Cabaret granted a new trial

The state Supreme Court ruled Thursday that a new trial be held to determine if the city of San Bernardino intentionally misled a judge during its battle to close down a notorious strip club that officials said was actually a brothel.

The Flesh Club closed in 1995 for nearly five years, after a judge issued an injunction banning nude dancing in the establishment. The judge used information from the city that later turned out to be wrong.

The ruling put on hold the nude cabaret’s demand for $1.4 million in lost revenue.

In 1995, a city planner testified in court that there were 220 acres zoned for adult businesses in San Bernardino and said the Flesh Club could easily move from its location on Hospitality Lane, the city’s premier business district. It later turned out that there were only 80 acres with the appropriate zoning. The Flesh Club reopened in 1999 after the injunction was ruled unconstitutional, but was shut down again last November.

Both sides claimed victory in Thursday’s decision.

Attorney Roger Jon Diamond, who has represented the Flesh Club since 1994, said proving that the city intentionally misled the judge would be a “slam dunk.”

“I think it’s a mere formality to go back to trial court and establish that misstatements were made. We all know they were,” he said. “We have the affidavits. We don’t want people to think they can carelessly, negligently mislead a judge without any consequences.”

San Bernardino City Atty. James Penman said Sandra Paulson, a former city planner who has since died, made the miscalculations.

“We will introduce her testimony,” he said. “It’s clear it was not intentional and that the lady acted in good faith. I think Mr. Diamond will be hard-pressed to prove it was intentional.”

Even if there was 80 acres rather than 220 for adult businesses, Penman said, that was more than enough space to accommodate the Flesh Club and probably dozens of other establishments of its kind.

“Two acres would have been enough,” he said. “It was never about the nude dancing for us. It was about the prostitution.”

He said that whatever the outcome of the new trial, the loser is likely to take the case to the U.S. Supreme Court.

In November, after more than 14 years of city litigation against the Flesh Club, a judge issued a temporary restraining order shutting the place down for eight months.

He said there was ample evidence of widespread prostitution.

The club plans to reopen in July, Diamond said.

City officials are confident there won’t be prostitution because the judge’s order forbids physical contact.

“The minute a dancer tries to give a lap dance, they can be arrested immediately,” said Penman.

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david.kelly@latimes.com