A judge Tuesday took under submission a motion by the city of Burbank to dismiss litigation filed by the former owner of Tinhorn Flats Saloon & Grill and his children against the city, who allege in a countersuit that the city’s shutdown of the former eatery in 2021 during the height of the coronavirus pandemic deprived them of various constitutional rights.
Los Angeles Superior Court Judge Armen Tamzarian had issued a tentative ruling giving the defendants time to file an amended complaint, but instead decided to ponder the case further before handing down a final decision.
In his tentative 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 to offer 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.”
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.
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.
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.
In 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.