Thursday, October 26, 2006
Court Upholds Permit Revocation for Club That Held ‘Lust Parties’
By a MetNews Staff Writer
A city may revoke a conditional use permit where the property owner’s activities violated the terms of the permit even though the city previously settled a nuisance abatement action with the owner over the same activities, this district’s Court of Appeal ruled yesterday.
In an unpublished opinion, Div. Four upheld Los Angeles Superior Court Judge Jan A. Pluim’s ruling that the City of Pasadena’s litigation settlement with Pleasures Gentleman’s Club on Foothill Boulevard did not bar administrative action based on the same set of facts.
The city issued the permit to Michael W. Kaltenthaler and 3570 East Foothill Blvd., Inc. in 1994 to allow an alcohol-serving restaurant with recreation and limited live entertainment. One year later, after the city denied the club’s request for a modification of the permit’s limit on live entertainment so it could offer erotic dancing, the club obtained a federal court order allowing it to do so.
In 2003 the club leased the premises on at least two nights to a third party who held “lust parties” therein. Undercover police officers attending the parties observed patrons engaging in sexual intercourse, and the serving of alcohol less than an hour before closing, both of which were disallowed by the permit and zoning ordinances.
The city filed a complaint in Los Angeles Superior Court seeking to have the lust parties declared to be a public nuisance. The club stipulated to a permanent injunction, which the court issued, enjoining the club from allowing the use of the premises for lust parties or in any manner that would violate the municipal code or state, local, or federal law.
After the nuisance action was filed, but before the injunction was issued, the city issued a notice of public hearing to determine whether reasonable grounds existed for the revocation of the clubs conditional use permit. The grounds given were the same two lust parties that were the subject of the nuisance action.
After a hearing, and after the court issued the injunction in the nuisance action, the city revoked the conditional use permit, citing the activities at the lust parties. The city found that the club had not only been violating the city’s zoning ordinance, which does not permit adult businesses, it also had been operating in violation of the conditional use permit, under which the only permissible recreation consisted solely of billiard, ping pong, arcade games, shuffleboard, or darts.
In a writ petition, the club owners argued that they had been operating under the conditional use permit since 1994 and had expended more than $900,000 for improvements and a liquor license.
Pluim denied the petition on the grounds that the two lust parties justified revocation of the permit because they were violations of the terms of the permit and criminal statutes, and they constituted a nuisance. The club appealed, contending that once the city successfully abated the nuisance by obtaining a permanent injunction, it could not revoke the conditional use permit in order to abate the same nuisance.
But Justice Nora M. Manella, writing for the Court of Appeals, disagreed, saying:
“Here, the facts constituting the nuisance may be identical to the facts giving rise to a violation of the terms and conditions of appellants’ use permit, but they involve different primary rights and duties, not simply different theories of recovery.”
“Thus, there were two duties owed by appellants: the duty not to carry on a public nuisance and the duty to obey the zoning laws, including the terms and conditions of the conditional use permit. Conversely, the City and the public enjoyed two separate primary rights: the right of the public to be free from interference with its comfortable enjoyment of life or property and the City’s right to expect observance of zoning regulations, including compliance with the terms and conditions of the permit.”
The jurist concluded:
“Accordingly, the final judgment in the abatement action may have barred the revocation of the permit in order to abate the same nuisance, but it did not bar the City from enforcing its zoning laws.”
Presiding Justice Norman L. Epstein and Justice Steven C. Suzukawa concurred in the opinion.
The case is 3570 East Foothill Blvd., Inc. v. City of Pasadena, B181774.
Copyright 2006, Metropolitan News Company