Monday, January 3, 2005
City Council’s Inattentiveness Requires New Hearing, C.A. Rules
By KENNETH OFGANG, Staff Writer/Appellate Courts
The Los Angeles City Council’s decision upholding restrictions on the operation of an adult cabaret is invalid because council members were not paying attention during a hearing on the matter, the Court of Appeal for this district has ruled.
Div. Eight Thursday ordered the council to reconsider the zoning appeal brought by the owner of The Blue Zebra, who took over a cabaret site abandoned by a previous operator.
“We do not presume to tell the city council how it must conduct itself as a legislative body,” Justice Laurence Rubin wrote. “ Here, however, the city council was sitting in a quasi-judicial role, adjudicating the administrative appeal of constituents. A fundamental principle of due process is ëhe who decides must hear.’...The inattentiveness of council members during the hearing prevented the council from satisfying that principle.”
The ruling concerns a bid by Lacy Street Hospitality Services, Inc. to be relieved of two of the 20 land use restrictions imposed by the city in a nuisance abatement proceeding. The company assumed the burden of the restrictions when it leased the property, on which a previous operator failed in an effort to operate a similar business, but sought a modification of the restrictions pursuant to the Municipal Code.
Saying it could not otherwise operate at a profit, the owner asked that it be allowed to open at and to close at on weekends, whereas the existing conditions limited operations to to seven days a week. The company also sought permission to hire its own licensed security guards rather than use an independent contractor.
Zoning officials approved the modifications, but the council, on the recommendation of its Planning and Land Use Management Committee, overruled that approval.
Yaffe Denies Relief
In its petition for writ of administrative mandate, the company claimed that the council abused its discretion by failing to conduct a fair hearing. As evidence, it submitted a videotape of the council meeting, but Los Angeles Superior Court Judge David Yaffe found there was no abuse of discretion and substantial evidence to support the council’s decision, and denied relief.
But Rubin, writing for the Court of Appeal, said the tape was “worth a thousand words” in describing the behavior of council members during the hearing.
“The tape shows that when the council president summoned LSHS to the speaker’s lectern to present its case, eight council members—three of whom were absent—were not in their seats. Only two council members were visibly paying attention. Four others might have been paying attention, although they engaged themselves with other activities, including talking with aides, eating, and reviewing paperwork.”
As the hearing continued, Rubin noted, one council member began talking on his cell phone, others became involved in private conversation, and “only a few council members were sitting in their seats not talking to others,” bearing out the observation of the company’s attorney, Roger Jon Diamond, that “”it doesn’t appear that too many people are paying attention.”
Rubin acknowledged that council members paid no more attention to the opposition than it did to Diamond. But he rejected the argument advanced by Deputy City Attorneys Michael L. Kleckner and Steven N. Blau that the hearing was fair because the council evidenced no favoritism toward one side or the other.
That contention, Rubin said in a footnote, “is unavailing because LSHS and its opponents had the right to be equally heard, not equally ignored.”
The case is Lacy Street Hospitality Service, Inc. v. City of Los Angeles, B170716.
Copyright 2005, Metropolitan News Company