Opinion
CA: 3:03-CV-0089-R.
August 9, 2004
MEMORANDUM OPINION AND ORDER
Plaintiffs Fantasy Ranch, Inc., Tazz Man, Inc., Cowtown Exposition, Inc., and Harry Freeman, sexually oriented businesses operating in Arlington, Texas, move for summary judgment against the City of Arlington and its police chief, Theron Bowman ("Defendants"), challenging the constitutionality of several provisions of the City's sexually oriented business ordinance. In opposition, Defendants cross-move for summary judgment. For the reasons set forth below, the Court will grant the Defendants' motion and deny the Plaintiffs' motion.
For purposes of this opinion, the Court will rely on the parties' evidence provided in both motions' joint appendices and will apply the parties' respective summary judgment burdens accordingly.
I. FACTUAL BACKGROUND
In an effort to regulate the sexually oriented businesses operating within its limits, the City of Arlington ("the City") enacted a sexually oriented business ordinance ("SOB ordinance"). The SOB ordinance provided a framework of zoning and locational restrictions, licensing requirements, and criminal laws that were enforced, generally, by the City's police department, under the authority of its police chief, Theron Bowman ("Bowman"). At its heart, the City's SOB ordinance contains a "no touch" rule, which prohibits touching between employees in a state of nudity and patrons. Restricting the conduct between patrons and cabaret personnel, the City proposed, would avoid secondary effects associated with sexual oriented businesses such as prostitution, drug dealing, and assault. Along with the "no touch" rule, licensing and inspection regulations — designed to ensure compliance with the "no touch" rule — served to fulfill the ordinance's purpose of promoting the general welfare of the citizenry.Seeking additional methods to prevent secondary effects more effectively, the City enacted a series of amendments to its SOB ordinance. On April 15, 2003, ordinance No. 03-044 was enacted and added three additional restrictions to the SOB ordinance, namely, a stage height and patron buffer zone provision, and a prohibition on direct tipping of dancers. The stage height provision, § 6.03(B), required that the stage on which an employee in the state of nudity performs be no less than eighteen inches above the floor and that the employee be at least six feet from or physically separated from patrons by a solid clear transparent unbreakable glass or plexiglass wall. Signs notifying patrons and employees of this provision, as well as, floor markings creating a six-foot buffer zone between employees in the state of nudity and patron were required by the patron buffer zone provision, § 6.04(A). Section 6.03(C), lastly, prohibited patrons from directly tipping or paying gratuity to employees in the state of nudity, relegating tipping to receptacles located at least six feet from the point on stage where the dancer is performing.
The ordinance's original licensing and inspection regulations were also changed through the July 29, 2003 enactment of ordinance No. 03-088, which added notably §§ 4.01 and 4.03. These sections imposed on businesses requirements for the issuance of permits necessary to comply with the proximity restrictions of Ordinance No. 03-044. The City's building official, the sections provided, would issue all necessary permits within thirty days after a business submits its application and would begin all necessary inspections relating to the application within five days of any request for inspections. Further, the permit application would be deemed approved unless expressly approved or denied within the thirty day period and that businesses could appeal the decision of the building official by filing suit in county court within thirty days of notice of the decision or expiration of the provision's deadlines. Staying the denial of the application, filing suit would provide to the applicant a provisional permit that remains effective until the court's entry of judgment on the appeal.
Since the commencement of this suit, Fantasy Ranch, Tazz Man, Cowtown Exposition, and Harry Freeman (collectively referred to by their individual names or "Plaintiffs") have lodged an array of attacks on the City's SOB ordinance. Following each of the ordinance's revisions, each attack, in substance, challenges the constitutionality of the system of regulations. Plaintiffs argue that the stage height and buffer zone provisions, direct tipping prohibition, and the permit and licensing provisions of the SOB ordinance violate the First, Fifth, and Fourteenth Amendments of the United States Constitution.
II. ANALYSIS
A. Summary Judgment StandardFEDERAL RULE OF CIVIL PROCEDURE 56©) allows summary judgment when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. See also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Melton v. Teachers Ins. Annuity Ass'n of Am., 114 F.3d 557, 559 (5th Cir. 1997). The court must decide all reasonable doubts and inferences in the light most favorable to the nonmoving party. See Lemelle v. Universal Mfg. Corp., 18 F.3d 1268, 1272 (5th Cir. 1994); Walker v. Sears, Roebuck Co., 853 F.2d 355, 358 (5th Cir. 1988). As long as there appears to be some support for the disputed allegations such that "reasonable minds could differ as to the import of the evidence," the motion must be denied. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986).
The party moving for summary judgment bears the initial burden of identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact. See Celotex, 477 U.S. at 323; Lynch Properties, Inc. v. Potomac Ins. Co., 140 F.3d 622, 625 (5th Cir. 1998). Where the nonmoving party bears the burden of proof on a claim upon which summary judgment is sought, the moving party may discharge its summary judgment burden by showing that there is an absence of evidence to support the nonmoving party's case. See Celotex, 477 U.S. at 325. Once the moving party has satisfied this burden, the nonmoving party must go beyond the pleadings and by its own affidavits or depositions, answers to interrogatories, and admissions on file set forth specific facts showing a genuine issue for trial. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Edwards v. Your Credit, Inc., 148 F.3d 427, 431-32 (5th Cir. 1998). Summary judgment will be granted "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex, 477 U.S. at 322.
B. Stage Height, Buffer Zone, and Direct Tipping Restrictions
a. Constitutional Standard of Review
Plaintiffs challenge the stage height, buffer zone, and direct tipping provisions — §§ 6.03 and 6.04 — of Ordinance No. 03-044, arguing that they violate the First Amendment, as incorporated by the Fourteenth Amendment of the United States Constitution. By restricting the proximity between dancer and patron, these provisions, Plaintiffs argue, are not content-neutral because they inhibit the dancer's ability to effectively communicate her erotic message. The City, disagreeing, contends that the provisions were enacted to target harmful secondary effects associated with sexually oriented businesses and are therefore content-neutral, time, manner, and place regulations. Based on the ordinance's legislative record, the Court agrees.
"A local government's interest in preserving the quality and character of neighborhoods and urban centers can, if properly set forth, support restrictions on adult entertainment." LLEH, Inc. v. Wichita County, Texas, 289 F.3d 358, 366 (5th Cir. 2002) (citation omitted). Under the test articulated in City of Los Angeles v. Alameda Books, the constitutionality of such ordinances is analyzed, considering (1) whether a sexually oriented business zoning ordinance is a time, place, and manner regulation; (2) whether the ordinance is aimed at the content of sexually-oriented speech (content-based) or the speech's secondary effects on the community (content-neutral); and (3) whether the ordinance is designed to serve a substantial governmental interest and leaves open reasonable alternative avenues of communication. See N.W. Enterprises, Inc. v. City of Houston, 352 F.3d 162, 173 (5th Cir. 2003) (citing City of Los Angeles v. Alameda Books, 535 U.S. 425, 433-34 (2002)). Ordinances designed to combat undesirable secondary effects of sexually oriented businesses are reviewed under the standards applicable to content-neutral time, place, and manner regulations. See LLEH, Inc., 289 F.3d at 365 (citation omitted). The Fifth Circuit, accordingly, has analyzed SOB ordinances as content-neutral, time, place, and manner restrictions where the legislative record demonstrated that the municipality's predominant concern was to regulate secondary effects of SOBs and not to censor the expression itself. See, e.g., Encore Videos, Inc. v. City of San Antonio, 330 F.3d 288, 291 (5th Cir. 2003) (holding SOB ordinance content-neutral where court previously found that the city had evidence of secondary effects); LLEH, Inc., 289 F.3d at 368 (finding legislative evidence of secondary effects related to SOBs and actions taken by other legislatures sufficiently established county's predominant concern of reducing secondary effects); Lakeland Lounge of Jackson, Inc. v. City of Jackson, 973 F.2d 1255, 1258-59 (5th Cir. 1992) (concluding SOB ordinance was content-neutral where city made findings supported by evidence that SOBs have harmful effects on the community).
Supporting the findings underlying ordinance No. 03-044 were, among other things, the findings and holding of Hang On, Inc. v. City of Arlington, 65 F.3d 1248 (5th Cir. 1995). In Hang On, Inc., the Fifth Circuit analyzed the City's SOB Ordinance — the same one at the core of Ordinance No. 03-044 — as a content-neutral, time, place, and manner regulation because the ordinance's stated purpose was "to regulate Adult Entertainment Establishments to promote general welfare of the citizens of the City." Hang On, Inc., 65 F.3d at 1250. The ordinance, the legislative record reflected, expressly disclaimed the intent to "restrict or deny access by adults to sexually oriented materials protected by the First Amendment or to deny access by the distributors and exhibitors of sexually oriented entertainment to their intended market." Id. Restating this purpose, the City enacted the stage height, buffer zone, and direct tipping provisions of Ordinance No. 03-044, which, the City proclaimed, additionally served to prevent prostitution, drug dealing, and assault.
After reviewing the City's evidence, the Court concludes that Ordinance No. 03-044 is justified without reference to speech. The predominant concern of the City's SOB ordinance, as the Hang On, Inc. court found previously, was content-neutral. Since the City relied on this decision, in addition to other cases where similar content-neutral ordinances were upheld, the legislative record supporting the enactment of Ordinance No. 03-044 sufficiently demonstrates that the predominant concern of Ordinance 03-044 is content-neutral; thus, its provisions are valid time, place, and manner regulations.
In setting forth the justification for its ordinance, the City may place great weight upon the experiences of and studies conducted by other local governments, as well as, opinions of courts from other jurisdictions, so long as the City reasonably believes that the evidence is relevant to the problem the City addresses. See JB Entm't, Inc. v. City of Jackson, 152 F.3d 362, 371 (5th Cir. 1998) (citing City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 51-52 (1986)). Further, the City need not demonstrate that it actually relied on evidence of negative secondary effects and may use both evidence developed prior to the ordinance's enactment and that adduced at trial. See id. at 371-72.
See, e.g., Colacurcio v. City of Kent, 163 F.3d 545, 553 (9th Cir. 1998) (upholding justification of content-neutral SOB ordinance intended to control prostitution, drug dealing, and other criminal activity where city relied on comprehensive study of adult entertainment businesses and their secondary impacts); Kev. Inc. v. Kitsap County, 793 F.2d 1053, 1059 (9th Cir. 1986) (affirming content-neutrality of SOB ordinance's stated purpose was to alleviate undesirable social problems that accompany erotic dance studios).
Although Plaintiffs argue that the City allegedly enacted content-based provisions previously on this legislative record, which Plaintiffs contend, establishes a content-based predominant concern, the argument is unavailing because the City need not re-litigate the issue every time the ordinance is challenged. See N.W. Enterprises, Inc., 352 F.3d at 176. Furthermore, "[b]ecause the constitutional standard of review depends only upon the City's predominate concern, not its pre-enactment proof that the ordinance would work, there is no reason to parse each provision of the ordinance separately to determine the standard of review." Id. Plaintiffs' argument that the City's predominant concern for enacting Ordinance No. 03-044 is content-based therefore fails.
b. Constitutionality of Ordinance No. 03-044
With respect to the third step in the analysis — whether the ordinance is designed to serve a substantial governmental interest and leaves open reasonable alternative avenues of communication, Plaintiffs challenge the evidentiary sufficiency and scope of Ordinance No. 03-044. They argue that the City, through its legislative evidence, has failed to establish that the stage, buffer zone, and direct tipping provisions promote a substantial governmental interest. These provisions, Plaintiffs further contend, so restrict performances that dancers have no reasonable alternative avenues to convey their dance message. The Court will address each argument in turn.
1. Substantial Governmental Interest
Plaintiffs argue that Ordinance No. 03-044 is not narrowly tailored to support a substantial governmental interest. This, they argue, is due to the City's failure to produce sufficient evidence that the secondary effects that Ordinance No. 03-044 seek to remedy actually exist. The City, relying predominantly on secondary effects evidence produced by other cities and municipalities in support of Ordinance No. 03-044, disagrees.
The City can restrict sexually oriented businesses in order to control secondary effects the businesses bring. See Encore Video, Inc., 330 F.3d at 292 (citing Lakeland Lounge of Jackson, Inc. v. City of Jackson, 973 F.2d 1255, 1257 (5th Cir. 1992)). In enacting its regulations, the City is entitled to rely on the experiences of other cities as long as whatever evidence on which it relies is reasonably believed to be relevant to the problem that the city addresses. See Encore Videos, Inc., 330 F.3d at 294. "[The Court's] focus is not an empirical enquiry into the actual intent of the enacting legislature, but rather the existence or not of a current governmental interest in the service of which the challenged application of the ordinance may be constitutional." LLEH, Inc., 289 F.3d at 368 (citation omitted).
At the time of the enactment of Ordinance No. 03-044, the City relied on, among other things, evidence addressing secondary effects from: (1) case law concerning similar ordinances from other cities; (2) studies conducted by other local governments; (3) reports of "no touch" violations at clubs within the City; and (4) testimony of the effectiveness of stage height requirements in enforcing the "no touch" rule. This evidence likewise formed the foundation upon which the City rested its "no touch" provision. See Hang On, Inc., 65 F.3d at 1254-55. The Hang On, Inc. court upheld this evidence as sufficient.
Plaintiffs have failed to establish a genuine issue of material fact as to the evidentiary sufficiency in support of Ordinance No. 03-044. It is not within a court's province to determine the most appropriate method for promoting the City's interest. See LLEH, Inc., 289 F.3d at 367-68. Here, the evidence on which the City relied was relevant to the secondary effects the City sought to avoid. Moreover, because the evidence was previously deemed sufficient to establish a substantial governmental interest, as noted in Hang On, Inc., the stage, buffer zone, and direct tipping provisions of Ordinance No. 03-044, which are merely manifestations of the "no touch" provision, further the same substantial interest. See id. at 368.
A time, place, and manner regulation meets the narrow tailoring standard if it targets and eliminates no more than the exact source of the evil it seeks to remedy. See Encore Videos, Inc., 330 F.3d at 293 (citation omitted). Although the City need not choose the least intrusive means to advance its legitimate interests, it may not regulate expression in such a manner that a substantial portion of the burden on speech does not serve to advance its goals. See id. Plaintiffs have failed to establish that no genuine issue of material fact exists as to the narrow tailoring of Ordinance No. 03-044. Again, it is not within a court's province to determine the most appropriate method for promoting the City's interest. As the City's evidence indicates, the stage, buffer zone, and direct tipping provisions present merely an incidental burden on the expressive conduct that is permissible because the City's governmental interest would be achieved otherwise less effectively absent the provisions. See LLEH, Inc., 289 F.3d at 369. Plaintiffs have failed to present evidence showing that the provision of Ordinance No. 03-044 burden substantially more expression than necessary to achieve its purpose. Accordingly, Ordinance 03-044 promotes a substantial governmental interest and is narrowly tailored to achieve this interest.
2. Reasonable Alternative Avenues of Communication
Plaintiffs have likewise failed to establish as a matter of law that Ordinance No. 03-044 does not provide for adequate alternative avenue of communication. They argue that since dancing involves multi-sensory perception to communicate its message through sounds, smell, and movements with the patron's proximity, the stage, buffer zone, and direct tipping provisions deny dancers an effective means to communicate their dance message. The Court disagrees. The distance requirements prescribed by the provisions do not rob dancers of their forum or their entire audience. Rather, these restrictions present a minimal intrusion on any expressive quality of the dance. Because incidental burdens on speech posed by regulations are not invalid simply because there is some imaginable alternative that might be less burdensome on speech, Plaintiffs have failed to establish their summary judgment burden here. See LLEH, Inc., 289 F.3d at 367 (citation omitted).
C. Building Permit and Certificate of Occupancy Application Processes
Plaintiffs argue that the City's building permit and certificate of occupancy processes constitute an unlawful prior restraint on Plaintiffs' exercise of their First Amendment rights. Specifically, §§ 4.01(I) and (J), Plaintiffs submit, create a conditional approval process that imposes an unlawful prior restraint on protected speech. They argue that the permit application process fails to provide for a prompt decision by the City's building official, and thus, along with the absence of a right to administrative appeal of the City's permit decision, denies them of due process under the Fourteenth Amendment.
A government may, under its police power, require licensing of various activities involving conduct protected by the first amendment. See Young v. American Mini Theatres, Inc., 427 U.S. 50, 62 (1976). Within a content-neutral permitting scheme, the licensor, to avoid offending the First Amendment, must make a decision whether to issue a license within a specified and reasonable period during which the status quo is maintained, and there must be the possibility of prompt judicial review in the event that the license is erroneously denied. See Encore Videos, Inc., 330 F.3d 288, 296 (5th Cir. 2003) (citing FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 227-28 (1990)).
Section 4.01(J) of the City's permit application process provides that the city official will cause all permits necessary for compliance to be issued within thirty days after the submission of an application, and will arrange for all necessary inspections with regard to such applications to occur within five days of any request for an inspection. Further, applications for necessary permits are deemed approved if no decision is made within the thirty day period. Plaintiffs have failed to establish that they are entitled to judgment as a matter of law on the City's permit scheme. No evidence in the record suggests that the City's official could not or would not be able to process permit applications within the thirty-day limit. Because Plaintiffs have failed to produce evidence suggesting that the permit application process deadlines would not be met, they have not satisfied their burden of demonstrating that the City's scheme does not provide for a decision to issue a permit within a specified and reasonable time.
Plaintiffs argument that the permit process denies them of their due process rights because the scheme does not provide for administrative appeal of the City's decision likewise fails. The City's scheme allows sexually oriented businesses to appeal the decision of the building official by filing suit in county court within thirty days of notice of the decision, or the expiration of established deadlines. The filing of such suit, the ordinance further outlines, automatically stays the denial of necessary permits, and a provisional permit is granted that remains effective until the entry of judgment by the court in which the appeal was filed. Plaintiffs have cited to no case law supporting their claim that the City is required to implement an administrative appeals process. Accordingly, they have produced no evidence to raise a genuine issue of material fact as to their claim challenging the City's permit and certificate of occupation applications process.
D. Excessive Fines Claim
Lastly, plaintiff Harry Freeman argues that the City's ordinance violates § 54.001(b) of the Texas Local Government Code, as enacted under Article XI, § 5 of the Texas Constitution, because it imposes a fine of $2,000 for violations, which allegedly exceeds the $500 cap on fines set by § 54.001(b). The City disagrees. The fine, the City contends, is proper under the City's authority to impose fines in excess of $2,000 for violations of public health regulations.
Article XI, § 5 of the Texas Constitution provides, in part, that no ordinances passed under the authority of a city's charter "shall contain any provision inconsistent with the Constitution of the State, or of the general laws enacted by the Legislature of this State." See TEX. CONST., Art. XI, § 5. Under § 54.001(b), the City may impose fines not to exceed $2,000 for public health ordinances. See TEXAS LOCAL GOVERNMENT CODE § 54.001(b). Plaintiff Harry Freeman has failed to produce evidence demonstrating that the City's ordinance was not enacted to address public health concerns. Indeed the ordinance specifically references the City's justifications for enacting the regulation, namely: (1) "to protect and preserve the health, safety, morals, and welfare of the patrons of sexually oriented businesses; (2) "to protect the health and well-being of the citizens" of the City; and (3) "to promote the health, safety, morals and general welfare of the citizens of the City." Although plaintiff Harry Freeman argues that the ordinance cannot reasonably interpreted as a public health ordinance, the Court cannot reach the same conclusion without evidence supporting this claim. Accordingly, plaintiff Harry Freeman has not established that he is entitled to judgment as a matter of law as to his claim.
III. CONCLUSION
For the foregoing reasons, the Court grants the Defendants' motion and denies the Plaintiffs' motion.
It is so ORDERED.