PRIVACY WORRIES DON’T SHAKE UP STRIPPER CLASS ACTION

Pam Smith
The Recorder
06-14-2005

Exotic dancers at the Gold Club aren’t shy about much, but there are some things even they don’t bare in public.

That would be their real names.

As the former bosses of the San Francisco establishment try to fend off a wage-and-hour class action, they’re attempting to turn the dancers’ penchant for privacy into a defense advantage.

Defense counsel Edi Thomas tried to persuade a San Francisco Superior Court judge last week that certifying a class in the case would wind up trampling on many dancers’ privacy rights.

Many dancers are hard to contact — often by design — and moving ahead with a class action they don’t know about would violate their right to due process, Thomas argued. Also, contacting them about the suit could compromise their privacy.

Though Judge James Warren went ahead and certified the class anyway, he seemed concerned about some of Thomas’ points. And the defense lawyer, a solo with offices in Michigan and San Diego, said she expected to resurrect them.

“Because we think it’s such an important issue, that will be raised again,” Thomas said Thursday. “Dancers value their privacy, and I think it should be protected.” The three class representatives, she’s noted, filed their case under stage names.

Lead class counsel James Quadra called the due process argument irrelevant. “It’s a tactic,” the San Francisco attorney said Thursday. “It’s all about reducing the amount of money defendants pay out.”

The case began more than a year ago, when three dancers known as Grace, Kili and Debra sued the current and former owners of the club. The dancers allege that the owners treated their entertainers as independent contractors when they should have been employees.

Calling it a “sham” arrangement, the women contend the club got the best of both worlds, controlling how the showgirls worked while eroding their tips with fees, and cheating them of hourly pay and other benefits.

Solid Gold, the company that owned the Howard Street club for nearly all of the four years covered by the suit, says the women are far from victims. Thomas, who represents Solid Gold, asserts in court papers that the showgirls could take home upward of $500 a day “under these lucrative contracts.”

But merits aside, turning the trio’s case into a class action would present “critical” due process problems, Thomas argued in briefs.

Exotic dancers are an itinerant and extremely private lot, she contended. Those traits would make it difficult to locate the class members, an estimated 300 to 600 dancers who performed at the club between 2000 and 2004.

“The recent history of dancer class actions bear[s] out that extremely few dancers ever receive notice, and fewer still participate — ultimately resulting in dancers’ having their due process rights trampled when their rights are adjudicated without their knowledge or meaningful consent,” Thomas wrote.

Even if they’re reached, Thomas argued dancers will be “seriously disinclined” to take part in a class action.

She filed declarations from four dancers who say they aren’t interested in being part of the case. Signing her stage name, a dancer named “Autumn” wrote she wouldn’t want to be considered an employee in this of all jobs. “I want to retain the freedom of choosing if, when and for whom I perform.”

Unsolicited contact about the case, Thomas added in her briefs, would invade the dancers’ privacy and could even endanger some of them.

In court Wednesday, Judge Warren seemed to leave the door open for more combat later, telling Thomas, “I think there are substantial, valid points there.”

But he agreed with Quadra that they should be dealt with after certification.
“There are myriad ways” to get the word out to potential class members, and address the questions Thomas raised, Quadra said Thursday.

His firm, Moscone, Emblidge & Quadra, has pointed out in briefs that state court rules contemplate methods from newspapers and magazines to the radio, TV and the Internet. (Thomas apparently doesn’t think the club’s dancers share an interest in current events. In one brief she writes that, while publishing a notice in the Wall Street Journal may work in a securities fraud case, “What sort of publication could reliably reach 300-500 itinerant former exotic dancers?”)

Though Thomas and Quadra’s outfits were a study in contrasts last week, both are veterans of workplace battles at San Francisco’s adult entertainment venues.
Last year Thomas, who wore a leopard-print jacket to court Wednesday, successfully defended the Hungry I against a wrongful termination suit by one exotic dancer. A jury found Tracey Buel, the activist more popularly known as Daisy Anarchy, was not an employee of the club.

The more conservatively garbed Quadra is also lead class counsel in a wage-and-hour case dancers have brought against the Mitchell Brothers O’Farrell Theatre.

COPS, D.A. TANGLE OVER SRIP CLUB RAIDS
Phillip Matier, Andrew Ross Monday, July 12, 2004

More sparks are flying between San Francisco police and District Attorney Kamala Harris — this time over the D.A.’s refusal to prosecute nine women the vice cops arrested on prostitution charges during raids at a couple of “theater” clubs a few weeks back.

“It just leaves me in amazement,” says vice Capt. Tim Hettrich, who likened the D.A.’s inaction to “almost legalizing prostitution.”

The D.A.’s office sees it a bit differently — calling the arrests “business as usual” and saying that while the cops were all too eager to arrest the women, they all but ignored the club’s owners and the alleged johns.

If it all sounds a bit political, that’s because it is.

Sex clubs have long been a tricky proposition in liberal San Francisco politics. For years, the attitude — especially under libertine former D.A. Terence Hallinan — seemed to be, “Don’t ask, don’t tell,” especially at clubs whose owners were involved in local politics.

Plus, there’s always been the question of whether prostitutes are criminals or victims.

Then, when the new D.A. came into office, the vice squad — under the supervision of Fajitagate hyper-investigator Joe Dutto — decided the time had come to start a cleanup. He called the club prostitution “out of control.”

The first step was to send letters to a couple of dozen strip clubs warning that investigators would be checking on their business licenses and permits.

The cops’ move apparently set off an alarm at the D.A.’s office. Because the next thing you know, everyone was having a sit-down at which the cops agreed to back off until Harris could come up with a game plan that included the police and the city attorney — after ironing out such issues as “abuse of the dancers, police misconduct during arrests and selected enforcement,” according to a D.A.’s statement.

And while the cops waited … and waited … the public complaints kept coming in. Eventually, they decided to move on their own.

A pair of stings followed, one at the Market Street Theater and the other at the New Century Theater on Larkin Street. In each case, three undercover officers said they were solicited for sex acts by female employees within minutes.

In all, nine women were arrested — and so was the male general manager of the New Century, who was booked for allegedly keeping a house of ill repute.

The cops said they were slam-dunk cases, but Harris’ office took one look at the arrests and tossed them all.

And the bad-mouthing began.

The D.A.’s office says that the cops acted out of hand and that rather than wasting time and money on raiding clubs, they should be on the streets fighting more serious crimes.

In fact, Harris’ office said in its statement, “We have had no arrests of street-level pimps and johns.”

“That’s an outright lie,” countered Dutto, who says the cops arrest 50 to 70 johns every month. He also said juveniles picked up for prostitution are routinely interviewed in an attempt to get them to turn on their pimps.

As for the club raids, the cops say they were just doing their jobs.

“When we went out there, we found girls who were engaging in acts of prostitution in the (illegally enclosed) booths, and that’s why we took action, ” Hettrich said.

This being San Francisco, there’s always another card in the deck somewhere. In this case, it’s the feeling in the D.A.’s office that the cops are trying to use busts as a way to embarrass Harris for her refusal to bring a death penalty case against the alleged killer of Officer Isaac Espinoza, a popular cop who was shot to death in the Bayview this past spring.

Hettrich called the “payback” spin “absolutely B.S.”

Maybe, but it does underscore the still-testy feelings between the two camps down at the Hall of Justice

NAKED INJUSTICE
Strippers Say Club Owner Greed and Lax City Oversight are Forcing Them Into Prostitution
December 17th 2003 By Ann Harrison

AMONG THE MANY unseemly legacies left behind by the outgoing administration at City Hall is the lack of enforcement of labor laws and city codes in San Francisco’s strip clubs.

For the past decade, dancers who work in these clubs have complained bitterly to an array of city agencies about alleged labor and safety violations in their workplaces. But under Mayor Willie Brown, the former personal attorney of strip club owner Sam Conti, little was done to enforce state and local laws designed to protect dancers from being exploited.

Mayor-elect Gavin Newsom and district attorney-elect Kamala Harris will need to take a firm stand on enforcing labor rights for exotic dancers – as well as staking out a position on the growing movement to decriminalize prostitution in San Francisco – if the situation is going to change.

“In 1996, when Willie Brown came into office, we were told by the manager of the Market Street Cinema that now that Brown is mayor, they could do whatever they want,” said Daisy Anarchy, a dancer who worked at the Market Street Cinema strip club and founded an advocacy group called Sex Workers Organized for Labor, Human and Civil Rights. “At the beginning of 1996, the fees that dancers at the club were charged to work went from an illegal stage fee of $25 for an eight-hour shift to a so-called commission system where dancers had to pay $360 to work an eight-hour shift.”

Dancers told the Bay Guardian these fees have led to increased competition and pressure to offer customers more than just a lap dance.

Complaints Verified
Some dancers have sought redress through the labor courts. The California Labor Commissioner’s Office has held more than 100 hearings involving dancers who have filed claims against San Francisco strip clubs for reimbursement of fees, wages, and tips they said were illegally taken from them by club owners. The commissioner has issued a series of decisions in these cases finding that dancers are employees, not independent contractors, and are entitled to minimum wage and all tips given to them by customers. Individual dancers have been awarded restitution ranging from a few hundred dollars to $40,000.

“Stage fees per se are illegal. You cannot require an employee to pay an employer anything for the privilege of working,” Labor Commissioner attorney Miles Locker told us. “Where you have case after case where you have rulings in favor of dancers and where clubs have to pay money to dancers, what you are hoping for is that employers say, ‘This is costing us a lot of money; we have to comply with the law.’ ”

But dancers charge that many clubs, with the exception of the unionized Lusty Lady, still make them pay to work. Locker acknowledges the agency’s Bureau of Field Enforcement has limited resources to investigate ongoing violations. He notes that any state or private attorney can ask the court to issue an injunction forcing a club’s owners to follow labor laws and then fine or jail them for contempt of court if they refuse to comply.

Recently passed state legislation allows for private enforcement of the entire Labor Code and a significant increase in potential civil penalties.

“Enforcement has to happen at the local, state, and federal level because these are state and federal labor laws that are supposed to be protecting the workers,” Johanna Breyer, cofounder of the Exotic Dancer’s Alliance, told us. “But unfortunately, it doesn’t filter down that way.”

Forced to Sue
Back in 1997 the District Attorney’s Office indicated it would bring an unfair-business-practices case against San Francisco strip clubs. The decision grew out of two meetings at City Hall that year to address the dancers’ complaints attended by representatives from an array of city agencies.

But the case never went forward.

Fed up with inaction by city agencies, the dancers hired their own lawyers to enforce the labor laws. In June 2002 three former dancers from the Mitchell Brothers O’Farrell Theatre filed a class action lawsuit against the well-known strip club’s parent company. The suit, which represents approximately 353 dancers employed by the club in the past four years, alleges the club engaged in fraud, improperly took a large fraction of dancers’ tips, failed to pay them minimum wage, and charged them illegal stage fees that lawyers say amounted to $360 an evening shift.

The suit is seeking injunctive relief and is scheduled to go to trial in March 2004. An earlier class action lawsuit against the club ended in settlement in 1998. Defendants in that case were represented by attorney Kate Dyer, who did not reply to repeated requests for comment.

In March 2003 another class action lawsuit, also alleging illegal taking of tips and imposition of stage fees of at least $300 a shift, was brought by three anonymous dancers against the Market Street Cinema and Century Theater strip clubs.

“If any class plaintiff failed to pay a sham stage fee, defendants would suspend the class plaintiff from working another shift until the sham stage fee was paid in full,” the complaint reads. “Defendants encouraged class plaintiffs to engage in illegal sexual activity at [Market Street Cinema] in order to make enough money to pay the sham stage fee.”

Vixon, who has worked in San Francisco’s strip industry for six years, told us things have gotten worse.

“The problem is de facto coerced prostitution because in this climate, all the factors lead to prostitution at lower and lower rates,” she said. “Women who don’t want to do this compete with women who want to do it, or have to do it. Are you going to do a lap dance for $30 or a hand job for $40?”

Strip Club Cartel
Named in the 2003 lawsuit are Sam Conti and Deja Vu, Inc., which lists on its Web site 11 of San Francisco’s 17 strip clubs in its “access info for 60+ Deja Vu clubs.” The suit alleges Deja Vu is part owner of the clubs, but the company purportedly has tried to blur the ownership issue.

“[Deja Vu] are saying they are not an in-state corporation and they don’t have a contact in California and therefor they can’t be sued,” Lisa Duarte, the plaintiffs’ attorney, said. Duarte says her clients are seeking injunctive relief, restoration of unpaid wages, and an order that defendants will follow the law. “This would be a ripe area for the new D.A. to look at,” she said.

Attorney Linda Toutant, who represents defendants in the case, declined to comment.

Attorney Edi Thomas, who represents defendants Bijou Market and Bijou Century in the 2003 lawsuit, denies the allegations of labor violations and says those accused will launch a vigorous defense. “Allegations that the clubs encouraged illegal sexual activity and maintain ‘illegal’ private rooms are vehemently denied,” Thomas wrote in a statement. “Such malicious allegations slander not only the industry and the clubs, but the women who work as dancers at those businesses and engage in a legitimate profession fraught by public disrespect and unfair, anti-adult industry politics.”

Official Inaction
Some dancers say the combination of illegal fees and private booths or rooms at the clubs, the interiors of which are not visible from the outside as required by the San Francisco Police Code, put them at a higher risk for assault by customers who want more than a lap dance.

Between 1996 and 1999, Anarchy said at least five dancers filed police reports and taped statements complaining of coercion and assault inside private booths, and three others were willing to come forward.

“I have been assaulted in private rooms, in private cubicles, because you don’t have the security of being out in the open,” said Sapphire, who filed a police report in 1998. “It happens all the time; women get raped in these spaces.”

Anarchy said the D.A.’s Office never contacted the women to follow up on any of the complaints regarding booths or coercion. District Attorney Terence Hallinan said his office attempted to conduct an independent investigation but the charges were hard to substantiate.

“If it’s one person’s word against another, the other usually wins with a jury that has to prove beyond a reasonable doubt,” Hallinan told us.

In 1999 the San Francisco Police Department launched a 14-month investigation of the 19 strip clubs the city had at that time. Club owners were summoned to a meeting in which police listed 14 city and country ordinances the clubs had violated, including the booth laws, according to documents reviewed by the Bay Guardian.

Police investigators documented conditions at each club, took photos, and filed reports. But according to Lt. Joe Dutto of the SFPD vice squad, investigators never went back to see if the clubs complied. Dutto says the police are again preparing to send letters to the clubs informing them of the laws.

“As for the booth citations,” Sgt. Neville Gittens of the SFPD Public Affairs Unit said, “if it is something that needs to be done, we will go ahead and start doing it. Chief Fagan said that we will start enforcing it.”

Whether helping the strippers is “something that needs to be done” will probably be determined by the priorities of whomever Newsom chooses to replace Alex Fagan Sr. and by whether Harris takes a more aggressive posture than Hallinan has.

Harris told us she will conduct her own investigation of the situation, whether or not the police cite club owners. “Because there are so many complaints and they have been coming in for such a long time, there is enough there to prompt an inquiry from law enforcement,” Harris said. “This is a story that has been covered up for a long time.”

Beyond the Booths
Not everyone agrees policing the booths will improve working conditions for dancers, whether or not they can be settings for prostitution. Many who support labor rights for strippers say decriminalizing prostitution is potentially far more effective than attempting to stamp out the market for sex.

Sex worker activist Carol Leigh told us cracking down on conditions that allow for prostitution in the clubs exposes women to arrest and simply moves prostitutes to other locations.

Breyer agreed: “Outlawing private booths is a Band-Aid effort and does not address anything substantive in the long run except putting women out there as victims, which unfortunately in this case, gets them arrested.”

She said the real issue is not the booths themselves, but what the stage fees and other labor law violations force strippers to do in those booths.

“Once you remove the economic pressure, you are talking about an entirely different situation, and you can have private booths or not,” she said. “If people are not properly compensated, it doesn’t matter where they are working, they are going to do whatever they need to do to earn a living.”

Sapphire said some dancers will be outraged if police begin enforcing the booth laws. But she says the women at the clubs should be asked a simple question: If you don’t have to be in a private space with a customer, and if you don’t have to do prostitution, would you do it?

“I’m sure you would rather lap dance with a customer than have sex with them if it could make the same amount of money,” Sapphire said.

Vixon says the problem is not women in the clubs who don’t want to offer sexual services but a system that allows for these encounters to happen only in the clubs. Vixon and other dancers say the long-term answer is decriminalizing prostitution.

A U.S. chapter of the Sex Workers Outreach Project has drafted prostitution decriminalization initiatives for Berkeley and San Francisco and proposed statewide legislation, which it hopes will be introduced by Mark Leno. SWOP-USA is a sister project to a similar group in Australia that recently successfully advocated for the decriminalization of prostitution there.

SWOP-USA founder Robyn Few told us that while legalization of prostitution typically creates a brothel model like Nevada’s, decriminalization removes existing prostitution laws and allows women to work for themselves – as opposed to allowing the strip clubs to corner the brothel business.

“By taking prostitutes off the streets and putting them into the strip clubs, it has turned our strip clubs into brothels and massage parlors,” Few said. “The men who run these joints are making all the money, and the women who want to be dancers can’t. They are forced to be prostitutes.”