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Ventura’s Compliance Crackdown

Ventura County officials last month sued 14 gyms and four restaurants for operating in violation of the state’s health order and the closure order issued by the county health officer.

The court has issued temporary restraining orders against three Fitness 19 locations in Newbury Park, Simi Valley and Thousand Oaks and two Anytime Fitness locations, both in Ventura. The County Board of Supervisors held hearings on restraining orders for the other businesses last week. Additionally, the county has suspended all four restaurants’ health permits, which allow them to serve food. Court hearings on preliminary injunctions for businesses that continue to defy the regulations will begin Feb. 10.According to County Counsel Michael Walker, the businesses “were given every opportunity to comply with the health orders. … The board views it as a matter of last resort.”The suits don’t seek monetary damages or other penalties for the businesses – their only purpose is to convince them to comply with the restrictions.

The Ventura County board’s campaign aligns with an increasing effort by officials in Southern California to enforce compliance on businesses that have flouted pandemic-time restrictions this winter.

In Los Angeles County, city of Burbank officials have threatened to revoke the conditional use permit of Tin Horn Flats, a western-themed bar at 2623 W. Magnolia Blvd. that has kept its patio and indoor dining room open for customers since Dec. 10.

The Notice of Violation asks the bar to reduce operations to a take-out and delivery-only model and require staff to wear masks. Owner Baret Lepejian has been vocal on social media about intending keep his restaurant open, which he explained as a “peaceful protest” against “tyrannical mandates and closures.” He also publicly decried the use of masks, questioning their necessity and the seriousness of the coronavirus. The Business Journal’s attempts to reach him were unsuccessful.

Burbank City Council will hold a public hearing Feb. 22 to determine whether or not to pull the bar’s permit.

In the meantime, the business is selling “We Will Not Comply” T-shirts to pay for upcoming “legal battles.”In the city of Los Angeles, a representative from City Attorney Mike Feuer’s office said the agency is reviewing 17 businesses for possible criminal filings related to alleged violations of the latest Safer at Home order, but didn’t disclose the names or types of businesses involved.

Walker said in an email that the lifting of the statewide limited stay at home order and resumption of outdoor dining activity last week won’t affect Ventura County’s lawsuits against gyms and restaurants that were operating indoors.“If it turns out that one or more of the restaurants were not operating indoors – and those restaurants were otherwise complying with all requirements of the health orders – we would not continue to pursue those restaurants, since the purpose of the litigation is to gain compliance with the health orders, not to punish for past violations,” he said in the email.Pandemic fatigueAs the pandemic’s one-year anniversary approaches, restaurants that have survived the crisis so far are hurting. Many feel their industry has been unfairly targeted in the fight to stop COVID-19, and that the restrictions are pointless because the virus isn’t being transmitted at restaurants.Jordan Klempner, who with his wife owns The Original Pizza Cookery in Thousand Oaks, said he plans to keep his restaurant’s dining room open despite its suspended permit. He explained he’s fighting for the freedom of small business owners and questioned why the same restrictions don’t apply to big-box retailers.

“It’s OK to go to Costco, pack in the Target, pack in the Walmart, but you can’t come to my restaurant?” he said. “I’m fighting for the freedom of small businesses to stay open from arbitrary rules that are not even laws.”Many frustrated business owners share that sentiment, but both state and county public health officers are authorized by statute to issue orders that are enforceable by law.

Walker said the orders “have the force and effect of law.” That’s true regardless of their perceived fairness.Either way, Klempner plans “to stay open.”“We’re going to get it resolved in court,” he said.

While Pizza Cookery forges on, Walker said the Fitness 19 and Anytime Fitness gyms are all complying with the temporary restraining orders and ceased all restricted operations.

If a business violates a restraining order and stays open, Walker said, “we could go back into court and seek contempt of court sanctions.”Legal fightBrian Walters, an attorney at Poole Shaffery & Koegle in Santa Clarita, said staying compliant is “probably the best thing to do,” but added there are a few legal pathways to consider for businesses insistent on fighting the restrictions.

He said businesses planning to go to court would do well to reach out to a regional trade or advocacy organization to lobby for their cause.

“The industries that have trade associations get involved tend to have more traction,” he said, particularly referencing the California Restaurant Association in Sacramento.

Failing that, another option is a regulatory takings claim, a situation where a government regulation limits a business’ operation to the point that the business loses its value. That’s especially pertinent as many of California’s so-called emergency orders have lasted nearly a year, wreaking havoc on small businesses.“There is a takings argument even in a pandemic,” Walters said. “It has not been tested yet, but I think needs to be raised. If I had clients that were willing to go for it, I would go for it. … There are going to be judges who start to tire of calling this an emergency and try to treat it as business going forward as opposed to a temporary hold-up.”These options, he said, come with long schedules of court dates and, of course, hefty lawyers’ fees.

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