First published in the Sept. 17 print issue of the Burbank Leader.
The former CEO and president of the now-closed Tinhorn Flats Saloon & Grill lost a round in court Thursday when a judge dismissed his countersuit against Los Angeles County, which alleged the outdoor dining ban put in place in late 2020 was unlawful under the federal and state constitutions.
“The spread of COVID-19 is a compelling interest and it is rational to make distinctions among businesses based on the risks of COVID transmission attendant to each business,” Los Angeles Superior Court Judge Maureen Duffy-Lewis wrote, tossing the Tinhorn Flats countersuit.
Tinhorn Flats, which did business in Burbank, and Cronies Sports Grill in Agoura Hills were the subjects of a public nuisance suit filed against the businesses in January 2021. The suit, brought just before the outdoor dining ban was lifted, asked for an abatement order directing both restaurants to bring their businesses into compliance with the health orders and to allow inspectors to enter to ensure compliance.
Through its operating company, Barfly Inc., and Tinhorn Flats CEO Baret Lepejian, the Magnolia Boulevard eatery filed a countersuit in July 2021, arguing in their court papers that Tinhorn Flats “suffered immensely” while other non-essential businesses were allowed to stay open.
The countersuit further alleged that Tinhorn Flats was unfairly targeted and that the outdoor dining ban hampered the business’ ability to earn a living by conducting outdoor dining, despite what the eatery management claimed was a “total lack of scientific evidence or data” to support the order. The restaurant was thus deprived of its “constitutionally protected liberties and rights,” including due process, the countersuit stated.
But in her ruling, the judge said the county did not infringe on the restaurant’s due process rights.
“In a public health emergency such as the COVID-19 pandemic, there is no entitlement to individualized notice and a hearing regarding restrictions,” the judge wrote.
Duffy-Lewis also rejected Tinhorn Flats’ argument that the ban violated the business’ First Amendment rights by not allowing customers to assemble at the eatery.
“COVID orders temporarily banning outdoor dining do not regulate assembly based on the expressive content of the assembly; rather, they prohibit all outdoor dining at restaurants, irrespective of the purpose of the gathering or type of speech,” the judge wrote.
In June 2021, 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.
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. because of 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’s suit sought civil penalty assessments against the business for each day it allegedly did not abide by the health directives.
— City News Service