Elbert Poppell v. City of San Diego, et al.
Published: Nov. 23, 1996 | Result Date: Jul. 3, 1996 | Filing Date: Jan. 1, 1900 |Case number: 93100R – $200,000
Judge
Court
USDC Southern District of California
Attorneys
Plaintiff
Michael R. Marrinan
(Law Offices of Michael R. Marrinan)
Defendant
Facts
Plaintiff Elbert "Thad" Poppell, a 62-year-old man, for several years has been the operator of a "swinger" club known as "Thad's". "Thad's" is a legal, private social club for heterosexual consenting adults who believe in nudism and freedom of sexual expression. Those who attend "Thad's" must be invited, pay a one time membership fee and a fee each time they attend the club. Over the past 15 years, the plaintiff's club was allegedly the subject of various forms of police harassment and was closely scrutinized by the defendant city of San Diego's zoning officials. In 1990, the plaintiff moved his club to an industrial zone after being told his club was in an improper zone. He obtained specific approval form the city's zoning administrator, defendant Sharren Carr, to operate his club in the industrial zone. He also had written approval from the zoning department. In 1991, the plaintiff moved his club one block to another building in the same zone. He again obtained written approval from the zoning department to operate at the new location in the same industrial zone. After operating for 18 months without any problems, an "inspection warrant' was served on Dec. 23, 1991 at the plaintiff's property by members of the city's zoning, building code and police departments. The plaintiff was not notified of any alleged code violations resulting from this inspection. However, two months later, the plaintiff was charged with four criminal zoning violations, alleging he was opeating his adult entertainment club in an improper zone. Later, the complaint was amended to add 90 alleged building code violations. By the time of trial, these were reduced to 26 building code violations. The plaintiff was convicted of most of the building code violations and received probation. He was also convicted of two zoning violations of operating his club in an improper zone. On these counts, he was sentenced to six months in jail. At the criminal trial, the plaintiff sought to raise an estoppel defense, based on the fact that the city's zoning administrator specifically approved his club in that zone. The trial judge refused to permit this defense. The plaintiff appealed this ruling, unsuccessfully. He filed writs of habeas corpus in the Superior Court, Court of Appeal and state Supreme Court. All were denied, despite two votes to grant reveiew in the Supreme Court. The plaintiff then sought relief via habeas courpus in federal court. He prevailed. The zoning convictions were reversed and the city declined to retry these counts. The six month sentence was vacated. The plaintiff spent over $26,000 in attorney's fees defending these zoning charges. Shortly after the inspection warrant, the plaintiff and his club member claimed that they began to be subjected to continual harassment by police officers. On four consecutive weekends in late 1992, the plaintiff claimed numerous police cars parked in the middle of the street in front of the plaintiff's house and club, with their emergency lights activated. Club members were allegedly detained and identified, their license plate numbers checked, parking tickets written and several cars were towed. The plaintiff's home and club was in a remote industrial area on a cul-de-sac street with only one other residence on the block. The club operated only on Friday and Saturday nights and the defendant officers allegedly remained in front for well over one hour (typically 10 p.m. to 11:30 p.m.). The sergeant who authorized this police presence stated he was responding to complaints of the one neighbor. However, after four weekends the sergeant allegedly found no substance to the complaints and ordered his officers to stop this activity at the plaintiff's club. Two months after, this sergeant was transfered, and the police harassment allegedly resumed by several differenct patrol officers. ***
Settlement Discussions
There were no demands or offers exchanged.
Damages
The plaintiff claimed he incurred $26,000 in attorney's fees defending the false criminal charges.
Injuries
The plaintiff claimed he suffered emotional distress.
Result
*** CONTINUATION OF FACTS: The plaintiff claimed that nearly every weekend in 1993, patrol officers parked their cars in the middle of the street in front of his club with lights activated and club members were detained, identified and hassled as they tried to enter the club. Many simply turned around when they saw the police presence. The plaintiff began to videotape these incidents and the videotape was played for the jury during trial. In discovery, the plaintiff learned that the new investigation of him began the day after he dismissed a prior lawsuit that he was pursuing for harassment at a previous location. After being assured that he would not be harassed, the plaintiff agreed to dismiss the prior harassment case. The plaintiff also claimed he uncovered a city document which indicated that the city zoning, building code and police departments had developed a plan to close his club despite the fact that the club was legal, had been approved in that zone, and the city's vice lieutenant specifically found that the club was not in violation of any police licensing regulations. The plaintiff brought this action against the defendants based on malicious prosecution, violation of constitutional rights, police harassment, and the custom, policy and habit of the city in unfairly targeting him and attempting to close his club.
Other Information
POST TRIAL MOTIONS: A motion for new trial was filed by the city and Carr and was denied. A motion for attorney's fees was filed by the plaintiff and fees were awarded in the amount of $111,000.
Deliberation
2 days
Poll
8-0
Length
8 days
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