Nightclub Will Appeal to Keep Entry Policy

Although a judge has ordered a trendy downtown nightclub to abandon its exclusive admission policy, calling it “nothing more than a smoke screen for blatant discriminatory behavior,” a lawyer for the club said Monday that the practice will remain in effect while the decision is appealed.

“We deem this no more than a momentary setback for commercial freedom,” said attorney Joshua Kaplan.

Administrative Law Judge Milford A. Maron found Vertigo in violation of the state’s civil rights law by applying “nebulous criteria” in deciding who is admitted from those waiting in line.

The “nebulous criteria” listed by the judge included fashion or style of dress, community position or standing, acquaintance with management and, in the case of women, whether they are single.

In a ruling issued June 12, but not made public until recently, Maron found that the club, in business for six years, arbitrarily discriminated against the general public and “clearly . . . discriminates against single men.”

Maron said Vertigo’s owners “have shrewdly developed a demand on the part of the public to attend its public premises (and) restrict attendance by means of what they term a ‘priority admissions policy.’ ”

That policy, he added, “is nothing more than a smoke screen for blatant discriminatory behavior, with an awesome potential for abuse; a veritable ‘wolf in sheep’s clothing.’ ”

Maron’s ruling was made public Friday by the state Department of Alcoholic Beverage Control (ABC), which had moved to revoke Vertigo’s liquor license.

The judge revoked the license, but stayed his order while placing the club on one year’s probation. During that time, he ordered the club to come up with a written non-discrimination policy and to stop discriminating against patrons.

Maron acknowledged the constitutional rights of an establishment to promote a business where people come to “dine, imbibe and to ‘see and be seen.’ ” However, he said, when the club accepted its liquor license, it also accepted an obligation to admit the general public.

Vertigo’s owner, Jim Colachis, has said his club at 333 S. Boylston St. has the right to extend preferential treatment to some patrons if it does not discriminate on the basis of sex or race. His staff, he said, generally admits people who have made an effort to dress up for the night, or who are dressed in an “interesting manner.”

ABC officials challenged that policy, asking why no dress code was posted at the entrance, David Wainstain, an attorney with the state agency, said Monday.

“They said fashion is too changing to post a code,” he said. “That is too arbitrary to our minds. The problem with that kind of system is that it’s open to abuse.”

During a two-day hearing, Kaplan had argued that the civil rights law bans specific types of discrimination, such as that based on race, sex, disability or religion.

Wainstain, however, said courts have ruled that those criteria do not encompass all of the grounds upon which a claim of discrimination can be made. “The courts have ruled that you cannot arbitrarily discriminate,” he said.

Earlier this year, a Los Angeles Municipal Court commissioner ordered the Mayan, another downtown club, to pay a small-claims judgement of $1,112 for refusing to admit four patrons without reason. That decision did not include an order to stop the admissions policy.

Vertigo’s appeal will be heard by the three-member ABC appeals board appointed by the governor. If the appeal fails, the club can take its case to the state Court of Appeal, Wainstain said.