$3.8 Million to Be Paid in Starlight Settlement

Burbank has tentatively agreed to a $3.8-million settlement with a concert promoter who won a $4.6-million judgment against the city in a lawsuit that challenged a ban against rock stars performing at the municipally owned Starlight Bowl, city officials said Friday.

Burbank officials had said they feared rock concerts would attract narcotics users, homosexuals and anti-nuclear demonstrators.

The out-of-court settlement was announced Friday by Mayor Mary Kelsey and City Atty. Douglas Holland. It will be presented to the City Council on Tuesday night and is expected to win approval easily, Holland said.

If approved, the settlement will end a costly, seven-year legal battle over efforts by Burbank to keep rock concerts out of the Starlight Bowl, now called the Starlight Amphitheatre.

In July, 1985, a Superior Court jury ordered the city to pay $4.6 million in damages, plus costs and interest, for breach of contract to Cinevision Corp., which had an exclusive contract to operate the 6,500-seat amphitheater.

Suit Filed in 1979

Cinevision’s owner, Jack Berwick, filed suit against the city in 1979, seeking more than $9 million in compensation for profits he said were lost when city officials prevented him from staging rock concerts. The city turned down all but two acts proposed by Cinevision, rejecting proposed appearances by Jackson Browne, Todd Rundgren, Patti Smith, Al Stewart, Roxy Music and Blue Oyster Cult.

At issue were clauses in the Cinevision contract that authorized the city to cancel any show that had the “potential for creating a public nuisance” or violations of state or city laws.

After the judgment was entered in 1985, the city took its case to the 2nd District Court of Appeal, but earmarked money in the general fund to pay the judgment, Holland said. The money has been earning interest along with other general revenue funds, he said.

As the case dragged on, former Burbank mayors E. Daniel Remy and Mary Lou Howard vowed to carry the appeal as far as necessary.

Asked why the city decided to settle, Holland said interest on the judgment is about $1,275 a day, with the appeal expected to take at least three to five more months. To date, he said, interest has increased the total to $5.3 million, and so the settlement would save taxpayers about $1.4 million.

Because the appeal would not be “a sure thing,” he said, the chance of losing the appeal would be “a pretty big crapshoot.” Kelsey called the proposed settlement “a good deal” and said she was “glad to have it over with.”

In a separate case, involving Berwick’s claim that the Burbank ban violated his constitutional rights, the U.S. Supreme Court in April, 1985, refused to hear Burbank’s appeal of a ruling by the U.S. 9th Circuit Court of Appeals.

The appellate court held that rock music is a form of expression protected by the U.S. Constitution and affirmed the verdict of a federal court jury that held the city and a former city councilman liable for $144,000 in damages, punitive damages and attorneys’ fees.

Where City Went Wrong

Holland said the city erred in not spelling out in its contract with Cinevision that it wanted only family-oriented entertainment in the amphitheater. But, although he appeared to dissociate the present administration from the decisions of past Burbank officials, Holland also refrained from direct criticism.

“In retrospect, it’s easy to say, ‘Why did they ever say that or do that?’ ” he said, but added that “the actions of the past councils were motivated only by a sincere concern for the best interests of Burbank and the community.”

The auditorium is now under contract to Tim Pinch, whose contract specifies that the city wants a “variety of acts,” including rock music, Holland said.

Holland said he is also seeking Council approval to pay $100,000 to the law firm of Hufstedler, Miller, Carlson & Beardsley to fight a decision by the city’s insurance companies not to pay the cost of the judgment. The city has already paid the law firm $100,000 for defense work on the case.