Coe v. City of San Diego
208 Cal. Rptr. 3d 73
Cal. Ct. App.2016Background
- Coe operated a San Diego nude-entertainment business under a police permit; the venue had private dance rooms and paid performers as independent contractors.
- Over several years the City documented numerous violations of municipal six-foot, no-touch, and no-fondling rules by many entertainers during overt and covert inspections; some violations occurred with security present but not intervening.
- Coe had prior enforcement history: suspensions and monetary penalties in 2006 and 2012–2013, attended mandatory training, and implemented mitigation measures (lighting, monitors, security placement, secret shoppers, discipline policy) but violations persisted.
- The City revoked Coe’s nude-entertainment permit in June 2014 for a pattern of violations and negligent supervision; Coe administratively appealed and lost after a four-day evidentiary hearing.
- Coe petitioned for writ of administrative mandate in superior court arguing (1) municipal provisions were void for vagueness, (2) revocation rested on hearsay and insufficient evidence, and (3) due process was violated by delay and by an arbitrary penalty; the superior court denied relief and this appeal followed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Vagueness of §33.0405 ("caused/condoned" and "reasonable corrective action") | Terms are undefined and provide no objective guidance to permittees or enforcers | Words have ordinary meanings and context supplies sufficient specificity for regulated parties | Not unconstitutionally vague; ordinary meanings + regulatory context satisfy notice requirement |
| Vagueness of §33.0403(a)(5),(6) (negligent supervision; inability to perform duties) | Provisions lack standards, invite unbridled discretion, and subdivision (a)(5) improperly requires patrons to describe violations | Provisions use ordinary terms, require specific acts/patterns and are contextually clear | Not unconstitutionally vague; statute gives reasonable certainty in context |
| Due process — delay/accumulation of violations before notice | City’s delayed warning letters prejudiced Coe and deprived her of meaningful corrective opportunity | City delayed to protect undercover officers; revocation was for an ongoing pattern despite repeated warnings and training | No due process violation; Coe failed to show actual prejudice and City repeatedly warned and assisted her |
| Evidentiary basis / hearsay — reliance on police reports | Decision rested entirely on hearsay reports which are inadmissible | Reports are admissible under Evidence Code §1280 (official records) and administrative rules allow hearsay; multiple officers testified | Reports largely admissible as official records; even if some reports were not, hearsay was admissible in administrative hearing and seven officers testified; substantial evidence supports findings |
| Abuse of discretion in penalty selection (revocation vs suspension) | Revocation was arbitrary, based on amorphous "totality" standard rather than objective criteria | City considered warnings, frequency/severity of violations, ineffective corrective measures and incentive structure; revocation reasonably necessary | No abuse of discretion; agency permissibly chose revocation given repeated, persistent violations and ineffective remedies |
Key Cases Cited
- Fukuda v. City of Angels, 20 Cal.4th 805 (discussing administrative mandamus review standards)
- JKH Enterprises, Inc. v. Department of Industrial Relations, 142 Cal.App.4th 1046 (standards for de novo review of legal questions in administrative mandamus)
- Krontz v. City of San Diego, 136 Cal.App.4th 1126 (due process and revocation of city business permits based on pattern of violations)
- People v. Rubalcava, 23 Cal.4th 322 (void-for-vagueness principles)
- People ex rel. Gallo v. Acuna, 14 Cal.4th 1090 (contextual interpretation cures vagueness)
- Ward v. Rock Against Racism, 491 U.S. 781 (perfect clarity not required for regulations restricting conduct)
- People v. Linwood, 105 Cal.App.4th 59 (reasonable certainty and ordinary usage satisfy vagueness challenge)
- Walsh v. Kirby, 13 Cal.3d 95 (agencies may not accumulate violations to impose excessive cumulative penalties absent notice/intent to induce compliance)
- People v. Martinez, 22 Cal.4th 106 (official records hearsay exception — timeliness and trustworthiness considerations)
- Miyamoto v. Department of Motor Vehicles, 176 Cal.App.4th 1210 (timeliness in official records exception)
- Rupf v. Yan, 85 Cal.App.4th 411 (police reports based on firsthand observations are generally trustworthy)
- McNary v. Department of Motor Vehicles, 45 Cal.App.4th 688 (trustworthiness of official reports)
- Snelgrove v. Department of Motor Vehicles, 194 Cal.App.3d 1364 (admissibility of police reports)
- Komizu v. Gourley, 103 Cal.App.4th 1001 (administrative hearings may rely on hearsay if supported by competent evidence)
- Cassidy v. California Bd. of Accountancy, 220 Cal.App.4th 620 (review of agency penalty as abuse of discretion standard)
- Harris v. Alcoholic Beverage Control Appeals Board, 212 Cal.App.2d 106 (establishing that recurrent violations suggest licensee permission/consent)