Krontz v. City of San Diego

• Decision Date: 23 January 2006
• Docket Number: No. D045332.,D045332.
• Citation: 136 Cal.App.4th 1126,39 Cal.Rptr.3d 535
• Parties: Donald V. KRONTZ, Plaintiff and Appellant, v. CITY OF SAN DIEGO, Defendant and Respondent; Chief of Police, City of San Diego, Real Party in Interest and Respondent.
• Court: California Court of Appeals Court of Appeals

39 Cal.Rptr.3d 535

136 Cal.App.4th 1126

Donald V. KRONTZ, Plaintiff and Appellant, v. CITY OF SAN DIEGO, Defendant and Respondent Chief of Police, City of San Diego, Real Party in Interest and Respondent.

No. D045332.

Court of Appeal, Fourth District, Division 1.

January 23, 2006.

A. Dale Manicom, San Diego, for Plaintiff and Appellant.

Michael J. Aguirre, City Attorney, and Mary T. Nuesca, Deputy City Attorney for Defendant and Respondent and Real Party in Interest and Respondent.

McCONNELL, P.J.

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. 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.

FACTS

Donald Krontz holds a police permit to operate a nude entertainment establishment, Déjà Vu, on Midway Drive in San Diego. The City of San Diego and the San Diego Chief of Police (together the City) enforce permit regulations.

The San Diego Municipal Code (Municipal Code) requires a number of businesses including nude entertainment establishments, auto dismantlers, and ticket brokers to obtain a police permit. (Municipal Code, chapter 3.) The Municipal Code provides any business permittee who "[v]iolates or allows the violation of . . . any law or regulation pertaining to the business" is subject to suspension of the permit. (Municipal Code, § 33.0403, subds. (a)(1), (b)(5), italics omitted.)

Among the operating requirements applicable to a nude entertainment permit are that the permittee (1) "shall not permit or allow any person who is nude to be within six feet of any patron" (six-foot rule) (Municipal Code § 33.3609, subd. (c), italics omitted) and "shall not allow any adult entertainer to intentionally touch any patron, or any patron to intentionally touch any adult entertainer, whether or not the adult entertainer is nude" (the no-touch rule) (Municipal Code, § 33.3609(d), italics omitted).

Between April 2001 and January 2002, the police conducted a number of undercover inspections at Déjà Vu. They observed at least 35 violations of the no-touch or six-foot rule involving a number of different entertainers. Krontz was sent written warning letters notifying him of the violations on May 2, August 16 and October 11, 2001. On October 26, Krontz's attorney and representative met with San Diego police vice officers to discuss the violations. They were informed of three additional inspections and further violations, some of which occurred on the center stage and could not have been overlooked by Déjà Vu's management. Krontz was sent written notice of these violations and a summary of the October 26 meeting.

After additional violations involving multiple entertainers were found during inspections in early January 2002, the City notified Krontz his nude entertainment permit would be suspended for 10 days based on the numerous and on-going violations. The City also informed him of his right to an administrative hearing. (Municipal Code, § 33.0501.) Krontz requested a hearing.

The hearing officer concluded 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." The hearing officer, based on mitigating circumstances, reduced the suspension to seven days.

Krontz challenged the suspension by timely filing a petition for writ of administrative mandamus in superior court. The court denied the petition and Krontz appealed.

DISCUSSION

I Permit Suspension

Krontz contends suspending his permit amounts to an invalid prior restraint, is an unconstitutional time, place, and manner restriction or is a constitutionally impermissible injunction violating the First Amendment of the United States Constitution.¹

Nude or semi-nude entertainment is expressive activity that falls within the ambit of the First Amendment. (See City of Erie v. Pap's A.M. (2000) 529 U.S. 277, 289, 120 S.Ct. 1382, 146 L.Ed.2d 265 (Erie); Barnes v. Glen Theatre, Inc. (1991) 501 U.S. 560, 111 S.Ct. 2456, 115 L.Ed.2d 504 (Barnes); Morris v. Municipal Court (1982) 32 Cal.3d 553, 564-565, 186 Cal.Rptr. 494, 652 P.2d 51.) However, "nude dancing . . . falls only within the outer ambit of the First Amendment's protection." (Erie, supra, at p. 289, 120 S.Ct. 1382; see also Barnes, supra, at p. 566, 111 S.Ct. 2456 ["Nude dancing of the kind sought to be performed here is expressive conduct within the outer perimeters of the First Amendment, though we view it as only marginally so"].)

A city can enact time, place, and manner regulations on an adult entertainment business based on the secondary effects of nude entertainment such as increased crime in a neighborhood. (See Erie, supra, 529 U.S. 277, 296, 120 S.Ct. 1382; Hansen, To Strip or not to Strip: The Demise of Nude Dancing and Erotic Expression Through Cumulative Regulations, 35 Val.U. L.Rev. 561 (2001).) Thus, the courts have upheld restrictions on the location of nude entertainment establishments through zoning laws (see City of National City v. Wiener (1992) 3 Cal.4th 832, 835, 12 Cal.Rptr.2d 701, 838 P.2d 223), licensing requirements (Genusa v. City of Peoria (7th Cir.1980) 619 F.2d 1203, 1213; Schultz v. City of Cumberland (7th Cir. 2000) 228 F.3d 831, 853; Essence, Inc. v. City of Fed. Heights (10th Cir.2002) 285 F.3d 1272, 1289-1290), and restrictions such as the no-touch and six-foot rules enacted in San Diego (see Tily B., Inc. v. City of Newport Beach (1998) 69 Cal. App.4th 1, 22-23, 81 Cal.Rptr.2d 6; Hang On, Inc. v. City of Arlington (5th Cir.1995) 65 F.3d 1248, 1254).

(A) Prior Restraint

Notably, Krontz does not challenge the no-touch or six-foot rules or challenge the requirement that he obtain a permit to operate a nude entertainment business. Nor does Krontz challenge the sufficiency of the evidence to support the findings he allowed violations of the no-touch and six-foot rules at Déjà Vu. Instead, Krontz argues the sanction of permit suspension is an improper prior restraint because it not only prevents the non-protected activity (violations of the no-touch and six-foot rules), it also prevents any expressive activity that is protected by the First Amendment. He argues the City is limited to imposing a fine.

"The term `prior restraint' is used `to describe administrative and judicial orders forbidding certain communications when issued in advance of the time that such communications are to occur.'" (Alexander v. United States (1993) 509 U.S. 544, 550, 113 S.Ct. 2766, 125 L.Ed.2d 441, italics omitted.) A licensing scheme may constitute an unconstitutional prior restraint if it puts unbridled discretion in the hands of government officials charged with granting or denying licenses or allows the decisionmaker unlimited time to render a decision on the matter affecting the license; to be constitutional, licensing schemes for adult entertainment establishments must contain sufficient procedural safeguards. (Freedman v. State of Maryland (1965) 380 U.S. 51, 58-60, 85 S.Ct. 734, 13 L.Ed.2d 649; Essence, Inc. v. City of Federal Heights, supra, 285 F.3d 1272, 1289-1290; Fly Fish, Inc. v. City of Cocoa Beach (11th Cir.2003) 337 F.3d 1301, 1313; Déjà Vu of Cincinnati, L.L.C. v. Union Tp. Bd. of Trustees (6th Cir.2005) 411 F.3d 777, 786.) If a licensing scheme meets the procedural requirements, then it is analyzed to determine whether it is a constitutional time, place, and manner restriction. (Hatch, Keep on Rockin' in the Free World: A First Amendment Analysis of Entertainment Permit Schemes, 26 Colum. J.L. & Arts 313, 320-321 (2003); Broadway Books, Inc. v. Roberts (D.Tenn. 1986) 642 F.Supp. 486, 490.)

Prior restraints must be distinguished from subsequent punishments. (Alexander v. United States, supra, 509 U.S. at pp. 553-554, 113 S.Ct. 2766.) Thus, an individual may be punished for distributing obscene materials even though the punishment may affect the individual's future protected speech. (Id. at p. 555, 113 S.Ct. 2766; see also City of Paducah v. Investment Entertainment, Inc. (6th Cir.1986) 791 F.2d 463, 469.) A bookstore may be closed under a nuisance statute if the owner has permitted it to be used for illicit sexual activity. (Arcara v. Cloud Books, Inc. (1986) 478 U.S. 697, 106 S.Ct. 3172, 92 L.Ed.2d 568 (Arcara).) In Arcara, where the court upheld the closure of a bookstore under a nuisance statute, the court rejected an argument the closure order was an unconstitutional prior restraint, explaining: "the order would impose no restraint at all on the dissemination of particular materials, since respondents are free to carry on their bookselling business at another location, even if such locations are difficult to find. Second, the closure order sought would not be imposed on the basis of an advance determination that the distribution of particular materials is prohibited—indeed, the imposition of the closure order has nothing to do with any expressive conduct at all."² (Id. at p. 706, fn. 2, 106 S.Ct. 3172.) The court emphasized "the closure sanction was directed at unlawful conduct having nothing to do with books or other expressive activity: Bookselling in an establishment used for prostitution does not confer First Amendment coverage to defeat a valid statute aimed at penalizing and terminating illegal uses of premises." (Id. at p. 707, 106 S.Ct. 3172.) Similarly, nude dancing in an establishment where Krontz allowed violations of valid regulations (the no-touch and six-foot rules) does not...