Citing a 116-year old Supreme Court case, an independent hearing officer ruled in favor of the city of Fresno, upholding $6,000 in fines against a northwest Fresno restaurant.
The city cited the Waffle Shop twice during a four day period in May — including on Mother’s Day. The shop’s owner, Ammar Ibrahim, appealed, but lost.
Ibrahim has no regrets about staying open.
“It’s been worth all the fines. Nine months later, I’m still afloat and and I’m still in business. If I closed my doors, I would have lost everything,” Ibrahim said.
Ibrahim says he has been fined several other times since May for offering indoor dining and not enforcing mask wearing. He is appealing some of those fines, and has yet to pay.
He says he continues to offer indoor dining.
1905 Case Justifies City’s Emergency Powers
“It’s been worth all the fines. Nine months later, I’m still afloat and and I’m still in business. If I closed my doors, I would have lost everything.” — Ammar Ibrahim
Among the arguments Ibrahim made during his appeal hearing was that the city’s stay-at-home order that allowed essential businesses to remain open violated his constitutional rights.
Hearing officer Michael Flores disagreed, writing that a 1905 case, Jacobson v. Massachusetts, gives the government emergency powers that can supplant normal rights.
“The government has the limited authority to issue declarations, adopt laws, regulations, and procedures that sometimes result in the temporary reduction or limitation on an individual’s constitutional rights, in order to reduce that threat to the general population’s health and safety,” Flores wrote.
The decision came after a nearly two-hour hearing on Dec. 16 by video teleconferencing. It was one of the first occasions that Flores conducted a hearing since March 2020. The hearing was plagued with audio and video technical issues.
Ibrahim has the right to take his case to the Fresno County Superior Court. He said he is considering that option.
Since the first COVID-related emergency order on March 18, 2020, the city and state have waffled on allowing dining — indoor or outdoor. After Monday’s lifting of a regional stay at home order by Gov. Gavin Newsom, outdoor dining is allowed again.
Attorney Defends Waffle Shop
During the appeal hearing, two code enforcement officers testified they witnessed indoor dining, in violation of the city’s emergency order in effect at the time, on May 7, 8 and 10. No violations took place during a May 9 inspection.
When questioned by city attorney Jennifer Nguyen-Bui, Ibrahim admitted he offered indoor dining during those dates.
Ibrahim’s attorney, Nathan Miller, argued that his client’s rights were violated, specifically the Fourth and 14th amendments of the Constitution.
“The city has treated my client differently than basically any and all other restaurants and businesses, in that they intentionally have harassed him by going out on the 8th and then essentially with no complaints, going out on the 10th,” Miller said.
Operating his restaurant was the only way for Ibrahim to make a living, Miller argued.
He also asserted that no customers ever contracted COVID-19. The county did not provide any records to his request to show otherwise.
In his closing remarks, Miller asked for the city to dismiss the case, or reduce the fines to no more than $500.
A video of the Dec. 16 hearing can be found here.
Complainants Remain Anonymous
Miller also argued that by keeping the complainants anonymous, the city violated Ibrahim’s rights to confront his accuser.
“They get to pick and chose who they go after, which is what they done here. I believe the (emergency) order by Ms. Quan (then City Manager Wilma Quan) is a violation of the separation of powers,” Miller said.
There, Flores also disagreed, citing a state case allowing for the withholding of such a record.
“Because of the very real possibility of the threat of physical harm, the Hearing Officer believes that the protection of the personal safety of those persons who lodge a complaint …. clearly outweighs the public interest served by disclosure of their identifying information,” Flores wrote.
Flores noted an incident on May 10 at the Waffle Shop where Miller’s father, Tom Miller, was detained for standing in the way of a police officer assisting the code enforcement officer.
Ibrahim disagreed when reached on Tuesday.
“I think the system is corrupt due to the fact they would not provide us with any information about who filed a complaint against us, telling us it was privileged information,” Ibrahim said.
Other Arguments Rejected
In his 26-page ruling, Flores rejected the remainder of Ibrahim’s arguments.
Flores ruled that Ibrahim’s due process was not violated; there is scientific evidence about the dangers of indoor dining and COVID spread; and the fines were not excessive.
Fresno City Councilman Mike Karbassi, whose District 2 covers the location of the Waffle Shop, emphasizes with Ibrahim, but says they need to follow the rules.
“Nobody likes to see businesses fined. That’s why code enforcement is more educational now than punitive. But early on in the heat of the pandemic, I wish this business would have followed the same course as hundreds of local restaurants,” Karbassi said via text.
Karbassi said he met with Ibrahim before, and “suggested a different path.”
“Unfortunately he chose a different path. If the owner believes the orders are unconstitutional, that is 100% his right. But there’s no guarantee how a court or hearing officer will rule. There’s always a risk in what we do. What we cannot forgive is blatantly disregarding safety by not having staff wear masks when serving the public. Spreading COVID just keeps other restaurants closed and destroys people’s rights to earn a living,” Karbassi said.