HomeMy Public PortalAboutCity Council_Minutes_1963-02-27_Special 1963ADJOURNED MEETING
PUBLIC HEARING
February 27, 1963
JOLLY COACHMAN
Mayor Pro Tem Nunamaker oalled the adjourned Public Hearing
to order at 7:30 P. M. at the City Hall, and led the Pledge of Allegi-
ance to the Flag.
Rev. Lyman Ellis of the First Methodist Church gave the in-
vocation.
Roll Call as follows:
PRESENT: Councilmen - Dickason, Fitzjohn, Merritt, Nunamaker
ABSENT: Councilman- Tyrell
ALSO PRESENT: City Attorney Shatford and City Manager
Woollett
Mayor Pro Tem Nunamaker made a statement about the capacity
of the room being the number of seats available and anyone standing
would have to stand outside by the ruling of the Fire Dept.
At this time Mayor Pro Tem Nunamaker advised regarding the
request at the last Thursday Hearing that he disqualify himself, that
he had turned the matter over to the City Attorney for his ruling.
City Attorney Shatford stated as follows: "I have prepared
a written opinion and wish to read it into the record so .there will
be no question about the matter being properly brought before the
Council. 1 might say off -hand if anything comes out of this Hearing
at all 1 am going to be an expert on disqualifications, in this case
having ruled on it as far as the Mayor is concerned, and now on the
Vice - Mayor.
'The subject question of disqualification of the City Coun-
cilman A. L. Nunamaker from acting as Councilman in the determination
of whether the license of A. L. Broadhead should be revoked. The
claim of bias or prejudice made against Councilman A. L. Nunamaker on .
basis of statements made by Councilman Nunamaker at a regular meeting
of the City Council held on Jan. 28, 1963, pursuant to Government
Code Section 41611 of the State of California, it is the duty of the
City Attorney to advise city officials in all legal matters pertaining
to the City. A demand for disqualification having been made it is the
duty of the City Attorney to rule upon said demand as a legal matter.
The factual situation Exhibit #9 was received in evidence by the City
Council. I will not read again that which was read by Mr. Howser and
is a part of the record and in the record, and therefore I do not have
to go over that again.
The analysis is as follows: based on the foregoing facts,
that is statements made by Mr. Nunamaker at the meeting of January 28,
1963, the issue is whether Councilman Nunamaker is legally disqualifiec
from acting because of remarks he made before the City Council on Jan.
28, 1963 . The rules respecting Judges in regard to disqualifications
as to bias or prejudice do not apply to City Councilmen sitting in a
quasi judicial capacity in a Hearing to determine whether a license
they have previously granted should be revoked. Judicial rules of law
do provide help in questions of the issue. It should be stated in
clarification that the reason judicial reasons do•not apply is.•at
least two -fold. In the first place the general rules of court proceed -
ure as to strict rules of evidence do not apply and there is a case
directly on this: Wolf Co. vs. Los Angeles which appears 178 Ca1,610.
In the second place the capacity of a City Councilman sitting as one
of the Hearing officers in the City Council's determination as to
whether the City should revoke a license previously issued: as compares'
to a Judge sitting as a Trial Judge of a matter not previously submitt
ed to him it is entirely different. Of Judges it is said that they
must be disinterested and impartial to properly administer justice and
this statement comes from 28 Cal. Jur.573, on Judges. A Judge is bet-
ter qualified to be disinterested and impartial where he has no pre-
vious knowledge of the matter he is to Judge before it comes before
him.
423
Public Hearing, February 27, 1963, page 2
A Councilman is an entirely different situation as this
particular Hearing in respect to A. L. Broadhead most clearly demon-
strates. Each of the Councilmen has previous knowledge of the licen-
see and has previously considered the matter of revocation of the
license in question. In this instant the matter, as in many matters
regarding licenses, zone variances and zone changes which come before
the City Council, the Council gains knowledge and each of the Council-
men at some stage of the proceedings must entertain an opinion as to
his feelings so that he may vote one way or the other. In hotly con -'
tested matters the Councilman can be cited to be biased or prejudiced
in one way or the other. The Councilman who may not have allowed the
license issued in the first place cannot be disqualified from acting
in their elective capacity because of any previous expression made at
that Hearing or at any time the matter was before the City Council for
action. Even the limited action of setting the matter down for a
Public Hearing requires some opinion as to whether or not the matter
should be heard. Equally the protestants could say that those who
voted for the license in the initial instance or voted against its re-
vocation at a subsequent Hearing should be disqualified for bias or
prejudice because of their previous expressions. Carrying the fore-
going to its logical conclusion if each of the Councilmen are to be
barred for expression of bias or prejudice because of previous express
sions either during a Hearing before it, or after it, or at a time of
determination respeccing a new Hearing, there would be no one to act
in behalf of the City and the licensee could never have his license
revoked no matter how grievous his conduct might be.
Obviously the City Council have a duty to act, and they must
act, but this does not lessen the fact that they must act in fairness'
and honesty which is mandatory of anyone who acts in governmental
capacity and particularly in a quasi judicial capacity. To dispel'
any doubt as to the fact that Councilman Nunamaker cannot be disquali-
fied, the 'rule respecting Judges and their disqualification for bias
and prejudice does not support disqualification under the circumstances
It has been held in several Calif. cases that any opinion of a Judge
expressed during the course of judicial proceedings in what the Judge
considers to be a discharge of official duties, is not evidence of
bias or prejudice, and I cite three cases:
Friedman Estate 171 Cal. 431
Fishbaugh vs. fishbaugh 15 Cal. 7445
Kreling vs. Superior Court #25 Cal second 305
Since the statement of Councilman Nunamaker was made in an
official capacity at a regular meeting, and since Councilman Nunamaker
has a duty to act in his official elected capacity unless good cause
is shown to the contrary, which has not been shown in this matter,
any further consideration serves no useful purpose. The demand of
Counsel for the Licensee that Councilman Nunamaker disqualify himself
is denied and the Chair should so declare. "'
Councilman Nunamaker acting as Mayor Pro Tem stated he will
sit in this Hearing and proceed with his duty as he wa s elected to do.
At this time the Mayor Pro Tem gave the opportunity of
both the protestants and the licensee to produce any more evidence
they might wish to be considered at this Hearing.
Attorney Howser for the Licensee requested David Stubbs
to come forward, and proceeded to question him. Mr. Stubbs stated
he and his brother provided the entertainment at the Jolly Coachman
and had since its beginning, although they also entertained elsewhere
and that their entertainment was basically the same as performed here
at the Jolly Coachman. He advised they had been more careful of their
performance since the first Hearing.
Attorney Welton for the complainants requested permission to
call a witness in rebuttal, and called Lyman Ellis.
Lyman Ellis, of the Methodist Church, advised he went to the
Jolly Coachman after the last Hearing on Febr. 21, 1963, and proceed-
ed to relate stories he heard there as part of the entertainment.
424
Public Hearing, February 27, 1963, page 3
Rev. Ellis was questioned by Attorney Howser regarding stor•4es he may
have heard elsewhere and he advised they did not compare to those he
heard at the Jolly Coachman.
Mayor Pro Tem Nunamaker called Capt. Pascoe to the stand to
make a statement and to be questioned by any of the Councilmen who so
desire.
Capt. Pascoe stated he had no statement to make but would
answer questions. He advised he did not consider the Jolly Coachman
any more of a police problem than other taverns in Temple City, and
that he had full cooperation from Mr. Broadhead. It was also brought
out the reference made earlier in the Hearing regarding a police car
that it was not a car from the Sheriff's Dept. but from a neighboring
area and it had been identified as such and the officer involved was
disciplined. He was not a member of their Department.
Councilman Dickason moved to close the Public Hearing, Coun-
cilman Fitzjohn seconded, roll call vote carrying the motion as follows
AYES: Councilmen - Dickason, Fitzjohn, Merritt, Nunamaker
NOES: Councilmen -None
ABSENT: Councilmen - Tyrell
City Attorney Shatford advised Mayor Pro Tem Nunamaker to
give both attorneys an opportunity to make any argument before calling
upon the Councilmen.
Attorney Welton re- stated the facts concerning the cause of
the Complainants, also that from the previous Hearing he had ample
notice that his entertainment was not proper and not conducted in a
decent manner which was proper in the community, not conducive to the
IIwelfare of the community and he has done nothing to clean up this en-
tertainment.
Attorney Howser reminded the Council they had a duty to this -
community and not to just a few. He felt there was nothing extraordin-
ary about this entertainment. He stated he would like to see this
matter go to court, and that he meant the people complaining take the
case to court and prove in court where it belongs, as to whether he
is conducting and maintaining a public nuisance in this community. He
advised in all sincerity he had read the minutes of this City Council
meeting previously and he respects his colleagues judgement as to
whether or not Councilman Nunamaker should be disqualified. Quote
"I think you are disqualified in case of Sachs vs. Beverly Hills..
These people unfortunately own homes that are immediately adjacent to
an area zoned for business, and regardless what the business is they
are going to have to put up with a certain amount of inconvenience.
Re Sachs vs Beverly Hills: -you are to act as a..fair and impartial
tribunal. I think when any Councilman, and I am not just checking on
you Councilman Nunamaker, when any City Councilman will permit his
fellowman in a community to prevail upon him to try and influence
where his judgment is, and where he goes out and makes investigations-
on his ownt that he is not giving my client a fair and impartial Hear-
ing which he is entitled to. We are supposed to take evidence in these
Council Chambers. This is one of the strangest cases where you have a
situation that you have a business operation and in conduct of that
IIbusiness not one single arrest either by A.B.C., by the Sheriff's
Office, or any other agency enforcing the law. It would appear to me
to be pretty drastic to ou gentelemen in view of that record to come
along and say this gentleman is out of business except that we are
going to permit him to sell beer."
At this time Mayor Pro Tem called upon the Councilmen to
state their opinions.
Councilman Dickason: At this time I would like to read my
opinion into the record. This Hearing has concerned itself with
whether or not Dance License #8135 and Entertainment License #8136
of Licensee, Mr. Broadhead, proprietor of the Jolly Coachman at 9135
Las Tunas Dr., should or should not be revoked. I herewith present
425
Public Hearing, February 27, 1963, page 4
my opinion and conclusions based on the testimony presented at the
Public Hearing on Febr. 21, 1963, and the additional testimony placed
here this evening. Both the licensee and complainants are represent-
ed by legal counsel and the City of Temple City had the services of
the City Attorney.
My first comments)! would like to talk about Dance License #
#8135, After reviewing the testimony that has been presented 1 have
reasonable doubt that the Dance License can be judged responsible for
the disturbances testified to. Counsel for the Licensee ably demon-
strated that extraordinary zoning problems exist where R -1 residential
property abuts a commercial zone. The usual buffer zone of R -3 and
R -2 are missing in this particular case. The tavern is located in
three blocks on the north side of Las Tunas Dr. where this condition
exists. 1 believe the owners of the residential property are the
victims of an unfortunate condition of zoning which was established
while the area was still county territory. 1 further believe the
disturbance testified to would not have become a complaint if this
condition did not exist. However I believe that certain restrictions
should be included in this license which will help to alleviate the
disturbance problems.
For example the Licensee should be instructed not to use -his
rear door except in cases of fire or other extreme emergency. Off -
street parking should be improved by providing marked or paved lots
where cars now park hap- hazardly. We should post "No Parki-ng" signs
at appropriate hours and locations in the vicinity of near -by residen-
tial property to help alleviate a little of noise of people coming
and going to their cars. In my judgment Dance License #3136 should be
continued with these improvements which will help the neighboring
home owners in their right to enjoy their property and in their pur-
suit of happiness.
My next recommendation concerns Entertainment License #8136.
Legal Counsel for our City has pointed out to the Licensee that the
City of Temple City is proceeding pursuant to Section 91 of Ordinance
#5860 of the County of Los Angeles, and adopted by the City of Temple
City by Ordinance No. 60 =10. In my opinion the following sections
of paragraphs of the ordinance are pertinent to the testimony and
evidence presented at the Hearing.
Section 92 which is Grounds for Revocation, paragraph E,
says the Licensee has conducted the occupation or other activity in
an immoral or disorderly manner.
Section 2061. Grounds, paragraph B, the establishment has bee
been operated in an illegal, improper, disorderly manner.
Section 2085 Indecent Performance. No entertainment may be
conducted where an entertainment license is required in which any per-
son either entertainer, employee, patron, or guest, participating dir-
ectly or indirectly sings or speaks any obscene or indecent words of
performs any lewd or indecent acts. After carefully weighing the tes-
timony-presented at the Hearing against these Sections of Ordinance -
No. 60 -10, in my judgment the testimony clearly shows that the Licen-
see is in violation of Ordinance No. 60 -10. In particular I find the
testimony about following the bouncing balls where the performers
assume a squatting position, bouncing with the music, as indecent,
lewd, and immoral. The same is true of much of the other stories
that have been presented here which you have all heard and I will not
go into. These acts do not have the double entendre and are not the
clever type of stories you usually hear. In my opinion they are just
straight rot and filth. I feel this has no place in the community
where I and many other persons have chosen to live because of its high
standards. The Licensee appeared before this Council a few months
ago. The charges were not very specific and indirect and hear -say
testimony which caused the complaint to be rejected by this body on
the advice of our City Counsel.The Licensee obviously has made no
attempt to chance his show since this time.
426
Public Hearing, February 27, 1963, page 5
I wish to congratulate both sides and our City Council in
the manner in which this Hearing was conducted. It is certainly an
improvement over the first one which we struggled through. I can
arrive at no other conclusion thon that the Licensee is in violation
of- Ordinance No. 60 -10, and should have Entertainment Licensee #8136
revoked."
Councilman Fitzjohn stated his opinion as follows: "My duty
Ias a Councilman is to protect the safety, health and welfare of all the
people of this Community. When ! can no longer do this 1 will not
serve in this capacity. ! have listened to the evidence given last
Thursday evening and I an convinced there is only one solution to this
problem. I refer to County O'dimInce #5860 adopted by Ordinance No.
60 -10 of the City of Terple City, Paragraph D 2061. I realize lewd,
indecent, obscene, or any crin-lo involving moral turpitude, can accord-
ing to the law be interpreted in many differert ways. I would like to
refer to Orloff vs L. A. Turf Club. The tern immoral has been defined
generally as that which is hostile to the welfare of the general public
and contrary to good morals. Immorality has not been confined to
sexual matters but includes conduct not consistant with rectitude or
indicative of corruption, indecency, depravity, dissoluteness, or as
willful, flagrant, or shameless conduct showing moral indifference to
the opinions of respectable members of the community and as an incon-
siderate attitude to good order and the public welfare. There is no
doubt in my mind that this applies in this case. This type of enter-
tainment attracts a certain few according to the testimony, the young
adult or college crowd, but I cannot believe that our moral fibre in
this country has broken down to the extent that it would include the
majority. If this certain few desires this form of entertainment I
would suggest they seek elsewhere. i don't believe Tample City wants
this type of business in our community.
I also refer to paragraph B section 83 Public Nuisance.
There is no question in my mind that the residents of this neighborhood
were justified against noise, commotion and the many sleepless nights
caused by the Jolly Coachman. If some action is not taken by our City
Council many of these residents will be forced to sell and move else-
where. Whether it be in this location or any other location in the
City a condition like this is our duty as Councilmen to protect our
people so they can live normal and happy lives."
Councilman Merritt: "I seem to have come to a somewhat dif -•
ferent conclusion. Although there seems to be somewhat of a nuisance
I do not believe that the nuisance is of an extenuating type of nui-
sance. There are other nuisances within the City which effect resi-
dences and businesses alike that are somewhat, as far as annoyances
go, on the same plane. As to Councilman Dickason's mention of possibly
closing or marking off the public streets in a portion of the area,
we would come into a problem there in prohibiting or licensing parking
in public streets and which we have run into problems before.
As to program change I have not been in the Jolly Coachman
other than two previous times of the previous Hearing. I understand
the program has been changed considerably since that time. If I were
to want to close or to do away with neighbors or business neighbors
that I am connected with because they are a bother to me I can find
some I would like to do away with. As has been stated as far as the
IIjokes, I have heard many jokes in public in coffee shops and restaur-
ants that I have been in that for the most part are not much better
or worse than those stated here. It also has been stated this being
an area zoned for business, and happens to be adjacent to residen.
tial area, this is a problem, but I do not believe we can do away with
every business that happens to abut a residential area because it may
be offensive to that area. There may possibly be some way worked out,
a buffer zone if such can be the case, it will have to be studied.
I do not support the petition."
Councilman Nunamaker :" I would say at this time as Attorney
Howser says, it is the solemn duty of every Councilman to investigate
everything that comes to his attention in the community, that causes
any disturbance or any problems whatsoever. Or even investigate as
we have in the library, every phase of building a new library in the
427
Public Hearing, February 27, 1963, page 6
community and nobody asked me to resign because of that , because
investigated on that. It is my duty as a citizen and as a councilman
being elected by the citizens of this community, to look after the
welfare and health of the people in this community and to use my judg-
ment at all times as I see fit for their benefit. And if my Judgment
is not what my people want that have elected me to this office they
can remove me the same way as they put me here, and until they do I
will sit in my capacity as a Councilman with the rest of my fellow
Councilmen and render decisions as they have tonight. As far as the
Dance License #8135 I have not enough grounds to refuse this Dance
License. I would say though because of the nuisances caused in the
neighborhood it has bothered, and as I said in the transcript it has
been a constant source of a nuisance to all of us because of the calls
early in the evening and late at night. I have seen every Councilman
sitting here and including the Mayor, down there as late as 1:30 A. M.
and 11 in the evening, have seen them inside and been inside myself,
and so it is our duty, and we did go down there and investigate this
as a nuisance, and that is what I said before. I would like to get
rid of it as a nuisance. I think under Dance License we could do
several things to stop this nuisance. We could continue the Dancing
License and have instrumental or mechanical music only for dancing.
No entertainment. The rear door should be closed after 7 :00 P. M. and
no entrance or exit from it only in case of fire and that should be
enforced so that the noise that is caused from instrumental music
and dancing would not bother neighbors clear across Hermosa. This
door to remain closed at all times because the building is air- condi-
tioned. The corner lot that is being used for public parking which
has never applied to the City for public parking, should be brought up
to Code according to Section 255 of Zoning Ordinance and Section 261
of Zoning Ordinance that Temple City operates under. Should post
"No Parking" signs on Loma on both sides of the street from Las Tunas
Dr. to Hermosa, no parking from 7 :00 P. M. in the evening to 6 :00 A.M.
in the morning so it would not interfere with any of the business that
does on during the day. That would do away with the noise,( believe
in this area, because we do have a problem there.
As far as Entertainment License #8136, from all evidence that
has been given here that I can see and under the law that we have here,
Section 2085 that we granted this license under, that it should be
revoked because of the program that has been put on from testimony
that has been shown here in this room."
Councilman Fitzjohn: "I would like to make the motion that
Entertainment License #8136 be revoked, Councilman Dickason seconded,
motion carried by the following roll call vote:
AYES: Councilmen- -Dickason, Fitzjohn, Nunamaker
NOES: Councilmen- Merritt
ABSENT: Councilman - Tyrell
At this time Attorney Howser wished to put a statement into
the record where he said it belonged, as follows " a statement to say
that Councilmen Fitzjohn and Councilman Dickason read at the meeting
tonight their opinion in this matter from a statement that was pre-
pared prior to the conclusion of this Hearing tonight."
City Attorney Shatford stated he thought that was out of
order and immaterial. Attorney Howser requested his comment to be in
the record.
Councilmen Dickason and Fitzjohn both stated they made some
changes in their statement due to testimony as presented
Councilman Dickason: "I move that Dance License #8135 be
continued with the restrictions as enumerated by Mayor Pro Tem Nunamak-
er to be included, and I would also include In that motion instructions
for our staff and City Attorney to draw up the necessary Resolution
and /or Ordinance to put this into effect. Motion carried by the
following roll call vote:
AYES: Councilmen- Dickason, Fitzjohn, Nunamaker
NOES: Councilmen - Merritt
ABSENT: Councilman- Tyre=11
428
Public Hearing, February 27, 1963, page 7
Councilman Merritt moved to adjourn, Councilman Fitzjohn
seconded, the Public Hearing was adjourned by the Council at S:15
1 ATTEST:
1
1
ayor Pro Tem
429