Hinting at retreat

It could not have been more brutal for City Hall today in federal court in Sacramento, where the Brookside restaurant Maxim’s sought a temporary restraining order prohibiting Stockton from enforcing its requirement that a restaurant obtain a permit for live entertainment after 10 p.m. (the City Council denied Maxim’s application for such a permit last week, resulting in the lawsuit).

 

U.S. District Court Judge Morrison England Jr. said he had watched footage of last week’s council hearing and heard discussion about people not wanting “that element” in Brookside. He asked if it would be more palatable if the music played at Maxim’s was not hip-hop but concert music or someone singing “God Bless America.” He said music is protected speech and Stockton’s ordinance is the kind the U.S. Supreme Court has ruled against. His was only a preliminary review, England said, but it appeared to him the ordinance may fail.

 

Assistant City Attorney Shelley Green and Deputy City Attorney Guy Petzold were on hand for the city. Green said there was a concern about noise (no matter what kind of music was making it) and Petzold said the ordinance does not address what type of music may be played.

 

But where Maxim’s failed in front of the council to make the case about race (David LeBeouf, a lawyer for Maxim’s, said the Brookside residents opposing Maxim’s do not want black people around; council members said they did not want a nightclub in a residential area, regardless what music is played), there was enough talk about hip-hop versus Top 40 – the content of the speech – to so frame the matter this afternoon. England was so taken with First Amendment attorney George Mull’s written argument for Maxim’s that he called LeBeouf and Mull to the podium only to get them on the record.

 

The order issued Friday was only a temporary one, but it left an impression on the city.

 

“We’re going to have to look very hard at whether it’s in our interest to enter into protracted litigation to defend the council’s action on this use permit,” City Attorney Ren Nosky said. “We feel the ordinance is defendable, but that doesn’t necessarily mean that we wouldn’t consider some kind of compromise.”

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