Tuesday, February 21, 2006
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C.A. Rejects First Amendment Claim, Says Suspension Of Permit for Adult Business Not a Prior Restraint
By a MetNews Staff Writer
Suspension of an adult entertainment business’ operating permit as a consequence of violations of permit restrictions does not constitute a prior restraint on speech or otherwise violate the First Amendment or the state Constitution, the Fourth District Court of Appeal has ruled.
In an opinion by Presiding Justice Judith McConnell, filed Jan. 23 and certified Friday for publication, Div. One rejected the argument that because adult entertainment is a form of speech, penalties for permit violations must be limited to fines.
“Nude or semi-nude entertainment is expressive activity that falls within the ambit of the First Amendment....,” McConnell wrote. “However, ‘nude dancing . . . falls only within the outer ambit of the First Amendment’s protection,’” she explained, citing City of Erie v. Pap’s A.M. (2000) 529 U.S. 277, 289.
The court upheld the suspension of the permit allowing Donald Krontz to operate Déja Vu, a nude dance club, in San Diego. A city hearing officer ruled that the club had violated permit restrictions on several occasions by failing to enforce a six-foot separation between the entertainers and the patrons and by allowing patrons and employees to touch each other.
Police said they observed at least 35 violations over a nine-month period and sent written warnings to Krontz on three occasions before meeting with Krontz and his attorney to discuss the situation. In the 15 days between the last letter and the meeting, police said, they observed additional violations on three different occasions.
Police said they observed additional violations after the meeting, then referred the case for administrative action. The police chief recommended a 10-day suspension, which the hearing officer reduced to seven days.
San Diego Superior Court Judge William Pate denied Krontz’s petition for writ of mandate.
McConnell concluded the trial judge was correct, saying the city acted within its authority because the permit restrictions constitute reasonable regulation of the time, place, and manner of the protected activity and the permit suspension was a reasonable means of enforcing the restrictions.
She pointed out that Krontz did not challenge the reasonableness of the restrictions, did not deny that they were violated, and did not question the fairness of the hearing procedure, but argued that by suspending his permit, the city was barring all expressive activity at his establishment for the period of suspension and thus imposing a prior restraint.
McConnell disagreed. If preceded by a fair hearing, she explained, a permit suspension is a subsequent punishment rather than a prior restraint.
Nor, the jurist went on to say, was the suspension an excessive response to the violations. “A regulatory sanction of suspension certainly furthers the goal of obtaining compliance with applicable laws and regulations and that goal would be achieved less effectively absent the availability of the sanction,” McConnell wrote.
The case is Krontz v. City of San Diego (Police Chief of San Diego), 06 S.O.S. 883.
Copyright 2006, Metropolitan News Company