The City of Santa Ana agreed Monday to allow the Mitchell Brothers Santa Ana Theatre to keep showing X-rated films and to pay its owners $200,000, ending the city's costly, 10-year battle to close down the theater.
City Atty. Edward J. Cooper fashioned the settlement, in which the city agreed to end all lawsuits and pay the theater owners $80,000 for attorney fees. In return, the Mitchell brothers agreed to stop advertising X-rated films on a marquee fronting 17th Street and to remove all but the words "Santa Ana Theatre" from the building. For that concession, the city will pay the chain an additional $120,000, Cooper said Monday.
The Santa Ana City Council voted 6 to 1 to approve the settlement agreement Monday night. Cooper said theater representatives agreed to abide by the decision earlier in the day. Only City Councilman John Acosta, a staunch opponent of pornography who argued Monday that it leads to sexual crimes, voted against the settlement.
The city has spent almost $500,000 in attorney fees and court costs and has filed more than 40 lawsuits since 1977 to try to shut down the X-rated movie house and have individual films declared obscene.
Mitchell brothers attorney Tom Steel, who called the settlement "terrific," said Monday that theater owners Artie and Jim Mitchell simply wanted to end the lawsuits and "create a status quo that everyone can live with."
Steel said the changes in the marquee will not have a significant effect on the theater's business, adding, "Thanks to this litigation, I think the location of this theater is very well-known in Orange County."
He said the city also agreed not to hire private attorney James Clancy or to file any more actions until 1990. Cooper said that about half of the city's expenses in pressing the case went to pay fees for Clancy, a Sun Valley attorney who specializes in anti-pornography litigation for several cities.
Cooper, who previously has said publicly that the city had no chance of victory under the current legal atmosphere, called Monday's settlement a positive development.
"It's not as good (a settlement) as we had before, but it's a good development," Cooper said, referring to a tentative agreement that he and former City Manager Robert C. Bobb had hammered out last year but that was rejected by the council. That agreement, Cooper said, included a promise from theater owners that they will not renew their lease when it runs out in 1990.
Mayor Dan Young said the council rejected the previous agreement largely because of the fear of political repercussions. This time, with the courts having already awarded the Mitchell brothers $80,000 and another hearing on attorney fees due on March 26, settlement appeared to be "a very prudent move," he said.
Young said he considers the removal of the marquee advertising a "big victory."
But Acosta called that aspect "a Band-Aid approach" and predicted that the owners will get a new lease in 1990. Acosta said he believes that pornography is related to child molestation and noted that a small number of films have been ruled obscene through the lawsuits.
Acosta conceded that there is little the city can do now but that he expects that the new state and U.S. Supreme Courts will take a different view of First Amendment rights for adult theaters. "Frankly, I think Mitchell brothers is going to be there until the courts decide to move them out," Acosta said.
Steel said he thinks that Acosta merely hopes to parlay anti-pornography sentiment for personal political gain. "I think he's basically an opportunist who's trying to milk this issue for his own political ends. And in doing so, he's willing to waste the taxpayers' money. I think he knows he can't (close the theater)," Steel said.
The courts have consistently rejected the city's lawsuits to shut down the theater, and only in one or two cases have they ruled that films actually being shown were obscene.
Cooper and Young accused the courts of protecting the theater under inaccurate interpretation of constitutional law. "The First Amendment is very difficult to overcome. . . . It would seem that once you show that a theater engages in this one business only, you should be able to close it down," Cooper said.
Young added that the city should be able to enforce zoning laws against such establishments. The city has attempted to close the theater by passing zoning laws that prevent theaters from operating within certain distances of schools, homes or churches.
Reached at his Sun Valley home, Clancy said Monday that he had not been informed of the settlement and could only say that he was still confident that the theater could be closed if the litigation were allowed to continue. He said he does not believe that the city has a fundamental right to settle the matter.
"I don't think you can settle and ignore violations of the law," Clancy said. "No one can bargain away the morals of a community."