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LOS ANGELES (CNS) - A countersuit filed by the former owner of Tinhorn Flats Saloon & Grill and his children, alleging the city of Burbank's shutdown of the former eatery in 2021 during the height of the coronavirus pandemic deprived them of various constitutional rights, will have to be shored up in order to proceed, a judge has ruled.
Former Tinhorn Flats owner Baret Lepejian, along with his operating company, Barfly Inc., and children, Lucas and Talya Lepejian, brought the countersuit against the city Oct. 12, seeking damages and alleging among other things that there has been an illegal taking of the business, that it was subjected to excessive fines and that Lucas Lepejian was wrongfully arrested three times.
Los Angeles Superior Court Judge Armen Tamzarian heard arguments Tuesday on the city's motion to dismiss the countersuit. The judge took the case under submission and decided Wednesday, as he had in his tentative ruling, that the restaurant owners should have a chance to bolster their arguments with an amended complaint.
In his ruling, Tamzarian said he understood the city's concern at the time about the possible spread of the coronavirus through outdoor dining, which the restaurant offered in defiance of public health orders. The restaurant's lawyers maintain the city's subsequent shutdown order was ``arbitrary and capricious.''
``There is a rational basis for the city to enforce state and county orders prohibiting outdoor dining: to protect the public from contagious disease by minimizing close contact between people,'' Tamzarian wrote.
``Eating at a restaurant results in close contact between people, including unrelated people who otherwise would not encounter one another. It is rational that doing so increases transmission of the virus, while prohibiting that reduces transmission.''
Even if the city is wrong about whether scientific evidence shows outdoor dining is conducive to the spread of the coronavirus, prohibiting it is not an abuse of power, the judge wrote.
``The only question is if there is a rational basis for the government to believe so -- and there is,'' according to Tamzarian, who also concluded that the right to procedural due process ``does not require the City Council to independently evaluate the lawfulness of orders by the state and county.''
Despite multiple court orders prohibiting Tinhorn's operations, Barfly and its agents ``continued to openly defy both local and the court's authority and open its restaurant for business,'' attorneys for the Burbank City Attorney's Office stated in their court papers.
Baret Lepejian, who lived in Thailand while his children operated the restaurant, previously said he supported their actions amid the pandemic and vowed not to pay the roughly $50,000 in fines that have been levied against the business.
Last June, Baret Lepejian's ex-wife, Isabelle Lepejian, obtained possession of the Burbank restaurant, successfully completing an eviction process she initiated against the eatery as the property owner.
She also is the mother of the Lepejian children, including Lucas Lepejian, then 20, who was arrested by Burbank police for being on the property when he was allegedly not permitted to be there and often railed against the COVID-19 health mandates affecting the business.
Isabelle Lepejian later sold the property to Old Fashioned Investment LLC. The eviction was separate from actions taken by Los Angeles Superior Court Judge Mitchell L. Beckloff, who imposed a preliminary injunction and levied $1,150 in sanctions against Barfly Inc. last April 9 due to the eatery's lack of proper operating permits.
In early 2021, the Los Angeles County Department of Public Health revoked Tinhorn Flats' health permit and its conditional-use permit was subsequently canceled by the Burbank City Council. The preliminary injunction required the business to stay closed until it obtained the legally required permits to reopen.
The city maintained the restaurant was an ongoing public nuisance. The county and city actions took place after numerous complaints were received about the Tinhorn's continued offering of outdoor dining on its patio in violation of the applicable health officer orders at a time when such activity was banned in Los Angeles County, according to the city's court papers.
The outdoor dining prohibition was relaxed in late January, but Tinhorn Flats was not allowed to resume business because of its lack of permits.
According to the countersuit, studies have proven that outdoor dining provides key areas of health and wellness that have been sacrificed unnecessarily under the guise of eliminating a threat to health.
But in their court papers, lawyers for the City Attorney's Office state that many courts have rejected similar civil rights claims filed by other businesses, including restaurants, whose owners alleged that COVID-19 restrictions violated their constitutional rights.
The lawyers for the City Attorney's Office also denied in their court papers that the fines against Barfly were excessive and argued that there was no unlawful ``taking'' of the business because the owner was allowed to still do takeout business before the closure order was issued for its lack of permits.