Wednesday, April 29, 2009
C.A. Rejects Alcohol Sales at Nude Club Near Little Tokyo
By KENNETH OFGANG, Staff Writer
Owners of a strip club north of Little Tokyo have a right to free expression, but not to sell alcohol, the Court of Appeal for this district held yesterday.
Div. Three affirmed an order by Los Angeles Superior Court Judge Dzintra Janavs, now retired, denying SP Star Enterprises, Inc. a writ of mandate that would have required the City of Los Angeles to issue a conditional use permit allowing liquor sales at the club.
“We conclude the case does not involve free speech but the right to sell alcohol, which is not a protected activity and does not involve a fundamental vested right,” Presiding Justice Joan Dempsey Klein wrote for the court. Klein concluded that the Central Area Planning Council, which upheld objections to the CUP by a neighboring Buddhist temple and a local businessman, did not act arbitrarily and that its decision was supported by the record.
Star currently operates the club, located on Ducommon St. in a converted 7,000-square foot warehouse, pursuant to a city certificate of occupancy that allows completely nude dancing. It responded to objections, in part, by pointing out that if it sells liquor, it would be required by Alcoholic Beverage Control regulations to limit its entertainment to topless dancing on a stage at least six feet from the nearest patron.
The owners said they had invested more than $1 million in the club, would provide additional security, and that
The zoning administrator agreed to grant the permit for one year, noting that there were no other liquor licensees in the immediate area, that the crime rate is low, that the area is not residential, and that there is ample parking.
The Hompa Hongwanji Buddhist Temple and Gerald Fukui, whose family has operated the Fukui mortuary on East Temple St. for five generations, appealed the zoning administrator’s decision to the APC. Fukui said his business, which is three blocks from the club, is the site of more than 500 services a year and that they often go into the night in accordance with Japanese-American custom.
Fukui voiced fears that sale of liquor so close to the mortuary would lead to mourners being disturbed. He noted that the mortuary lies between a nearby bar, at First and Vignes streets, and the club, and said it already has trouble with patrons of the bar who park in his lot and do not respect the mourners.
City Council members Jan Perry and Jose Huizar also opposed the permit. Perry’s deputy told the APC that allowing liquor sales at the club would increase drunk driving in the neighborhood and that opposition to expanding sales has been consistent within the Little Tokyo and Arts District communities.
A member of Huizar’s staff said the permit would be inconsistent with the councilman’s “vision for this area,” which includes mixed residential and light industrial uses. Police officials testified that the combination of late-night adult entertainment and alcohol sales would be a “disaster,” leading to increased crime, and predicted the facility would become a magnet for inmates being released from the county jail a few blocks away, and for habitués of the skid row area.
Commissioners, by a vote of 3-1, sided with the objectors, with the majority saying the proposed use was inconsistent with the ongoing revitalization of the area. The one supporting commissioner said he felt the use was appropriate for the location.
Janavs, in denying the petition for writ of mandate, said it was unnecessary to determine whether a fundamental right was involved, because the court would uphold the denial whether it applied an independent review of the evidence or the substantial-evidence test.
Klein noted that the Court of Appeal must apply the substantial evidence test when reviewing the trial court’s ruling on a petition for writ of administrative mandate. When a fundamental right is involved, the appellate court determines whether substantial evidence supports the trial court’s exercise of independent judgment; when a fundamental right is not involved, the reviewing panel applies the substantial evidence test in the same way the trial court does.
Here, the presiding justice wrote, there is no fundamental right implicated.
Klein distinguished cases involving various forms of commercial speech, striking down laws that gave public officials unfettered discretion over placement of news racks, required that sales of books whose authors were convicted criminals be paid to their victims, required a permit to provide adult entertainment at a facility already licensed to sell liquor, required compliance with vague moral standards in order to obtain a permit to exhibit motion pictures, or required a permit to sell books.
Those cases, Klein said, “uniformly involve[ ] speech, not on-site sale and consumption of alcohol.” Star, she wrote, has a permit to engage in protected activity, but has no vested right to make that activity more profitable.
The jurist went on to say that there was sufficient evidence before the APC to support its conclusion that liquor sales at the club would be inconsistent with the character of the neighborhood, rejecting the argument that the low crime rate was sufficient to establish that issuance of the permit would not be harmful.
Officials, she said, can reasonably look at the current posture of the neighborhood and conclude that preventing expansion of alcohol sales is a way to keep the crime rate low.
Attorneys on appeal were Scott W. Wellman and Stuart Miller of Wellman & Warren for the plaintiff and Deputy City Attorneys Tayo A. Popoola and Steven N. Blau for Los Angeles.
The case is SP Star Enterprises, Inc. v. City of Los Angeles, 09 S.O.S. 2382.
Copyright 2009, Metropolitan News Company