GLAA Testimony on DCRA: March 3, 1997

STATEMENT FOR THE RECORD ON
OVERSIGHT HEARINGS ON THE
DEPARTMENT OF CONSUMER & REGULATORY AFFAIRS

Committee on Consumer & Regulatory Affairs

MARCH 3, 1997

Chairman Brazil, Members of the Committee, and Fellow Citizens:

My name is Rick Rosendall. I am currently President of the Gay & Lesbian Activists Alliance of Washington (GLAA), the oldest continuously active gay and lesbian civil rights group in the country; we will be celebrating our 26th anniversary in April. With me this afternoon is Craig Howell, a former GLAA President and our current Secretary. Thank you for this opportunity to testify on the operations of the District's Department of Consumer & Regulatory Affairs. We believe that it was the prospect of this public hearing — augmented by your letter, Mr. Brazil, to DCRA Chief Hampton Cross inquiring about the case we are about to describe — that unleashed a veritable tidal wave of new information that came to our attention over this past weekend.

Our presence here today comes primarily as a result of what we see as an unfortunate incident involving an inspection conducted jointly by DCRA and Metropolitan Police Department personnel this past November. The way in which this investigation was conducted amounted to an abuse of regulatory powers with disturbing implications for the exercise of civil liberties in the District of Columbia. In addition, GLAA's attempts to get to the bottom of this matter have revealed some serious weaknesses in the ability of the leadership of both DCRA and the MPD to monitor and control their subordinates.

This is a particularly important topic for your committee to take a look at just now because Police Chief Larry Soulsby only last week announced plans for increased joint operations between the MPD and DCRA against nightclubs with records of violence, drug use, and disturbing the peace of their residential neighbors. While such operations are undoubtedly long overdue, the incident we will detail for you illustrates the need for exercise of a strong hand by the top brass and vigorous oversight by our City Council to prevent the diversion of severely limited police and DCRA resources into unproductive channels.

The investigation at issue was conducted at approximately 8 p.m. on the evening of November 14 at a business establishment called Cusano's Meet Market on 17th Street NW near Dupont Circle. The inspectors were Lieutenant Smith of the Third District, MPD and Mr. Delgado, a building inspector with DCRA. (Incidentally, it took us more than two months just to track down the names of the participating investigators, which were disclosed to us only this past Friday evening; more on this later.) The two investigators told the Cusano's employee on duty that evening that they had received an anonymous report alleging that the store, which at the time included erotically-oriented gay male publications on its magazine rack, was selling illegal literature and was engaged in other illegal activities. The employee permitted them to search for anything they wanted and did not ask to see a search warrant. No evidence was uncovered to support one iota of the anonymous charges. Shortly thereafter, on advice of counsel, the owner, Mr. Mike Cusano, withdrew all erotically-oriented materials from sale. I understand from Mr. Cusano that it was more than a month before he received official notification that no problem was uncovered in the inspection.

As background, it is important to understand that some of Cusano's neighbors had been objecting all along to the sale of erotic publications there. But these materials were completely legal, and the owner chose to exercise his First Amendment rights by turning aside those objections. In this light, it is more than probable that someone in the neighborhood who does not appreciate our American freedoms decided to escalate the battle by bringing totally fabricated and scurrilous charges to the authorities precisely in order to throw in the weight of government power on their own side.

What seems to have happened, then, was that the MPD and the DCRA allowed themselves to become the presumably-unwitting accomplices in a maliciously-motivated, private war against a legitimate business serving a diverse and cosmopolitan urban neighborhood. The suitability of the sale of sexually-oriented materials may have been a matter of dispute between the owner and some of his neighbors. But the MPD's and DCRA's intervention appears to have had a chilling effect on legal commerce, which smacks of de facto government censorship. Even if unintended, the November 14 investigation did turn into an officially-sanctioned incident of harassment and intimidation. Cusano's attorney realized that unwarranted government inspections based on anonymous complaints might very likely continue unless they surrendered the exercise of their First Amendment rights. In short: The bad guys won — thanks to their ability to manipulate the D.C. government.

We believe that this incident presents a clear and present danger to the exercise of civil liberties in the District of Columbia. We are painfully aware of the presence of homophobes and other would-be censors in our own city who would dearly love to suppress any and all reading materials with which they disagree, especially those dealing with homosexuality; you need look no further than Fairfax County, VA, where New Religious Right demagogues have been trying to ban the Washington Blade from public libraries and other outlets. The District should be taking active steps to prevent such undesirable elements and their local allies from manipulating our government's police and regulatory powers to advance their own anti-social agenda. The precedent laid down by the Cusano's investigation presents a danger both to other legitimate stores that want to sell gay-related materials and to the reading public at large.

It is vital to make this point because some in the District government, the press, and perhaps others believe that because Cusano's itself has no further complaints, the case is closed and final, and GLAA should drop all further involvement in the matter. Not at all; the original victim is not the only party with an interest at stake here. (And I should note that Mr. Cusano told me over the weekend that he is pleased with GLAA's aggressive pursuit of this matter.) We in GLAA chose to intervene not as any kind of surrogate agent for the business itself but as a watchdog jealous of the liberties that all elements of the gay and lesbian community should be free to enjoy. We do not criticize Cusano's for deciding to do what it did; they acted in what they saw as their own best interests. Instead, we want to get our own government agencies to build in more safeguards that would limit their current vulnerability to manipulation by elements promoting illegitimate and anti-social censorship. We have identified a problem; we hope we can all work together to develop some solutions.

One step that might curtail future regulatory abuses would be a requirement that initial investigations, where appropriate, be conducted by plain-clothes inspectors; and that if no corroborating evidence is uncovered in support of anonymous charges, those charges should ordinarily be dismissed without further action. In this case, since the allegation was that Cusano's was selling illicit literature, one of the police cadets (say) could easily have gone to the store and seen if he could find any such material for sale. Failing to find any such material could have led to a speedy dismissal of this contemptible, trumped-up complaint without anyone else ever knowing about its defamatory nature, and with no possibility of the store feeling intimidated or threatened by the government. As we understand from Lt. Smith, the two inspectors did indeed make such a plain-clothes inspection first, which was fine; but we believe they were mistaken to then enter the store, identify themselves, and ask to conduct a search. It may have been a natural thing to do, but even friendly government inspections under such circumstances can have unintended and unacceptable consequences.

Another step might be, where appropriate, a requirement to obtain a search warrant, since this would presumably require a judge to evaluate any allegations contained in an anonymous letter. Our Constitution has a ban on warrantless police searches, and not without cause; friendly visits without warrants can too easily be abused. In this context, I note that Lt. Smith told me that the MPD had initially received the anonymous complaint and had turned it over to Mr. Delgado of DCRA precisely because business license violations are easier to navigate than the loopholes of the criminal statutes. But the safeguards built into criminal investigations are there for a reason: they conform with the protections afforded all of us by the United States Constitution.

Having explained what we see as the problem and having contributed some what we hope are constructive steps towards an effective solution, we want to apprise this committee of some of the strange reactions of the MPD and the DCRA to our calls for them to investigate this incident.

We first wrote to Police Chief Larry Soulsby on December 16. On January 7 we were informed by Chief Soulsby's office that the letter had been referred on December 20 to the Third District to prepare a reply. On January 24 we were surprised to hear from Soulsby's office that the entire matter was a DCRA operation without any involvement by the MPD; we asked for, and were promised, an official letter from the Department putting that into writing. No such letter ever arrived. In the meantime, we wrote a letter to Mr. Cross of DCRA on February 10 explaining what we understood was the situation and asking for an investigation. Then last week we learned that DCRA was still insisting that the MPD had led the original November inspection.

We called Chief Soulsby's office last Wednesday to ask for an explanation, referring to the need for answers before today's hearing. This past Friday evening, Mr. Howell received an irate phone call from a Third District police officer who pressed GLAA to abandon any further pursuit of the case. It was during this officer's tirade that Mr. Howell picked up, for the first time, the names of the two people who actually did the November inspection. I was able to speak at some length this past Saturday with Lt. Smith, who helped to clear up many of the mysteries that we had been left with by the inadequacies of our communications with both departments; he told me, for example, that because the MPD had turned over the initial complaint to Mr. Delgado of DCRA, the subsequent inspection by the two inspectors was a DCRA responsibility. (DCRA has not verified this account to us as of yet.)

Among other questions, we still want to know why we were told by Soulsby's office in January that there was no MPD participation in this matter when in fact there was. Was it that Soulsby's office could not get a straight answer at that time from the Third District and was in fact misled by them? Or did Soulsby's office either not understand what was going on or misconveyed that information to us? In either case, they obviously have serious problems in communications, command, and control.

For their part, it seems ironic that while DCRA was claiming that it did not have enough resources to conduct all the various health, building, and other inspections it is required to do by law, one of their inspectors still found time to devote to Cusano's. Lt. Smith told me that MPD routinely follows up on all anonymous complaints. This strikes me as either implausible or as a misallocation of resources. If DCRA, as it would appear, adopts a parallel policy (since MPD and DCRA have a close, ongoing cooperative relationship), then DCRA management needs to take steps to prioritize the time of its inspectors more rationally. It would seem more logical that public, well-documented complaints and legally-required inspections should ordinarily be granted a higher priority than anonymous, private, undocumented complaints.

A further issue raised by this case is the implication I picked up from my conversation with Lt. Smith that building or occupancy licenses can require that sexually-oriented materials not be offered for sale. Lt. Smith noted that his inspection of the magazines sold at Cusano's showed that these publications were not in fact sexually-oriented according to the definition of the regulation. But where do our regulating agencies derive the authority in the first place to predicate the issuance of licenses on the owner's agreement not to exercise First Amendment rights? We are aware that liquor licenses may be restricted by requiring the proprietors not to offer sexually-oriented entertainment, precisely because there is no First Amendment right to obtain a liquor license. But there is a First Amendment right to sell literature. This matter needs further clarification.

Yes, let's unleash the MPD and DCRA against anti-social and dangerous nightclubs; but let's take the time to marshal our forces more effectively so that the guilty — not the innocent — will be targeted. In the Cusano's investigation, it looks like "The operation was a success, but the patient died." Everyone says proper procedures were followed; but if civil liberties were violated as a result, those procedures had better be reexamined.


I was very pleased that after Mr. Howell and I presented our oral testimony on March 3rd, you, Mr. Brazil, stated from the dais that you agree that the DCRA and the MPD need to develop a protocol for handling such cases in the future, particularly for guidelines on how to pursue an anonymous complaint and when to drop it. I was also gratified that Mr. Cross came up to us after our testimony and offered to work with us to resolve this matter.

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