Court Rejects DŽjˆ vuâs 1st
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
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 DŽja
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
"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 DŽja 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
In two weeks between the last warning and the meeting, police
said they observed additional violations on three different
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