By Anna Pulley
By Erin Sherbert
By Chris Roberts
By Erin Sherbert
By Rachel Swan
By Joe Eskenazi
By Erin Sherbert
By Erin Sherbert
The City Attorney's Office arguably interprets public nuisance broadly. "We don't rate nuisance," says Carrera. "It either is or it's not. They're all equally egregious. Someone might say that [a bar] selling crack is more egregious than selling alcohol to minors, but that doesn't mean we won't prosecute both. The community deserves both kinds of nuisances to be eradicated."
But in its fervor to clean up shady businesses, some business owners and their attorneys say, the city fails to consider the shades of gray that exist in the real world.
The Magic Donuts case is a good example.
With a timid affability, Roger Chao serves a bearded, big-bellied customer at his doughnut shop. Chao scoops up a glazed doughnut from the neat row of pastries glistening from behind the glass case and quietly asks for 65 cents.
Roger has been in the doughnut business since coming to the United States from Cambodia in 1980. For the first few years, Roger earned minimum-wage paychecks as the baker at two different Winchell's Donuts in Southern California -- he worked a day shift at one, and then went straight to the night shift at the other. When he moved to the South Bay, it seemed only natural that he would open up his own doughnut shop.
The Chaos, who both camped in the Cambodian jungle for over six months to escape the terror of Pol Pot's regime, poured their scant life savings into operating a San Jose doughnut shop, but it was not a financial success. When Lin Chao's brother bought a shop in San Francisco, the Chaos decided to relocate. "We came to San Francisco because the income [in San Jose] was not enough to support the family," Roger says. "The family was growing. We wanted to find a better place to live."
About a year after the Chaos took over the Mission District doughnut shop, undercover police officer Kevin Whitfield walked into Magic Donuts at a minute past midnight on Sept. 11, 1998. The officer quickly made eye contact with one of the two men working behind the counter. Pulling a gold necklace, bracelet, and gold bar from his pocket, Whitfield flashed the merchandise at the two minimum-wage doughnut shop employees.
The younger of the two employees approached the counter. Grabbing the gold bar, he asked how much Whitfield wanted for it. "Let me have $40," Whitfield said. The other doughnut shop employee began eyeing the necklace and bracelet. Whitfield told the men that he had broken into a house and stolen the jewelry. After examining the gold through a magnifying glass, one worker asked some patrons in the store for some cash, and collected enough to pay Whitfield.
Undercover police would come back to Magic Donuts three more times to sell stolen jewelry, cameras, and video equipment to late-shift employees. After the fourth sting, police Inspector Gary Fox went to Magic Donuts in October 1998 with a search warrant, looking for the stolen merchandise sold to doughnut store employees. After searching the front of the shop and breaking down the back office and storeroom doors, Fox found none of the stolen goods. Some items were later found at the homes of three employees.
The sting operation would become the trophy evidence in the city's public nuisance lawsuit filed against Magic Donuts in May 1999. A year before, the Chaos had received a letter from the City Attorney's Office warning them that Magic Donuts was a public nuisance because of alleged drug and criminal activity at the store. "There has been an average of nine calls per month to the police regarding your property. There have also been numerous drug-related arrests and arrests for aggravated assaults. We have also received reports from residents of the neighborhood that stolen property is being stored and sold on the premises," the letter said.
The letter said that unless the doughnut shop abated the nuisance -- including hiring a security guard and ejecting drug dealers from the premises -- the City Attorney's Office would sue. Lin and Roger Chao say they tried to follow the directions in the letter, but the City Attorney's Office expressed dissatisfaction when the Chaos said they could not afford to hire a 24-hour security guard.
But it was the employees buying stolen goods from an undercover cop that really got the Chaos in trouble, and to an extent they were being held accountable for problems that existed long before they bought the business.
"Those employees were another chapter in a long history of fencing in that place," says Deputy City Attorney Scott Rennie. "It had a reputation for many years as a place for stolen goods."
But Walter Cooke, the Chaos' attorney, asserts in court documents that "isolated incidents of criminal activity by a tenant's late-shift employees in the middle of the night hardly constitute a public nuisance. ... And there is simply no duty here on the part of either the commercial tenant, or the commercial landlord, to police public sidewalks."
The Chaos say they immediately fired the three employees caught in the sting. They believe there was no reason to take them to court. "If someone does something wrong and I let them do it, then they should punish me," Roger says, his voice rising. "But if people do bad things behind my back, it is not my fault. It would have been better if [the city] would just teach me what to do instead of doing a sting operation."