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In early December, Ghanadan says that he and his lawyers attended a CMCA "founders' meeting" with 30 to 40 other people involved in the city's nightlife. It was designed to discuss broad problems with enforcement, but it turned out that at least 10 people at the meeting had had run-ins with Bertrand, Ghanadan said.
Mark Rennie, a former nightclub owner and San Francisco entertainment attorney, says he has been overwhelmed by complaints from his clients about ABC and SFPD enforcement, and believes that San Francisco's nightlife culture is under serious attack. Last fall, he got a call from trial attorney Mark Webb, who wanted to hear more about Bertrand and the problems Rennie's clients had been having. Webb began to develop an audacious plan. What if he put all the complaints together and made a grand gesture to get the city's attention?
Webb suggested that he use the Racketeer Influenced and Corrupt Organizations (RICO) law, a statute created to prosecute Mafia organizations, to file a complaint against the ABC and the SFPD — suing the government agencies, he says, for acting like the Mob.
Early last year, Webb had given up his career as an attorney and moved to Mexico to open a yoga studio. He had a messy divorce and a run-in with the California Bar Association (he got a two-year probation in 2008 for a delayed payment to another attorney). San Miguel de Allende, he says, was a small, soothing town with cobblestone streets and a population of American retirees. He says he was living modestly and giving yoga lessons.
But it was a little too quiet in San Miguel, and then swine flu broke out. So Webb came back to San Francisco. He moved into the Zen Center, where he had practiced meditation for many years, and decided to go back to the law. He wanted to do something inspiring and worthwhile, and when he heard the talk about Larry Bertrand and the ABC crackdown, he thought of his experience doing RICO cases as a young lawyer.
It seemed like the perfect fit.
Over the past two months, Webb has been gathering a group of plaintiffs, including Maurice Salinas of Caliente, Jamie Zawinski of DNA, Mike Quan of the Room and Mist, and bartender Javier Magallon, all of whom have complaints about Bertrand and Ott's enforcement.
But Webb says the lawsuit is much bigger than two officers in SOMA: He says additional plaintiffs will include Philippe Rieser, the managing partner of Vessel.
Rieser, who also owns the New York nightclub Cielo, said in an interview that he lost about $160,000 in a business deal to acquire Azul, a downtown San Francisco club near Vessel, and turn it into a late-night restaurant. Rieser says that as he was in the process of buying Azul's liquor license, ABC changed the conditions of the license from a 2 a.m. closing time to midnight, making it effectively worthless.
There's a long list of crimes that fall under racketeering, Webb says, and he believes that what the police and the ABC have done fits the bill. Arresting Magallon unfairly, Webb suggests, counts as kidnapping. Interfering with the sale of a liquor license from one nightclub owner to another who's from New York? That could be interference with interstate commerce.
Using RICO is a dramatic move, but that's part of the goal: Webb wants to catch the city's attention.
Suing San Francisco with a statute designed for the Mob isn't quite as strange as it might seem. RICO has been used against big tobacco companies, antiabortion protesters, and the alleged collusion between Microsoft and Best Buy. In 2006, the Supreme Court let stand a U.S. Ninth Circuit Court of Appeals ruling that allowed a plaintiff to use RICO to sue the Los Angeles Police Department as a racketeering organization.
That lawsuit, part of the aftermath of the LAPD Rampart scandal, in which police officers allegedly took kickbacks from drug dealers, planted false evidence and used it to obtain convictions, and conducted beatings and shootings, was eventually settled by the city out of court.
"Unusual uses of the RICO statute are, in a certain way, maybe the norm," said David Slansky, chairman of the Berkeley Center for Criminal Justice. "This is a statute that has been used throughout its history in lots of way that the original backers may not have had in mind."
Rory Little, a professor at UC Hastings who has taught federal criminal law for 21 years, was more skeptical about the merits of a theoretical RICO case against government enforcement agencies. "The reality is that RICO has been abused by plaintiffs for many years," he says. Lawyers often file RICO cases to get leverage in making a settlement or to attract attention, he said, "but nine times out of 10, civil RICO suits end up being dismissed."
A serious RICO suit against a government agency, Little said, might include patterns of bribery or criminal assault — but not, for instance, police arrests that may or may not be lawful. "It's a sexy claim," he continues, but "usually it just ends up being a dispute about business practices or enforcement practices."
Webb conceded that the fact that there was no evidence that the alleged harsh police tactics were linked to bribery or kickbacks made the RICO angle trickier, but he said he believed it was still an appropriate use of the law. He said it was also possible that a federal prosecutor might even be interested in picking up the case, depending on the reception of the media publicity around the planned lawsuit.
Meanwhile, the complaints against Bertrand and Ott may be having an effect. Over the past couple of weeks, club sources say the pair has gone on the down-low. Their weekly visits to DNA and Mist have stopped. Their last bust was clearing out Butter for being over capacity on Feb. 19. Since then, club staff say the two haven't checked in on any of their usual suspects on 11th Street.