that, aside from a few cease-and-desist notices, his clients hadn’t been ticketed or fined, and law enforcement in specific communities either took an “educational only approach” to chastising restaurants in violation of the county-wide orders, or flat out, “look the other way.”

Some diners choose indoor seating at Carlsbad restaurant Vigilucci's.

Many individual business owners citing peaceful protest as their legal protection for staying open complain that restrictions on dining isn’t supported by still incomplete scientific study of the coronavirus. At the same time, they seek to assure their customers they are otherwise following recommended covid safety protocols.

Customer response to these subversive re-openings seems to be mixed. Certainly, the restaurants couldn’t host customers indoors unless some customers were willing to violate the protective order themselves. During a recent visit to Carlsbad Village restaurant Vigilucci’s, a member of the peaceful protest, I spotted several diners eating inside, despite fine weather, while mine was the first lunch party electing to sit restaurant’s well-maintained, pre-covid parklet.

Diners sit within Pho Kitchen, while takeout orders continue.

Meanwhile, when picking up food at a Pho Kitchen location in Linda Vista, I spotted diners seated inside, but it was clear far more orders were being submitted for takeout.

Online, I see commenters supporting restaurant efforts to re-open, but just as often I see prior regulars of restaurants, vowing never to return.

In other words, it’s not just restaurants making a “political decision,” or “survival decision” with regard to on premise dining. It’s politics or survival for customers, too.