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William McClelland, operator of Ten's Show Club, a nude dancing emporium on the corner of Ohio Street and El Cajon Boulevard in North Park, has been turned down by California's Fourth District Court of Appeal in his bid to expand operations into the early morning hours from 2 am to 6 am.
"McClelland argues the ordinance [banning early morning operations] infringes on his rights of free speech and free expression as guaranteed by the state and federal Constitutions and that in any event he was subjected to discriminatory enforcement," the ruling says.
"We find no such infringement or discriminatory enforcement of [the] City's after hours ordinance."
According to the opinion, filed yesterday, "McClelland stipulated that on a number of occasions, including instances on July 24, 2010, August 8, 2010, and September 22, 2010, detected by city vice officers, he operated Ten's Show Club after 2:00 a.m."
Following the violations and warnings from the vice squad to McClelland that he close his doors on time, the chief of police revoked the establishment's nude entertainment license, a move McClelland contested.
"At an administrative hearing, McClelland challenged the revocation on two grounds," the opinion says. "He argued that the hours of operation ordinance was, on its face, unconstitutional.
"McClelland further argued that in any event, city vice officers had permitted a competing nude entertainment establishment, The Body Shop, to operate after hours.
"In support of this claim, McClelland's counsel asked City's attorney to bring any enforcement file against The Body Shop to the administrative hearing.
"City's attorney declined to do so, arguing at the administrative hearing that any enforcement file was privileged.
"At the hearing McClelland also testified that he had been at The Body Shop on the previous evening and that it was operating after hours."
The administrative judge denied McClelland's appeal and fined him $5,000, but stayed the establishment's license revocation, and allowed the club to continue operating, provided it obeyed the law during the 12-month revocation period.
McClelland subsequently took his case to Superior court, and after losing again there, launched an appeal.
"Here, the record is clear [that San Diego's] hours of operation ordinance was not aimed at restricting nude dancing but was only intended to address the secondary adverse impacts of such adult entertainment businesses have," the court found.
The judges added that the city "has obvious and significant interests in attempting to diminish the occurrence of narcotics distribution, prostitution, pandering and crimes of violence."
(The establishment was the scene of a March 2010 homicide.)
Regarding McClelland's claim that the Body Shop, a competing nude dancing operation near the Sports Arena, received preferential treatment from the vice squad, the court found that McClelland hadn't done enough research into the matter and that the "city produced a declaration from a vice officer stating that in fact City had obtained The Body Shop's compliance with the hours of operation ordinance."
In its conclusion, the three-judge panel noted, "On its face the ordinance leaves McClelland 20 hours a day—from dawn until well into the wee hours of the morning—to engage in the expressive activity he offers at Ten's Show Club."
William McClelland, operator of Ten's Show Club, a nude dancing emporium on the corner of Ohio Street and El Cajon Boulevard in North Park, has been turned down by California's Fourth District Court of Appeal in his bid to expand operations into the early morning hours from 2 am to 6 am.
"McClelland argues the ordinance [banning early morning operations] infringes on his rights of free speech and free expression as guaranteed by the state and federal Constitutions and that in any event he was subjected to discriminatory enforcement," the ruling says.
"We find no such infringement or discriminatory enforcement of [the] City's after hours ordinance."
According to the opinion, filed yesterday, "McClelland stipulated that on a number of occasions, including instances on July 24, 2010, August 8, 2010, and September 22, 2010, detected by city vice officers, he operated Ten's Show Club after 2:00 a.m."
Following the violations and warnings from the vice squad to McClelland that he close his doors on time, the chief of police revoked the establishment's nude entertainment license, a move McClelland contested.
"At an administrative hearing, McClelland challenged the revocation on two grounds," the opinion says. "He argued that the hours of operation ordinance was, on its face, unconstitutional.
"McClelland further argued that in any event, city vice officers had permitted a competing nude entertainment establishment, The Body Shop, to operate after hours.
"In support of this claim, McClelland's counsel asked City's attorney to bring any enforcement file against The Body Shop to the administrative hearing.
"City's attorney declined to do so, arguing at the administrative hearing that any enforcement file was privileged.
"At the hearing McClelland also testified that he had been at The Body Shop on the previous evening and that it was operating after hours."
The administrative judge denied McClelland's appeal and fined him $5,000, but stayed the establishment's license revocation, and allowed the club to continue operating, provided it obeyed the law during the 12-month revocation period.
McClelland subsequently took his case to Superior court, and after losing again there, launched an appeal.
"Here, the record is clear [that San Diego's] hours of operation ordinance was not aimed at restricting nude dancing but was only intended to address the secondary adverse impacts of such adult entertainment businesses have," the court found.
The judges added that the city "has obvious and significant interests in attempting to diminish the occurrence of narcotics distribution, prostitution, pandering and crimes of violence."
(The establishment was the scene of a March 2010 homicide.)
Regarding McClelland's claim that the Body Shop, a competing nude dancing operation near the Sports Arena, received preferential treatment from the vice squad, the court found that McClelland hadn't done enough research into the matter and that the "city produced a declaration from a vice officer stating that in fact City had obtained The Body Shop's compliance with the hours of operation ordinance."
In its conclusion, the three-judge panel noted, "On its face the ordinance leaves McClelland 20 hours a day—from dawn until well into the wee hours of the morning—to engage in the expressive activity he offers at Ten's Show Club."