Following several months of government-enforced lockdowns in response to the COVID-19 pandemic, local restaurateur Dave Fansler filed a lawsuit against the City of Fresno last week, claiming the city code enforcement specifically targeted his restaurants and violated his constitutional rights.
In addition to the city, Fansler is suing Mayor Lee Brand, city attorney Doug Sloan and the majority of the city council – Council President Miguel Arias, Esmeralda Soria, Paul Caprioglio, Luis Chavez and Nelson Esparza – for their part in enforcing the shutdown orders.
While Fansler does not agree with California Gov. Gavin Newsom’s emergency orders during the pandemic – according to the legal complaint – he is not challenging the constitutionality of those orders in this lawsuit.
Instead, Fansler is challenging what he alleges has been “unequal and arbitrary enforcement” of the orders against him and two of his restaurants – Pismo’s Coastal Grill and Westwoods BBQ – ultimately resulting in unfair treatment from the Alcohol and Beverage Control Agency to “threaten and coerce” him.
The crux of the argument – outside of the claim that Fansler was unfairly targeted – is that both Pismo’s and Westwoods are designed with roll-down garage-style windows, allowing three sides of each restaurant to be fully open.
Warren Paboojian, Fansler’s lawyer, told The Sun that the restaurants were originally designed as outdoor dining.
“That’s how it was planned years ago when it went to the city,” Paboojian. “When you open up the windows it gives you that outdoor feeling that you’re eating on the beach or somewhere outside near the ocean.”
But the roll-up window design did not cut it with the city. Fresno Code Enforcement issued four citations to Pismo’s in early July, effectively saying that Pismo’s was not an outdoor restaurant despite the design.
“The City of Fresno basically said, ‘Everybody else can do it but you, Dave,’” Paboojian said. “In my opinion I believe they were punitive against him because he was so vocal about how the city and the state was handling the whole pandemic when it came to restaurants. So this was one way of shutting him up and shutting him down.”
Fansler argues in the complaint that he made several attempts to show that the restaurants were “outdoor” dining and met the state’s guidelines, but the city refused to review the restaurants’ specifications or visit the locations.
“They’re elected officials,” Paboojian said. “They needed to come talk to Dave Fansler at Pismo’s to take a look at it and at least consult with a physician to determine whether or not his indoor-outdoor restaurant complied with the CDC and the safety requirements that the other restaurants were supposed to abide by.”
The lawsuit also alleges that the city “sought to further harass and shutter” the restaurants by “turning in” Pismo’s to the ABC to threaten the potential loss of the restaurants liquor license “as a further tool for harassment and unequal treatment.”
“[Fansler’s] restaurants have been unfairly singled out and harassed by City Defendants despite operating under the same or better and same or safer conditions than numerous other restaurants within the City of Fresno,” the lawsuit reads.
Fansler claims the city violated his constitutional rights, specifically the following sections:
- The Takings Clause of the Fifth Amendment
- The Due Process Clause of the 14th Amendment
- The Equal Protection Clause of the 14th Amendment.
Regarding the Takings Clause – which states that “nor shall private property be taken for public use, without just compensation” – Fansler argues that the city took actions which resulted in him being deprived of the economic, beneficial and productive use of his property, “which has resulted in a de facto involuntary closure” of his restaurants.
The arguments centering on the 14th Amendment are as follows:
- The city’s citations for Pismo’s operating indoors “was so standardless and arbitrary” that it violated Fansler’s Due Process rights. Fansler claims the city did not define what an “outdoor” space is and did not provide a scientific determination as to what level of air circulation or open air space constitutes “outdoor dining.”
- The city’s singling-out of Fanzler’s restaurants while allowing others to operate violated the Equal Protection Clause.
Fansler also alleges that the city violated his rights under the California Constitution, specifically the Equal Protection Clause and the Takings Clause.
The lawsuit also makes three other claims:
- Intentional interference with prospective economic advantage
- Negligent interference with prospective economic advantage
- Intentional affliction of emotional distress
All of the city’s actions that Fansler alleges – falsely targeting Pismo’s as violating the emergency orders, refusal to evaluate the restaurants’ open-air capacity, wrongly reporting Pismo’s to the ABC, purposefully causing licensing issues and issuing improper and unjust fines against Pismo’s – have all contributed to his emotional distress.
“These acts have caused severe emotional distress including but not limited to shock, embarrassment, anger and worry for Fansler,” the lawsuit reads. “Fansler has also been unduly caused to worry incessantly about his employees and his employees’ ability to pay their bills, keep their homes and be able to provide for their families during a global pandemic.”
The lawsuit continues, “The conduct of Defendants, as alleged herein, represents extreme and outrageous conduct and conduct which went beyond all bounds of decency so as to be regarded as atrocious and utterly intolerable in a civilized society. This conduct would cause an average member of the community to react with outrage.”
Paboojian pointed to the hundreds of employees that Fansler had to lay off due to the orders, as well as the lost business that restaurant owners across the nation are having to deal with.
“When you’re going to lose everything potentially, it’s had a toll on him like every other restaurant owner in the country,” Paboojian said. “These restaurant owners and their employees are getting hammered.”
Paboojian said that it is too early to name a dollar amount in financial compensation that Fansler is seeking in damages for the economic loss that has occurred this year, but he expects it to be in the “hundreds of thousands” of dollars.
A spokesperson for the city of Fresno declined to comment since the legal proceedings are ongoing.
