The owner of Northeast Portland’s Fontaine Bleau nightclub failed to establish that the city of Portland or Oregon Liquor Control Commission acted with racial bias when it pursued an emergency suspension of the bar’s alcohol license in 2013, a federal judge has ruled.
U.S. Magistrate Judge John V. Acosta’s 167-page opinion dismissed allegations of discrimination and violation of due process and First Amendment rights against the city and state. The dismissal was with prejudice, which means the club’s owner can’t file a new complaint.
Rodney DeWalt, former owner of the Fontaine Bleau, and his lawyers had argued that the city, working with the state, discriminated against him and his club based on his race and the club’s musical preference through “inordinate’’ police attention and regulatory action based on unsubstantiated complaints.
The state liquor control commission, at the city’s request, ordered an emergency suspension of Fontaine Bleau’s liquor license on Nov. 9, 2013, after one man was killed and two wounded in a shooting outside the club. The club shut down shortly after.
Attorneys for the city and the state commission’s executive director, Steven Marks, vigorously disputed the characterization. The violence, coupled with the owner’s failure to take steps to protect his club patrons or neighbors, demanded an immediate public safety response and justified the emergency suspension, they said.
Attorney Jesse Merrithew, DeWalt’s attorney, said Friday he’s still reviewing Acosta’s opinion but does plan to appeal.
Merrithew said the judge’s findings run "contrary to the conclusion of every black business owner in Portland we’ve talked to.''
The statistical evidence that DeWalt’s lawyers offered – that the city in the last decade had pressed the state to immediately suspend the liquor license of half of the nightclubs owned by African Americans while taking action against only a fraction of all other nightclubs in town – wasn’t sufficient for the discrimination claim, the judge said.
DeWalt’s lawyers had pointed to the emergency liquor license suspensions for five Portland nightclubs in 10 years, including Fontaine Bleau and another one owned by a black businessman, and noted that the city hadn’t sought the same emergency sanction when 25 other shootings occurred inside, outside or near other nightclubs from 2009 through 2017.
Acosta said five instances wasn’t a sufficient sample size and the claim wasn’t supported by other evidence.
“The statistical information does not constitute the requisite ‘stark evidence leading to the inescapable conclusion’ that the City Defendants acted with the intent to discriminate against Plaintiffs based on their race,’’ Acosta wrote.
Acosta also said DeWalt’s lawyers provided “no direct evidence of discriminatory animus” by Marks or city officials, including then-Mayor Charlie Hales.
Marks didn’t know DeWalt was African American at the time he issued the first order for an emergency license suspension and the club owner offered no evidence to the contrary, the judge said.
Hales, in depositions, said he considered alcohol licenses a privilege, not a right, and had “expressed his frustrations with the state commission’s apparent lack of interest in the City’s concerns about noise” and other public safety impacts regarding liquor license holders “in general,” the judge noted. Therefore, Hale’s “concerns” aren’t direct evidence of racial discrimination by Hales, Acosta wrote.
DeWalt’s lawyers also alleged that the city and state intentionally targeted Fontaine Bleau based on its choice of hip-hop music in violation of First Amendment free expression rights. They argued that the city and state attempted to force the club to change the hip-hop music played there and then eventually forced the Fontaine out of business.
Acosta, again, wasn’t convinced.
Hales never reached an agreement or understanding with Marks or any liquor control commission officials that regulatory actions should be initiated against Fontaine Bleau because it played hip-hop music, the judge found. Hales said in depositions he had no issues with hip-hop played in Portland clubs, noting that the city sponsored two hip-hop festivals during his time as mayor.
The city argued it “took discrete enforcement actions against the Fontaine Bleau that were supported by legitimate public safety concerns rather than an unspoken agreement to shut down Mr. DeWalt’s business.”
On Friday, attorney Marc Abrams, representing the Oregon Liquor Control Commission and its executive director, submitted a bill of costs to the court, seeking reimbursement from plaintiff’s lawyers for just over $9,168, largely the cost of deposition transcripts used in the case.
DeWalt’s suit was one of several lawsuits that attorney Merrithew and his colleagues have brought on behalf of black-owned businesses.
Another federal suit brought by Donna Thames, owner of the closed Portland strip club Exotica, is on hold, as Thames passed away earlier this year. Thames also had alleged the city and state engaged in racist enforcement of liquor license laws. The suit will likely be on hold until a representative from her estate is identified, Merrithew said.
Sam Thompson, the owner of Seeznin’s Bar & Lounge, the other black club sanctioned with a suspended liquor license after a shooting across the street in June 2011, earlier this year settled his discrimination suit filed against another club in Multnomah County court for an undisclosed amount. He alleged he was denied access to the club Dirty because he was wearing matching red sneakers and a red sweatshirt.
Read Acosta’s ruling here.
-- Maxine Bernstein
Email at mbernstein@oregonian.com
Follow on Twitter @maxoregonian
Visit subscription.oregonlive.com/newsletters to get Oregonian/OregonLive journalism delivered to your email inbox.