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Acts of Commission 

The Human Rights Commission finds a Castro bar discriminatory. But the commission's investigation has its own bias problem.

Wednesday, May 18 2005
Castro club owner Les Natali is a hard guy to track down. He doesn't have a cell phone, and he doesn't like to be interviewed. Two weeks ago, after the San Francisco Human Rights Commission released a report that concluded he used racist policies to keep African-Americans out of his club, SF Badlands, Natali was more reluctant to talk than usual. After many attempts to contact him by phone and at the urging of his lawyer, Natali finally agreed to an interview, albeit a short one. During the conversation, the reclusive Castro resident referred most questions to his attorneys, but he made it clear that he planned to challenge the commission's conclusions. "I'm appealing because they exceeded their powers, the process was unfair, and many of the facts they stated in the report are just wrong," Natali said in his gruff baritone.

And it seems, recent publicity notwithstanding, Natali's claims do hold some weight.

To read the report issued by the Human Rights Commission, the case against Natali would seem open-and-shut. Commission Director Virginia Harmon and her staff found that Natali had concocted a host of bizarre ways to keep African-American patrons out of his club -- by not playing hip hop music, by asking black people for multiple forms of identification, and by allowing only whites to bring handbags and backpacks inside the club. The day after the report was released, local media outlets ran headlines such as "San Francisco finds popular gay night club discriminated against blacks" and "Panel finds bias at Castro bar/ Owner denied entry to black patrons, commission reports." Dozens of people gathered in Harvey Milk Plaza to celebrate the outing of Natali as a racist.

But just what had the Human Rights Commission proved? A look into the commission's investigative proceedings reveals flimsy evidence requirements, unusual witness procedures, and even a disregard for the agency's own statute of limitations. The commission may have also seriously overstepped legal bounds, first by releasing written findings and then a second time by offering them to city and state agencies -- including the state department of Alcoholic Beverage Control and the San Francisco Entertainment Commission -- that have regulatory authority over Natali's clubs.

Commission members and Natali's opponents say their primary concern was in ending discrimination, and in this case, they believe, justice was done. But in the absence of any legal authority to punish Natali, it seems all the commission did for sure was to convict Natali in the press. The so-called evidence used in the commission's report almost certainly would not convict him of anything in a court of law.

In 1964, San Francisco Mayor John Shelley signed an ordinance that established the Human Rights Commission of San Francisco; in 1990 voters established it as one of the commissions authorized by the city's charter. For decades, the commission has provided mediation to groups and individuals who allege discrimination, in the process dealing with issues ranging from housing bias to unequal treatment of people born with ambiguous genitalia. So it was not particularly unusual for the commission to agree to look into complaints from a group called Is Badlands Bad? about an allegedly racist club owner in the Castro District.

Paul Mooney, a spokesmen for Is Badlands Bad?, says that complaints about Natali initially came up over brunch when Derek Turner, then a bartender at SF Badlands, confided to three friends that he'd witnessed Natali discriminate against customers, employees, and job applicants based on their race and sex. The friends -- who have since formed the nonprofit group And Castro for All -- say they subsequently looked for patrons of SF Badlands who felt they'd suffered discrimination. It isn't clear exactly how the group rounded up the 15 former customers who were brought to the Human Rights Commission as supposed proof that Natali is racist. It is clear that the commission took on the case with gusto.

According to Larry Brinkin, the Human Rights Commission's contracts compliance officer who supervised the investigation, it is rare for the commission to launch a full investigation; mediation between parties is the commission's usual method of dispute resolution. But in this case, Brinkin says, there were many complainants, and Natali seemed to be particularly unwilling to cooperate. So the commission chose the investigative route.

It was an investigation that employed markedly different standards of evidence and witness procedure for the opposing sides of the dispute.

Don Romesburg, another member of And Castro for All, says his organization worked hard to support the people who spoke out against Natali. Romesburg said witnesses against Natali were allowed to have members of the organization with them "for support" while they were interviewed by the commission. Paul Melbostad, Natali's primary attorney, says Natali's witnesses, consisting of both current and former employees, were not given the option of having supporters present.

Melbostad said he was unaware of the unequal witness treatment until last week; it raises questions about the authenticity of testimony taken in the probe "since it is not known if supporters were allowed to coach the witnesses in any way."

There is also the issue of the commission's own two-year statute of limitations. Ten of the 18 people who complained about Natali say that the discrimination they knew of had happened more than two years ago and, therefore, was outside of the commission's statute of limitations. Those 10 people were not interviewed during the investigation, but they were, oddly, allowed to provide written statements. Even more odd: These sworn statements about events long past were actually given more credence than live witness testimony about more recent events -- even though the commission, because of its statute of limitations, was technically no longer able to investigate the older claims.

Brinkin says the commission put more weight on the written statements because they were filed under the threat of perjury, while the interviews were not conducted under oath. "We don't swear in witnesses, we just ask that they tell the truth," Brinkin said of the process.

Barry Strike, one of Natali's attorneys, says that because it had violated its own statute of limitations, the commission was not authorized to use the verified statements during the investigation of Natali.

Beyond the unorthodox procedures used in gathering testimony, the majority of what was unearthed in the commission's investigation would be inadmissible as evidence in a courtroom. Much of the evidence, Natali's lawyer says and commission officials acknowledge, is based on hearsay. That is, witnesses did not say they themselves witnessed racial discrimination; they say someone who claimed to have witnessed an allegedly discriminatory act told them of it. Melbostad says much of the testimony was in fact "double hearsay," meaning that thirdhand accounts were taken into consideration.

Though there are exceptions, hearsay testimony is generally excluded from legal proceedings because it is considered inherently unreliable. Double hearsay -- that is, "He told me someone told him" testimony -- would be doubly suspect.

So how authoritative was the evidence suggesting Natali supported discrimination?

The first section of the commission's report focuses on a claim that doormen at Badlands tried to keep people of color out of the club by requesting that they provide two forms of identification at the door. According to the report, seven people "alleged incidences where they were asked to provide two or three forms of identification or [were] asked to provide identification in situations where other patrons were not." Based on this evidence, the findings section of the report firmly concluded that Badlands had an inconsistent door policy and "required multiple forms of identification from some African-American patrons" in the past.

But the report does not indicate that any direct evidence to this effect was ever presented. The director's conclusion admits that many of the allegations were "difficult if not impossible to verify." The report does not say when the alleged incidents happened, so there is no way to know how many fall outside the time frame with which the commission could legally be concerned.

And though the report never addresses when or why patrons were asked for a second piece of ID, the commission was content to assume the motive was racism.

Brinkin does not deny that the commission's standard of evidence is more lenient than what is used in court. "We follow them [the rules of evidence] as closely as we can, but there are differences," he said in an interview after the report was published. "We can consider anything told to us in a way that makes sense."

But beyond the fact-finding problems with its report, the Human Rights Commission also appears to have violated the law -- in particular, San Francisco Administrative Code Chapter 12A, which authorizes the commission to "investigate, or, with the assent of the parties, mediate all incidents of discrimination, within its scope." The code does not, however, authorize the committee to issue public written findings or pass those findings to other city or state agencies.

Brinkin believes that despite the lack of explicit authorization, the commission does have the right to issue written findings. He estimates that the commission issues nine to 10 written findings every year.

Supervisor Bevan Dufty, who also celebrated the commission's report, sent a message to the members of And Castro for All at their celebration rally in Harvey Milk Plaza on April 26, saying in part that the Alcohol Beverage Commission and San Francisco Entertainment Commission will defer to the Human Rights Commission investigation and "now must consider these findings in their consideration of pending issues or complaints" regarding Natali's clubs.

"But that is just not accurate," says Melbostad. "They [the other agencies] have not and are not legally allowed to defer to the HRC's findings."

Two weeks after the commission's Badlands report was released, Natali's lawyers answered, calling the findings "legally improper." Strike demanded that the report be "immediately and publicly withdrawn."

"They were irresponsible," says Melbostad. "Regardless of true, legal significance, they knew this report would be used to convict Mr. Natali in the press and the public, even though there was no due process or even a single hearing." In fact, Natali's attorneys note, he was never given the opportunity to cross-examine witnesses or dispute the evidence presented against him.

If the commission fails to retract its report, Melbostad says he will file a lawsuit in Superior Court contending the commission had no right to produce written findings under city code and was irresponsible in releasing a report because "Natali has now been publicly convicted." In addition to his request that the report be retracted, Natali announced earlier this month that he will cooperate with mediation at the HRC, something that he had refused previously.

The Human Rights Commission's Brinkin says there is no connection between the appeal process and any new mediation efforts that are instituted. Harmon did not return phone calls asking for comment on Natali's challenge, but, for now, the Human Rights Commission is sticking by its investigative report on SF Badlands. If the commission's stance doesn't change, the report seems likely to undergo its own investigation -- in court.

About The Author

Cristi Hegranes


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