Court rules against bistro shuttered amid pandemic

Owners fought to not pay $200K over lease

The state Supreme Court ruled against the owners of a high-end Norwalk bistro who argued they should not have to pay $200,000 for breaking their lease because they were effectively closed down by Gov. Ned Lamont’s emergency pandemic orders restricting bar and restaurant operations.

The owners of the former Blackstone’s Bistro claimed the executive orders so frustrated their business operations that it was impossible for them to generate enough profit to make monthly rent payments in excess of $12,500. They argued that Lamont’s orders effectively invalidated their lease and they shouldn’t be forced to pay damages for breaking it.

In a unanimous decision written by Chief Justice Richard Robinson, the court said the legal language of the lease and executive orders did not preclude the restaurant from making money in some fashion — such as selling take-out orders — regardless of how difficult it might be to attract take-out customers for meals that cost from $100 to $200.

“First, and most significant, as the trial court found, even under the most restrictive executive orders, use of the premises for restaurant purposes was not rendered factually impossible insofar as restaurants were permitted to provide curbside or takeout service, and the lease agreement did not prohibit curbside or takeout service,” the court said.

On the question of the enforceability of the lease, the court affirmed the ruling of the Superior Court, which concluded after a one-day trial, that the lease did not require the restaurant owners “to operate a profitable bar/ restaurant, just a bar/ restaurant. Certainly, fine dining as takeout is a difficult sell, but not illegal [or] impossible.”

The Supreme Court did disagree with the way the lower court calculated the $200,308.76 it said the restaurant owners owed their landlord in damages for missed rent payments and breach of their lease. It sent the case back for recalculation.

The Bistro had been open a year when the operators were late on rent payments for the first three months of 2020 — something they attributed to a seasonable slump in business.

The landlord told Blackstones it was in default of its lease on March 11.

A day earlier Lamont issued an emergency public health declaration as a result of the COVID 19 outbreak and followed it with a succession of executive orders closing or limiting restaurant and bar businesses.

On March 16, the governor closed bars and restaurants in Connecticut to in-person business through April 30 and later extended the ban to May 20.

On May 18, he allowed restaurants to offer outdoor dining and on premises alcohol consumption.

He allowed restaurants to resume providing indoor dining at 50% capacity on June 16.

The Bistro was closed completely from March 11 to May 28 and the owners failed to pay rent during that period.

Its lease did not prohibit takeout or delivery food, but one of the owners testified at the trial that it wasn’t profitable.

Blackstones reopened for indoor dining during the summer of 2020, but that proved unprofitable too, according to court records.

The government-imposed 9-foot social distancing requirement reduced bistro capacity from 140 patrons to a maximum of about 25 people, including staff.

The Bistro closed and vacated its building in September 2020, three months after being asked to do so by the landlord.

The landlord signed a lease with a new restaurant in November, which charged the new operators a less expensive rent and gave them the first six months rent free.