LOS ANGELES (CNS) - A judge ruled today that a countersuit filed by the former owner of the Tinhorn Flats Saloon & Grill and his children against the city of Burbank over the city's shutdown of the eatery in 2021 during the coronavirus pandemic will have to be shored up in order to proceed with most of its allegations.
Former Tinhorn Flats owner Baret Lepejian, along with his operating company, Barfly Inc., and children, Lucas and Talya Lepejian, filed the current 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 said that of the nine causes of action in the countersuit, only the one for violation of the First Amendment can proceed without any revision.
``Shutting down one's business would chill a person of ordinary fitness from continuing to speak,'' the judge wrote.
Tamzarian also noted that the restaurant owner and his children allege the city tried to chill their speech by enforcing rules specifically against Tinhorn Flats, but not other restaurants, with the intent of silencing and punishing them for expressing their beliefs.
The judge rejected the eatery owner's claims that he was subjected to excessive fines by the city, calling the businessman and his children ``highly culpable'' and noting that they admitted violating the law.
``The harms were a public nuisance, namely operation of a bar and restaurant without the necessary permit, and the potential of increasing the spread of a contagious virus,'' said Tamzarian, who gave the restaurant owner 20 days to file an amended complaint.
Tinhorn Flats lawyer Kimberly Casper told the judge she will indeed file a revised lawsuit, but Tamzarian urged her to take into consideration Tuesday's ruling as well as a previous decision that was largely in favor of the city, but in which he also allowed the filing of an amended suit.
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 Beckloff, who imposed a preliminary injunction and levied $1,150 in sanctions against Barfly Inc. 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 eatery'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.