A Brief Look at the Constitutionality of Sexually Oriented Businesses in Texas

8/7/2019 A Brief Look at the Constitutionality of Sexually Oriented Businesses in Texas

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A BRIEF LOOK AT THE CONSTITUTIONALITY OF

SEXUALLY ORIENTED BUSINESSES IN TEXAS

ROBERT S.MORALES

I. INTRODUCTIONIn September 2008, a judge ordered The Penthouse Club in

Houston, Texas to shut down for a year for violating the citys

sexually oriented business law and being found to be a public

nuisance.1

The judge further ordered that The Penthouse Club could

never again open as a sexually oriented business.2

The Penthouse

Club reopened in September 2009 when the judges order expired.3

Prior to the closing, the establishment considered itself a bikini bar

4

and not a sexually oriented business since the entertainers wore full

bikini bottoms and latex covering on the nipples. However, the

entertainers did dance on a stage with a large, anchored pole5

1 Robert Arnold, Reported Mob Boss Hiding in Houston, Click2Houston.com, Sep.

15, 2009, http://www.click2houston.com/news/20920113/detail.html.

2Id.

3Id.

4Id.

5 THE PENTHOUSE CLUB, http://www.penthousehouston.net (last visited March 12,

2011).

where

tips from the customers were solicited and private dances for

customers were performed and contact between the entertainer and


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customer was expected.6

When The Penthouse Club reopened, it did

so by marketing itself as a bikini bar with entertainers that wore latex

covering and full bikini bottoms.7 And again, the entertainers dancedon stage and performed private dances for the customers.

8

The Penthouse Club is only one of the approximately 150

businesses in the city of Houston

9that may be in violation of the

citys sexually oriented business ordinance.10

And along with these

businesses are the thousands of people they employ11

who are also

subject to the citys ordinances. And this is just Houston, Texas, and

just sexually oriented businesses featuring live entertainment. Indeed,

sexually oriented businesses are a multi-million dollar industry in

Texas12

II. BACKGROUND INFORMATIONand thus critical to the States economy.

A sexually oriented business is a type of business that is

specially regulated by the state. It is defined in two different state

codes. According to the Business and Commerce Code, it is a

nightclub, bar, restaurant, or similar commercial enterprise that

provides for an audience of two or more individuals live nude

entertainment or live nude performances and authorizes on-premises

6 This was especially true in the champagne rooms where the customer would

purchase a bottle of alcohol (usually champagne) at a marked-up price in return for

a private room with the exclusive company of an entertainer of his/her choice.

7See supra note 2.

8Id.

9 Matt Stiles, City Plans Crackdown On Some Sex Businesses: Venues Too Close To

'Sensitive' Sites Face Relocation Or Closure As A 1997 Law Gets Enforced, The

Houston Chronicle, April 16, 2007,

http://www.chron.com/disp/story.mpl/front/4717463.html.

10 HOUSTON,TEX.,CODE OF ORDINANCES ch. 28, art. III, 125 (1997), available at

http://library.municode.com/index.aspx.

11See supra note 9. The Mens Club alone employed over a 1,000 entertainers in

the year preceding the passing of the ordinance.

12Id.


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consumption of alcoholic beverages.13

sex parlor, nude studio, modeling studio, love parlor, adult bookstore,adult movie theater, adult video arcade, adult movie arcade, adult

video store, adult motel, or other commercial enterprise the primary

business of which is the offering of a service or the selling, renting, or

exhibiting of devices or any other items intended to provide sexual

stimulation or sexual gratification to the customer.

And according to the Local

Government Code, a sexually oriented business is a

14

Indeed, the Local Government Code is more encompassing

than the Business and Commerce Code which the former provides thelocal governments with more authority to classify a particular

business as being sexually oriented. Also, the Local Government

Code does not define what nudity is while the Business and

Commerce Code does. Thus, local governments are free to

incorporate whatever definition of nudity that they deem necessary to

accomplish their goal of adequate regulation of sexually oriented

businesses since their grants of authority come from the Local

Government Code

15and not the Business and Commerce Code.

Nonetheless, nudity is defined in the Business and Commerce Codeas entirely unclothed; or clothed in a manner that leaves uncovered

or visible through less than fully opaque clothing any portion of the

breasts below the top of the areola of the breasts, if the person is

female, or any portion of the genitals or buttocks.16

The regulation of erotic dancing in sexually oriented

businesses can generally be attributed to Barnes v. Glen Theaters,

Inc.

17In Barnes,

18

13

TEX. BUS. &COM.CODE ANN. 102.051(2) (Vernon 2009).

the Supreme Court held that a statute may regulate

14 TEX. LOC.GOVT CODE ANN. 243.002 (Vernon 2009).

15TEX. LOC.GOVT CODE ANN. 243.001 (Vernon 2009).

16 TEX. BUS. &COM.CODE ANN. 102.051 (1) (Vernon 2009).

17 Barnes v. Glen Theatre, Inc., 501 U.S. 560 (1991).

18Id.


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this kind of dancing as long as the statute passes the OBrien Test.19

The Barnes decision was reaffirmed nine years later in City of Erie v.

Paps A.M 20 while the authority to regulate sexually orientedbusinesses in Texas has been found constitutional since 1982.

21

III. CONSTITUTIONAL LANGUAGEThe Constitution is not an instrument for the government to restrain

the people, it is an instrument for the people to restrain the

government - lest it come to dominate our lives and interests.

A) Freedom of expression

Despite some peoples repulsion towards sexually oriented

businesses, they are allowed to exist under the United States

Constitution.22

In particular, sexually oriented businesses that feature

live entertainers have been found to be vessels for the form of

expression of nude or erotic dancing.23 And, nude or erotic dancing

has been found to be a constitutionally protected form of expression

by both the Constitutions of Texas24

and the United States.25

Unlikely though it may seem, the fate of First Amendment freedomsis irrevocably connected to the ongoing struggle between purveyors

of adult entertainment and defenders of public decency.26

19 United States v. O'Brien, 391 U.S. 367 (1968). See infra note 41 and

accompanying text.

Indeed,

20City of Erie v. Pap's A. M., 529 U.S. 277, 301 (2000).

21 Memet v. State, 642 S.W. 2d 518, 522-23 (Tex. App. 1982).

22Barnes, 501 U.S. at 565-66.

23Id.

24Memet, 642 S.W. 2d at 522-23.

25Barnes, 501 U.S. at 565-66.

26 David L. Hudson Jr., Adult Entertainment and the Secondary-effects Doctrine:

How a zoning regulation may affect First Amendment freedoms, VOL.2,NO.1

FIRST REPORTS 1, May 2002.


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virtually impossible.33

Thus, the bar was lowered to where a

Victorian prosecutor must only prove that the work, taken as a

whole, lacks serious literary, artistic, political, or scientific valueinstead of having to prove the material to be utterly without social

value.34 Thus, the material must now have a serious social value as

opposed to just having some social value. Indeed, works of serious

social value receive First Amendment protection regardless of

whether the government or a majority of the people approve of the

ideas these works represent.35

As mentioned above, the Supreme Court has found that nude

dancing of the kind sought to be performed here is expressive conduct

within the outer perimeters of the First Amendment, though we view

it as only marginally so.

Of course, social value is assigned by

the majority of the people which in turn elects the government. Thus,

works of serious social value only receive First Amendment

protection if the government or a majority of the people approve of

the ideas these works represent.

36Even though the Supreme Court found

that this type of expressive conduct is one of the lowest forms of

expressive conduct, it is still expressive conductand thus falls under

the freedom of speech protections guaranteed by the First

Amendment; and a law directed at the communicative nature of

conduct must, like a law directed at speech itself, be justified by the

substantial showing of need that the First Amendment requires.37

Thus, for a statute that regulates erotic dancing to be held

constitutional, it must pass the four-prong intermediate scrutiny test

established by OBrien.38

33

Miller v. California, 413 U.S. 15, 22 (1973).

34Id. at 24.

35Id. at 34.

36Barnes v. Glen Theatre, Inc. 501 U.S. 560, 566 (U.S. 1991).

37 Texas v. Johnson, 491 U.S. 397, 406 (1989) (quoting Cmty. for Creative Non-

Violence v. Watt, 703 F.2d 586, 622 (D.C. Cir. 1983) (Scalia J., dissenting)).

38Fantasy Ranch, Inc. v. City of Arlington, 459 F.3d 546, 555 (5th Cir. 2006).


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According to OBrien, a public nudity ordinance that

incidentally impacts protected expression should be upheld if39

(4) the incidental restriction on first amendment freedoms is nogreater than is essential to the furtherance of that interest.

it

meets the following conditions:

(1) if it is within the constitutional power of the government;

(2) it furthers an important or substantial government interest;

(3) the governmental interest is unrelated to the suppression of free

expression; and

40

These requirements are easily met by enacting governments

when the governmental interest is the relief of secondary effects.

41

Secondary effects usually include prostitution, assault, drug dealing,42

and the lowering of property values.43 However, these secondary

effects must be related to the actual regulation.44

One common method of restricting sexually oriented businessis with laws that regulate alcohol consumption and sales.

45Indeed, it

is so common that the courts have developed a test to conclude

[whether] a liquor regulation prohibiting the sale or consumption of

alcohol on the premises of adult entertainment establishments is

constitutional.46

39Id.

According to Bens Bar, a restriction on the sale

40Id.

41Id. at 555-56.

42Id. at 557.

43See Smartt v. City of Laredo, 239 S.W. 3d 869, 872 (Tex. App. 2007).

44 Williams v. City of Fort Worth, 782 S.W. 2d 290, 297 (Tex. App. 1989).

45 Bens Bar, Inc. v. Vill. of Somerset, 316 F.3d 702, 705 (7th Cir. 2003).

46SeeId. at 722.


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and/or consumption of alcohol in a sexually oriented business is

constitutional if:

(1) the State is regulating pursuant to a legitimate

governmental power,

(2) the regulation does not completely prohibit adult

entertainment,

(3) the regulation is aimed not at the suppression of

expression, but rather at combating the negative

secondary effects caused by adult entertainment

establishments, and

(4) the regulation is designed to serve a substantial

government interest, narrowly tailored, and

(a) reasonable alternative avenues of

communication remain available, or

(b) alternatively, the regulation furthers

an important or substantial governmentinterest and the restriction on expressive

conduct is no greater than is essential in

furtherance of that interest.47

Although at first glance this test may seem to favor

unconstitutionality, in reality most of the elements have already been

adjudicated in favor of the government before any litigation has taken

place. Indeed, the governments regulation of alcohol sales and

consumption in inappropriate locations is clearly within its generalpolice powers.

48And inherent to the regulation of alcohol

consumption is the fact that the scope of the regulation lies in the

availability of alcohol and not the per se regulation of expressive

conduct.49

47Id.

Thus, the Court has found that such a regulation does not

violate the First Amendment as the regulation does not prohibit a

48Id.(emphasis added).

49Id. at 723.


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persons right to indulge in alcohol or enjoy nude or semi-nude

dancing, it only prevents them from doing both at the same time and

place.50

[D]eprivation of alcohol does not prevent the observer

from witnessing nude or semi-nude dancing, or the

dancer from conveying an erotic message. Perhaps a

sober patron will find the performance less tantalizing,

and the dancer might therefore feel less appreciated

(not necessarily from the reduction in ogling and cat

calls, but certainly from any decrease in the amount oftips she might otherwise receive.

However, the Court was not without empathy towards theaffected businesses as they observed that the:

51

According to the Texas Constitution, [E]very person shall be at

liberty to speak, write or publish his opinions on any subject, being

responsible for the abuse of that privilege; and no law shall ever be

passed curtailing the liberty of speech or of the press. In prosecutions

for the publication of papers, investigating the conduct of officers, ormen in public capacity, or when the matter published is proper for

public information, the truth thereof may be given in evidence. And

in all indictments for libels, the jury shall have the right to determine

the law and the facts, under the direction of the court, as in other

cases.

The Texas Constitution

52

Although, the protection of free speech in the Texas

Constitution seems more comprehensive than the protections found in

the U.S. Constitution, the Texas Courts of Appeals has not found thisto be the case.

53

50

Id. at 728.

Indeed, the Texas Supreme Court has held that free

speech rights under the Texas Constitution may be broader than those

51Id.

52 TEX. CONST. art. I, 8.

53Kaczmarek v. State, 986 S.W. 2d 287, 291 (Tex. App. 1999).


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provided by the Federal Constitution in certain cases.54

Unfortunately, the Court has explicitly held that any broader Texas

free speech protections do not extend to exotic dancing.55 The basisfor these holdings is that there is less interest in protecting material on

the borderline between pornography and artistic expression than in

free dissemination of the ideas of social and political significance.56

Indeed, the last case that provided any serious analysis of whether the

Texas Constitution proffers greater free speech protections than does

the U.S. Constitution was the 1995 Woodall case.57

Since Woodall

was written, neither the Texas Supreme Court nor lower state courts

have issued any rulings undermining its conclusion.58

In Woodall, the Adult Businesses argued that the Davenport

59

case had extended the greater free speech protection found in the

Texas Constitution to sexually oriented business.60

Thus, they argued

that the ordinance must be analyzed under a strict scrutiny test under

the Texas Constitution instead of the intermediate scrutiny test under

the U.S. Constitution.61

If an ordinances constitutionality is tested

under strict scrutiny, then the government would have to prove that

the ordinance protects a compelling government interest and uses the

least restrictive means of protecting this interest.62

54

Woodall v. City of El Paso, 49 F.3d 1120, 1127 (5th Cir. 1995) (emphasis added)

(Generally political protest speech).

However, the

Court held that Davenportappl[ied] only to prior restraints and not

55Kaczmarek, 986 S.W.2d at 291.

56

Id. (quoting 2300, Inc. v. City of Arlington, 888 S.W.2d 123, 127 n.3 (Tex. App.1994)).

57N.W. Enterprises, Inc. v. City of Houston, 352 F.3d 162, 177 (5th Cir. 2003).

58Id.

59Davenport v. Garcia, 834 S.W.2d 4, 11-17 (Tex.1992).

60Woodall, 49 F.3d at 1127.

61Id.

62Id.


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to time, place and manner restrictions in land use restrictions of

sexually oriented businesses.63

Finding no case on point post

Davenport to support the argument by the Adult Businesses, theCourt relied on the prior case Lindsay

64to hold that the ordinance

must only protect a substantial government interest without

unreasonably limiting alternative avenues of communication.65

In

holding that the Texas Constitution requires the same standard as

under the U.S. Constitution, the Court expressed its bias against the

Adult Businesses by stating that [i]f the intermediate Texas courts

are wrong about Texas law in this area, we are content to wait until

the Texas Supreme Court corrects their error.66

Accordingly, under Texas law, a property owner has no

constitutionally protected right to operate a sexually oriented

business.

67However, the erotic message being conveyed within the

sexually oriented business is constitutionally protected and the

government may not prohibit expression simply because it disagrees

with its message regardless of the particular mode in which one

chooses to express an idea.68 This is especially significant

considering the substantial bias against sexually oriented businesses

in Texas. From the onset, the evidentiary burden for a State

attempting to justify a substantial governmental interest is very

light.69

However, the courts do require some evidence to justify a

substantial governmental interest.70

63Id.

Thus, when there simply is no

evidence, then the State has not met the minimal evidentiary burden

64 Lindsay v. Papageorgiou, 751 S.W.2d 544, 550 (Tex. App. 1988).

65Woodall, 49 F.3d at 1127-28.

66Id. at 28.

67Hang On III, Inc. v. Gregg County, 893 S.W. 2d 724, 726 (Tex. App. 1995).

68 Texas v. Johnson, 491 U.S. 397, 416 (1989).

69 Illusions-Dallas Private Club, Inc. v. Steen, 482 F.3d 299, 313 (5th Cir. 2007).

70Id. at 312.


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placed upon it.71

Indeed, the States burden is so low that the only

way that it cannot meet its burden is by presenting absolutely no

evidence at all; the standard of constitutional scrutiny. . . is simplywhether [the ordinance] addressed secondary effects of adult speech,

as demonstrated by the legislative record submitted by the City.72

Accordingly, the City need not [even] demonstrate that the City

Council actually relied upon evidence of negative secondary effects

when it enacted [the ordinance].73

In fact, the courts have made it

clear how little evidence they need from the government by noting

how unfair it would be to the government [t]o require the legislature

to show evidence of negative secondary effects and of the new

regulations efficacy requires too much of the City.74 Indeed, the

ordinances expected effectiveness may be proven by common sense

alone; there is no need to prove empirically[,] that SOB ordinances

will successfully reduce crime.75

Thus, the City is entitled to

experiment with distance regulations76

B) Equal Protection Clause

whether it is to the detriment

of sexually oriented businesses or not. And given the disposition of

the courts toward sexually oriented businesses, the experimentation

with distance regulations is probably expected to be to the detriment

of sexually oriented businesses.

We hold these truths to be self-evident, that all men are

created equal, that they are endowed by their Creator with certain

unalienable Rights, that among these are Life, Liberty and the pursuit

of Happiness.77

71Id. at 313.

Although this statement was made as a justification

for the creation of the United States, it wasnt a truthful statement.

72N.W. Enterprises, Inc. v. City of Houston, 352 F.3d 162, 174 (5th Cir. 2003).

73Id. at 175.

74Id.

75Id. at 180.

76 Id. at 181.

77The Declaration of Independence para. 2 (U.S. 1776).


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Had it been, then slavery wouldnt have been tolerated in the United

States. Thus, not all men were created equal. And if all men werent

considered to be equal, then certainly women were excluded from thecreation equality fabrication. Certainly, men and women are

physically different and apparently these differences are not equal in

the eyes of the law. This is especially true when it comes to the chest

area. Indeed, [l]aws that target female toplessness include zoning

ordinances, public exposure or lewdness ordinances and statues,

ordinances regulating sexually-oriented businesses, law aimed at nude

sunbathing, regulations of business and liquor licenses, and obscenity

statutes.78

These laws highlight the inequality of men and women

by showing that a males viewpoint of the female form wins out to the

female viewpoint to her own body.79

Specifically, it

demonstrates that courts view the breast from a distinctly

heterosexual male perspective, and from this perspective they

conclude there is a real difference between men and women. While

courts identify this difference as biological, their reasoning reveals

the difference is socially imposed.80

According to the U.S. Constitution, equality of rights under

the law shall not be denied or abridged by the United States or by any

State on account of sex.

The U.S. Constitution

81Actually, that is how the U.S.

Constitution would have read had the Equal Rights Amendmentbeen

adopted. As it was not, women do not receive equal rights under the

law, but only equal protection under the law. It is clear that gender

has never been rejected as an impermissible classification in all

instances.82

78

Virginia F. Milstead, Forbidding Female Toplessness: Why Real Difference

Jurisprudence Lacks Support and What Can Be Done About It, 36 U.TOL.L.

REV. 273, 276-77 (2005).

79Id. at 282-83.

80Id. at 279.

81Equal Rights Amendment, H.R.J. Res. 208, 92 Cong. (1972).

Thus, we have the lesser standard of equal protection

82 Rostker v. Goldberg, 453 U.S. 57, 69 n.7 (1981).


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and that is granted by the 14th Amendment to the U.S. Constitution

which states:

All persons born or naturalized in the United States,

and subject to the jurisdiction thereof, are citizens of

the United States and of the State wherein they reside.

No State shall make or enforce any law which shall

abridge the privileges or immunities of citizens of the

United States; nor shall any State deprive any person

of life, liberty, or property, without due process of law;

nor deny to any person within its jurisdiction the equal

protection of the laws.83

Indeed, laws regulating sexually oriented businesses are

subject to equal protection and due process

84challenges. The courts

have found that administrative hearings are subject to procedural due

process or any such adverse ruling is subject to reversal.85

Moreover,

sections of sexually oriented business ordinances have been held to

violate the equal rights provisions.86

For a local ordinance to survive a gender-based discriminationchallenge, it must serve important governmental objectives and must

be substantially related to [the] achievement of those objectives.

87

This is commonly known as the intermediate scrutiny standard of

review.88

Here, the courts have made it clear that the protection of

public health and safety represents an important function of state and

local governments.8983 U.S. CONST. amend. XIV, 1

Consequently, the prevention of secondary

84 U.S. CONST. amend. XIV, 1

85City of Arlington v. Centerfolds, 232 S.W.3d 238, 249 (Tex. App. 2007).

86 Williams v. City of Fort Worth, 782 S.W.2d 290, 298 (Tex. App. 1989).

87 Craig v. Boren, 429 U.S. 190, 197 (1976).

88WIKIPEDIA, Intermediate scrutiny,

http://en.wikipedia.org/wiki/Intermediate_scrutiny (as of Oct. 11, 2010, 01:23

GMT).

89Craig, 429 U.S. at 199-200.


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effects has also been recognized as an important government

objective that can withstand gender-based discrimination.90

This is

true notwithstanding the reality that the evidence offered by localgovernments is generally based on weak statistics and [i]t is

unrealistic to expect . . . members of the judiciary . . . to be we ll

versed in the rigors of experimental or statistical technique.91

Indeed, proving broad sociological propositions by statistics is a

dubious business, and one that inevitably is in tension with the

normative philosophy that underlies the Equal Protection Clause.92

However, even if the courts are willing to accept dubious statistics in

regards to sexually oriented business regulation, they also rely on

statistics that conclude that there is no evidence of secondary effects

to strike down these regulations.93

Thus, if sexually oriented

businesses can show that local studies show no evidence of negative

secondary effects connected with [their] clubs, then they may

triumph in their cause.94

In reality, sexually oriented businesses may

want to go further and actually prove that the neighborhood actually

improved while a sexually oriented business was located in the

community as the businesses did in Flanigans Enterprises, Inc.95

There, the sexually oriented businesses showed unequivocally thatproperty values in neighborhoods adjoining the Clubs have increased

during the time the Clubs have been in existence, and that

surrounding buildings show[ed] no signs of blight, or lack of physical

maintenance.96 Moreover, it was also proven that there was greater

reported crime connected with establishments that served alcohol but

did not feature adult entertainment took place.97

90

Buzzetti v. City of New York, 140 F.3d 134, 142-143 (2nd Cir. 1998).

91Craig, 429 U.S. at 204.

92Id.

93Flanigans Enterprises, Inc. v. Fulton County, 242 F.3d 976, 979 (11th Cir. 2001).

94Id. at 978.

95Id. at 986.

96Id.

97Id.


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Nonetheless, the Court has actually stated that the government must

have an exceedingly persuasive justification to survive a gender-based

equal protection claim.98 In United States v. Virginia, the State wastrying to argue that it could exclude female students from an all-male

public military institution.99 Acknowledging a long and unfortunate

history of sex discrimination,100

the Court noted that the Equal

Protection Clause requires that women be given an equal opportunity

to aspire, achieve, participate in and contribute to society based on

their individual talents and capacities.101

Thus, [t]he burden of

justification is demanding and it rests entirely on the State to prove

that the purpose behind the gender-based discrimination is

exceedingly persuasive.102 Thus, the reasoning must be genuine, not

hypothesized or invented post hoc in response to litigation. And it

must not rely on overbroad generalizations about the different talents,

capacities, or preferences of males and females.103

However, the

Court also recognized that there were inherent differences between

males and females and society has come to appreciate [these

inherent differences], [they] remain cause for celebration, but not for

denigration of the members of either sex or for artificial constraints

on an individual's opportunity.

104

Now, the exceedingly persuasive justification standard may

seem like a heightened level of scrutiny, but the Court has found that

the difference between the effect of seeing male breasts and seeing

female breasts is a self-evident truth about the human condition and

thus not required to be proven in order to justify gender-based

discrimination in an ordinance.

105

98

Mississippi Univ. for Women v. Hogan, 458 U.S. 718, 724 (1982).

Thus, the courts have found that

99 United States v. Virginia, 518 U.S. 515, 519 (1996).

100 Frontiero v. Richardson, 411 U.S. 677, 684 (1973).

101Virginia, 518 U.S. at 532.

102Id. at 533.

103Id.

104Id.

105 Hang On, Inc. v. City of Arlington, 65 F.3d 1248, 1257 (5th Cir. 1995).


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in our culture the public display of female breasts will have far

different secondary effects than the public display of male breasts.106

Indeed, the public reactions to the exhibition of the female breastand the male breast are highly different.

107The public exposure of

the female breast is rare under the conventions of our society, and

almost invariably conveys sexual overtones.108

As such, numerous

courts have recognized that the societal impacts associated with

female toplessness are legitimate bases for regulation.109

Likewise,

the government must prove only that regulation of female breasts is

substantially related to an important governmental interest, not that

the exposure of male breasts is so related.110

Therefore, these

ordinances will be upheld as [s]tatutes that fairly can be seen as

responding to clear sexual differences between men and women are

among those laws that courts have upheld, despite the gender-based

classification contained in them.111

According to the Texas Constitution, equality under the law

shall not be denied or abridged because of sex, race, color, creed, or

national origin.

Thus, the courts have

established that gender-based discrimination related to sexually

oriented businesses is constitutional under the heightened

intermediate scrutiny framework.

The Texas Constitution

112The Texas Equal Rights Amendment was

designed expressly to provide protection which supplements the

federal guarantees of equal treatment.113

106 Buzzetti v. City of New York, 140 F.3d 134, 138 (2nd Cir. 1998).

Accordingly, the Equal

107Id. at 143.

108Id.

109Id. at 142.

110SDJ, Inc. v. Houston, 837 F.2d 1268, 1279 (5th Cir. 1988).

111Buzzetti, 140 F.3d at 141.

112 TEX. CONST. art. I, 3a

113Bell v. Low Income Women of Tex., 95 S.W.3d 253, 257 (Tex. 2002).


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Rights Amendment is more extensive and provides more specific

protection than . . . the United States [Constitution].114

Thus, it

elevates sex to a suspect classification, and is therefore affordedmaximum constitutional protection.

115As such, an ordinance must

have a compelling state interest to be constitutional.116 And, [o]nce

it has been determined that the law discriminates against one sex

clearly on the basis of gender, the discrimination is allowed only

when the proponent of the discrimination can prove that there is no

other manner to protect the state's compelling interest.117

For

example, a regulation that is worded so as to where a male may

dance topless within the restricted area while a female cannot, a male

may model topless while a female cannot, and the breast of a male

may be pictured or described whereas the breast of a female

cannot118

Texas has, however, found that sexually oriented business

ordinances are subject to the Texas Equal Rights Amendment.

must have a compelling state interest to severely restrict

the female body while providing a liberating forum for the male form.

119The

Equal Rights Amendment reads that [e]quality under the law shall

not be denied or abridged because of sex, race, color, creed, or

national origin.120 When a violation of the Equal Rights

Amendment is alleged, the courts have analyzed the challenged law

under a three-step process.121

First, they look at whether equality

under the law has been denied.122

114 In Interest of McLean, 725 S.W.2d 696, 698 (Tex. 1987).

Second, they look at whether

115 Maloy v. City of Lewisville, 848 S.W.2d 380, 384 (Tex. App. 1993).

116Id.

117Id.

118Id.

119Williams v. City of Fort Worth, 782 S.W.2d 290, 296 (Tex. App. 1989).

120 TEX. CONST. art. I, 3a.

121 Bell v. Low Income Women of Tex., 95 S.W.3d 253, 257 (Tex. 2002).

122Id.


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equality was denied because of a person's membership in a protected

class of sex.123

If so, the law will only be upheld as constitutional if

it is narrowly tailored to serve a compelling governmentalinterest.

124However, some courts have disagreed with those courts

that have held that the Texas Equal Rights Amendment was intended

to apply to an ordinance prohibiting female topless dancing in

residential neighborhoods.125

Indeed, these courts have even gone as

far as to chastise their more protective judicial brethren by denying

that a constitutional provision enacted to insure equality under the

law to all Texans, regardless of gender, race, creed, or national origin,

should be utilized to strike down an ordinance limiting the locations

where female topless dancing is permitted.126

In Williams, the sexually oriented business ordinance of Fort

Worth was found to discriminate against females since clubs that

featured female topless dancers were subject to geographical

restrictions while those featuring male topless dancers were not.

127

Here, the court found that there was no evidence that exposure of the

breasts of male performers in bars which regularly feature such

entertainment is not considered sexually oriented.128

Thus, the Court

found that it is not authorizedto take judicial notice of the concept

that the breasts of female topless dancers, unlike their male

counterparts, are commonly associated with sexual arousal.129

[b]ecause the ordinance discriminates against women

on its face in its definition of nudity, and because the

proponents of the ordinance have produced no proof

Thus,

the court held that

123Id.

124Id.

125 Schleuter v. City of Fort Worth, 947 S.W.2d 920, 925 (Tex. App. 1997).

126Id.

127 Williams v. City of Fort Worth, 782 S.W.2d 290, 297 (Tex. App. 1989).

128Id. at 297.

129Id.


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that they cannot protect their interest in preventing

secondary neighborhood effects without such

discrimination the State of Nudity definition,relating to female breasts, is null and void in its

application to adult nightclubs and bars.130

However, the courts have shown that the government has to

overcome a low threshold of proof to satisfy its burden. The courts

have found that evidence that (1) physiological and sexual

distinctions exist between the male and female breast; (2) female

breasts differ both internally and externally from male breasts; and (3)

the female breast, but not the male breast, is a mammary gland issufficient for the government to justify its discrimination based on

gender.

131Therefore, the government can meet its burden by simply

presenting expert testimony that the difference between male and

female breasts is consistent with what is medically known about

human sexual responses.132

IV. LOCAL ORDINANCES

Thus, the courts have made it clear that

there are real physical differences between men and women and these

differences are certainly not equal. These physical differences create

different psychological responses and those responses that men

produce must be controlled by the regulation of women. Inescapably,

it is far too difficult to regulate men in this capacity, so Texas has

imposed societys burden on women as society has historically done

throughout our nations history.

According to the Texas Local Government Code,133

local

governments are authorized to regulate sexually oriented businesses

to remedy the decline of residential and business neighborhoods and

the growth of criminal activity.134

130

Id. at 298.

More specifically, [a]

131 MJRs Fare of Dallas, Inc. v. City of Dallas, 792 S.W. 2d 569, 575 (Tex. App.

1990).

132 Hang On, Inc. v. City of Arlington, 65 F.3d 1248, 1256 (5th Cir. 1995).

133 TEX. LOC.GOVT CODE ANN. 243.001(b) (Vernon 2009).

134TEX. LOC.GOVT CODE ANN. 243.001(a) (Vernon 2009).


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municipality by ordinance or a county by order of the commissioners

court may adopt regulations regarding sexually oriented businesses as

the municipality or county considers necessary to promote the publichealth, safety, or welfare.

135However, this seemingly unbridled

delegation of authority over sexually oriented businesses is limited to

location and density restrictions.136

And even here, the restrictions

are generally confined to licensing and permit requirements.137

Also,

the county is expressly prohibited from regulating a sexually oriented

business located within the corporate limits of a municipality.138

Moreover, a further restriction is placed on the local governments.

They may not set the punishments for violations of their ordinances as

these have already been set by the Code.139 As such, home rule

cities may not pass a municipal ordinance that conflicts with the

constitution or general laws of the state.140 However, a violation of

a sexually oriented business ordinance may be enjoined in district

court141

and/or a person may be charged with a Class A

misdemeanor.142

Actually, the use of these two different remedies is

essentially a tool for the prosecutor as a Class A misdemeanor must

be heard in a county court since the district court lacks jurisdiction

over Class A misdemeanors.

143

Thus, the prosecutor is given both

135TEX. LOC.GOVT CODE ANN. 243.003(a) (Vernon 2009).

thecounty court and district court system to obtain a favorable

disposition.


137TEX. LOC.GOVT CODE ANN. 243.007 (Vernon 2009).

138 TEX. LOC.GOVT CODE ANN. 243.003(c) (Vernon 2009).


140Robinson v. City of Longview, 936 S.W.2d 413, 416 (Tex. App. 1996).

141 TEX. LOC.GOVT CODE ANN. 243.010(a) (Vernon 2009); TEX. BUS. &COM.

CODE ANN. 102.004 (Vernon 2009).

142 TEX. LOC.GOVT CODE ANN. 243.010(b) (Vernon 2009); TEX. BUS. &COM.

CODE ANN. 102.005 (Vernon 2009).

143Flores v. State, 33 S.W. 3d 907, 915 (Tex. App. 2007).


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Houston City Ordinance

The City of Houston, Texas, defines an enterprise as an adultbookstore, adult cabaret, adult encounter parlor, adult lounge, adult

modeling studio, adult movie theatre.144

The city restricts an

enterprise from being located within 1,500 feet of any school,

church, public park, or licensed day-care center; 1,000 feet of any

other enterprise for which there is a permit; or within a 1,500 feet

radius of an area that is more than 75% residential in character.145

The entertainers of an enterprise are also regulated by city

ordinance. Entertainers are prohibited from touch[ing] a customer orthe clothing of a customer while engaging in entertainment or while

exposing any specified anatomical areas or engaging in any specified

sexual activities.

146They are further prohibited from approach[ing]

closer than three feet to any customer while engaging in

entertainment or while exposing any specified anatomical areas or

engaging in any specified sexual activities.147

And lastly,

entertainers are prohibited from engag[ing] in entertainment or

[exposing] any specified anatomical areas or engag[ing] in any

specified sexual activities in the presence of a customer in anyseparate area which entry or access is blocked or obscured by any

door, curtain or other barrier separating entry.148

ARLINGTON CITY ORDINANCE

The City of Arlington, Texas, defines a sexually oriented

business as a Sexually Oriented Arcade, Sexually Oriented

Bookstore or Sexually Oriented Video Store, Sexually Oriented

Cabaret, Sexually Oriented Motel, Sexually Oriented Theater,Sexually Oriented Motion Picture Theater, Escort Agency, Nude

144 HOUSTON,TEX.,CODE OF ORDINANCES ch. 28, art. III, 121 (1997), available at

http://library.municode.com/index.aspx.

145HOUSTON,TEX.,CODE OF ORDINANCES ch. 28, art. III, 125 (1997).

146 HOUSTON,TEX.,CODE OF ORDINANCES ch. 28, art. VIII, 258(a) (1997).

147 HOUSTON,TEX.,CODE OF ORDINANCES ch. 28, art. VIII, 258(b) (1997).

148HOUSTON,TEX.,CODE OF ORDINANCES ch. 28, art. VIII, 258(c) (1997).


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Model Business or Sexual Encounter Center.149

The city restricts a

sexually oriented business from operating within 1,000 feet of a

church; a public or private elementary or secondary school; aboundary of a residential district; a boundary of the Entertainment

District; a licensed day care center; a public park; a residential

property; or another sexually oriented business.150

However, this

geographical restriction can be amended to 500 feet if there is a

controlled access highway between the district boundary/property line

and the Sexually Oriented Business.151

The employees of a Sexually Oriented Cabaret must also

adhere to city ordinances. An employee while appearing in a state of

nudity, commits an offense if the employee touches a customer or the

clothing of a customer.

152An employee is further prohibited from

permit[ing] any customer access to an area of the premises not

visible from the manager's station or not visible by a walk through of

the premises without entering a private, exclusive, closed, curtained,

or otherwise screened area, excluding restrooms.153

Actually, the

city has also enacted regulations against customers as well.

Customers are prohibited from touch[ing] an employee appearing in

a state of nudity or the clothing of an employee appearing in a state ofnudity.154

149 ARLINGTON,TEX.,CODE OF ORDINANCES, Sexually Oriented Business art. II

(2007), available at

http://www.arlingtontx.gov/citysecretary/pdf/codeofordinances/SOBChapter.pdf.

150 ARLINGTON,TEX.,CODE OF ORDINANCES, Sexually Oriented Business art. III,

01(B)-(C) (2007).

151 ARLINGTON,TEX.,CODE OF ORDINANCES, Sexually Oriented Business art. III,

01(B) (2007).

152ARLINGTON,TEX.,CODE OF ORDINANCES, Sexually Oriented Business art. V,

01(A) (2007).

153ARLINGTON,TEX.,CODE OF ORDINANCES, Sexually Oriented Business art. V,

01(C) (2007).

154 ARLINGTON,TEX.,CODE OF ORDINANCES, Sexually Oriented Business art. V,

01(B) (2007).


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minded when it comes to how they regulate the interactions between

the entertainer and customer.161

They are in unison when it comes to

the belief that entertainers should not have physical contact with theirpaying customers.

162They also agree that the best way to prevent

human contact is with a no-touch rule with a buffer zone of three

to four feet in between two consenting, contracting adults.163

Thus,

even though Texas has delegated its authority to regulate sexually

oriented businesses to the local governments, it seems that

municipalities are still in accord when it comes to theories of

regulations.164 Indeed, the frame of mind in the local legislatures

seems to be exerted to prevent the federal constitution from having

any good effect.165

The so-called secondary effects

166of sexually oriented

businesses that do not involve freedom of expression issues per se are

considered an important governmental interest that must be protected.

Indeed, the evils of prostitution, assaults, and drug dealing167

should

be mitigated whenever possible. Therefore, local governments should

be allowed to pass ordinances pertaining to all of the avatars of these

evils. Indeed, local governments should also be allowed to regulate

military installations and university systems as these are well known

havens of prostitution, assaults, and drug-dealings. Thus, physical

contact between service members and college students should be

strictly regulated to prevent these evils.168

161

Id.

162

Id.

163See supra notes 149 and 159.

In fact, these societal ills

should be criminalized directly. Prostitution should be made illegal in


165 As made famous by Henry Knox.

166Fantasy Ranch, Inc. v. City of Arlington, 459 F.3d 546, 555 (5th Cir. 2006).

167Id. at 557.

168 Curtailing the sexual activity of university students and service members will

certainly be difficult if not impossible in practice.


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Texas as should the act of assaulting another individual and the

distribution of illegal drugs. Perhaps if these secondary effects were

made primarily illegal, then the need for ridiculous city ordinancesregulating such things as the minimum distance between an

entertainer and a paying customer169 would become unnecessary. Of

course, these ordinances regulating sexually oriented businesses are

so irrational that they encourage scofflaws170

as illustrated by The

Penthouse Club example.171

Thus, the actual secondary effect of

sexually oriented business ordinances is a disregard of the law.172

A

person that walks into an enterprise173 in Houston, Texas, will see

plenty of sights, but adherence to the three foot rule174

will certainly

not be one of those. Therefore, regulations of sexually oriented

businesses should not focus on the thinly veiled regulation of the

actual conduct that is associated with the expressive form of erotic

dancing, but should focus on reasonable time and place175

restrictions.

If not, the government runs the danger of over-regulation which may

lead to the opposite effect than they seek. Indeed, [t]he more

prohibitions you have, the less virtuous people will be.176

Even in a traditionally conservative state such as Texas,

sexually oriented businesses are big business.

177

169See supra notes 149-159.

Indeed, [t]here is a

distinct market for up-close, nude, alcohol-enhanced table dances.

Law-abiding customers envision their liberty as encompassing the

170Fantasy Ranch, 459 F.3d at 553.

171

See supra note 2.

172Fantasy Ranch, 459 F.3d at 553.

173 HOUSTON,TEX.,CODE OF ORDINANCES ch. 28, art. III, 121 (1997).

174See supra note 149.

175City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 47 (1986).

176 LAO TZU,TAO TE CHING 57 (Stephen Mitchell, trans., Harper Perennial 2006)

(1988).

177See supra note 12.


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right to spend money in the erotic entertainment economy.178

The

contents housed in sexually oriented businesses have been found to be

valid179 and thus sexually oriented businesses are likely to continue toexist. Therefore, the laws that regulate sexually oriented businesses

must recognize this fact and be implemented accordingly. The

regulations must not only be reasonable, but above all practical. If

not, the laws will simply be ignored. Indeed, Texas has valid

governmental interests in protecting against the detriment of public

health, safety, and welfare,180

but it still needs to make reasonable

concessions into accomplishing its objectives lest the laws become

unjust. Lex Inuista Non Est Lex.181

178

DFW Vending v. Jefferson County, 991 F. Supp. 578, 586 (E.D. Tex. 1997).

179See supra notes 23-26.


181As made famous by Augustine and translated as an unjust law is no law at all.


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Documents

A Brief Look at the Constitutionality of Sexually Oriented Businesses in Texas