Thursday, September 29, 2016
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C.A. Upholds Closing of Strip Club Once Linked to Scandal
By KENNETH OFGANG, Staff Writer
The Fourth District Court of Appeal yesterday upheld the forced closing of Cheetah’s Totally Nude, a San Diego strip club that gained fame when three City Council members were charged with trading their votes on a proposal to loosen the city’s nude entertainment ordinance in exchange for campaign contributions.
Div. One rejected current owner Suzanne Coe’s claims that the ordinance is unconstitutionally vague and that the city’s administrative procedures violated the Due Process Clause. Coe, a South Carolina attorney and businesswoman, acquired the club after prior owner Michael Galardi pled guilty more than a decade ago to donating tens of thousands of dollars to then-Councilmembers Michael Zucchet, Ralph Inzunza, and Charles Lewis in exchange for their support, and other crimes.
Galardi was sentenced to 30 months in prison.
Zucchet went free after his convictions on most of the counts were thrown out by the trial judge and prosecutors elected not to proceed on the two charges that remained. Inzunza was sentenced to 21 months and released in 2013, and Lewis died of liver disease before trial.
He was 37.
San Diego’s ordinance bars any nude person to be within six feet of a patron, bars entertainers and patrons from intentionally touching each other during performances, and bars the touching of certain body parts by any person in the establishment. These are commonly referred to as the “six-foot,” “no-touch,” and “no-fondling” rules.
The law permits the city to impose sanctions, up to and including revocation of an establishment’s operating permit, if it is found that management “caused or condoned” violations of those rules, or failed to take “reasonable corrective action” after being notified of violations.
Notice of Revocation
The city issued a notice of revocation in 2014, and a hearing officer upheld it last year. After hearing four days of testimony, the factfinder determined that there had been numerous rules violations, and that Coe negligently failed to supervise the business and lacked the ability to bring it into compliance.
In particular, it was found that she never disciplined security guards who failed to properly monitor the entertainers, and maintained a compensation structure that created an incentive to overlook violations. This was because the violations that occurred effectively increased the dancers’ compensation, which in turn increased the guards’ compensation, since the entertainers were expected to “tip out” by giving a percentage of their receipts to the guards and other employees at the end of each shift.
Evidence showed that violations were observed by at least 15 different police officers,
The club had been sanctioned in 2006 and 2012, and had subsequently received numerous warnings. Coe complained that the city waited for alleged violations to accumulate, then issued warning letters long after the fact, making it difficult to identify and discipline violators.
She filed a civil rights suit and petition for writ of mandate. San Diego Superior Court Judge Randa Trapp denied the petition, finding the evidence sufficient to prove the violations, the ordinance sufficiently specific to apprise management of what it needed to do in order to comply, and the city’s hearing process fair.
C.A. Opinion
Presiding Justice Judith McConnell, writing yesterday for the Court of Appeal, said the language of the ordinance, particularly the phrases “caused,” “condoned,” and “reasonable corrective action,” was clear because the words have “commonly accepted meanings” and would be understood by persons of ordinary intelligence. Nor would any such person fail to grasp the requirements that permit holders supervise their businesses in order to avoid the numerous, blatant violations that undercover officers had observed, the jurist said.
McConnell went on to say that allowing violations to accumulate, which the city said it did in order to avoid having to repeatedly identify its undercover officers, did not deprive the permit holder of due process.
“As the revocation of Coe’s permit was based on a persistent pattern of violations rather than the existence of any single violation, Coe has not established the delayed warning letters actually prejudiced her and, therefore, has not established the City deprived her of due process of law,” McConnell wrote.
The jurist went on to reject the contention that the hearing officer improperly based his ruling on hearsay evidence in the form of police reports.
Noting that a number of the officers who prepared the reports also testified in person, she said that most of the reports were admissible under the “official records” exception, and that any that were not were admissible under a city regulation allowing the use of otherwise inadmissible evidence to support or supplement other competent evidence.
The case is Coe v. City of San Diego, 16 S.O.S. 4855.
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