Prospective Owners Wait It Out in Battle to Open Topless Club

Next to Casa Don Diego, a restaurant on Cuyamaca Street along the southern edge of Santee, is a sign welcoming motorists to the city.

The East County city, however, has not extended such a warm welcome to the three men who want to buy the restaurant and open an “adult entertainment” nightclub on the premises.

In August the owners of the Main Attraction, a Mission Valley bar featuring topless dancing, applied for a permit to operate a similar establishment in Santee. Since then, city officials here have been trying hard to block the club’s opening. Partners Sheldon Woods, Alexander Smith and Bill Stearns have been just as adamant.

In the ensuing battle, which pitted the would-be club operators against residents, church officials and various city departments, both sides have engaged in some legal bump and grind. In December, a federal judge struck down as unconstitutional a two-year moratorium on adult entertainment businesses enacted by the City Council. Earlier, one of the applicants reportedly offered a Santee minister a “donation” for his church if he would move it so that Casa Don Diego would be eligible for a conditional use permit.

When the three partners originally applied for a business license to offer “topless male and female” entertainment, the City of Santee did not have its own zoning ordinance regulating such businesses, according to City Atty. Gloria McLean.

“When we incorporated (in 1980), we just adopted a county ordinance, which prohibited an adult entertainment establishment within 600 feet of a church,” McLean said.

It was under this provision of the ordinance that the city’s planning department denied the application, noting that the Word of Life Christian Church was in an office complex on Prospect Avenue around the corner from the proposed club.

The Rev. Don Shaw said the city used his church as “a pawn” in its efforts to find grounds on which to deny the club’s permit request.

“The city didn’t even know we were there,” Shaw said. “They went out looking for us to keep this guy (Woods) out. The city was apparently going to use us as a pawn to keep him out,” and Shaw said he would have cooperated.

But the city’s plans went awry when Woods found out that the church was planning to move, Shaw said.

“He approached me and said, ‘What are your plans here?’ ” Shaw said. “He told me the story of what was going on, how he was trying to get a liquor license and that he planned to open a nightclub. And I said, ‘Well, we plan on moving.’ His mouth just about dropped open.”

Shaw said that Woods had offered to make a donation to the church to encourage it to move to larger quarters.

“He did offer to buy us out,” Shaw said. “I flat out told him if you want to donate to the church, we won’t turn you down.”

Woods never donated any money, Shaw said, because the minister had already expressed his intentions to move the 4-year-old church to a less obscure location. Shaw acknowledged that his church’s subsequent move “looked funny,” but he said he saw nothing wrong with making a deal with the club operator.

“He did not buy us out, but it would have been fine if he did,” Shaw said. “Being small as we are and having the expenses we have, we were really praying for money.”

Woods could not be reached for comment.

After submitting a letter signed by Shaw indicating the church’s plans to move, Woods, Smith and Stearns appealed to the city to reverse its denial of the adult entertainment permit.

Matthew Fouratt, Santee planning director, said, “I contacted the Casa Don Diego people and told them, ‘That’s nice,’ but that I couldn’t base my planning decisions on conjecture. So I told them the procedure--that they would have to re-apply.”

On Oct. 17, about a week after the letter was received, the City Council passed an urgency ordinance placing a moratorium on any adult entertainment businesses in Santee for up to two years.

McLean said the council enacted the ordinance to give the city staff time to conduct a comprehensive study of adult entertainment and propose an ordinance that would suit Santee’s needs.

“We have passed a number of moratoria in town with the idea that we wanted to preserve the status quo,” she said.

After the City Council denied a request by Casa Don Diego for an exemption from the moratorium, Woods and Smith went to federal court seeking an injunction against the ordinance.

In a ruling Dec. 21, U.S. District Judge Judith Keep held that the Santee moratorium violated the First Amendment, which protects topless dancing as a form of free expression. It was not the nature of the moratorium, however, that Keep found unconstitutional.

“The judge said she was not making a ruling (against the moratorium), but that something that could go on for two years was too long to infringe on First Amendment rights,” McLean said. “The city staff was asked how long it would take to do a study and have the council adopt an ordinance. The bare minimum was 150 days.”

So on Jan. 9, the council enacted another urgency ordinance, this one calling for a 150-day moratorium on adult entertainment businesses. Last Friday, Keep denied a second injunction sought by Woods and his partners, finding that the five-month moratorium did not violate their First Amendment rights.

Stearns said he and his partners intend to wait out the moratorium and submit another permit application in June.

“Before we go into a market area, we do considerable research,” he said. “The City of Santee does not have any entertainment like this and the location we picked out meets all the other requirements as far as minimum distances. It meets the San Diego ordinance, which is usually the model for other cities’ ordinances. We think that when they do pass the ordinance, we’ll fit in.”

Fouratt said the ordinance will not be designed specifically to exclude a topless club at the Casa Don Diego site.

“I don’t think we’re going to focus in on that particular corner,” he said. “If the nearest church (to the club) is 2,700 feet, the planning staff could come up with a minimum distance of 2,800 feet, but it would probably be seen as being capricious. There’s no point in bringing a draft of an ordinance to the City Council if it’s going to be shot down as unconstitutional.”