Déja Vu’s 1st Amendment Claim Is Rejected

Déja Vu’s 1st Amendment Claim Is Rejected
Rhett Pardon
SAN DIEGO, Calif. — In the most significant ruling to hit the industry in the new year, a California appeal court has decided that the suspension of an adult entertainment business’ operating permit does not constitute a prior restraint on free speech.

The ruling, certified by the court on Friday, rejected the argument that because adult entertainment is a form of speech, penalties for permit violations must be limited to fines.

San Diego attorney Allen Dale Manicom, who represents the Déja Vu nude cabaret in San Diego, said that he wasn’t sure whether his client will appeal the decision, and that he’s still baffled by it.

“I’m not pleased by the ruling. In fact, I’m steamed — this is absolute bullshit,” Manicom told XBiz. “This is a case about prior restraint. Suppose you ran a newspaper and the government had the last word on what you publish in it? This is just wrong, but I guess the court saw it differently.”

In the potentially far-reaching case, the appeal court was asked to decide whether the government may suspend the permit of a business engaged in activity protected by the 1st Amendment as a sanction when the business violates a regulation.

“Nude or semi-nude entertainment is expressive activity that falls within the ambit of the 1st Amendment,” Justice Judith McConnell wrote. “However, nude dancing ... falls only within the outer ambit of the 1st Amendment’s protection.”

McConnell, who cited the case City of Erie vs. Pap’s A.M. (2000) 529 U.S. 277, 289, in explaining the decision, wrote that, “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.”

The decision effectively upholds the suspension of the permit allowing Donald Krontz to operate Déja Vu after a San Diego 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.

San Diego police say 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 Manicom to discuss the situation.

In two weeks between the last warning and the meeting, police said they observed additional violations on three different occasions.

At that point, San Diego’s police chief recommended a 10-day suspension, which the hearing officer reduced to seven days. A Superior Court judge later denied Krontz’s appeal.

The Court of Appeal, Div. 1, concluded that the Superior Court judge was correct, saying the city acted within its scope 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.

The case is Krontz vs. City of San Diego, No. D045332.