SAN DIEGO COUNTY ELECTIONS : Santee Bans All Adult Businesses : Prop. G Passes by 3-1 Margin; Legal Challenge Expected

Ignoring conventional legal wisdom, voters in this small, dusty East County suburb--until now better known for pickup trucks and urban cowboys--did it their way Election Day and banned all adult businesses such as topless bars, adult bookstores and X-rated theaters from their community.

“We don’t have any of these businesses here now, and we have no desire to see any,” Santee Mayor Jack Doyle said Wednesday, reflecting on the 3-to-1 victory margin for Proposition G.

The citizens initiative was put on the ballot after the City Council voted last year to allow such adult businesses in a remote area of the community. In doing so, the City Council explained that it was following the advice of the city attorney, who advised that a total ban would probably violate the First Amendment of the Constitution. However, individual council members encouraged the grass-roots initiative drive.

A band of citizens, working with local churches, took up the call and gathered more than 6,000 signatures to qualify the measure on the ballot.

“I’m not surprised as to the overwhelming (77%) vote in favor of Proposition G. It shows the community substantially supports keeping these type of activities from infiltrating into Santee, and I agree with them,” said Councilman Gerry Solomon, an attorney.

Even if the measure is declared unconstitutional, Solomon said, the battle against such establishments is far from over. “If a business like that tries to come in, I can guarantee you that hundreds, no, thousands of people will go to great lengths to make sure it’s not successful,” Solomon said.

“I’m not talking about doing anything violent,” he said, “but we’ll photograph people going in and out of those places, picket . . . (and) do whatever is necessary to stop it.”

Gloria McLean, the Santee city attorney who warned that an all-out ban was probably unconstitutional, is now in the position of defending the initiative. As for Tuesday’s vote, McLean said, “I think the citizens and the people who voted have expressed their will and their wants. The feeling is we’ll take it to the Supreme Court if we have to.”

It should never get that far, say lawyers for the American Civil Liberties Union and adult entertainment businesses in San Diego, who labeled Proposition G patently unconstitutional.

“It’s a sitting duck,” said Thomas F. Homann, a San Diego attorney who represents adult bookstores. “There is absolutely no court that will ever decide that that proposition is constitutional. It’s not even subject to even any serious argument.

“The First Amendment was designed not to protect popular books and films,” but for controversial materials that not everyone would embrace, he said.

Homann refused to say whether he will file a lawsuit to challenge the initiative. “I imagine there is a lover of liberty out there who would like to show that the Constitution must be upheld--even in Santee,” he said.

Greg Marshall, legal director for the San Diego chapter of the ACLU, said the initiative “is clearly not constitutional. There’s just no way you can override the U.S. Constitution through local legislation. The U.S. Supreme Court has repeatedly dealt with this type of use and found that cities can’t outlaw or ban this type of business.”

The only way a city can regulate topless bars, adult bookstores and X-rated theaters is through zoning laws, he said, like the one the Santee City Council established when it created a 35-acre, so-called “X-rated zone” in the northeastern part of town.

Councilman Jim Bartell, who has steadfastly held out for a ban, said: “The ACLU says the issue is one of freedom of expression. We concur with that. The citizens, through their vote, have expressed their freedom of expression. The question is which side is going to be upheld, the citizens of this community or the businesses from outside.”

Mayor Doyle said that part of the strategy in pushing the initiative was that “a vote of the people would get a stronger reading by the courts than a vote of the council.”

“But we know that hasn’t been tested yet,” Doyle said.

Whatever the legal outcome, people such as Lawrence Aguayo, an organizer of the petition drive, say the 50,000 people of Santee have spoken.

“They tell us it’s against the law to legislate morality, but that’s just what they are doing to us when they allow these things to go in,” Aguayo said.

The core group of petition gatherers are all members of the Santee Bible Missionary Fellowship, including Aguayo and Tom Burleigh, the unofficial head of the pro-Proposition G organization and a candidate for the City Council. Burleigh was not available for comment, but his wife, Pam, said:

“The vote shows that people really wanted it. The people who worked on the initiative, like my husband, are going to try and fight this thing to the end.”