Roger Jon Diamond called during a break in an all-day hearing to register his disappointment and frustration with the California Court of Appeals' decision yanking the police permit of San Diego nightclub owner Donald Krontz.
"It's an unmitigated disaster; it's terrible; it's awful," Diamond summarized. "It's one of the worst decisions I've ever read in my life, because it says basically that you can be deprived of your right in the future based upon prior conduct, so it's a terrible decision."
Krontz runs the Déjà Vu "nude entertainment establishment" on Midway Drive in San Diego, which for nine months in 2001 and early 2002 was a target of several police undercover investigations. The cops wanted to see if the club was conforming with the city's ordinances requiring that nude dancers maintain a six-foot separation from customers, and banning dancers, whether nude or not, from touching customers in any way at all. A claimed 35 violations were found, and according to the opinion of the California Court of Appeals for the 4th District, Krontz was sent warning letters on three occasions to notify him of the violations.
A meeting was held between the San Diego vice cops, club attorney A. Dale Manicom and a club representative on Oct. 26, 2001, where the police informed Manicom and the representative of even more dancer violations, "some of which occurred on the center stage and could not have been overlooked by Déjà Vu's management."
But according to the Vice Division, the violations continued, and in Jan. 2002, the city notified Krontz that his nude entertainment permit would be suspended for 10 days based on "numerous and on-going violations."
Krontz requested a hearing, but the administrative hearing officer concluded that all but three of the violations were proven and that "[t]he preponderance of evidence suggests [Déjà Vu] made every effort to appear to be taking the no touch and six foot rules seriously but at the same time in daily practice tolerated violations on a regular basis unless the [Police] Department got involved and notified it of violations." However, due to "mitigating circumstances," the officer reduced the suspension to seven days.
Krontz appealed the decision to San Diego Superior Court, which denied his petition for a writ of administrative mandamus, and Krontz appealed that denial to the 4th District Court of Appeals, arguing that suspension of the permit would require closing of the club, which amounted to a prior restraint on his and his dancers' First Amendment free speech rights.
"The primary issue in this case is whether the government may suspend the permit of a business engaged in activity protected by the First Amendment as a sanction when the business violates a regulation," wrote Presiding Judge Judith McConnell. "We conclude suspension of the license is not an improper prior restraint, is constitutionally permissible, and the government is not limited to imposing a fine. We also reject the argument that the suspension process utilized here violated the appellant's constitutional guarantee of due process."
In supporting its decision, the appeals court relied heavily on several federal obscenity cases, notably Alexander v. U.S., in which the entire contents of several bookstores owned by Ferris Alexander – approximately $9 million in value, according to the U.S. Supreme Court – as well as the stores themselves were seized and destroyed as a result of his conviction on 17 counts of interstate transportation of obscene materials and three counts of violating the Racketeer-Influenced and Corrupt Organizations (RICO) Act. Also referenced was Arcara v. Cloud Books, where an adult store was forced to cease operations at its location under a state nuisance statute – which ruling was upheld by the U.S. Supreme Court.
"Krontz relies on Vance v. Universal Amusement Co. (1980) for the proposition 'government efforts to preclude someone from engaging in constitutionally protected activity because of previous illegal activity have been held to be impermissible prior restraints'," wrote Judge McConnell. "Vance does not support this proposition. The question presented in Vance was whether a Texas public nuisance statute was unconstitutional because it authorized a prior restraint of indefinite duration on the exhibition of films that had not been fully adjudicated to be obscene and without any guarantee of prompt judicial review of a preliminary finding of probable obscenity. The Supreme Court found the Texas statute lacked the necessary procedural safeguards, in particular a prompt judicial determination of obscenity. In contrast here, Krontz does not challenge the adequacy of the procedural safeguards and at issue here is the imposition of a sanction after a finding Krontz had violated regulations and had prompt judicial determination of the violations." [Citations omitted here and below]
It was the Vance reference that particularly irritated Diamond.
"I told him [Manicom] that I noted the court never mentioned the Perrine case, which I won in 1970 in the Supreme Court of California, which I think is right on point," Diamond said. "It involves a question of whether you could be deprived of a license for future conduct based upon a prior conviction. The Supreme Court of California said 'No' on a 5-2 vote, and the county took that to the U.S. Supreme Court, and the U.S. Supreme Court denied cert in that case, and I use it all the time in my cases to argue against any order or restriction on future conduct based upon prior conduct. He [Manicom] said he did cite it, but they [the appeals court] didn't mention it."
Diamond was referring to Perrine v. Municipal Court, where James Perrine, who had previously been convicted in state court on charges of selling obscene material, was denied a license from the Los Angeles County Public Welfare Commission to operate his existing bookstore, although a new county ordinance required that he obtain one.
"The Los Angeles County bookstore licensing ordinance fails to provide the necessary safeguards as it sets no standards governing the issuance of a license," wrote the California Supreme Court in Perrine. "By its terms section 329.4 provides that the commission may grant a license if it finds that none of the disqualifying factors exist. Thus there is 'no guarantee that a permit will issue even if the application meets all of the ... conditions of the section.' ... [S]ince a denial of a license would prohibit petitioner from engaging in an activity protected by the First Amendment, it could only be justified, even under a narrowly drawn ordinance, if permitting a person who had been convicted of a crime involving obscenity to operate a bookstore constituted a clear and present danger of a serious, substantive evil... To interpret the ordinance in this case to permit denial of a license because of a past conviction of violating Penal Code section 311.2 [obscenity] would do more than create a hazard to protected freedoms; it would suppress them altogether."
So California law is clear on the subject of prior restraint of expressive activities, which is why Diamond was so incensed.
"I mentioned that to Dale because it happened to be my case," Diamond said, "and he said he did mention it, but for whatever reason, the court of appeal never cited or discussed the Perrine case, but I've used it a lot in my cases."
And Diamond, much of whose work involves defending adult cabarets from just these sorts of enforcement actions, wasn't the only one who found the appeals court's decision troubling.
"I personally believe that suspending a license to engage in First Amendment-protected activity has been found to be impermissible and an unconstitutional prior restraint," said Bradley Shafer, a prominent First Amendment attorney who has spent more than 20 years defending adult businesses. "The court disagreed, but I don't know how it's not a prior restraint."
Originally, the opinion in Krontz was to be unpublished, which would mean that it could not be cited by prosecutors in other jurisdictions, both within California and elsewhere, to support similar attempts at expression suppression. But when the court of appeals decided to publish the opinion after all, that left Dale Manicom with something of a dilemma.
"Here's the problem that I see," Manicom told AVN.com. "You can analyze it from the standpoint of rational governmental officials. At some point along the continuum, there comes a point when they're just not getting the business's attention and so they need to do something, and I think any government official is going to follow that line of thinking. I think if you take the purest end of the spectrum and say, 'No, by God, this violates the First Amendment and there's nothing you can do,' I don't think that's going to fly in a court."
"But I'm with the purest end," he continued. "I still believe that what they can do is cite people for misdemeanors if they're violating that municipal code, and what that does is put – raises the burden of proof to beyond a reasonable doubt, forces jury trials, and people are going to be acquitted, so the city doesn't want to go that route. They want to go the slick and dirty route, where 'We'll give you a permit to exercise your First Amendment rights, and if we don't like they way you exercise them, we can pull that permit.' Well, that stands against everything I was taught in law school about the First Amendment. And now that it's a published decision, it has broader repercussions."
Manicom said that he's still in discussions with his client as to what the next step should be, but he has some ideas.
"The next step will be to write to the California Supreme Court and ask them to 'depublish' it," Manicom said. "It's not likely they will do that, but it's one of the alternatives that have been discussed. We're still playing with it, where to go from here, because if it was unpublished, then we didn't care; it applied to this case and that's that. But now if it's going to have statewide ramifications, it's time to reconsider. It's not a well-written opinion. I cannot tell you where, but it even misstates the law in the opinion. I went to oral argument; I knew where this was going to go. They just thought I was pretty silly saying that they couldn't take a permit away from someone for violating the law."
Manicom has 30 days from the date of publication of the decision – roughly three weeks from now – to take whatever actions his client authorizes.
