RENTERIA v. DIRTY DAN INC

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Court of Appeal, Fourth District, Division 1, California.

Michael RENTERIA et al., Plaintiffs and Appellants, v. DIRTY DAN'S, INC. et al., Defendants and Respondents.

D005678.

Decided: February 26, 1988

Thomas F. Homann, San Diego, for plaintiffs and appellants. Joshua Kaplan, Miller, Ewald & Monson, Thomas M. Monson and Keith A. Jones, San Diego, for defendants and respondents.

Michael Renteria and Clifford L. Dohrer (collectively Renteria) appeal the denial of a preliminary injunction to prevent five topless bars (Dirty Dan's, Inc., Clubary, Inc., 10450 Friars Road, Inc., II.S., Inc. and The In Spot, Inc.) from enforcing a policy of denying admission to persons wearing clothing with motorcycle club insignia.   We shall conclude the clubs' policy violates the Unruh Civil Rights Act.  (Civ. Code,1 § 51 et seq.)   The trial court abused its discretion in denying the preliminary injunction and we order its issuance.

I

The Unruh Act, in section 51 of the Civil Code, provides in part:

“All persons within the jurisdiction of this state are free and equal, and no matter what their sex, race, color, religion, ancestry, national origin or blindness or other physical disability are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever.”

 The act is to be given a liberal construction, with a view to effectuating its purposes and promoting justice.  (Koire v. Metro Car Wash (1985) 40 Cal.3d 24, 28, 219 Cal.Rptr. 133, 707 P.2d 195;  Rotary Club of Duarte v. Board of Directors (1986) 178 Cal.App.3d 1035, 1046, 224 Cal.Rptr. 213.)   Its intent is to prohibit all businesses from engaging in arbitrary or “stereotypical” discrimination.  (Isbister v. Boys' Club of Santa Cruz, Inc. (1985) 40 Cal.3d 72, 86, 219 Cal.Rptr. 150, 707 P.2d 212;  Koire v. Metro Car Wash, supra, 40 Cal.3d 24, 35–36, 219 Cal.Rptr. 133, 707 P.2d 195.)   The particular bases of discrimination listed in the act are “illustrative rather than restrictive.”  (In re Cox (1970) 3 Cal.3d 205, 216, 90 Cal.Rptr. 24, 474 P.2d 992.)   The “Unruh Act does not permit a business enterprise to exclude an entire class of individuals on the basis of a generalized prediction that the class ‘as a whole’ is more likely to commit misconduct than some other class of the public.”  (Marina Point, Ltd. v. Wolfson (1982) 30 Cal.3d 721, 739, 180 Cal.Rptr. 496, 640 P.2d 115, italics in original.)

Under the liberal interpretation which the courts have given the Unruh Act, a business which excluded an individual solely based on his or her membership in a motorcycle club would be engaged in arbitrary discrimination.   Such discrimination, based on a group stereotype, e.g., that members of motorcycle clubs are more likely to commit misconduct than others, would violate the Unruh Civil Rights Act.  (See Marina Point, Ltd. v. Wolfson, supra, 30 Cal.3d at p. 739, 180 Cal.Rptr. 496, 640 P.2d 115;  Winchell v. English (1976) 62 Cal.App.3d 125, 129, 133 Cal.Rptr. 20.) 2

II

The complaint names seven corporate defendants, each engaged in owning and operating bars in and around San Diego;  each has a policy of refusing admission to persons wearing clothing with insignia designating membership in a motorcycle club;  each denied admission to Renteria as he wore clothing designating membership in a motorcycle club.   Pleading the policy and practice of the bars denying admission to persons wearing motorcycle club insignia constitutes arbitrary discrimination under the act, the complaint seeks a preliminary and permanent injunction restraining the bars from enforcing their insignia policy and damages.

Defendants Dirty Dan's, Inc., Clubary, Inc. and 10450 Friars Road, Inc. answered the complaint and admitted “they maintain a uniformly applicable, patron dress code which precludes the wearing of motorcycle gang insignia.”   Defendants McFaddin San Diego 1130, Inc., II.S., Inc., doing business as Club Royale/Nite Life, Inc., and The In Spot, Inc., doing business as The In Spot East, answered, denying the complaint's allegations.3

Renteria's declaration supporting the preliminary injunction specified dates, times and places of attempts to enter the bars and resultant refusals by bar employees.   At bars operated by Dirty Dan's, he was refused admission with statements such as “Sorry, no colors” or “Sorry, no club colors” or “Sorry no club patches” or “Sorry, you gotta take your patches off” or “Sorry, no club emblems.”   At Club Royale/Nite Life, admission was refused with comments such as “Nope, can't come in with patches on,” or “We don't allow colors.”   Comments to the same effect accompanied refusals for admission to bars operated by other defendants.   Renteria averred these refusals to admit meant that persons wearing motorcycle club insignia would not be admitted or served.

Fred Levy's declaration on behalf of Dirty Dan's, Clubary and 10450 Friars Road in opposition to issuance of the preliminary injunction, states these bars established a dress code which “precludes, among other things, bare feet, bare torsos, gang or club insignia, masks, etc.”   Apparently, the so-called dress code is unwritten.   As we have seen, those defendants admitted in their answer their dress code precludes the wearing of motorcycle gang insignia.4  Levy explains the reason for exclusion of persons wearing motorcycle club insignia:

“It is certainly a fact of common knowledge and beyond dispute that there are a number of motorcycle gangs operating within the County of San Diego which view themselves in competition with or as hostile toward one another.   It is our understanding that these gangs often engage in violence and/or other forms of criminal or antisocial behavior.   Despite our distaste for the life-style of the motorcycle gang member, we do not exclude such patrons from our premises due to our perception of the state of the law at this time.   However, based upon our knowledge gained from experience that competing or hostile motorcycle gang members often engage in violent confrontation with one another, we have included in our dress code requirements a prohibition as to the wearing of motorcycle gang insignia.   The purpose of this prohibition is not to exclude members of any gang for such members have been and will be admitted.   The purpose of this prohibition is to regulate the conduct of our patrons and the dress code thus constitutes nothing more than a reasonable deportment regulation that is rationally related to maintaining order and some sense of decorum in our premises.

“․

“Based upon our perception of the extreme likelihood of disruptive behavior by motorcycle gang members, we wish that the law authorized their complete exclusion.   Since it apparently does not, we do strenuously contend that the law must allow us to exert some control over the potential for patron misconduct in advance and not merely after its occurrence.”

William McClelland's declaration opposing the preliminary injunction on behalf of The In Spot, Inc. and II.S., Inc., doing business as Club Royale/Nite Life, states:

“Admission to CLUB ROYALE and THE IN SPOT was not denied to plaintiffs solely on the basis that plaintiffs were wearing clothing with insignias denoting their membership in a motorcycle club known as the Border Bandits Motorcycle Club.   Rather the policy is to deny admission to anyone who wears a club insignia of any kind.

“․

“I have found in my sixteen years of experience in owning and operating these types of establishments that crowd control is extremely important in protecting the health, welfare and safety of all patrons.   By not allowing patrons to wear insignias denoting club affiliations it makes it much easier for my employees to control the patrons.”

McClelland's declaration attaches a written policy broadly excluding persons wearing insignia representing membership in any club, organization or group such as “motorcycle groups, fraternity groups, and military groups.”

Following argument below, the trial court concluded the wearing of insignia or clothing was a statement;  in places such as topless bars, a statement could create an inflammatory noncontrollable situation and the case should proceed to a trial such that a decision could be made based on facts.

III

The decision to issue or deny a preliminary injunction is required to be supported by sufficient evidence.  (Langford v. Superior Court (1987) 43 Cal.3d 21, 28, 233 Cal.Rptr. 387, 729 P.2d 822.)

 Renteria's declaration is uncontradicted.   Because he wore motorcycle club insignia, he was denied admission to and service at the bars.   The defendants concede that persons wearing such insignia are excluded from entering or being served at their bars, claiming this exclusion is intended to regulate conduct as the presence of patrons wearing motorcycle club insignia is said to contribute to violent confrontations between members of competing motorcycle clubs.   These allegations in the declarations of Levy and McClelland are, of course, pejorative conclusions and opinions without factual support.   They fail to cite a single instance of confrontation between wearers of insignia denoting competitive clubs, violent or otherwise.   There are no declarations, factual or otherwise, from patrons, police, employees or topless dancers, supporting the opinions and conclusions of Levy and McClelland.   The only evidence before the court, then, is the exclusion of Renteria from the bars because he wore motorcycle club insignia.   We conclude that evidence is insufficient to support denial of the preliminary injunction to restrain the operators of the bars from denying admittance to persons wearing motorcycle club insignia as violative of the Unruh Act.  (See IT Corp. v. County of Imperial (1983) 35 Cal.3d 63, 69, 196 Cal.Rptr. 715, 672 P.2d 121.)

As we have seen, the Unruh Act accords every person an individual right against arbitrary discrimination of any kind whether or not expressed in the act.  (Isbister v. Boys' Club of Santa Cruz, Inc., supra, 40 Cal.3d 72, 86, 219 Cal.Rptr. 150, 707 P.2d 212.)   All arbitrary discrimination is prohibited.  (In re Cox, supra, 3 Cal.3d 205, 212, 90 Cal.Rptr. 24, 474 P.2d 992.)

Koire v. Metro Car Wash, supra, 40 Cal.3d 24, 35–36, 219 Cal.Rptr. 133, 707 P.2d 195, instructs that “class-based generalization as a justification for differential treatment is precisely the type of practice prohibited by the Unruh Act” and the act “ ‘prohibits all forms of stereotypical discrimination.’ ”   This sentiment was echoed in Marina Point, Ltd. v. Wolfson, supra, 30 Cal.3d 721, 738–739, 180 Cal.Rptr. 496, 640 P.2d 115, where the court discussed the nature of arbitrary discrimination.   Though one may be excluded from a “business enterprise” on an individual basis “if he conducts himself improperly or disrupts the operations of the enterprise,” it is “arbitrary” and therefore prohibited to exclude an entire class on the basis of stereotyped notions.  (See also Isbister, supra, 40 Cal.3d at p. 87, 219 Cal.Rptr. 150, 707 P.2d 212;  In re Cox, supra, 3 Cal.3d at pp. 217–218, 90 Cal.Rptr. 24, 474 P.2d 992.)

Bars and restaurants like the defendants' establishments may not engage in arbitrary discrimination under the act.  (Koire, supra, 40 Cal.3d 24, 219 Cal.Rptr. 133, 707 P.2d 195;  Easebe Enterprises, Inc. v. Alcoholic Bev. etc. Appeals Bd. (1983) 141 Cal.App.3d 981, 190 Cal.Rptr. 678;  Rolon v. Kulwitzky (1984) 153 Cal.App.3d 289, 200 Cal.Rptr. 217;  Hales v. Ojai Valley Inn & Country Club (1977) 73 Cal.App.3d 25, 140 Cal.Rptr. 555.)

The bar owners concede Renteria cannot be excluded from the defendants' bars on the basis of membership in a motorcycle club.   Discrimination on account of a person's association with others is prohibited by the Unruh Act.  (Winchell v. English, supra, 62 Cal.App.3d 125, 130, 133 Cal.Rptr. 20 [“the discrimination of this case ․ was arbitrary and based solely upon the subject's association with others”];  Hubert v. Williams (1982) 133 Cal.App.3d Supp. 1, 5, 184 Cal.Rptr. 161.)   Discrimination on the basis of a person's appearance is prohibited by the act.  (In re Cox, supra, 3 Cal.3d 205, 217, 218, 90 Cal.Rptr. 24, 474 P.2d 992.)

The exclusion based on insignia cannot be justified as an attempt to maintain a certain ambiance by setting dress standards.5  A tuxedo-garbed Renteria would be excluded from the bars if his cummerbund contained a motorcycle club insignia.   The dress regulations of defendant McFaddin San Diego 1139, Inc. required persons to be dressed neatly and cleanly.   Motorcycle club insignia-wearers meeting those standards are not excluded.

The test for arbitrary discrimination is not whether an exclusionary policy is “rational,” but whether it is based on a stereotype.

“Marina Point made clear that ‘reason’ and ‘good faith’ are not enough to avoid a finding of ‘arbitrary’ discrimination.   Our opinion condemned the adults-only policy there at issue even to the extent it rested on true assumptions about the general difficulties of living with children.  [Citation.]   There are any number of plausible reasons why the owner of a ‘business establishment’ serving the public might wish, in good faith, to exclude or discriminate against a particular group.   But the Legislature has decreed that, once a ‘business establishment’ attains that public status, it has responsibilities to the entire community which cannot be lightly ignored.   Were good faith and bare rationality sufficient to permit group discrimination, the Act would have little meaning.”  (Isbister v. Boys' Club of Santa Cruz, Inc., supra, 40 Cal.3d 72, 89, fn. 19, 219 Cal.Rptr. 150, 707 P.2d 212.)

Exclusion of Renteria cannot be excused or justified on the basis of a rational good faith belief that persons wearing insignia denoting membership in motorcycle clubs may be “troublemakers.”   The Unruh Act was specifically designed to prohibit exactly such stereotyping.

“As our prior decisions teach, the Unruh Act preserves the traditional broad authority of owners and proprietors of business establishments to adopt reasonable rules regulating the conduct of patrons or tenants;  it imposes no inhibitions on an owner's right to exclude any individual who violates such rules.   Under the act, however, an individual who has committed no such misconduct cannot be excluded solely because he falls within a class of persons whom the owner believes is more likely to engage in misconduct than some other group.   Whether the exclusionary policy rests on the alleged undesirable propensities of those of a particular race, nationality, occupation, political affiliation, or age, in this context the Unruh Act protects individuals from such arbitrary discrimination.”  (Marina Point, Ltd. v. Wolfson, supra, 30 Cal.3d 721, 725–726, 180 Cal.Rptr. 496, 640 P.2d 115.)

Unless a blanket exclusion serves a “compelling societal interest,” a private exclusionary policy violates the mandate of the Unruh Act.  (Marina Point, Ltd. v. Wolfson, supra, at p. 743, 180 Cal.Rptr. 496, 640 P.2d 115.)

Renteria was not excluded from bars for misconduct.   The fact he is admitted to the bars when not wearing “colors” denoting membership in a motorcycle club belies any claim his exclusion is based on reasonable rules for “deportment.”   There are no facts here which compel the conclusion he does not comport himself consistent with manners appropriate to a topless bar environment, whether wearing motorcycle club insignia or not.

Wearing apparel can and frequently does include an element of communication implicating First Amendment concerns.   Cases dealing with topless dancing in barrooms have established as much.  (Morris v. Municipal Court (1982) 32 Cal.3d 553, 564, 186 Cal.Rptr. 494, 652 P.2d 51, and cases cited therein.)   Renteria was denied admission to the bars and excluded from enjoying the public accommodations not for the style of his clothing but for the insignia on his clothes.   The exclusion rests squarely on his exercise of free speech rights.  (Cohen v. California (1971) 403 U.S. 15, 18, 91 S.Ct. 1780, 1784, 29 L.Ed.2d 284.)   Wearing the insignia of a motorcycle club cannot be deemed inherently inflammatory or provocative on the basis of the evidence adduced before the trial court.   Based on the record here, membership in an association of motorcycle enthusiasts without more is not likely to cause a violent reaction in other people.  (Cohen v. California, supra, 403 U.S. at p. 20, 91 S.Ct. at p. 1785.)

The operators of the bars have offered no evidence that wearing of club insignia has ever caused any problems in their bars.   McClelland's declaration fails to cite a single incident of inappropriate behavior caused by wearing motorcycle club insignia, although he claims 16 years of bar ownership experience.   Levy claims a “number of years of business experience,” but fails to cite a single incident of disorderly conduct traced to the wearing of motorcycle club insignia.

IV

 As required under the rules governing our standard of review, we balance the relative hardships to the parties of issuance or denial of the injunction.   The act (§ 52(c)) specifically provides for temporary injunctive relief “whenever there is reasonable cause to believe that any person or group of persons is engaged in a pattern or practice” of violating the act.   This provision represents a legislative determination that violation of the Unruh Civil Rights Act causes sufficient harm to warrant injunctive relief.  (IT Corp. v. County of Imperial, supra, 35 Cal.3d 63, 70, 196 Cal.Rptr. 715, 672 P.2d 121.)

The Legislature has determined that a pattern or policy of conduct violative of the Unruh Civil Rights Act causes harm deserving of injunctive relief.   Renteria proved a probable violation of the act.   A prima facie case of hardship entitling Renteria to a preliminary injunction was established.6

The bar owners did not demonstrate any actual hardship if a preliminary injunction were issued in this case in which they have not established a compelling state interest justifying their blanket exclusion.   Moreover, the bar owners concede they are willing to admit Renteria and other members of motorcycle clubs sans insignia.   As we have seen, any perceived danger from insignia-wearing is wholly unsupported by the evidence.

We conclude on this record Renteria has established harm to his rights under the act and the bar owners have failed to produce any evidence demonstrating adverse consequences to them should the injunction issue.

V

That part of the order denying an injunction against McFaddin San Diego 1130, Inc. stands and that part of the order denying injunctions against Dirty Dan's, Inc., Clubary, Inc., 10450 Friars Road, Inc., II.S., Inc. (erroneously sued as Club Royale In Spot II, Inc.), and The In Spot, Inc., is reversed and the court is ordered to issue a preliminary injunction enjoining and restraining those defendants, their agents and employees and all persons acting in concert with them, from enforcing a policy of denying admission to their business establishments or refusing to serve Michael Renteria and Clifford Dohrer while wearing clothing with insignia denoting membership in a motorcycle club.   Costs on appeal to appellants.

FOOTNOTES

FN1. All statutory references are to the Civil Code unless otherwise specified.   When referring to statutory subparts we omit repetition of the word “subdivision.”.  FN1. All statutory references are to the Civil Code unless otherwise specified.   When referring to statutory subparts we omit repetition of the word “subdivision.”

2.   Respondents Dirty Dan's, Inc., Clubary, Inc. and 10450 Friars Road, Inc. argue denial of the preliminary injunction was proper because motorcycle club membership does not involve “a suspect class or ‘an immutable status.’ ”   The Unruh Act is not so limited.   For example, in Marina Point, Ltd. v. Wolfson, supra, 30 Cal.3d 721, 180 Cal.Rptr. 496, 640 P.2d 115 and O'Connor v. Village Green Owners Assn. (1983) 33 Cal.3d 790, 191 Cal.Rptr. 320, 662 P.2d 427, the California Supreme Court extended the Unruh Act to prohibit discrimination in housing against families with children.   Children are not a “suspect class,” nor is childhood “an immutable status.”   Similarly, such protection has been extended to “hippies” (In re Cox, supra, 3 Cal.3d 205, 90 Cal.Rptr. 24, 474 P.2d 992), homosexuals (Stoumen v. Reilly (1951) 37 Cal.2d 713, 234 P.2d 969;  Rolon v. Kulwitzky (1984) 153 Cal.App.3d 289, 200 Cal.Rptr. 217), persons with a reputation of immoral character (Orloff v. Los Angeles Turf Club (1951) 36 Cal.2d 734, 227 P.2d 449), welfare recipients (59 Ops.Cal.Atty.Gen. 223 (1976)) and students (59 Ops.Cal.Atty.Gen. 70 (1976)).

3.   Triple A, Inc. was not served prior to the preliminary injunction hearing and is not a party to this appeal.   Renteria does not appeal denial of the injunction as to McFaddin San Diego 1130, Inc., operator of Confetti bars, whose declarations demonstrate persons wearing motorcycle club insignia were not excluded from its bars.

4.   At trial court argument, counsel for defendant Dirty Dan's, Clubary and 10450 Friars Road enlarged their answer admissions and conceded these bars exclude persons wearing insignia-clad clothing of any kind.

5.   Justice Sullivan in Boreta Enterprises, Inc. v. Department of Alcoholic Beverage Control (1970) 2 Cal.3d 85, 101, 84 Cal.Rptr. 113, 465 P.2d 1, observed “a bar is not a church.”   Imposing a topless bar dress code is the ultimate oxymoron.

6.   The record establishes 19 separate instances when each plaintiff was denied admission to the defendants' bars.   Pursuant to section 52(a), each plaintiff is entitled to minimum damages of $250 “for each and every such offense,” plus triple actual damages.   A hardship to plaintiffs results from requiring multiple lawsuits for the multiple probable violations of the act by defendants.

BUTLER, Associate Justice.

KREMER, P.J., and WIENER, J., concur.