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AIDS Rulings: Constitutional Questions Rise Over Bias Laws

May 03, 1987|STEPHEN BRAUN | Times Staff Writer

A recent spate of judicial rulings in the legal battle between an AIDS patient and a West Hollywood nail salon accused of bias has raised questions about the constitutionality of city and state anti-discrimination laws.

Two separate decisions recently in Santa Monica Superior Court prompted attorneys for both AIDS patient Paul Jasperson and Jessica's Nail Clinic to claim that their clients had won important early victories in the case.

Jasperson, 35, a hairdresser diagnosed with AIDS last year, has claimed that the nail salon canceled an appointment for a pedicure last July after a manicurist overheard him mentioning that he is an AIDS patient.

Last December, the city of West Hollywood charged the salon and its owner, Jessica Vartoughian, with criminal violations of its AIDS anti-discrimination law, which prohibits businesses from denying commercial services to AIDS patients because of their disease. A month later, Jasperson filed a civil lawsuit against the salon and its owner, alleging discrimination, asking for compensatory damages and requesting a judicial order forcing the salon to give him a pedicure.

In the most important of the recent decisions, Superior Court Judge David M. Rothman ruled April 23 in the civil lawsuit that he would not order the nail salon to provide Jasperson with a pedicure. Rothman ruled that although it is unlikely that the salon's pedicurists or customers could contract AIDS from Jasperson, there is still enough of a danger to warrant the salon's decision to refuse service. Jasperson's attorney, Gloria Allred, said she would appeal.

A day after Rothman's ruling, another Superior Court judge dismissed one of three civil counts filed by Jasperson against the nail salon.

Judge Richard G. Harris ruled that while West Hollywood's AIDS anti-discrimination law was applicable to the Jasperson case, the California Civil Rights Act could not be used to protect people with acquired immune deficiency syndrome.

Allred said she would also appeal Harris' ruling, insisting that although the state law does not specifically cover AIDS patients, courts have traditionally extended the law to minorities not mentioned in the statute.

"What I hope to do is win an interpretation that AIDS is also a prohibited type of discrimination," Allred said.

Allred also said Jasperson won a "significant victory" in Harris' decision to uphold the applicability of the West Hollywood AIDS anti-discrimination law. "It was good news for AIDS patients who live in West Hollywood, but the state law should afford that protection for any AIDS victim anywhere in California," she said.

But Mark Geragos, whose law firm is defending Jessica's Nail Clinic, said Harris' decision to dismiss one count against the salon was an advantage for his client. "What the judge said was that Mr. Jasperson couldn't have it both ways," Geragos said. "You can't be covered by both the city and the state."

And although Harris upheld the use of the West Hollywood anti-discrimination law, Paul Geragos, the nail salon's defense attorney (and the father of Mark Geragos), cautioned that while "on the face of it, the West Hollywood law might seem valid, we now know from Judge Rothman's ruling that there is a real danger from AIDS to a (salon) operator or to the community. That's why we think the West Hollywood law may be an unconstitutional use of (the city's) police powers."

A third recent court ruling, in the criminal case against the salon, appears to have bolstered the city law's constitutionality. In that decision, Beverly Hills Municipal Commissioner John Murphy allowed the city to proceed with its prosecution of the salon after ruling that the city's anti-discrimination law was not superseded by the state's Civil Rights Act. A pretrial hearing in the case has been set for May 22.

"The defendant had asked the court to find the (city) law unconstitutional because the state had preempted the field with its own law," said Steven Rosenblit, the city prosecutor. "Commissioner Murphy wisely rejected that argument."

Rosenblit said the city would continue to enforce the anti-discrimination law. "Our position is that the AIDS discrimination ordinance is still valid until the court cases or appellate process determine otherwise," he said.

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