Sex-Newspaper Suit Thrown Out : News racks: The distributor argues that Simi Valley was pursuing charges against him in retaliation for his original lawsuit.

Calling it “frivolous,” a federal judge dismissed a lawsuit Thursday against Simi Valley officials and attorneys filed by a distributor of sex-oriented newspapers.

The suit by Arthur Fishel alleged that the defendants had conspired to deprive him of his right to challenge the constitutionality of a city news rack ordinance.

The dispute started when the city attorney filed criminal charges against Fishel in April, 1989, alleging that he did not comply with an ordinance that requires news racks carrying adult publications to be partially covered. The ordinance went into effect in June, 1988.

Fishel in turn filed a lawsuit against the city in April, 1989, in Ventura County Superior Court, claiming that its news rack ordinance is unconstitutional because it violates his First Amendment right to free speech. The case is still pending.

Meanwhile, the city’s charges were dismissed last month by Ventura County Municipal Judge Art Gutierrez, who ruled that the city had discriminated against Fishel. The city is appealing the case, which is scheduled to be heard in Ventura County Superior Court on May 30.

Fishel filed a federal lawsuit against the city April 3 after the charges were dismissed.

During Thursday’s hearing in U.S. District Court in Los Angeles, Don Cook, Fishel’s attorney, argued that the city of Simi Valley is pursuing the criminal complaint against his client in retaliation for the original lawsuit he filed against the city in state court. He said the city’s actions are simply an attempt to get Fishel to drop his case.

But U.S. District Court Judge Irving Hill disagreed.

“The case should be dismissed on the grounds that there has been inadequate showing of any . . . harassment” by the defendants, Hill said.

Afterward, Cook said his client would appeal. Fishel, a Simi Valley sanitation worker who lives in Canoga Park, did not appear in court and could not be reached for comment.

“It’s outrageous,” Cook said, referring to Simi Valley’s news rack ordinance. “Everybody recognizes that these laws are unenforceable.”

According to Cook and court documents, Fishel still distributes sex-oriented newspapers in Moorpark, Thousand Oaks, Camarillo, Newbury Park, Agoura, Oxnard and Ventura.

Cook said while some of those cities have threatened legal action against his client, Simi Valley is the only one that has actually done so.

Simi Valley officials said Thursday that the intent of the city’s news rack ordinance is not to ban adult publications but simply to keep them from being viewed by minors. Penalties for violations of the ordinance include a $1,000 fine or six months in jail or both.

“I certainly do think parents have some rights to what their children are exposed to,” Councilwoman Ann Rock said. “I don’t have a problem with that.”

Councilwoman Vicky Howard agreed, saying that the ordinance was prompted by complaints from citizens who found the publications offensive and too accessible to children. “It’s like selling alcohol to a minor,” she said.

Fishel still faces disciplinary action from the city for violating a policy requiring employees to seek approval from their supervisors before obtaining outside employment. However, Mayor Greg Stratton said the matter has been put on hold until all legal actions between Fishel and the city have been resolved.