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$15 million Notice of Claim Against the City Of Phoenix 

Hentoff Law Office

Nicholas S. Hentoff
Attorney at Law*
_____________________________
*Admitted to practice in Arizona and New York

September 27, 2002

Mr. James H. Hays
Deputy City Attorney
City of Phoenix Attorney's Office
200 W. Washington, Suite 1300
Phoenix, Arizona 85003

Re: Notice of Claim.

Dear Mr. Hays:

I am writing on behalf of Mag Com, Inc., dba Encounters and Recreational Developments of Phoenix, dba Club Chameleon, to present the City of Phoenix -- and you personally in your individual and official capacities -- with a Notice of Claim for $15,000,000 for the unlawful warrantless searches of my clients' private, members-only social clubs. These warrantless searches occurred during the Phoenix Police Department's "Operation Social Night Out" on Friday, September 20, 2002.

This Notice of Claim also encompasses claims on behalf of my clients arising out of the City's unconstitutional, irrational, arbitrary and retaliatory enforcement of Section 23-54 solely against the plaintiffs in the Federal civil rights lawsuit currently on appeal to the United States Court of Appeals for the Ninth Circuit. As you know, but neglected to inform Judge Silver prior to her ruling, Section 23-54 was amended in March, 2002. We are now dealing with a new statute, and the arbitrary and retaliatory enforcement claims under the Equal Protection Clause of the United States Constitution have never been litigated in any court.

I am also taking this opportunity to correct the misinformation regarding my clients that you and the Phoenix Police Department have been disseminating this past week, and to advise you and the City Council of the steps my clients are taking to restructure their Club's membership policies to address some of the concerns raised by Judge Silver with respect to their status as private clubs enjoying freedom of association protections under the First Amendment to the United States Constitution.

Unlawful Warrantless Searches.

In the early morning hours of Friday, September 21st a task force of over thirty City of Phoenix police officers set up a command center in a west Phoenix parking lot and launched "Operation Social Night Out." The officers were not after outlaw bikers, or Colombian drug dealers, or the Russian mafia. Operation Social Night Out took dozens of police officers off of our City's streets and devoted thousands of taxpayer dollars to make four misdemeanor arrests.

At Club Chameleon, approximately 400 club members witnessed thirty armed police officers dressed in black tactical gear (some with "Gang Officer" insignia), and wearing bullet proof vests, force their way onto the premises without permission and execute a warrantless search of the club with flashlights. Officers also ordered Club Chameleon employees to open locked private rooms and threatened them with arrest if they failed to do so.1 I have personally spoken with Sgt. Lundgren in the Vice Enforcement Unit who has told me that his officers did not search Club Chameleon. I have attached an affidavit which contradicts Sgt. Lundgren that I would like you to review with Lt. Larry Jacobs to see if disciplinary action against Sgt. Lundgren is warranted. Mr. Fencl spent fourteen hours in jail and was forced to miss his father-in-law's funeral.

Similar warrantless raids were carried out in each of the other three clubs. At Encounters, officers ordered club employees to turn off all of the adult videos. They arrested a middle-aged female employee who couldn't be booked into jail because her health was so poor. That employee aggravated a very serious pre-existing back condition which will now require surgery due to your officer's Gestapo-like tactics. In Discretions, Phoenix Police Officers arrested an employee who was neither an owner, operator nor manager of the club. The officers then directed the other employees, without the legal authority of a court order, to ask all of its members to leave the premises and close the club for the night. At Guys and Dolls the Phoenix Police arrested one of the few remaining individual plaintiffs in the Federal civil rights lawsuit who had not yet been prosecuted by the City of Phoenix.

At the end of Operation Social Night Out the thirty officer strong task force sat at their command center with a 56 year old retiree and three women crying hysterically, each of them charged with a misdemeanor that carries a penalty no more severe than having an unlicensed dog off its leash within the Phoenix city limits. See Sec. 8-14 (H) (1).

_____________

1 This  is is spite of the fact that lt. Larry Jacobs, the head of the Phoenix Police Department's Vice Enforcement Unit, testified as follows during a recent sworn deposition:

Q: Is it your position that, if a social club only allowed sexual activity in private rooms, that enforcement action would cease?

A:  If there was a room that I didn't have access to and didn't have access to, I'd find it extremely difficult to take any enforcement action, if I can't gain access to those rooms.

Deposition of Lt Larry Jacobs, at p 79, lines 12-18.

__________________

Not surprisingly, the only social club which escaped any arrests was Tony's Sociables, the only social club which declined to join the Federal civil rights lawsuit, and has the uncanny ability to continuously avoid being the subject of enforcement action by the City of Phoenix.

 While Arizona's constitutional provisions generally were intended to incorporate Federal protections, they are specific in creating the right to privacy. State v. Bolt, 142 Ariz. 260, 689 P.2d 519 (1984). As a result, Arizona courts have interpreted the Arizona Constitution as being even more explicit and broader than its federal counterpart in safeguarding the fundamental liberty of Arizona citizens. State v. Ault, 150 Ariz. 459, 724 P.2d 545 (1986). State v. Tykwinski, 170 Ariz. 365, 824 P.2d 761 (Ct. App. 1991).

As a matter of law, officers may not make a warrantless entry of a premises in the absence of exigent circumstances or other necessity; such entries are per se unlawful under our state constitution. State v. Bolt, 142 Ariz. 260, 689 P.2d 519 (1984); State v. Ault, 150 Ariz. 459, 724 P.2d 545 (1986). Mere incantation of the phrase "exigent circumstances" will not validate a warrantless search. State v. Martin, 139 Ariz. 466, 679 P.2d 489 (1984); State v. Ault, 150 Ariz. 459, 724 P.2d 545 (1986). Even where a warrant is obtained to search a place of business it must particularly describe the place to be searched in order to be valid, and will be invalidated by a court if it does not contain such a particularized description. State v. Adams, 197 Ariz. 569, 5 P.3d 903 (Ct. App. 2000).

The Arizona Civil Liberties Union has agreed to join my clients in safeguarding the fundamental liberty of Arizona citizens and will be assisting us in seeking an injunction against any further unlawful warrantless searches. The City of Phoenix is now on notice that they will be liable for any further searches of these private social clubs that are conducted without first following the rule of law and obtaining a valid search warrant.

Cleanliness of the Clubs.

Both the Office of the City Attorney, as well as the City of Phoenix Police Department, has insinuated that my clients' clubs are a health hazard and are not clean. This constitutes actionable slander. As you know my clients' clubs operate under regular City of Phoenix businesses licenses and are subject to regular Maricopa County Health Department inspections. The inspection reports for my clients' clubs are available as a public record on the Maricopa County Health Department's website. My clients' clubs routinely receive extremely high scores in their health inspections. In some cases they score higher than some of the best restaurants in town. Any further baseless insinuations regarding the cleanliness of my clients' clubs, or unsupported statements that they are "health hazards," will result in a slander action being filed against the person making the statement and the City of Phoenix if the statement is made in an official capacity.

Public Sexual Indecency Issues.

The City of Phoenix Police Department's Public Information Office has erroneously informed the media that members of my clients' clubs are violating City of Phoenix public sexual indecency Laws. Please have the Phoenix Police Department check with the City Attorney's office before they interpret the law for the media.

Section 23-65 of the Phoenix City Code outlaws "Public Sexual Activity," which is defined, in pertinent part, as the commission of "any sexual activity in any public place or in any place open to public view." Section 1-2 of the Phoenix City Code defines "Public Place" as including "any park, cemetery, schoolyard or open space adjacent thereto, any lake or stream or any other public place [taken within the context of the previous examples]." (Emphasis added). Individuals wishing to enter my clients' clubs must first show identification and must complete a detailed membership application before they are allowed access to the clubs. In the case of Club Chameleon members must be "buzzed" through a locked door before they can enter the premises. As you know the Phoenix City Code's definition of "public place" cannot be reasonably interpreted to include my clients' private members-only social clubs.

You are now on notice that if you take any enforcement action against the members of my clients' clubs the City of Phoenix will be facing a class action lawsuit on behalf of those arrested acting as representatives of the clubs' membership.

Membership Policies and Exclusion of Law Enforcement Officers or Police Agents from Membership.

My clients' are in the process of reorganizing their membership procedures in order to address some of the concerns raised by Judge Silver in her decision. As a private club we are under no obligation to share our membership policies or procedures with the Government. The final membership policies and procedures will likely differ from club Mr. James H. Hays September 27, 2002 Page Five

to club. However, the planned changes will likely involve the creation of a membership committee composed of members and management who will review membership applications. The membership committees will likely enact a charter for the club and create bylaws to govern membership selection. Among the bylaws of the club will be criteria governing membership selection. Applicants for membership may be subject to background checks and those who are found to have been previously convicted of a violent sexual offense - including rape and child molestation - will be denied membership. Similarly, anyone that the membership committee decides has violated club rules in the past will be denied membership. Other new rules and regulations will also likely be implemented under the clubs' new membership agreements within the next two weeks.

As you know, my clients' clubs are only open to individuals who are willing to sign the membership agreements and abide by the rules and regulations governing membership in the clubs. Undercover Phoenix police officers have been joining my clients' clubs as members. As a result, law enforcement officers or police agents are no longer welcome as members in my clients' clubs. Based on my clients' First Amendment rights to regulate membership in their private clubs, all new and existing members will be required to sign a statement -- made under penalty of perjury -- that they are not a law enforcement officer or a police agent. These statements will be subject to A.R.S. Section 12-2702, which provides that making a material false statement in an unsworn declaration under penalty of perjury constitutes perjury, a Class Four Felony punishable by up to three years in prison. Any Phoenix Police officers who are found to have committed perjury will be referred to the Arizona Attorney General's Office and the Criminal Division of the United States Department of Justice's Civil Rights Division. I ask the Phoenix City Council whether they want to be the only City in the nation that authorizes its police officers to commit a Class Four Felony in order to make a misdemeanor arrest.

Irrational, Arbitrary, and Retaliatory Enforcement.

Under the Fourteenth Amendment's protective wing of equality, a statute based on pure favoritism which creates a closed class will likely be declared unconstitutional. Clover Leaf, 449 U.S. at 470, 101 S.Ct. at 727 (if state law purporting to promote environmental purpose is in reality `simple economic protectionism,' the court's apply a `virtually per se rule of invalidity') (citing Philadelphia v. New Jersey, 437 U.S. 617, 624, 98 S.Ct. 2531, 2535 [] (1978)). A regulatory statute which singles out a particular class, or makes distinctions in the treatment of business entities engaged in the same business activity,
must bear a reasonable relationship to the underlying purpose of the statute, and that purpose must be legitimate." City of New Orleans v. Dukes, 427 U.S. 297, 301-303, 96 S.Ct. 2513, 2516 [](1976).

The Equal Protection Clause of the Fourteenth Amendment commands that no State shall "deny to any person within its jurisdiction the equal protection of the laws," which is essentially a direction that all persons similarly situated should be treated alike. City of Cleburne, Tex. V. Cleburne Living Center, 108 S.Ct. 3249, 3254, 473 U.S. 432 (1985); Plyler v. Doe, 457 U.S. 202, 216, 102 S.Ct. 2382 2394 (1982). The United States Court of Appeals for the Ninth Circuit has repeatedly recognized that the due process clause includes a substantive component which guards against arbitrary and capricious government action, even when the decision to take that action is made through procedures that are themselves constitutionally adequate. Sinaloa Lake Owners Association c. City of Simi Valley, 864 F.2d 1475, 1483 (9th Cir. 1989). The courts have consistently held that the economic opportunity to pursue one's chosen livelihood is a constitutionally protected liberty interest, which may not be arbitrarily denied. See e.g., Santos v. City of Houston, Tex., 852 F.Supp. 601, 607 (S.D. Tex. 1994) (citing Cowan v. Corley, 814 F.2d 223, 227 (5th Cir. 1987)).

In evaluating a claim of unequal treatment under the United States Constitution, courts must also evaluate the relationship between the "classification" created by the law or its enforcement and its stated purpose. The Arizona Supreme Court has long held that such a review under the Arizona Constitution requires a consideration of the character of the classification, the individual interests affected by the classification, and the government interest asserted in support of the classification. State v. Kelly, 111 Ariz. 181, 184, 526 P.2d 720, 723 (1974). As the United States Supreme Court has explained, the Court "insist[s] on knowing the relation between the classification adopted and the object to be attained." Romer v. Evans, 517 U.S. 620, 632 (1996). The State may therefore not rely on a classification whose relationship to the asserted goal is so attenuated as to render the distinction arbitrary or irrational. Id. at 3258; Zobel v. Williams, 457 U.S. 55, 61-68, 102 S.Ct. 2309 2313- 2314 (1982). Furthermore, some objectives, such as "a bare . . . desire to harm a politically unpopular group," are not legitimate state interests. United States Department of Agriculture v. Moreno, 413 U.S. 528, 534, 93 S.Ct. 2821, 2826 (1973). See also Zobel, 457 U.S. at 63, 102 S.Ct. at 2314. The United States Supreme Court has held that "mere negative attitudes, or fear, unsubstantiated by factors which are properly cognizable in a zoning proceeding, are not permissible bases" for treating similarly situated individuals differently in violation of the Equal Protection Clause. . . . "[A] City may not avoid the strictures of that Clause by deferring to the wishes or objections of some fraction of the body politic." Cleburne, 105 S.Ct. at 3259 (citing Palmore v. Sidoti, 466 U.S. 429, 433, 104 S.Ct. 1879 (1984) ("Private biases may be outside the reach of the law, but the law cannot directly or indirectly, give them effect"). See also Bello v. Walker, 840 F.2d 1124, 1129 (3rd Cir. 1988) (substantive due process claim established where actions of City officials were motivated by partisan political or personal reasons unrelated to the enforcement of the City ordinance in question).

At least as early as the spring of 2000 you were made aware that homosexual bath-houses were operating within the City of Phoenix. You initially were quoted in the press as stating that these establishments were "not above the law." Your tune changed this past week when you were quoted in the Arizona Republic as stating that the homosexual social bathhouses were given "special consideration" by the City in order to avoid a charge of discrimination. I encourage you to sign up for a refresher course in constitutional law. Discrimination based on sexual orientation constitutes discrimination regardless of whether it is directed at heterosexuals or homosexuals. Classifications based on "sexual orientation" do not constitute a "suspect class" entitling anyone to "special consideration."

Nevertheless, the fact remains that no enforcement action has ever been taken against these homosexual social clubs. This is in spite of the fact that the homosexual bathhouses are much larger than my clients' heterosexual social clubs and pose a far greater risk of spreading sexually transmitted diseases.

One of these bathhouses, Phoenix Flex, has been operating for over twenty years and openly maintains a public website, www.flexbaths.com. This website details explicitly the promiscuous and unprotected homosexual activity engaged in by the club's members on its premises. The electronic bulletin board on the Flex Phoenix website contains numerous graphic accounts of unprotected homosexual group sex. The website also advertises a new feature of Flex Phoenix called the "Glory Hole" located within "the Maze," which allows the club's members to engage in anonymous sex acts with numerous partners.

On March 16th, 2000 an article by David Holthouse, appeared in the Phoenix New Times which observed that the homosexual social clubs were allowed by the City of Phoenix to operate with impunity while the owners of the heterosexual social clubs were being criminally charged with violation of Section 23-54 for operating a "live sex act business." The New Times article documented the fact that one of these homosexual clubs, The Chute, had fifty private rooms for rent and was therefore as large as all of the heterosexual social clubs combined. David Holthouse made the following observations:

The Chute reminds me of a Halloween spook house, groans and all, except the heads jerking up and down in dark corners are not exactly bobbing for apples

I navigate a labyrinth of intersecting passageways made of wood and corrugated steel, lighted throughout by dim, red bulbs and lined with numbered doorways. Some doors are closed. Others open into small chambers were naked men lie intertwined, or sit alone, towels around their waists, whispering invitations as I pass. . . .[T]here are four public rooms inside the Chute . . . Inside these public rooms are sticky floors, couches, and wall mounted video screens showing gay pornography . . . These rooms are empty when I go in, but I'm not alone for long. Nude men trail me, waiting, it seems, for a signal. I brush past them and re-enter the maze, where dozens of men silently walk the halls, sliding glances my way . . .

Before and shortly after the City of Phoenix passed its sex-club laws, I visited every swingers' club in the Valley, and I found the city's descriptions of these places as Bacchanalian orgies to be vastly exaggerated. Far more people in the straight clubs were talking and dancing than having sex, none of them propositioned me, and those few who were doing it in public arrived and left together.

No one conversed inside the Chute. No one danced to the techno beat. There was no buffet or juice bar. Just a lot of men out for easy, anonymous sex. These men didn't know me, but a lot of them wanted to have sex with me, and I have a hard time believing they would have insisted I wear a condom.

This churned my gut, especially because of what I saw on several of their fingers.

Wedding rings.

Phoenix New Times, March 16, 2000.

In addition, the City licenses a variety of "sexually oriented businesses" -- such as adult motels -- some of which, by the very definition provided in the City Code, constitute unlawful "live sex act businesses" prohibited by Section 23-54. "Adult motels" are officially sanctioned, licensed and regulated by the City of Phoenix pursuant to Phoenix City Code Section 10-131. It is well known by Phoenix Police Department Vice Unit detectives that the type of "sexual activity" prohibited by Section 23-54 occurs routinely within the "adult motels," which are frequented by prostitutes and their married customers. In a recent sworn deposition, Lt. Larry Jacobs of the Phoenix Police Department's Vice Enforcement Unit testified that, based on his over twenty years of law enforcement experience, it was sound public policy to enforce the laws against homosexual bathhouses and adult motels if your goal is to stop the spread of sexually transmitted diseases

You are also aware that the owners and employees of the four heterosexual social clubs are the only offenders ever prosecuted to completion under 23-54 since it was enacted by the City Council in December 1998. In addition, no businesses have ever been subject to the civil abatement proceedings contained in Section 23-54 since it was passed by the City Council in December, 1998. Although the City of Phoenix had initially filed a charge against the owner of Tony's Sociables -- a heterosexual social club whose owner refused to join the petitioners in a Federal civil rights lawsuit against the City -- the prosecution was not pursued by the City Prosecutors Office.

Therefore, while the City licenses and collects fees and taxes from dozens of officially sanctioned "live sex act businesses," and turns a blind eye to the homosexual bathhouses and the single heterosexual social clubs that did not join the Federal civil rights lawsuit, the City has chosen to single out for criminal prosecution only the four heterosexual social clubs owned by the plaintiffs in the pending Federal civil rights lawsuit. The application of Section 23-54 to the four individual defendants, and only the four individual defendants, can therefore not be rationally related to the City's stated governmental interest in passing Section 23-54: to stop the spread of sexually transmitted disease. The legitimate interests expressed by the City in passing the ordinance fails rationally to justify singling out the "live sex act businesses" owned by my clients when no such enforcement action has been taken against the many other types of "live sex act businesses" freely permitted to operate in the City of Phoenix. See Santos v. City of Houston, Tex., 852 F.Supp. 601, 607-608 (S.D. Tex. 1994) (invalidating ordinance because it was enforced in an arbitrary, irrational and ultimately futile manner). 2
_____

2 Even if some rational relationship existed between the ordinance and safety concerns did exist, however, the ordinance is enforced in an arbitrary and futile manner.  Despite the uncertainly as to whether various transportation services currently operating in the City could de defined as jitney services, many services have been allowed to operate without restriction.  Thus, the City has destroyed the alleged utility of the ordinance by its own actions."

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The City of Phoenix contends that it has a compelling interest in protecting the public from the spread of sexually transmitted diseases. My clients agree that curtailing the spread of STD's is an important governmental interest. Unfortunately, the City is unable to explain how limiting their enforcement of Section 23-54 to the four defendants -- and ignoring other "live sex act businesses" such as adult motels and the homosexual bathhouses -- furthers these interests. In this case, the "classification" created by the method used by the City of Phoenix to achieve its stated goal of curtailing the spread of Sexually transmitted diseases actually contributes to the spread of STD's and is therefore not only irrational but patently absurd.

As was the case in Santos, even if some rational relationship existed between the ordinance and the City's stated safety concerns, the enforcement of the ordinance in such an arbitrary, irrational and futile manner renders its application to the individual defendants in this case constitutionally invalid. Despite any claimed uncertainty as to whether the various sexually oriented businesses currently licensed by and operating within the City could be defined as "live sex act businesses," many commercial establishments that clearly qualify as a "live sex act business" under Section 23-54 have been allowed to operate without restriction. Thus, as in Santos, the City has "destroyed the alleged utility of the ordinance by its own actions."

The intended purpose behind the City's limited enforcement of the ordinance is to "classify" the four social clubs that sued the city out of business, leaving one remaining heterosexual social club, two homosexual bath houses, and dozens of other City licensed and officially sanctioned sexually oriented businesses still operating with impunity. Such an arbitrary, irrational and futile classification has no rational relationship to the City's stated purpose of curtailing the spread of sexually transmitted diseases and therefore violates petitioners' rights under the Equal Protection and Substantive Due Process clauses of the Fourteenth Amendment.

The message of the City's irrational and arbitrary enforcement of the ordinance is clear: "Fight city hall and pay the consequences. Play ball with city hall and avoid criminal prosecution."

Amount of Claim.

My clients are willing to settle all of their claims with the City of Phoenix for $15,000,000. This letter in no way limits our right to file additional claims against the City of Phoenix, individual employees of the City, or to file a lawsuit seeking injunctive relief or inverse condemnation damages.

Sincerely,

Nicholas S. Hentoff Attorney at Law

Cc: Mayor Skip Rimsza E-mail: skip.rimsza@phoenix.gov District 1 Councilman Dave Siebert E-mail: cdist1@phoenix.gov District 2 Councilwoman Peggy Neely E-mail: council.district.2@phoenix.gov District 3 Councilwoman Peggy Bilsten E-mail: peggy.bilsten@phoenix.gov District 4 Councilman Phillip B. Gordon E-mail: phil.gordon@phoenix.gov District 5 Vice Mayor Claude Mattox E-mail: claude.mattox@phoenix.gov District 6 Councilman Greg Stanton E-mail: greg.stanton@phoenix.gov District 7 Councilman Doug Lingner E-mail: doug.lingner@phoenix.gov District 8 Councilman Michael Johnson E-mail: michael.johnson@phoenix.gov

 


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