NORFOLK, Va. (WAVY) – California Burrito has been denied again.

After Norfolk City Council voted in October to revoke its special exception permit, California Burrito filed a court appeal, calling the city’s actions unlawful, arbitrary and invalid.

However, Norfolk Circuit Court Judge Everett A. Martin Jr. Tuesday denied California Burrito’s request for an injunction to prevent the city from revoking its permit.

The business received approval for the permit in 2017 after it applied to operate as an “entertainment establishment,” commonly referred to as a nightclub, allowing it to provide entertainment and stay open until 2 a.m.

California Burrito’s special exception permit allowed for no more than 49 people to occupy the business at any one time, including employees, and noted that “this special exception may be revoked for any violation of a general or specific condition, including a condition incorporated by reference and including a condition arising from requirements, limitations or restrictions imposed by the ABC Commission or by Virginia law.”

“It appears the business, which had been open since 2016, operated in compliance with its special exception for more than three years, and police were never called for a disturbance inside it,” Martin noted.

But on at least two occasions a fire marshal counted more than 100 people at the business – it had 130 people on Oct. 30, 2020 and 108 people July 17, 2021.

As the business had been applying for a conditional use permit to increase its capacity, the city asked that a summons the fire marshal wrote for the second violation to be nolle prossed, or dropped, and Norfolk General District Court granted the motion.

City Council denied California Burrito’s conditional use permit to increase its maximum capacity on March 8.

The fire marshal again cited the business for overcrowding on March 26, but the court dismissed the case when the fire marshal did not appear in court in what the judge said was a “miscommunication” issue.

In July, the fire marshal issued another overcrowded summons to California Burrito for having 56 people in the building – that hearing had been scheduled in Norfolk General District Court for Nov. 18.

But on Sept. 19, Norfolk’s City Attorney’s office issued a statement proposing the special exception be revoked, with an Oct. 11 public hearing before City Council. An attorney for the business, Jon Babineau, told the council that it had, indeed, exceeded its maximum occupancy on several occasions, Martin stated in his ruling,

Martin also noted that Babineau had proposed a compromise of converting California Burrito from a nightclub to a restaurant, thereby eliminating entertainment from the site and ending alcohol sales at 10 p.m. and closing at 11 p.m.

Council voted 6-2 to revoke the special exception and did not vote on the compromise, and the business closed as a result.

According to Martin, in order to obtain the injunction, California Burrito must establish that it has no remedy at law and will suffer irreparable harm without the injunction’s approval. Martin said the business “has no remedy at law,” and he said he “will assume … that California Burrito has shown it will suffer irreparable harm in the absence of an injunction.”

“California Burrito could have gone to the zoning administrator and probably received approval to operate a restaurant,” Martin stated. “albeit without the ability to sell alcoholic beverages. It has not done so. Mr. (Miguel) Roldan, the owner of California Burrito, testified the restaurant could not operate profitably without the sale of alcoholic beverages. Thus the harm California Burrito has suffered is loss of profit, which is not ordinarily a basis for equity jurisdiction.”

The restaurant and its owners would also have to prove that they have a “fair prima facie case,” which means that the plaintiff would have a fair chance of prevailing in court – “I do not find California Burrito has such a chance,” Martin said.

The business, and its attorneys, have said that “provisions of Norfolk law and the procedures City Council followed are illegal and denied it due process of law.”

Martin disagreed.

“…It has not cited, nor am I aware of,” Martin stated, “any decision of the United States Supreme Court holding that the right to operate a night club in violation of a lawfully imposed condition is deeply rooted in our nation’s history and tradition and implicit in the concept of ordered liberty.”

California Burrito also complained that the procedure used in Norfolk does not allow the development of a record, which they claim must be developed before the City Council can revoke a special exception.

The restaurant also complained that procedures did not comply with the city code that states a zoning ordinance can’t be amended or reenacted unless a governing body had referred it to the local planning commission.

The judge said that even though it is true Norfolk City Council mostly operates through ordinances, this subsection does not apply in this case and that the city council has to right revoke special exceptions without referring to the planning commission.

The business’s next claim was that it did not have enough time to be heard. However, Martin said both the landlord and Babineau were allowed to say all they wished and that the mayor did not stop them from presenting their case.

California Buritto also claimed that the City Council’s action in revoking their special exception permit was “arbitrary and capricious.”

“When a law has been laxly enforced, but because of public clamor the government begins to enforce it vigorously, it can seem arbitrary if you are on the receiving end of early vigorous enforcement,” Martin said.

However, the judge said that since the business admitted before the council that it had violated the occupant capacity of its special exception several times, the council had the ability to revoke it “for any violation of a general of specific condition,” citing the language of the ordinance.

This is the second restaurant in Norfolk that has had its injunction rejected after Legacy Lounge’s injunction was denied in October.

Martin said the wisdom of the council’s policy of reducing violence in downtown Norfolk “is not a proper concern of the court.”