Tina Forti, co-owner of Novo restaurant with her husband Massimo, broke into tears as she spoke with the Westlake City Council recently.
“You all keep saying we made a choice [to defy the council]. It was not a choice,” she said. “We signed to sell our house today… we have two kids.”
Tina was referring to comments made on February 24 when City Councilman Ray Pearl said, “We are here because of a choice Novo made, not because of a choice we made. If they adhered to the orders, we wouldn’t be here.”
The Fortis opened Novo in 2019 and built it into a popular establishment. But the restaurant has been battling with the City of Westlake during extended business shutdowns. Massimo said in a letter, “We did not have a choice to survive; you had a choice to let this play out in the courts of L.A. County….The loss of alcohol sales will put us more against the ropes than we already are.”
On February 10, the Westlake City Council voted unanimously to pull Novo’s Conditional Use Permit, which is needed before an approval for a liquor license can be approved. The CUP for this unit was originated by a prior business and modified to Novo in May 2019. It was due to expire in May 2024. The City Council voted unanimously to revoke the CUP to prevent Novo from selling alcohol, in what Massimo’s attorney, James Lloyd, called a punitive act. He referred to Councilman Ned Davis’s comment that, “There has been no contrition here (from Novo). There’s a doubling down; a decision to take a calculated risk. There must be some kind of come-uppance.”
Lloyd responded, “They are basically saying, ‘How dare you defy us?’ in a civic stance that is nothing short of Draconian.”
Lloyd is fighting the Los Angeles County Department of Public Health (LACDPH) on behalf of the Fortis, and asked the Westlake City Council on February 10 to postpone pulling the CUP until he had a chance to confront the LACDPH in court. The City agreed to postpone the decision until February 24, but Lloyd had not yet faced the LACDPH in court when the Westlake City Council met on February 24 and moved forward, revoking Novo’s CUP.
The major point of contention made by Westlake was that Novo represents a “public nuisance,” which is legally defined as “A class of common law offense in which injury, loss, or damage is suffered by the public in general.” The slides the City Council posted from their investigation to prove Novo was a public nuisance showed pictures of people dining, drinking beverages and watching television.
Lloyd insists that the Fortis’ 14th Amendment rights, which guarantee all citizens due process, were violated.
“The Council took 25 minutes to lambaste my client, and I got three minutes to respond,” he says. “How is that due process? I can’t fully challenge in three minutes, or call a witness, or bring in a doctor to testify that this individual restaurant hasn’t spread COVID. This tyrannical at best. It’s the tyranny of the small-minded bureaucrats.”
Councilwoman Kelly Hong stated, “The Los Angeles County Health orders are what they are. It is not the purview of Westlake Village City Council to determine the Constitutionality of these health orders.”
Lloyd insists the Council must check the Constitutionality of everything they do.
“Tell me, did they take their oath of office to uphold the health department against all enemies?” he asks rhetorically. “They keep saying it comes from our health officer. Well, your health officer is wrong! I mean, the 14th Amendment isn’t dead because there’s a pandemic… It hasn’t ever fallen to the wayside in prior pandemics.”
Peggy Hall, rights advocate and owner of TheHealthyAmerican.org, aired a video clip which has since gone viral of Gov. Gavin Newsom saying “I can’t mandate anything, I can only help influence.” Hall points out that the word “mandate” keeps coming up in city council meetings and county boards across the state though it holds no legal power.
“There is no legal power to a free-standing mandate… it’s not constitutionally recognized,” Hall says. “Every regulation must attach to a law or it is invalid. … And actually, that’s why they keep using it. They say ‘mandate’ because it sounds official and allows them to impose their will without passing legislation.”
The L.A. County Health Office has ordered the closure of specific businesses and anywhere “…more frequent and prolonged person-to-person contacts are likely to occur.” Part ‘D’ specifies this applies to “All restaurants, but only for indoor and outdoor dining, only until further notice.” The City of Westlake has stated that other restaurants have complied and stayed open this way.
Massimo responded, “Our set-up is created to offer a full restaurant experience. Therefore, our expenses are based on large square footage and higher rent, with lots of nice features, huge power and water bills, extra equipment and a price range of the food that reflect that overall experience. All these additional costs could never be recovered by selling food to go.”
Attorney Lloyd says it’s disingenuous for the Council to say they are pro-small business, then punish businesses while claiming the business deserves what’s coming to them.
“We have 90 days and there are more moves to make, so we’re working on this. I’ll be appealing,” Lloyd says. “The Constitution is the supreme law of the land, and you can’t just step on it.”