America: Land of the Free?

by Steve Mason

We make some of our greatest gains
when we see old things in new ways

After reading Kort Patterson's Real Life Tragedies and Travesties of Drug Prohibition, I had to wonder about how often such outrages occur, and about how often they go unnoticed - unless they relate specifically to you? Of course, people will be quick to tell you that this is a free country - the freest in the world. A man here is innocent until proven guilty, he is equal to every other man in the eyes of the law, and certainly he is entitled to due process when accused of a crime. Actually, it doesn't always work that way. Let me tell you about a story that began a few years ago.

The Lifestyles Organization (LSO) had just hosted its 23rd annual convention in San Diego and all seemed right with the world. This was the third year in that city, and contracts were signed for another three years - including an extra long weekend fete celebrating New Years Eve 2000 and the start of the next millennium. What could possibly go wrong?

Well about a month after LIFESTYLES '96, LSO was told there was a problem with the California Alcoholic Beverage Commission. It seems an ABC agent reported having witnessed illegal sex acts during the Masquerade Ball, which had been held on the last night of the convention. Why he said nothing at the time, why he informed neither hotel security nor LSO's security, why he did nothing to stop those alleged acts himself, is anyone's guess. Curiously, the San Diego vice squad - who also had agents present - reported no such violations.

Despite all this, the bottom line is that one individual, with no evidence, no witnesses, no lawbreakers arrested (or even named), effectively drove the more than 2000 LIFESTYLE convention couples out of town. Just like that!

This was all happening about the time that LSO was in the midst of planning its annual Halloween Dance. The hotel selected for that event was in Long Beach (about 100 miles from San Diego), and the staff there was working hard to see that the affair went smoothly, obviously hoping for future LSO contracts. What could possibly go wrong?

Well, the local ABC agent contacted the hotel, and that was pretty much the end of that. He told them that the hotel's liquor license was on the line. Since this would most likely result in the various hotel managers losing their jobs as well, the mood was suddenly grim. But the contracts had been signed so, despite the ABC's threat, the Halloween Dance came off without a hitch. Indeed, the Long Beach police were in attendance and reported no illegalities. This made no difference, however, and LSO was henceforth considered persona non grata at that facility

By now the president of LSO, Dr. Robert McGinley had tried repeatedly to communicate with the local ABC agents. They were completely unreceptive. In fact, their attitude was that since McGinley didn't have a liquor license, they didn't have to talk to him. Clearly it didn't matter that he was the one they were putting out of business. Since that sounded far too much like a Catch 22, McGinley got his lawyer and flew to the state capitol in Sacramento. Meeting with the agency heads was a friendly enough affair but, as subsequent events made plain, a total waste of both time and money.

While this was happening, plans for LIFESTYLES '97 were well underway, with Palm Springs (which is more than 100 miles from San Diego, Long Beach and Sacramento), selected as the site for the gathering. The staff of the city's convention center, and the managers of the four hotels where the conventioneers would be staying, were most accommodating. There was even talk of a community wide welcome effort similar to that afforded the gay and lesbian conclaves that have made Palm Springs their once-a-year home away from home. LIFESTYLES '97 would, after all, be bringing an estimated $1.7 million to the city's otherwise non-existent summer economy. What could possibly go wrong?

Well, the local ABC agent then called a meeting of everyone involved, and it was downhill from there. Did I say, "everyone involved?" Actually the LSO people, the ones most involved, were never officially informed. It was only after receiving a tip that McGinley and his attorney put in an appearance. But trying to explain the finer points of the law to the agent of an agency that sees itself as being above the law, is a lot like trying to teach a pig to whistle; it wastes your time and it annoys the pig.

By way of background to all this, the ABC was originally established after the infamous Prohibition Act (which was ultimately responsible for organized crime in this country), was repealed. The fledgling ABC was charged with such specific tasks as regulating the hours that alcohol could be sold, and such vague generalities as defending morality; whatever that's supposed to mean. The sloppy wording was intended to sort of wrap around the ill-defined evils of drink but, in fact, it resulted in a government bureaucracy with far more in the way of power than mission. All an ABC agent needs to do is suspend a bar's liquor license (the holding of which is viewed as a privilege rather than a right), to effectively put that business into foreclosure. Of course this is still America so the matter can be taken to court - right? Wrong! Along with having a seemingly inexhaustible supply of taxpayers' money to fight taxpayers, it's almost impossible to haul the ABC before a judge. Just read on to see why this is so.

Following true to form, the Palm Springs ABC agent told the managers of the city's convention center that merely opening the doors of the 7th annual Sensuous & Erotic Art Exhibition would result in the loss of their license. This was before anyone other than the curator even knew what was going to be in the show - which was going to be held in a room where no food or drink would be sold - or even allowed! The ABC agent contended that as long as the facility held a liquor license, he had jurisdiction over the entire complex. Following this line of reasoning, X-rated movies would be illegal in hotel rooms with mini-bars and, indeed, nudity of any kind would be prohibited in any establishment with a liquor license. This would make criminals of all those who ever showered upstairs in a hotel that had a bar downstairs.

Fortunately, the American Civil Liberties Union took an interest and obtained a federal restraining order. So the show and, indeed, the entire convention were allowed to continue almost as planned. I say "almost" because the atmosphere had by that time grown decidedly hostile, and all talk of future conventions in Palm Springs was dropped. When the media contacted the ABC office for comment, they were told that the agent in charge was on vacation.

While no one in their right mind could possibly look forward to taking on an established bureaucracy, it was at this point that McGinley felt he had no choice. It was either fight the ABC or close up shop. So a court suit was launched charging Jay Stroh, Dir. of CA Dept. of the Alcoholic Beverage Control Board, Manuel Espinoza, Chief Dep. Dir. of the CA Alcoholic Beverage Control, Gilson Grey, Administrator of the CA ABC Long Beach/Lakewood Dist., Kenton Byers, Chief Council for the CA Alcoholic Beverage Control, and Robert Luman, Chief of Police in Long Beach with violating the 1st, 5th, 9th and 14th Amendments to the US Constitution. The case centered on the ABC's gross misuse of authority, stating that the defendants conspired to undertake an intricate scheme targeting LS,O and designed expressly (with malice of forethought), to "Drive them out of California."

Arguing for the ABC in California's Superior Court on September 1st, Dana Cartozian of the Attorney General's Office, told Judge Thomas McKnew that although the agency would "politely read" his opinion, it would continue to act in kind. Judge McKnew responded "You've just thrown down the gauntlet, sir", and went on to say "I'm still going to exercise the prerogatives I believe I have" and "you can take that back to your boss and I would hope you would take it back directly because I'm offended - if the ABC is controlling expression outside of their authority, I believe I do have jurisdiction." Judge McKnew added, "If the board that you're representing is going to act like a Rambo, the best place for it to first be heard is in the Superior Court - these allegations are against individuals who are using the ABC as an instrument to carry out their own view of what should be the morals of the State of California" and "I don't see in the statute or the State Administrative Code where that authority is given to the individual defendants in this case." In short, it was Cartozian's contention that whatever may be said in high school civics classes about the right of the common man to fight City Hall, it didn't apply to the ABC. Of course, Judge McKnew would have none of that and, after hearing the case, found in favor of LSO.

And wouldn't be nice if that was the end of the story - justice, however belatedly and expensively, had finally been done! But such was not the case. Working with their seemingly inexhaustible supply of taxpayer cash, the ABC continued the legal battle for another five years. And now Justice Patti Kitching of the 2nd District of Appeals has reversed McKnew's decision saying that he was wrong to have even heard the case because his court had no jurisdiction over the ABC and the actions they take. They are, in effect, above the law as it applies to LSO and, by extension, above the law as it applies to you and to me.

Look At It This Way

No doubt you've heard the story about the fellow who said nothing when they came for the Jews because he wasn't a Jew. The tale goes on and on, with them coming for one group after another and the fellow saying nothing, until they come for him. Of course, by that time, there was no one else left.

Oh - and the next time somebody tries to tell you that this is the Land of the Free - just ask them if they have a liquor license.

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