The city of San Diego did not prosecute the owner of a sex club maliciously or selectively even though the city made a series of mistakes in granting him zoning approvals and then prosecuting him, the Ninth U.S. Circuit Court of Appeals has ruled. Reversing a district court jury's decision, the three-judge panel concluded that the city did not violate Elbert Poppell's civil rights and that Zoning Administrator Sharren Carr should not be held personally liable because she was acting in a professional capacity and did not act with malice. "This case does no more than describe the complications that arise from our form of government that separates various functions and then requires them to work together as they implement the rule of law," wrote Justice Stephen S. Trott for the unanimous panel. "The meshing of these gears is not always perfect, but the usual play in the criminal justice system does not suggest, without more, malice or foul play on the part of the various actors." The Ninth Circuit ruling is the latest in a long and complicated series of legal maneuvers arising from a dispute between Poppell and the City of San Diego over his sex club, which has operated in various locations in the city. The friction with the city began in 1988, when Carr concluded that Poppell's location on Monroe Street constituted a zoning violation because his club was operating within 1,000 feet of a residential neighborhood. Poppell was criminally prosecuted and placed on three years' probation. In 1990, Poppell moved his club to an industrial zone on Sunrise Street, where he stated - on an application to transfer his business tax certificate - that he would use the location to interview potential club members, not for sexual encounters themselves. Carr inspected the location and erroneously concluded that Poppell's operation conformed to city zoning ordinances. He operated without incident for a year, and later acknowledged that he would not have been able to operate legally without the mistakenly issued business tax certificate. When his landlord sold his building, Poppell moved to a residence on E Street in the same industrial zone and the city again approved the transfer of his business tax certificate based on his earlier misstatement of the nature of his operation. Late in 1991, a residential neighbor on E Street complained to the police and to the Bob Filner, the local city council member, that Poppell's operation was disruptive because a variety of sexual acts were taking place in the vicinity. Filner responded with a letter to the resident assuring her that various departments of the city would work together to develop a plan to close down Poppell's club. Over the next few months, Poppell was the subject of intense interest by city officials. He was cited for a fire-code violation by the fire marshal, and the city police frequently cited club members for parking violations and related small incidents. During this period, the city's code enforcement officials and the city attorney's office concluded that Poppell was violating the zoning ordinance, based on the city's erroneous approval of his business tax certificate transfer when he moved to the Sunrise Street location. After an inspection, Poppell was charged with four criminal zoning violations - two for operating an adult entertainment business within 1,000 feet of a residential zone, and two for operating in an improper zone. He was also accused of 90 building code violations, of which 26 remained at trial. He was convicted of operating in an improper zone, as well as 24 of the building code violations, and acquitted of violating the 1,000-foot rule. (The reason for the acquittal was that the city had miscalculated the distance between his sex club and a residential neighborhood, apparently because of a freeway in between the two.) He was sentenced to six months in jail and three years' probation. Poppell appealed these convictions in California state court. He argued that he should have been able to use the city's erroneous approval of his location as a defense against the charges, but that the trial judge ruled the erroneous approval inadmissible. He lost all of his appeals in California state court, then filed a writ of habeas corpus in federal court. He argued that the lack of admissibility of the erroneous approval had robbed him of his only possible defense. But Judge John Rhoades did not rule that Poppell had to be retried; instead, he simply ruled that the city a limited period to decide whether to retry him. The city declined, and Poppell then filed a federal lawsuit against the city and against Zoning Administrator Carr, claiming both malicious and selective prosecution. Carr moved for judgment as a matter of law based on a claim of qualified immunity because she was functioning in her role as zoning administrator. Judge Rhoades rejected this claim, arguing that if Poppell could prove malicious intent, then she would not have been acting reasonably or in good faith. A federal jury then found that the city had engaged in a systematic attempt to drive Poppell out of business. The city appealed and the Ninth Circuit panel reversed. "Although we have taken great care to respect the prerogatives of the jury, we reverse its decision and hold that there is no substantial evidence [to find the city liable]," Trott wrote. "On close examination, Poppell's case against Carr is a case of theories and suppositions without evidentiary support. Speculation was allowed to do duty for probative facts as there was no evidence of malice: Carr merely did what was required of her by virtue of her job." Continued Trott: "in this case, the record contains no direct evidence of malice, and no substantial evidence that the acquittals were the result of anything other than a mistaken calculation of distance having to do with the existence of a freeway between the two relevant points of measurement." Poppell also argued that Filner's letter showed there was a conspiracy to put him out of business, but the Ninth Circuit also nixed that argument, saying that the letter "does not speak of driving Poppell out of business, only of closing his club." On the selective prosecution allegation - which took the form of an equal protection claim - the Ninth Circuit ruled that there was no evidence that any other repeat zoning offenders had been treated differently from Poppell, and in any event concluded: "[T]he class of repeat code violators is not a suspect or a quasi-suspect classification and thus, minimal security is appropriate." The Case: Poppell v. City of San Diego, No. 96-56844, 98 Daily Journal D.A.R. 7587 (July 13, 1998). The Lawyers: For Poppell: Michael R. Marrinan, Adler & Marrinan, (619) xxx-xxxx. For City of San Diego: Michael R. McGuinness, Deputy City Attorney, (xxx) xxx-xxxx.