March 28, 2008
Whose homeless are these, anyway? …
Like many cities that feel overburdened with homeless people, the city of Ontario, Cal., has decided to take steps against those who it does not believe are its responsibility. Earlier this week, the Ontario police entered a "tent city" and evicted those who "lacked ties to the city." The tent city was evacuated and the city plans to fence it off. According to the L.A. Times, the Ontario police said that the dispersed people included a man from Milwaukee, who was sent "home."
It is the proper role of a city to discriminate against those with no pre-existing "ties" to the city? On the other hand, warm places, such as southern California and my home state of Florida, believe that they bear an unfair burden of homeless people.
But one also wonders whether many of those pushed out of Ontario's tent city merely moved to locations nearby. It does little good for communities simply to compete with each other to push the homeless to the next town. The problem of homelessness should be dealt with at least at a regional level.
And for a success story about the benefits of metropolitan government, see this positive appraisal of the benefits of metro government, adopted in 2003, in greater Louisville, Ky. The biggest city in Kentucky had been disfavorably compared with nearby Nashville (which adopted metro government in the '70s) in David Rusk's influential "Cities Without Suburbs." No longer competing at every turn with its more affluent suburbs, Louisville's star is on the rise. It might even be able to deal more effectively and fairly with its homeless problem …
March 26, 2008
The curious case of smoking at the Curious Theater …
The play tempOdysssey, which has received many favorable reviews, involves a character who dies because of smoking. The plot calls for smoking on stage. Can government uses its powers of land use law to ban such smoking indoors, even in a play? Yes, according to a Colorado appellate court in a decision handed down last week, upholding a trial court’s denial of the theatre’s request for a preliminary injunction. (The case is Curious Theater Company v. Colorado Dept. of Public Health and Environment, No. 06CA2260, March 20, 2008).
The Curious Theater Company argued that its first amendment rights allow it to present a play with smoking, despite Colorado’s far-reaching statutory ban on smoking in “any indoor area,” including theatres. (Colo. Rev. Stat. sec. 25-14-204). Application of the ban to plays would violate the free speech right to expressive conduct, the theater argued. And if the display of nude movies is granted first amendment protection (for example, Erznoznik v. Jacksonville, 422 U.S. 205 (1975)), why not plays with smoking?
The Colorado court, however, trudged through the tests for first amendment protection and concluded that the smoking ban is “content neutral” and fulfills an important governmental interest (limiting the risks from second hand smoke etc., etc.) The court also noted that plays with smoking could be held outside. (There was no indication of whether the difficulty of getting a land use permit is a factor in the first amendment analysis.)
Perhaps the best response to such a case is to focus on the statute itself and to try ensure that this and similar laws include reasonable exceptions, including an exception for theatrical performances, as in the California anti-smoking law (Cal. Lab. Code sec. 6404.5(d)). Or perhaps someone needs to work on a devise that looks like a cigarette but emits harmless clouds of vapor that look like smoke –- until a law is enacted that bans the simulation of smoking, because it legitimizes the practice ....
March 24, 2008
Does lawful land use depend upon the popularity of music?
If my memory is correct, an English defendant represented by the fictional Rumpole of the Bailey back in the ‘60s testified that he could not have committed the crime because he was seeing the Rolling Stones with a mate at the time of the incident. When the judge asked what the Rolling Stones were, Rumpole helpfully provided, “I believe they are jazz musicians, my lord.” If Rumpole had been available in the California Court of Appeal this year, he might have helped a business that ran afoul of a land use permit that restricted, among other things, the kind of music that could be played.
According to the decision by the Second District Court of Appeal last week, a business in the city of Diamond Bar (in east Los Angeles County) received a conditional use permit in 2003 to operate a restaurant called “Scribbles.” The permit required that: “Entertainment shall only include a jazz band, guitarist and pianist and which shall occur on a small stage within the bar. Furthermore, a DJ with dancing shall only occur for banquets and private parties within the banquet room.” (Query: Had the restaurant presented an atonal “free” saxophone honking performance, would the issue of legality turn on whether the music fit within the defintion of “jazz”)?
Within a couple of years, however, the local police began to receive a lot of complaints about a “nightclub” being operated out of Scribbles, including 200 people waiting in line on Thursday nights, some of whom engaged in anti-social activity outside the club, according to the complaints. Had jazz finally broken through to the masses, led by the sophisticated citizens of Diamond Bar? Alas no; the music being offered was “by known artists,” according to the trial court (Did being “known” disqualify the music from being jazz?), in a way that constituted a nightclub, not a restaurant or private party, in violation of the permit. One advertised event was a “Drinco de Mayo” night; other events were advertised as offering Hip Hop and Top 40 music. In fact, the appellate court held that whether this type of entertainment was permitted under the permit was a “question of law” for the trial court. Let’s hope that Rumpole’s judge is not still on the bench.
Under a city ordinance, any operation in violation of a permit automatically constitutes a public nuisance. So the city council found, and so the courts approved in enjoining the nightclub. The appellate opinion was State of California v. Ratan Hospitality, No. B194660 (Cal. App. 2d Dist., March 20, 2008). The opinion is unreported and is restricted for citation in California courts.