Promoter Wins $4.6 Million From Burbank in Suit Over Concert Bans
A Los Angeles Superior Court jury Tuesday ordered the City of Burbank to pay more than $4.6 million in damages to a concert promoter who alleged that the city illegally prevented him from staging rock concerts at the municipally owned Starlight Bowl in 1979.
In an 11-1 decision, the jury ruled that the City Council breached a contract with the promotion firm, Cinevision Corp., when it banned concerts by rock acts such as Jackson Browne and Todd Rundgren. City officials alleged at the time that the concerts would attract narcotics users, homosexuals and anti-nuclear demonstrators.
Burbank officials said they will appeal the verdict. If the award is upheld, they said, the $4.6 million would have to come from the city’s general fund, which is generated by revenue from taxpayers.
The city has insurance to cover negligent breach of contract, but not willful breach of contract, according to City Attorney Doug Holland.
“I’m just in a state of shock,” Mayor Mary Lou Howard said shortly after the verdict was announced. “We felt that the city had a very good case. I was very confident that we didn’t have any liability, or that much liability. This is a terrible blow. I’m just sick to my stomach.”
Alan Rothenberg, the attorney representing Cinevision and company director Jack Berwick, applauded the verdict.
“We finally got what we deserved after all these years,” he said. “This is a fair amount. The conduct of the city was inexcusable. We’ve proven that. . . . We are very, very pleased.”
The jury found that the city not only breached Cinevision’s five-year contract, but also illegally blocked the promoter’s attempt to renew the contract in 1979. The contract, signed in 1975, authorized the company to provide live entertainment during the summer at the Starlight Bowl and included a clause allowing Cinevision and Berwick to renew the deal for another five years.
Berwick filed the lawsuit in 1979, alleging breach of contract and seeking to recover profit he said he would have made from the canceled concerts and extended contract.
The verdict dealt the second major blow in three months to Burbank’s ban on rock concerts in the city-owned facility.
In a separate case involving the promoter’s claim that the city violated his constitutional rights, the U.S. Supreme Court in April also ruled against Burbank. The court refused to hear Burbank’s appeal of a ruling of the U.S. 9th Circuit Court of Appeals that the city improperly canceled the concerts on the “basis of content” and other “arbitrary factors.”
The Court of Appeals declared that rock ‘n’ roll, like other music, is a “form of expression” protected by the First Amendment.
In the federal case, a U.S. District Court jury in 1983 held the city and former Councilman Jim Richman liable for $20,000 in damages and $119,000 in legal fees. The city also was ordered to pay about $46,000 in interest and attorneys’ fees for the promoter.
The city also spent at least $50,000 in legal fees for a Los Angeles attorney it hired to handle that case.
But Tuesday’s verdict could be far more financially damaging to the city.
City Attorney Holland called the damage award “an extraordinary, extravagant amount of money. We’re extremely disappointed. I don’t know what the rationale for the jury could have possibly been.”
In its state court suit alleging breach of contract, Cinevision had asked for damages of more than $9 million, Rothenberg said. “That was a prayer, but we’re still quite happy with what we got,” he said.
At issue were parts of Burbank’s contract with Cinevision that authorized the city to cancel any show that had the “potential for creating a public nuisance” or would violate state laws or city ordinances.
With Richman being the most vocal advocate, the city in 1979 turned down all but two acts proposed by Cinevision Corp., rejecting Browne, Rundgren, Patti Smith, Al Stewart, Roxy Music and Blue Oyster Cult.
Browne was rejected for his opposition to nuclear power, and Rundgren and Smith were rejected because city officials feared they would attract a homosexual crowd, Rothenberg contended.
Concerts by Poco and Robert Palmer were approved by the city, but never were held because the promoter said he could not stage a summer season at the bowl with just two performers.
When informed of Tuesday’s verdict against the city, Richman chuckled and said, “Better them than me.” Richman, a councilman from 1977 to 1981, when he was defeated in a reelection effort, was not a defendant in the state court case.
Richman said former Councilmen Leland Ayers and E. Daniel Remy were directly responsible for the city’s legal defeat.
“Those two voted to ban the rock acts for all the wrong reasons,” Richman said. Richman said that, although he voted against the concerts because of drug and traffic problems in the residential area surrounding the bowl, Remy and Ayers “just wanted to have their say on who went where when. Their reasons for banning the concerts were not valid. This $4.6 million should be laid directly at their feet.”
Remy and Ayers could not be reached for comment.
Howard was the only current city official who was in office when the city voted against the concerts. She said she abstained from the vote to prevent the concerts.
Holland said the city will file a motions for a new trial and to reduce the amount of the award.
The city argued that Cinevision had failed to produce what it had promised the city, family oriented entertainment that would appeal to the community, rather than attract audiences from surrounding areas.