HomeMy WebLinkAboutCity Council Minutes 10.03.2000 MINUTES OF THE CITY COIJNCIL OF ]LAUREL
' October 3, 2000
A regular meeting of the City Council of the City of Laurel, Montana, was held in the
Council Chambers and called to order by Mayor Chuck Rodgers at 7:00 p.m. on October 3, 2000.
COUNCIL MEMBERS PRESENT: Lauren Van Roekel Gary Temple
Ken Olson Mark Mace
Gay Easton Daniel Dart
Bill Staudinger
COUNCIL MEMBERS ABSENT: Bud Johnson
Mayor Rodgers asked the council to observe a moment of silence in behalf of the family of Miranda
Fenner.
MINUTES:
Motion by Alderman Temple to approve the minutes of the regular meeting of September 19,
2000, as presented, seconded by Alderman Mace. Motion carried 7-0.
CORRESPONDENCE:
a. Montana Taxpayer— September 2000.
' b. Senator Conrad Burns —Montana Newsletter, September 8, 2000.
PUBLIC HEARING: Ordinance No. 000-4: An ordinance providing for the regulation of
sexually oriented business ordinance.
ORDINANCE NO. 000-4
AN ORDINANCE PROVIDING FOR THE REGULATION OF
SEXUALLY ORIENTED BUSINESS ORDINANCE.
Mayor Rodgers opened the public hearing.
Mayor Rodgers asked if there were any proponents.
Joyce Bratland, 1013 West 120' Street, stated her support for this ordinance. She thanked the council
for considering the lengthy ordinance and thanked Joe Leckie for researching and preparing the
ordinance. As a parent, she asked the City Council to extend the things they would do in their home
as a father with the same care, concern and integrity for the welfare and protection of our
community.
Attorney Joe Leckie stated that it is unusual for the city attorney to participate in a public hearing.
In order for the council to act appropriately, Attorney Leckie distributed and presented additional
information regarding land use studies, survey data, the effects of sexually oriented businesses on
surrounding neighborhoods in Dallas, and regulating sexually oriented businesses. The information
was entered into the record in these minutes.
This particular ordinance runs into the battle line between free speech and the right of government to
protect its citizens in regard to health, safety and protection. As council members, the responsibility
is to protect and to exercise police power for the protection and welfare of the citizens of Laurel. An
individual's right of free speech also needs to be protected.
The city could not legally adopt an ordinance that would prohibit all sexually oriented businesses,
but it could adopt ordinances that regulate such businesses through a licensing process. Mr. Leckie
explained that the licensing process would provide more control than a zoning process. This forty-
four-page ordinance was written to address as many scenarios as possible regarding sexually
oriented businesses. The 1,000-feet limit for the location of these businesses near schools, churches,
residential subdivisions, etc., is clearly stated in the ordinance in order to control their locations. The
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Council Minutes of October 3, 2000
ordinance contains great detail in terms of definitions and requirements for licensees. This ensures a
complete ability and authority to investigate upfront as opposed to investigating after the fact. The
investigative responsibility was placed on the Chief of Police as he is entitled to receive confidential
criminal justice information, which would be important in the license review process. A review
process was included in the ordinance in order to maintain a proper system for licensees to contest
any matter without having to go to court.
Since American Family Association was involved in drafting and customizing this ordinance, they
would participate in any challenge to the ordinance, limited to their ability to do so.
Georgia Hiltabrand, 508 Cottonwood Avenue, is a native Laurel resident. She mentioned that, even
though the council has a responsibility to make sure everyone has equal rights, it burdens her that the
things that seem so wrong do have an equal chance. She stated that each citizen has a responsibility
to everyone else in our city for the safety and protection of each other. Georgia asked the council to
do whatever is necessary to make Laurel safer, cleaner and to try to keep the ugliness of these sorts
of things as far away as possible.
Lisa Barton, a Molt resident, has worked with both sexually abused children and juvenile sex
offenders in the past few years. She made an emotional appeal for the importance of keeping the
city free of sexually oriented businesses and stated that pornography, in any form, destroys lives and
families. Lisa stated that communities that have allowed these businesses often wish later that they
had been stronger in their regulation. She stated that nothing good would ever come out of these
things.
Mayor Rodgers asked three times if there were any other proponents. There were none.
' Mayor Rodgers asked three times if there were any opponents. There were none.
Motion by Alderman Temple to close the public hearing, seconded by Alderman Staudinger.
Motion carried 7-0.
Mayor Rodgers thanked City Attorney Joe Leckie, Cal Cumin and Alderman Gary Temple for their
work on this ordinance.
CONSENT ITEMS:
a. Claims for the month of September 2000 in the amount of$374,248.19.
A complete listing of the claims and their amounts is on file in the Clerk-Treasurer's
Office.
b. Receiving the Committee Reports into the Record.
--Budget/Finance Committee minutes of August 18, 2000 were presented.
--Budget/Finance Committee minutes of September 5, 2000 were presented.
--City Council Committee of the Whole minutes of September 19, 2000 were presented.
--Laurel Airport Authority minutes of July 25, 2000 were presented.
Laurel Airport Authority minutes of August 16, 2000 were presented.
C. Resolutions.
1) Resolution No. R00-64: Resolution accepting the lease-purchase agreement
with Nikon Inc. and authorizing the Mayor to sign said agreement.
RESOLUTION NO. R00-64
RESOLUTION ACCEPTING THE LEASE-PURCHASE AGREEMENT
WITH NIKON INC. AND AUTHORIZING THE MAYOR TO SIGN
SAID AGREEMENT.
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Council Minutes of October 3, 2000
2) Resolution No. R00-65: Budget amendment resolution for water and sewer
funds.
RESOLUTION NO. R00-65
BUDGET AMENDMENT RESOLUTION FOR
WATER AND SEWER FUNDS.
3) Resolution No. R00-66: Budget amendment resolution for Fire Department
Capital Project Funds.
RESOLUTION NO. R00-66
BUDGET AMENDMENT RESOLUTION FOR FIRE DEPARTMENT
CAPITAL PROJECT FUNDS.
The mayor asked if there was any separation of consent items. There was none.
Motion by Alderman Olson to approve the consent items as presented, seconded by
Alderman Easton. Motion carried 7-0.
SCHEDULED MATTERS:
a. Confirmation of Appointments.
None.
b. Ordinance No. 000-4: An ordinance providing for the regulation of sexually
oriented business ordinance. Second reading.
ORDINANCE NO. 000-4
AN ORDINANCE PROVIDING FOR THE REGULATION OF
SEXUALLY ORIENTED BUSINESS ORDINANCE.
Motion by Alderman Temple to approve Ordinance No. 000-4, seconded by Alderman
Staudinger.
Alderman Temple thanked Joe Leckie and Cal Cumin for their work on this ordinance.
The council had a brief discussion to clarify some questions regarding therapeutic massage
businesses.
A roll call vote was taken on the motion to approve Ordinance No. 000-4. All seven aldermen
present voted aye. Motion carried 7-0.
UNSCHEDULED MATTERS:
a. Staudinger's 50`h Anniversary celebration.
Alderman Staudinger invited everyone to attend a 50`h wedding anniversary celebration for them on
October 140' from 1:00 to 4:00 p.m. in the Catholic Hall.
b. Deferred Comp Committee.
Clerk-Treasurer Mary Embleton stated that the Deferred Comp Committee has met to determine a
direction for converting the current deferred comp program to a new administrator. The bank that
administers the current program will no longer offer the service. Several prospective administrative
organizations presented their programs to the committee. The committee has chosen ICMA in
Spokane to administer the program, and a resolution will be presented at the October 17'h council
meeting. Larry Staker, the ICMA representative, will be here on October 16`h and 17'h to begin the
process of educating employees regarding the new program. The transition should be complete by
the end of November, when the existing agreement expires.
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Council Minutes of October 3, 2000
C. Police Chief Musson.
Police Chief Rick Musson is recuperating from his knee surgery and will be out for another couple
of weeks.
d. Survey update.
Mayor Rodgers mentioned that 620 responses were received from the 1,200 surveys sent out
recently. The council received a letter regarding the survey information.
e. Levies in Yellowstone River.
Gay Easton and Larry McCann are working on the levies in the river.
L Resignation of City Attorney Joe Leckie.
Mayor Rodgers stated that Attorney Joe Leckie recently submitted his resignation effective January
1, 2001. Mayor Rodgers thanked Mr. Leckie for his outstanding work as attorney, stated that he
would be missed, and expressed deep regret to accept his resignation.
There being no further business to come before the council at this time, the meeting was adjourned at
7:59 p.m.
' Cindy Allen, S&retary
Approved by the Mayor and passed by the City Council of the City of Laurel, Montana, this 17u`day
of October, 2000.
C arles G. Rodgers, Mayor('�
Attest: ^
Mary K. mbleton, Clerk-Treasurer
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APPENDIX
SUMMARY OF LAND USE STUDIES RELATING TO
SECONDARY EFFECTS OF "ADULT'S BUSINESSES
1 . LAND USE STUDY: GARDEN GROVE, CA
DATE: SEPTEMBER 12 , 1991
OVERVIEW: This report by independent consultants
summarizes statistical analyses to determine a basis for adult
business regulations because of their negative impact on the
community in terms of crime, decreased property values and
diminished quality of life. Statistics were measured from'
1981-90 and included crime data, and surveys of real estate
professionals and city residents. Garden Grove Boulevard,
with seven adult businesses, was selected as the study area.
The study incorporated many control factors to insure accurate
results. The report includes a brief legal history of adult 1
business regulation and an extensive appendix with samples
materials and a proposed statute.
CRIME: Crime increased significantly with the opening of
an adult business, or with the expansion of an existing
business or the addition of a bar nearby. The rise was
greatest in "serious" offenses (termed "Part I" crimes:
homicide, rape, robbery, assault, burglary, theft and auto
theft) . On Garden Grove Boulevard, the 7 adult businesses
accounted for 36% of all crime in the area. In one case, a
bar opened less than 500 feet from an adult business, and
serious crime within 1, 000 feet of that business rose more
than 300% the next year.
REAL ESTATE: Overwhelmingly, respondents said that an
adult businesses within 200-500 feet of residential and
commercial property depreciates the property value. The
greatest impact was on single family homes. The chief factor
cited for the depreciation was the increased crime associated
with adult businesses.
HOUSEHOLD SURVEYS: 118 calls were completed in a random
sample of households in the Garden Grove Boulevard vicinity.
The public consensus was that adult businesses on Garden Grove
Blvd. were a serious problem. Nearly 25% of the surveyed
individuals lived within 1, 000 feet of an adult business .
More than 21% cited specific personal experiences of problems
relating to these businesses, including crime, noise, litter,
and general quality of life. 80% said they would want to move
if an adult business opened in their neighborhood, 60% saying
they "would move" or "probably would move. " 85% supported
city regulation of the locations of adult businesses, with 78%
strongly advocating the prohibition of adult businesses within
500 feet of a residential are, school or church . Women
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commonly expressed fear for themselves and their children
because of adult businesses_
RECOMMENDATIONS : The report concludes that adult
businesses have "real impact" on everyday life through harmful
secondary effects and makes four recommendations : (1) Keep
current requirement of 1, 000 feet separation between adult
businesses; (2) Prohibit adult establishments within 1, 000
feet of residential areas; (3) Enact a system of conditional
use permits for adult businesses with Police Department
involvement in every aspect of the process ; and (4) Prohibit
bars/taverns within 1, 000 feet of an adult business.
2 . LAND USE STUDY: TUCSON, AZ
DATE: MAY 1, 1990
OVERVIEW: This report is a memorandum from Police
Department Investigative Services to the City Prosecutor
describing events and activities at "adult entertainment
bookstores and establishments" that support stronger
ordinances. Investigations had been progress since 1986
following numerous complaints of illegal sexual activity and
unsanitary conditions.
FINDINGS: Officers found a wide variety of illegal
sexual conduct at all adult businesses. At virtually every
such business, employees were arrested for prostitution or
obscene sex shows. Dancers were usually prostitutes where,
for a price, customers could observe them performing live sex
acts. At several businesses, customers were allowed inside
booths with dancers and encouraged to disrobe and masturbate.
Many times, dancers would require customers to expose
themselves before they would perform. Underage dancers were
found, the youngest being a 15 year old
female.
Within peep booths, officers found puddles of semen on
the floor and walls. If customers had used tissues, these
were commonly on the floor or in the hallway. On two
occasions, fluid samples were collected from the booths. In
the first instance, 21 of 26 samples (81%) tested. positive for
semen. In the second sampling, 26 of 27.. fluid -samples (96%)
tested positive for semen. "Glory holes" in the walls between
adjoining booths facilitated 'anonymous sex acts between men.
RECOMMENDATIONS: (1) The bottom of the door in peep
booths must be at least 30 inches from the floor so that an
occupant can be seen from waist down when seated. (2) The
booth cannot be modified nor can a chair be used to circumvent
the visibility of the client. (3) Employee licensing that
includes a Police Department background check. (4) In the
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event of a denied or revoked license, the requirement of a
hearing before any action is taken.
3 . LAND USE STUDY: SEATTLE, WA
DATE: MARCH 24 , 1989
OVERVIEW: The report concerns a proposed amendment to
add topless dance halls to existing land use regulations for
"adult entertainment establishments. " Seattle had eight such
dance halls (termed "adult cabarets") , six established since
1987 . The study relies on reports from a number of cities,
including Indianapolis, Los Angeles, Phoenix, Austin and
Cleveland.
FINDINGS: The increased number of cabarets resulted in
citizen complaints, including phone calls, letters (from
individuals and merchants associations) , and several petitions
with hundreds of signatures. Protests cited decreased
property values; increased insurance rates; fears of burglary,
vandalism, rape, assaults, drugs, and prostitution; and
overall neighborhood deterioration. The report notes that
patrons of these cabarets most often are not residents of
nearby neighborhoods. Without community identity, behavior is
less inhibited. Increased police calls to a business, sirens,
and traffic hazards from police and emergency vehicles are not
conducive to healthy business and residential environments.
RECOMMENDATIONS: Since city zoning policy is based on
the compatibility of businesses, the report recommends that
the cabarets locate in the same zones as "adult motion picture
theaters. " This plan allows about 130 acres for such
businesses to locate throughout the city.
4 . LAND USE STUDY: AUSTIN, TX
DATE: MAY 19 , 1986
OVERVIEW: The report was the basis for developing an
amendment to existing sexually oriented business ordinances.
At the time, 49 such businesses operated in Austin, mostly-
bookstores, theaters, massage parlors and topless bars. The
study examined crime rates, property, values, and trade area
characteristics.
The report focused on sexually related crimes in four
study areas (with sexually oriented businesses) and four
control areas (close to study areas and similar) . Two study
areas had one sexually oriented business and the others had
two such businesses. To determine the effects of these
businesses on property values, the city sent surveys to 120
real estate appraising or lending firms (nearly half
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responded) . For trade area characteristics , 3 businesses (a
bookstore, theater and topless bar) were observed on a weekend
night to determine customer addresses.
CRIME: Sexually related crime ranged from 177-482%
higher in the four study areas than the city average. In the
two study areas containing two sexually oriented businesses, di
the rate was 66% higher than in the study areas with one such �
business. All control areas had crime rates near the city
average.
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REAL ESTATE: 88% said that a sexually oriented business
within one block of a residential area' decreases the value of
the homes (33% said depreciation would be at least 205.1) .
Respondents also said such a business is a sign of
neighborhood decline, making, underwriters hesitant to approve
the 90-95% financing most home buyers require. They said
commercial property is also negatively effected by such
businesses.
TRADE AREA CHARACTERISTICS: Of 81 license plates traced
for owner address, only 3 dived within one mile of the
sexually oriented business. 44% were from outside Austin.
RECOMMENDATIONS: 1) Sexually oriented businesses should
be limited to highway or regionally-oriented zone districts.
2) Businesses should be dispersed to avoid concentration. 3)
Conditional use permits should be required for these
businesses.
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5. LAND USE STUDY: OKLAHOMA CITY, OK
DATE: MARCH 3 , 1986
OVERVIEW: This study contains the results of a survey of
100 Oklahoma City Real Estate Appraisers. Appraisers were
given a hypothetical situation and a section to comment on the
effects of sexually oriented businesses in Oklahoma City. The
hypothetical situation presented a residential neighborhood
bordering an arterial street with various commercial
properties which served the area. A building vacated by a 4
hardware store was soon to occupied by an "adult" bookstore.
No .other sexually oriented:businesses were: in the area and no
other vacant commercial space existed. With less than a one
month response time, 34 completed surveys were received by the
city.
FINDINGS: 32% of the respondents said that such a
bookstore within one block of the residential area would
decrease home values by at least 20% . Overwhelmingly,
respondents said an "adult" bookstore would negatively effect
other businesses within one block (76%) . The level of
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depreciation is greater for residences than businesses. The
negative effects on property values drop sharply when the
sexually oriented business is at least three blocks away. In
the subjective portion, 86, of the respondents noted a
negative impact of sexually oriented businesses on Oklahoma
City. Frequent problems cited by the appraisers included the
attraction of undesirable clients and businesses, safety
threats to residents and other shoppers (especially children) ,
deterrence of home sales and rentals, and immediate area
deterioration (trash, debris, vandalism) .
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CONCLUSIONS : Oklahoma city's findings supported results
from other national studies and surveys. Sexually oriented
businesses have a negative effect on property values,
particularly residential properties. The concentration of I.!
sexually oriented businesses may mean large losses in property
values.
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6. LAND USE STUDY: INDIANAPOLIS, IN
DATE: FEBRUARY 1984
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OVERVIEW: After a 10 year growth in the number of i
sexually oriented businesses (to a total of 68 on 43 sites)
and numerous citizen complaints of decreasing property values
and rising crime, the city compared 6 sexually oriented
business "study" areas and 6 "control" locations with each
other and with the city as a whole. The study and control
areas had high population, low income and older residences.
In order to develop a "best professional opinion, " the city ;
collaborated with Indiana University on a national survey of
real estate appraisers to determine valuation effects of
sexually oriented businesses on adjacent properties.
CRIME: From 1978-82, crime increases in the study areas
were 23% higher than the control areas (46% higher than the
city as a whole) . Sex related crimes in the study areas
increased more than 20% over the control areas. Residential
locations in the study areas had a 56% greater crime increase
than commercial study areas. Sex related crimes were 4 times
more common in residential study areas than commercial study
areas with sexually oriented businesses.
REAL ESTATE: Homes in the study areas appreciated at
only 1/2 the rate of homes in the control areas, and 1/3 the
rate of the city. "Pressures within the study areas" caused
a slight increase in real estate listings, while the city as
a whole had a 50% decrease, denoting high occupancy turnover. 4
Appraisers responding to the survey said one sexually oriented
business within 1 block of residences and businesses decreased
their value and half of the respondents said the immediate
depreciation exceeded 10% . Appraisers also noted that value
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depreciation on residential areas near sexually oriented
businesses is greater than on commercial locations. The
report concludes : "The best professional judgment available
indicates overwhelmingly that adult entertainment businesses--
even a relatively passive use such as an adult bookstore--have
a serious negative effect on their immediate environs . "
RECOMMENDATIONS: Sexually oriented businesses locate at
least 500 feet from residential areas, schools, churches or j
established historic areas.
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7 . LAND USE STUDY: HOUSTON, TX
DATE: NOVEMBER 3 , 1983
OVERVIEW: Report by the Committee on the Proposed
Regulation of Sexually Oriented Businesses determining the
need and appropriate means of regulating such businesses.
Four public hearings provided testimony from residents,
business owners, realtors, appraisers, police, and
psychologists. The committee and legal department then
reviewed the transcripts and drafted a proposed ordinance. II
More hearings obtained public opinion on the proposal and the I:!
ordinance was refined for vote by the City Council .
TESTIMONY: The testimony was summarized into six broad
premises: (1) The rights of individuals were affirmed. (2)
Sexually oriented businesses could exist with regulations that
minimize their adverse effects. (3) The most important
negative effects were on neighborhood protection, community
enhancement, and property values. (4) Problems increased when
these businesses were concentrated. (5) Such businesses
contributed to criminal activities. (6) Enforcement of
existing statutes was difficult.
ORDINANCE: (1) Required permits for sexually oriented
businesses (non-refundable $350 application fee) . (2)
Distance requirements: 750 ft. from a church or school.; 1,000
ft. from other such businesses; 1,000 ft. radius from an area
of 75% residential concentration. (3) Amortization period of
6 months that could be extended by the city indefinitely on
the basis of evidence. - (4) Revocation of permit for employing
minors .(under . l7) , blighting exterior appearance or signage,
chronic criminal activity (3 convictions) , and false permit
information. (5) Age restrictions for entry.
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S . LAND USE STUDY: BEAUMONT, TX
DATE: SEPTEMBER 14, 1982
OVERVIEW: This report by the city Planning Department
encourages amendments to existing "adult business" ordinances
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to include eating or drinking places featuring sexually
oriented entertainment (strippers, etc. ) . Zoning laws
required "adult uses" to locate 500 ft. from residential
areas ; 300 ft. from any other adult bookstore, adult theater,
bar, pool hall or liquor store; and 1, 000 ft. from a church,
school , park, or recreational facility where minors
congregate.
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CRIME: Police verified that bars, taverns, and lounges p
(especially those with sexually oriented entertainment) are
frequent scenes of prostitution and the sale/use of narcotics.
on the whole, all criminal activity was higher at sexually 1
oriented businesses.
RECOMMENDATIONS: 1) Add eating/drinking places that
exclude minors (under Texas law) , unless accompanied by a
consenting parent, guardian or spouse. •2) Require specific
permits for areas zoned as General Commercial-Multiple Family
Dwelling Districts. 3) Reduce the required distance of
sexually oriented businesses from residential areas, schools,
parks, and recreational facilities from 1, 000 to 750 ft.
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9 . LAND USE STUDY: MINNEAPOLIS , MN
DATE: OCTOBER 1980
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OVERVIEW: This report is divided into two sections: the
relationship of bars and crime and the impact of "adult I
businesses" on neighborhood deterioration. In the study, an
"adult business" is one where alcohol is served (including
restaurants) or a sexually oriented business (i.e. , saunas,
adult theaters and bookstores, rap parlors, arcades, and bars
with sexually oriented entertainment) . Census tracts were
used as study areas and evaluated for housing values and crime
rates. Housing values were determined by the 1970 census
compared to 1979 assessments. Crime rates were compared for
1974-75 and 1979-80. The study is strictly empirical and
reported in a formal statistical manner; therefore it is
difficult for layman interpretation of the data.
FINDINGS: The report concludes that concentrations of
sexually oriented businesses have significant relationship to i
higher crime and lower _ property -values. Other than
statistical charts, no statements of actual crime reports or
housing values are included in the report. Thus , the lay
reader has only the most generalized statements of how the
committee interpreted the empirical data.
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RECOMMENDATIONS: First, that adult businesses. be at
least 1/10 mile (about 500 feet) from residential areas.
Second, that adult businesses should not be adjacent to each
other or even a different type of late night business (i. e. ,
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24-hour laundromat, movie theaters) . Third, that adult
businesses should be in large commercial zones in various
parts of the city (to aid police patrol and help separate
adult businesses from residential neighborhoods) . The report
said "policies which foster or supplement attitudes and
activities that strengthen the qualities of the neighborhoods
are more likely to have desired impacts on crime and housing
values than simple removal or restriction of adult
businesses. "
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10 . LAND USE STUDY: PHOENIX, AZ
DATE: MAY 25, 1979
OVERVIEW: The study examines crime statistics for 1978
comparing areas which have sexually oriented businesses with
those that do not. The results show a marked increase in sex
offenses in neighborhoods with sexually oriented businesses,
with modest increases in property and violent crimes as well.
Three study areas (near locations of sexually oriented 0
businesses) and three control areas (with no sexually oriented
businesses) were selected. The study and control areas were
paired according to the number of residents, median family
income, percentage of non-White population, median age of t
population, percentage of dwelling units built since 1950, and
percentage of acreage used for residential and non-residential
purposes.
CRIME: Three categories of criminal activity were
included in the study: Property crimes (burglary, larceny,
auto theft) , Violent crimes (rape, murder, robbery, assault) , !
and sex crimes (rape, indecent exposure, lewd and lascivious I
behavior, child molestation) . i
Average results from all three study/control areas, sex
offenses were 506% greater in neighborhoods where sexually
oriented businesses were located. (In one study area, sex
crimes were more than 1, 000% above the corresponding control i
area. ) Property crimes were 43% greater. Violent crimes were
only slightly higher (4%) . Even excluding indecent exposure
arrests (the most common sex offense) , other sex crimes (rape, I
lewd and lascivious •behavior, 'child molestation) in the study
areas were 132% greater than control areas.
REQUIREMENTS: The Phoenix ordinance requires sexually
oriented businesses to locate at least 1, 000 feet from another
sexually oriented business and 500 feet from a school or
residential zone. Approval by the City Council and area
residents can waive the 500 foot requirement. A petition
which is signed by 51% of the residents in the 500 foot radius
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who do not object must be filed and be verified by the
Planning Director.
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11 . LAND USE STUDY: WHITTIER, CALIFORNIA
DATE: JANUARY 9 , 1978
OVERVIEW: After experiencing a rapid growth of sexually
oriented businesses since 1969, the Whittier City Council
commissioned a study of the effects of the businesses on the I,
adjacent residential and commercial areas. At the time of the
study, Whittier had 13 such businesses: 6 model studios, 4
massage parlors, 2 bookstores, and 1 theater. ._ Utilizing,
statistics, testimonies, and agency reports, the study
compared two residential areas and four business areas over a
span of 10 years (1968-1977) . One residential area was near
the largest concentration of sexually oriented businesses, the
other had no commercial frontage but was chosen because of
similar street patterns, lot sizes and number of homes. For
businesses, Area 1 had six sexually oriented businesses, Area
2 had one, Area 3 had three, and Area 4 had none. 1973 was
selected as the year to compare before/after effects of these
businesses. Two chief concerns cited in the report are
residential/business occupancy turnovers and increased crime.
OCCUPANCY TURNOVER: After 1973 , 57% of the homes in the
sexually oriented business area had changes of occupancy,
compared to only 19% for the non-sexually oriented business
area. Residents complained of "excessive noise, pornographic
material left laying about, and sexual offenders (such as
exhibitionists) venting their frustrations in the adjoining
neighborhood. " Citizens also expressed concern about drunk
drivers coming into the area. Business Area 1, with the
highest concentration of sexually oriented businesses (6) ,
experienced a 134% increase in annual turnover rate. Area 3 ,
with three adult businesses at one location, showed a 107% j
turnover rate. Area 2 (with 1 adult business) had no i
measurable change and Area 4 (with no commercial or sexually
oriented businesses) experienced a 45% decrease in turnover
from similar periods.
CRIME: The City Council looked at the two residential
areas for the time periods of 1970-73 . (before sexually
oriented businesses) and 1974-77 (after such businesses) . In
the sexually oriented business area, criminal activity
increased 102% (the entire city had only an 8 . 3% increase) .
Certain crimes skyrocketed (Malicious Mischief up 700% ; All
Assaults up 387% ; Prostitution up 300%) . All types of theft
(petty, grand, and auto) increased more than 120% each. Ten
types of crime were reported for the first time ever in the
1974-77 period.
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RECOMMENDATIONS : The Council 's report recommended a
dispersement type ordinance that prohibits sexually oriented
businesses closer than 500 feet to residential areas , churches
and schools. Distances between such businesses was
recommended at 1, 000 feet. In addition, the study proposed a
1, 000 foot separation from parks because of their use by
citizens after normal working hours. Sexually oriented
businesses would be given an 18-36 month amortization period 1
(if the change involved only stock in trade, a 90 day period
was recommended) .
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12 . LAND USE STUDY: AMARILLO, TX
DATE: SEPTEMBER 12, 1977
OVERVIEW: This Planning Department report cites several
sources including national news magazines, "adult business"
ordinances from other cities, an American Society of Planning
Officials report and pertinent Supreme Court decisions.
Lengthy explanation of the Miller test (with legal
definitions) , discussion of Young v. American Mini Theaters,
and a comparison of the Boston and Detroit zoning models are
included. The city defined "adult businesses" as taverns,
lounges, lounges with semi-nude entertainment, and bookstores
or theaters with publications featuring nudity and explicit
sexual activities. At the time, Amarillo had 3 such theaters
and 4 bookstores with space for such publications.
FINDINGS: The police department provided an analysis
showing that areas of concentrated "adult only" businesses had
2 1/2 times the street crime as the city average. The
Planning Department concluded that concentrations of these
businesses have detrimental effects on residential and
commercial activities caused by 1) noise, lighting and traffic
during late night hours 2) increased opportunity for street
crimes and 3) the tendency of citizens to avoid such business
areas. The study noted that lack of zoning regulations would
lead to concentrations of sexually oriented businesses
(causing increased crime) or more such establishments locating
near residential areas or family and juvenile oriented
activity sites (churches, parks, etc. )
I .. RECOMMENDATIONS : 1) Adult businesses locate 1, 000 feet
from each other. No recommended distance was specified from
residential zones or family/juvenile activities . 2) City
development of an amortization schedule and permit/licensing
mechanism. 3) City regulation of signs and similar forms of
advertising. 4) Vigorous enforcement of State Penal Code,
especially relating to "Harmful to Minors. " 5), City
amendments prohibiting minors from viewing or purchasing
sexually oriented materials (enforced physical barriers) .
43
C
13 . LAND USE STUDY: CLEVELAND, Of
DATE: AUGUST 24 , 1977
OVERVIEW: This police department report is taken from
information given by Captain Delau participating in a panel
discussion at the National Conference on the Blight of
obscenity held in Cleveland July 28-29, 1977. The topic was
"The Impact of Obscenity on the Total Community. " Crime
statistics are included for 1976 robberies and rapes. Areas
evaluated were census tracts (204 in the whole city, 15 study
tracts with sexually oriented businesses) . At the time of the
study, Cleveland had 26 pornography outlets (8 movie houses
and 18 bookstores with peep shows) . Their location was not
regulated by city zoning laws.
FINDINGS: For 1976, study tracts had nearly double the
number of robberies as the city as a whole (40. 5 per study
tract compared to 20.5 for other city tracts) . In one study I'
tract with five sexually oriented businesses and 730 people,
there were 136 robberies. In the city's largest tract (13, 587
people, zero pornography outlets) there were only 14
robberies. Of the three tracts with the highest incidence of
rape, two had sexually oriented businesses and the third
bordered a tract with two such businesses. In these three,
there were 41 rapes in 1976 (14 per tract) , nearly seven times
the city average of 2. 4 rapes per census tract.
CONCLUSIONS: "Close scrutiny of the figures from the
Data Processing Unit on any and every phase of the degree of
crime as recorded by census tracts indicates much higher crime
rate where the pornography outlets are located. "
i
14 . LAND USE STUDY: CITY OF LOS ANGELES, CA
DATE: JUNE 1977
OVERVIEW: The Department of City Planning studied the
effects of the concentration of sexually oriented businesses
on surrounding properties for the years 1969-75 (a time of
proliferation for such businesses) . The report focuses on five
areas with the greatest concentration of these businesses
(compared to five "control" areas free of them) , and cites
data from -property assessments/sales, public meeting
testimony, and responses from two questionnaires (one to
business/residential owners within a 500 foot radius of the
five study areas and a second to realtors/real estate
appraisers and lenders) . Crime statistics in the study areas
were compared to the city as a whole. Also included: a chart
of sexually oriented business regulations in eleven 'major
cities, details of current regulations available under
state/municipal law, and appendices with samples of
questionnaires, letters, and other study materials .
44
Y
PROPERTY: While empirical data for 1969-75 did not
conclusively show the relation of property valuations to the
concentration of sexually oriented businesses, more than 90%
of realtors, real estate appraisers and lenders responding to
city questionnaires said that a grouping of such businesses
within 500-1, 000 feet of residential property decreases the
market value of the homes. Also, testimony from residents and
business people at two public meetings spoke overwhelmingly
against the presence of sexually oriented businesses citing
fear, concern for children, loss of customers and difficulty
in hiring employees at non-adult businesses, and the necessity
for churches to provide guards for their parking lots.
CRIME: More crime occurred in areas of sexually oriented
business concentration. Compared to city-wide statistics for
1969-75, areas with several such businesses experienced
greater increases in pandering (340%) ; murder (42 . 3%) ,-
aggravated assault (45.2%) , robbery (52 . 6%) , and purse
snatching (17%) . Street robberies, where the criminal has
face to face contact with his victim, increased almost 70%
more in the study areas. A second category of crime,
including other assaults, forgery, fraud, counterfeiting,
embezzlement, stolen property, prostitution, narcotics, liquor
laws, and gambling increased 429.- more in the study areas over
the city as a whole.
RECOMMENDATIONS: The study recommended distances of more
than a 1, 000 feet separating sexually oriented businesses from
each other, and a minimum of 500 feet separation of such
businesses from schools, parks, churches and residential
areas .
45
Stripclubs According to Strippers:
Exposing Workplace Sexual Violence
Part 2,Survey Data
0 Kelly Holsopple, 1998
holsoDONdtc.umu.edu
PART 2: SURVEY DATA
One hundred percent of the eighteen women in the survey report being physically abused
in the stripclub. The physical abuse ranged from three to fifteen times with a mean of 7.7
occurrences over the course of their involvement in stripping. One hundred percent of the
eighteen women in this study report sexual abuse in the stripclub. The sexual abuse
ranged from two to nine occurrences with a mean of 4.4 occurrences over the course of
their involvement in stripping. One hundred percent of the women report verbal
harassment in the stripclub. The verbal abuse ranged from one to seven occurrences with
a mean of 4.8 occurrences over the course of their involvement in stripping. One hundred
percent of the women report being propositioned for prostitution. Seventy eight percent
of the women were stalked by someone associated with the stripclub with a range of one
to seven incidents. Sixty one percent of the women report that someone associated with
the stripclub has attempted to sexually assault her with a range of one to eleven attempts.
Not only do women suffer the abuse they experience, all of women in the survey
witnessed these things happen to other strippers in the clubs. The overwhelming trend for
violence against women in stripclubs was committed by customers of the establishments.
Stripclub owners, managers, assistant managers, and the staff of bartenders, music
programmers or disc jockeys, bouncers, security guards, floorwalkers, doormen, and
valet were significantly less involved in violence against the women. According to the
women in this study, almost all of the perpetrators suffered no consequence whatsoever
for their actions.
Physical Abuse
Customers spit on women, spray beer, and flick cigarettes at them. Strippers are pelted
with ice, coins, trash, condoms, room keys, pornography, and golf balls. Men pitched a
live guinea pig and a dead squirrel at two women in the survey. Some women have been
hit with cans and bottles thrown from the audience. Customers pull women's hair, yank
them by the arm or ankle, rip their costumes, and try to pull their costumes off. Women
are commonly bitten, licked, slapped, punched, and pinched. See Table 1 Frequency of
Physical Abuse.
Table 1-Frequency of Physical Abuse
Abusive Action Ever(by men in At Least Once At Least Once At Least Once At Least Once
stripclub) Every Day Every Week Every Month Every Year
Grabbed by arm 78 44 C 17 C 11 C 6 M
6M 60 `60
11 S 6M 6M
11S
I
T
ankle Grabbed by r
28 C 6 M 11 C
Grabbed by waist', 94 50 C 33 C 6 M 11 C
6M 11M
11 S US
Bitten 56 6 C 11 C 11 C
Licked 78 28 C 17 C 11 C 22 C
60
6M
11S
Slapped 39 6 C 11 C 17 C
Hair pulled 39 6 C 6 C 11 C
Punched t72 6 C
Pinched 72 17 C 17 C 6 C 22 C
6M 6S
6S
Kicked 11 6 C
Spit on 61 6 C 28 C
....... -......
Pulled costume ; 83 22 C 6 C 22 C
off 6 0 6 S
6M
Ripped costume 44 6 C 6 C 17 C
Flicked cigarette 33 6 C 6 C 11 C
Sprayed beer 39 6 C 6 C 6 C 6 C
Threw ice 61 6 C 11 C 6 C 6 C
Threw coins 83 17 C 11 C C 28 C
6 S
Threw 22 6 C
cans/glasses
Threw garbage 39 17 C 11 C
Threw other 28 11 C
N= 18 Key: C= customers, O =owners, M managers, S=staff
2
.ru
60
Force her to masturbate him 28 C 17
60
6M
Force intercourse on her 17 C 11
60
6M
N= 18 Key: C = customers, O =owners, M= managers, S= staff
Verbal Abuse
Customers, owners, managers, and staff alike engage in harassing namecalling.
Women are continually called 'bunt, "whore", "pussy", "slut', and "bitch".
Women in this study charge that men in the stripclub called them other
demeaning or degrading names like ugly, looser,fat, pregnant, boy, stupid, crack,
slash, snatch,beaver, dog, dyke, lezzie, brown eye, hooters,junkie, crackhead,
and shit. See Table 4 Frequency of Namecalling Verbal Abuse.
Table 4 Frequency of Namecalling - Verbal Abuse
Abusive Action - Ever(by men At Least Once At Least Once At Least Once At Least Once
in stripclub) Every Day(%) Every Week Every Month Every Year(%)
(%) I (%) (%)
Called"cunt" 61 28 C 6 C 17 C 11 C
6M 6M
Called"slut" 61 28 C 6 C 17 C 11 C
6S 60
6M
6S
Called"whore" 78 28 C 6 C 17 C 22 C
6S 60
6M
6S
Called"pussy" 72 3 SC 11 C 11 C 11 C 6
Called"bitch" 89 39 C 11 C 6 C 22 C
6S 60 6M
6M
6S
Called other 16 17 C 6 C 17 C 6 C
6M
N= 18 Key: C = customers, O =owners,M=managers, S= staff
4
r
(5.6"/o), verbally sexually harassed (66.7%), and sexually assaulted (16.7%) by
customers. A customer who claimed he was in love with the woman followed her
to her car, called her a "fucking cunt" and strangled her hard enough to cause
blood to squirt from her neck.
Sexual Exploitation
Only a minority of women report that they were asked to perform sexual acts on
men associated with the stripclub in order to return to work(11%by owners); as a
condition of being hired (11% by managers, 11%by owners); in order to continue
working there(17%by owners); in order to get abetter schedule (6% by owners);
or for drugs(17%by customers, 11%by managers, 22%by owners, 11%by
staff.
A majority of the women, however, report they were asked to perform sexual acts
on men associated with the stripclub for money (100% by customers, 6%by
managers, 17%by owners, 11% by staff). Customers and pimps constantly
proposition women (Boles and Garbin 1974;Forsyth and Deshotels 1997,Ronai
1992; Ronai and Ellis 1989). Fourteen(78%)women from the survey report they
are propositioned for prostitution every day by customers, three (17%) every
week, one (6 %) every year. Women comment that customers ask them "Do you
date?" all night long. "Infinite...too many too count." Women say that prostitution
is influenced and suggested by management. One woman new to stripping was
dumbfounded at how little money she was making taking her clothes off, so she
asked the manager for his advice on increasing tips. He suggested turning tricks
and said he could help her set up dates. Management sets up tricks, says it is good
for business, and obligates women to turn over money from prostitution to the
club. Women say prostitution is promoted even though owners tell women they
would be punished if they turn tricks. Some stripclubs are notorious for promoting
prostitution. "You have to be a `ho to work there".
Women disclosed that they were recruited into prostitution through stripping.
Although the strip industry markets stripping as something other than prostitution,
some women consider prostitution an extension of stripping and stripping a form
of prostitution. Pimps season women first with stripping and then turn them out
into brothels or escort services for more money. Tricks, sugar daddies, pimps, and
drug dealers in the stripclub seek to engage women in prostitution. Another young
woman said that soon after she became involved in stripping, a pimp who posed
as a customer in the stripclub manipulated her into an escort service by promising
that she could make more money in less time simply by accompanying
businessmen to dinner. She agreed in order to feed her crack addiction and as her
addiction increased she slid down from gentlemen's clubs to escort service to
brothel to street and crack house prostitution.
Not only are women in stripping pressured by customers to perform sexual acts
on them, owners, managers, and staff pressure the women to perform sexual acts
on them, their relatives and associates, on vice officers and police officers.
6
AN ANALYSIS OF
THE EFFECTS OF SOBS ON
THE SURROUNDING NEIGHBORHOODS
IN DALLAS, TEXAS
AS OF APRIL 1997
Prepared for:
Ms. Sangeeta Kuruppillai
Assistant City Attorney
CITY OF DALLAS
Office of the City Attorney
City Hall 7BN
Dallas, Texas 75201
Prepared by;
PETER MALIN, MAI
ME MALIN ('rROUP
MWI.S.
31)
t,.11s;J1 7':) )
April 29, 1997
Ma, Sangeela Kuruppiilai
Assistant City Attorney
CITY OF DALLAS
Office of the City Attorney
City Hall 78N
Dallas, Texas 75201
RE: The analysis of the effects of Sexually Oriented Susinesses (SCEs), specifically
those which offer or advertise live entertainment and operate as an adult
cabaret, on the property values in the surrounding neighborhoods. The findings
below update and incorporate the report prepared by The Malin Group dated
December 14, 1994.
Dear Ms. Kuruppillai-,
In accordance with our engagement letter dated August 2, 1994, as amended on March
21, 1997, we have completed the study referenced above. Below is a summary of our
findings and the reasoning behind our ccnclusions.
CONCLUSIONS
Sexually oriented businesses, specifically those that offer or advertise live
entertainment and operate as an adult cabarets, currently exist in the city of Dallas.
Many of these businesses are located by themselves away from other S08s while in
some areas of the city they can be found concentrated in one area.
In our December 14, 1994 Report ("The Report"), We found that SOBS have both a real
and a perceived negative impact on surrounding properties. In such areas, crime rates
are higher and property values are lower and/or the properties take longer to lease or
-sell. Out study has found that the higher the cancentntion of these businesses
in one locale, the greater their impact on the neighborhood.
Ms. Sangeeta Kurupillai
April 29, 1997
Page 2
There are two primary ways in which SOBS affect the neighborhood: one is by their
presence, including signage and advertising, and the other is by the hours they keep
and the type of people they attract.
Their presence influences the public's perception of the neighborhood in which they are
located. SOBs "can create 'dead zones' in commercial areas where shoppers do not
want to be asscclated in any way with adult uses, or have their children walk by adult
uses".' This influence appears to be the same whether the dancers are appearing in
a state of nudity or semi-nudity. The public perception is that it is a place to be avoided
by families with women and children.
The second major influence is the hours of operation and the type of people which
SOBS attract. This appears to lead to higher crime in the area, loitering by unsavory
people, including prostitutes, and parking problems which can negatively affect the
surrounding businesses. Additionally, there is frequently parking lot noise and
disturbances which often turn violent. The SOBS keep late hours which can also
become a nuisance to nearby residents.
We studied police calls for service emanating from 10 different SOBs over a four year
period from 1993 through 1996 and found that SOBs were a major seurce of such calls.
The seven SOBs along West Northwest Highway near Bachman Lake averaged more
than are call to the police everyday. We also studied sex-related arrests for the four
year period ending March 1997. The number of sex crime arrests which include rape,
prostitution/commercial vice and other sex offenses, was 396 in the area along West
Northwest Highway which includes the seven SOBS. This compares to 77 and 133 sex
crime arrests respectively in two similar areas along Northwest Highway, the second
of which contained two SOBS spaced more than a ;4 mile from the other. From this
evidence, it appears that there is increased sex crime arrests and disturbances
requiring police presence around SOBs and significantly more crime when there is a
concentration of SOBs in one area.
We reviewed studies completed in numerous other cities including: Austin, Los
Angeles, Indianapolis, New York, and Phoenix on the effects of adult entertainment on
the surrounding properties. In addition, we reviewed summaries of similar studies
completed in Islip, New York; St. Paul, Minnesota; Whittier, California; Manatee County,
Florida and New Hanover County, North Carolina. Finally, we did extensive research
regarding the SOBs in Dallas.
'Adult Entertainment Study, Department of City Planning, City of New York, 1994,
p. 3.
i
l
t'
Ms. Sangeeta Kurupiilai
April 29, 1997
Page 3
All of these Iecaiities, after completing their own independent study of the issue, and
reviewing the work of the others, decided to enact controls on SOBS which would
prohibit them from concentrating in one area in the community and limit the areas in
which they could locate to those away from residential, religious, educational and
recreational uses.
In most cases, the localities limited SOSs tom locating in all but a few zoning districts.
They set minimum distances between other SO6s as well as residential. religious,
educational and recreational uses. These distances were generally 500 or 1 ,000 feet.
Most localities established amortization periods after the enactment of the ordinance
in which SOBs became non-conforming. Generally, local authorities could grandfather
certain SOBS through a public hearing process. Most of the clubs that were
grandfathered were isolated establishments which advertised discretely and were
buffered from residential uses.
In several instances, State and Federal Courts have found that legislation controlling
SO8s was constitutional and did not abridge First Amendment rights. As long as the
locality provided for a sufficient number of relocation sites, these restrictions were found
to be constitutional.
We reviewed these studies to determine whether the other cities used sound principles
in reaching their conclusions. After reviewing the studies completed by New York,
Fhoenix, Indianapolis, Austin and Los Angeles, we determined that their methodology
was appropriate and their conclusions were sound. . We have no reason to believe
that these findings would be any different in Dallas.
These studies in the "other localities found that adult entertainment uses have negative
secondary impacts such as increased crime rates, depreciation of property values,
deterioration of community character and the quality of urban life."1
In other cities' studies, as well as the study that we completed in Dallas, "Where
respondents indicated that their businesses or neighborhoods had not yet been
adversely affected by adult uses, this typically occurred in Study Areas with isolated
adult uses. Moreover, these same respondents typically stated that an increase in such
uses would negatively impact them. Community residents fear the consequences of
potential proliferation and concentration of adult uses in traditionally neighborhood-
'IBID. p. vii
Ms. Sangeeta Kurupillai
April 29. 1997
Page 4
oriented shopping areas and view the appearance of one (emphasis added) or more
of these uses as a deterioration in the quality of urban life."'
In Dallas, we interviewed a number of real estate brokers active in an area punctuated
by SOBS who reported that SOBs "are perceived to negatively affect nearby property
values and decrease market values". Eighty percent of the brokers responding to a
NYC survey indicated that an adult use would have a negative impact on nearby
property values. This is consistent with the responses from a similar national surrey
of real estate appraisers'M completed by Indianapolis and a survey completed in Los
Angeles of real estate professionals.
"Adult use accessory business signs are generally larger, more often illuminated, and
graphic (sexually-oriented) compared with the signs of other nearby commercial uses.
Community residents view this signage as out of keeping with neighberheed character
and are concerned about the exposure of minors to sexual images."' This was a
major complaint in our interviews in Dallas and the findings of the New York City report
as well as the other localities.
We have prepared a video tape to accompany this report that shows typical SOB
signage in Dallas. The newer clubs that stand-alone and meet the requirements of
Chapter 14 Section 41A of the Dallas zoning code, generally have more discrete on-site
signage while those that must compete for customers from nearby or adjacent SOBS
have more obvious on-site signage intended to draw the public's attention.
SUMMARY
We found from our study of three Dallas neighborhoods and the findings of numerous
other localities, that one isolated SOB has much less direct impact an the neighborhood
than a concentration of SCEs_ It does, however, impact the properties immediately
surrounding it. The more visible it is, the more impact it has.
Concentration Effect
Our study shows that the location of multiple SOBS in one neighborhood can
have a major Impact on the neighborhood by contributing to crime, driving away
'1810. P. viii
'1810, P. viii
5181D. p. viii
1 f
` 1 ♦ l
Ms. Sangeeta Kuruoiilai
April 29, 1997
Page 5
family-oriented businesses and impacting the nearby residential naighborhocds.
When concentrated, SOBs typically compete with one another for customers through
larger, more visible signs, and graphic advertising. They tend to be a magnet for
certain types cf businesses such as pawn shops, gun stores, liquor stores, check
cashing storefronts and fate-night restaurants.
Impact on Surrounding Properties
The highest and best use of nearby property becomes limited under the principle of
conformity as few other tenants wish to be near the SOB-dominated area. Investors
and lenders are unwilling to invest in new improvements in these areas and the vacant
land sits idle for years. Single-family homes in the area frequently end-up as rentals
because the families move away from the SOB-dominated area and it becomes
exceedingly difficult to sell such houses.
Attitudinal Impact
As the recant New York City study states: "The experience of urban planners and
real estate appraisers Indicates that negative perceptions associated with an area
can lead to disinvestment in residential neighborhoods and a tendency to shun
shopping streets where unsavory activities are occurring, leading to economic
decline.' The forces that influents real estate value are described as follows: 'The
market value of real property reflects and is affected by the interplay of basic forces
that motivate the activities of human beings. These forces, which produce the variables
in real estate market values, may be considered in four major categories: social ideals
and standards (emphasis added), economic changes and adjustments, governmental
controls and regulation, and physical or environmental changes."' The attitudinal data
in the survey is thus significant even in those instances where the current negative
impacts of adult entertainment establishments are difficult to measure.'
'IBIC, page A
'The Appraisal of Real Property, seventh edition, by The American Institute of Real
Estate Appraisers, Page 3.
'Adult Entertainment Study, Department of City Planning, City of New York, 1994,
Page vi.
KA W VTPMSPEECHES%S0B.CLC
REGULATING SEXUALLY ORIENTED BUSINESSES
THOMAS P. BRANDT
FANNING, HARPER & MARTINSON
THIRD FLOOR PRESTON COMMONS WEST
8117 PRESTON ROAD
DALLAS, TEXAS 75225
(214) 369-1300 (telephone)
(214) 987-9649 (facsimile)
Presented to the Texas City Attorney Association
Semi-Annual Summer Meeting
South Padre Island, Texas
June 12, 1997
I.
INTRODUCTION
When a city or county begins to regulate sexually oriented businesses (SOBS), it often
finds itself in court. The difference between a successful and unsuccessful court battle usually
lies in the type of preparation the entities has gone through before the ordinance was passed.
The general guiding principles to a successful regulatory scheme are as follows:
1. Resulate, don't eliminate
Keep in mind always that, despite political pressures to the contrary, SOBS have
a right to exist. Regulation is appropriate but it should not be a purpose of the
regulation to eliminate all SOBs from the city.
2. Studv the harmful secondary effects
Make sure you have considered and/or performed studies that demonstrate that
SOBs cause harmful effects.
3. Studv the available land
Make sure that there is some available land for SOBs.
4. Don't reinvent the wheel
Design your regulation based upon what has been upheld by the courts.
5. If you want to eo out on a limb, vrepare for a battle
New approaches may be needed. But each new approach will likely buy you a
lawsuit.
This paper is intended to provide an update and a resource for attorneys who defend
cities and counties when those entities are sued because of their efforts to regulate sexually
oriented businesses.
This paper begins with a review of recent cases concerning the regulation of sexually
oriented businesses. The second section describes three pending cases and the issues raised in
those cases. In Appendix I, I have set out a list of the caselaw regarding sexually oriented
businesses. Appendix II contains the "simple sign" requirements contained in the City of
Houston ordinance. Finally, Appendix III contains the "no touch" provision of the City of
Arlington's ordinance.
2
II.
RECENT CASES
Robinson v. City of Longview, 936 S.W.2d 413 (Tex.App.--Tyler, Nov. 27, 1996)
It is legally permissible to prohibit topless dancing in premises that are licensed to sell
alcoholic beverages.
An owner of a topless club brought a declaratory judgment action against the City of
Longview, Texas seeking a declaration that the city's sexually oriented business ordinance
exceeded the constitutional power of a home rule city and was preempted by the Texas Alcoholic
Beverages Code. The Court of Appeals held that: (1) the ordinance prohibiting topless dancing
in premises licensed to sell alcoholic beverages did not discriminate against businesses that hold
alcohol licenses and feature topless dancing as customer entertainment, and (2) provision of
Alcoholic Beverage Code regulating sale of alcoholic beverages did not preempt city ordinance
prohibiting topless dancing in premises licensed to sell alcoholic beverages.
The City's ordinance prohibited topless dancing at locations where alcoholic beverages
are served, consumed, or offered for sale. The City identified six (6) factors which made the
secondary activities associated with sexually oriented business where alcohol is consumed as
drastically different from those activities of an establishment where alcohol is not consumed.
The topless bar claimed that this provision of the City's ordinance violated the exclusivity
provision of Section 109.57(a), (b) of the Texas Alcoholic Beverage Code and discriminates
against businesses licensed under such Code. The appellate court disagreed.
The Court of Appeals stated the following:
1. When reviewing the validity of a city ordinance, an appellate court is to presume the
ordinance is valid;
2. The court must construe the city ordinance in a manner that renders it constitutional, if
it is possible to do so, consistent with a reasonable interpretation of its language;
3. The burden of showing that a city ordinance is invalid rests on the parry attacking it;
4. Home rule cities have full power of self-government and authority to do anything the
legislature could have authorized them to do;
5. The entry of the state into a field of legislation does not automatically preempt that field
from city regulation; local regulation ancillary to and in harmony with the general scope
and purpose of the state enactment is acceptable;
6. The city's ordinance did not regulate the sale or consumption of alcohol, but rather the
exposure of certain parts of the body where alcohol is sold or consumed; and
7. These are inherent and obvious differences between sexually oriented businesses that
serve alcohol and those that do not serve alcohol.
3
Phillips v. Borough of Keyport, 107 F.3d 164 (3rd Circuit 1997, en banc)
After the Borough of Keyport, New Jersey denied a zoning permit to applicants who
planned to open an adult book and video store, the applicant sued alleging constitutional
violations. The Court of Appeals held that:
1. Cities must come forward with evidence of Incidental Adverse Social Effects
When a city regulates the location of adult business establishments, the
city must come forward with evidence of incidental adverse social effects
of those businesses that provides the important governmental interest
justifying reasonable time, place and manner restrictions on speech or
expressive conduct. The City must be prepared "to articulate and support
its argument with a reasoned and substantial basis demonstrating the link
between the regulation and the asserted governmental interest."
2. Studies retarding harmful secondary effects are needed to determine whether the
Ordinance is narrowlv tailored
"The Renton Court did not sustain the constitutionality of the ordinance
before it based solely on legislative findings there recited. The City [of
Renton] justified the ordinance by placing the Seattle studies in the record
and the Court concluded that these studies could reasonably be believed
relevant to the problem the City of Renton was facing." With the
Borough of Keyport, there were no studies in the record with regard to
the secondary effects of "adult entertainment uses." The issue of "narrow
tailoring" of the ordinance cannot be determined without knowing the
undesirable secondary effects the Borough relies upon to justify its
ordinance.
3. Pre-Enactment Evidence Is Not Required
The Third Circuit Court concluded that there is no requirement that a city
must show that, before it took action, it was exposed to evidence from
which one could reasonably conclude that undesirable secondary effects.
A legislative record is not a constitutional prerequisite to validity of an
ordinance.
"There is a significant difference between the requirement that there be a
factual basis for a legislative judgment presented in court when that
judgment is challenged and a requirement that such a factual basis have
been submitted to the legislative body prior to the enactment of the
legislative measure. We have always required the former; we have never
required the latter. Whatever level of scrutiny we have applied in a given
case, we have always found it acceptable for individual legislators to base
4
their judgments on their own study of the subject matter of the legislation,
their communications with constituents, and their own life experience and
common sense so long as they come forward with the required showing
in the courtroom once a challenge is raised. In reliance on this approach,
most municipal and county councils throughout the land and some state
legislatures do not hold hearings and compile legislative records before
acting on proposed legislative measures. We perceive no justification in
policy or doctrine for abandoning our traditional approach. Moreover, we
believe that insistence on the creation of a legislative record is an
unwarranted intrusion into the internal affairs of the legislative branch of
governments."
"While we agree with appellants that the creation of a legislative record
can have probative value on what the lawmakers had in mind when they
acted, we do not understand why its absence should be controlling when
the court is otherwise satisfied that the legislative measure has a content-
neutral target."
11126 Baltimore v. Prince George's County, MD, 58 F.3d 988 (4th Cit. 1995)
An operator of an adult bookstore brought an action challenging constitutionality of
county's zoning provisions regulating location and operation of adult bookstores. The court of
appeals held that: (1) the ordinance bore a close enough relationship to, and engendered a
sufficient risk of suppression of, protected expression to permit the operator to bring a facial
challenge; (2) the ordinance was a licensing scheme subject to a prior restraint analysis, rather
than a zoning ordinance subject to a time, place, and manner analysis; (3) the 150-day time
period for a decision on a license application was not the "reasonably brief time period" needed
to prevent ordinance's licensing requirement from being an unconstitutional prior restraint; and
(4) the ordinance did not ensure sufficiently prompt judicial review.
2300, Inc. v. City of Arlington, Tex., 888 S.W.2d 123 (Tex.App.--Fort Worth 1994)
Two topless bars sought an injunction to prevent the enforcement of the "no touch"
provision of Arlington's adult oriented business ordinance. The Court of Appeals held that: (1)
topless or exotic dancing was protected speech; but (2) topless or exotic dancing did not come
within the more extensive protection provided by the Texas Constitution; (3) Arlington's
ordinance was a permissible time, place, and manner restriction on speech; and (4) Arlington's
ordinance did not violate the equal protection clause of the Texas Constitution.
Topless/exotic dancing has been recognized as being within the constitutional protections
of the First and Fourteenth Amendments to the U.S. Constitution. Even so, the Court of
Appeals stated that "the trial court reasonably concluded that topless/exotic dancing probably was
not contemplated as being included in the expanded protections of the Texas Constitution when
Article I section 8 was drafted."
5
, r
t . .
The ordinance's prohibition on touching between customers and employees while
employees are in a state of nudity was content-neutral. The "no touch" provision was directed
at the secondary effects of prostitution, drug trafficking and assault. The ordinance did not
discriminate on the basis of the content of the dance performance.
The ordinance did not violate the equal protection clause of the Texas Constitution.
Arlington did not have to treat all adult businesses the same; just all topless bars the same.
There is no "right to touch" and appellants are not a suspect class.
Hang On III, Inc v. Gregg County, 893 S.W.2d 724 (Tex.App.--Texarkana 1995)
An owner of a restaurant that featured nude women playing pool, oil wrestling, dancing,
and playing darts, brought an action against Gregg County seeking a declaratory judgment that
the restaurant was not a "sexually oriented business" which could be regulated under county
order, and alleging that the County's acts were unconstitutional. In addition to the nude pool,
wrestling, dancing and darts, the restaurant also was considering having nude volleyball and
nude car washing.
The Court of Appeals held that the restaurant was not entitled to an injunction. The
Court ruled that a property owner has no constitutionally protected right to operate a sexually
oriented business. The Court also ruled that a property owner does not acquire a constitutionally
protected right in a property use merely because it began as a conforming use and is later
rendered non-conforming.
Hang On, Inc. v. City of Arlington, 65 F.3d 1248 (5th Cir. 1995)
The City of Arlington, Texas enacted an adult businesses ordinance that contains a "no
touch" provision which prohibited touching between nude performers and customers. A topless
bar sued the City of Arlington alleging that the "no touch" provision violated the First, Fourth,
and Fourteenth Amendments to the United States Constitution, the Equal Rights Amendment of
the Texas Constitution, and the Texas Alcohol Beverage Code.
The Court of Appeals held that: (1) the topless bar had standing to assert its employees'
and patrons' rights; (2) the ordinance did not criminalize accidental or inadvertent touching; (3)
the ordinance did not violate equal protection by criminalizing touching in adult cabarets but not
in other adult entertainment establishments; (4) the ordinance did not violate the Texas Equal
Rights Amendment by excluding male breasts from its definition of nudity; and (5)the ordinance
did not violate the Texas Alcoholic Beverage Code.
The Court of Appeals held that intentional contact between a nude dancer and a bar
patron is conduct beyond the expressive scope of the dancing itself. The Court stated "that the -
physical contact occurs,while in the course of protected activity does not bring it within the
scope of the First Amendment.
6
The Court held that bar patrons have no First Amendment right to touch a nude dancer.
The Court held that nudity is not protected expression. "Nonperforming nude employees,
however, cannot claim First Amendment protection solely by virtue of their nudity. Rather,
"nudity is protected as speech only when combined with some mode of expression which itself
is entitled to first amendment protection."
The Court rejected the claim that Arlington's "no touch" provision criminalizes any
contact between nude employees and customers. The topless bar argued that accidental or
inadvertent touching was criminalized by the ordinance. The Court recognized that under Texas
law the ordinance requires a culpable mental state and, therefore, does not criminalize
inadvertent or negligent touching.
The Court upheld the "no touch" provision and cited, with approval, the "10 foot rule"
established in Kev, Inc. v. Kitsap County, 793 F.2d 1053 (9th Cir. 1986).
As for Hang On's Fourteenth Amendment equal protection claim, the Court held that the
topless bar failed to demonstrate that Arlington's decision to apply the "no touch" provision only
to adult cabarets is an invidious classification or burdens a fundamental right. "Here, Arlington
could rationally conclude that adult cabarets, which typically serve alcohol and attract large
crowds, are a more likely venue than nude modeling studios for the evils of prostitution, drug
dealing, and sexual violence that the "no touch" provision seeks to eliminate.
The Court held that the Equal Protection Clause does not require Arlington to prohibit
touching between nude employees and customers in every field in which it occurs. "Reform
may take one step at a time, addressing itself to the phase of the problem which seems most
acute to the legislative mind."
Hang On contended that the exclusion of male breasts from the ordinance's definition of
nudity violates the Equal Rights Amendment of the Texas Constitution. The Court of Appeals
rejected this argument by saying:
"We cannot let pass without comment the energy expended in the "trial" of such
issues. Courts need no evidence to prove self-evident truths about the human
condition - such as water is wet. Nor should they tarry long with such
foolishness and, in the process, trivialize constitutional values intrinsic to our
society. The district court correctly concluded that Arlington's definition of
nudity did not discriminate against women solely on the basis of gender."
Id., at 1257.
Hang On contended that the "no touch" provision violated §109.57 of the Texas
Alcoholic Beverage Code because the provision applied to topless bars (which normally have
TABC licenses) bur not to nude model studios (which typically do not have TABC licenses).
7
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T !-
The Court held that the City's ordinance did not impose stricter standards on alcohol-related
businesses than it does on non-alcohol related businesses.
The Court of Appeals affirmed the judgment of the district court including its award of
costs and attorney's fees to the City of Arlington.
TK's Video, Inc. v. Denton County, Tex., 24 F.3d 705 (5th Cir. 1994)
An adult book and video store brought an action challenging Denton County's licensing
requirements for adult businesses.
The Court of Appeals held:
1. The 60-day license application review period did not unduly burden the
First Amendment rights of adult businesses.
2. The County could constitutionally require disclosure by owners and
employees of adult entertainment businesses of age, recent infractions of
adult regulations, and recent convictions for some sexual offenses; the
disclosure requirement was related to a substantial governmental interest
of curtailing pernicious side effects of adult entertainment businesses.
3. The County could constitutionally require applicant for an SOB license to
post a sign on the business premise and to advertise in the local newspaper
that it is seeking a license. This requirement allows effected persons an
opportunity to examine the request for a license before it is considered.
4. The S500 application fee is constitutionally permissible.
5. The design and layout regulations for adult film and video theaters are
constitutional.
"Completely private and poorly lit viewing booths encourage
illegal and unsanitary sexual activity in adult theaters."
Id., at 711.
MD II Entertainment, Inc. v. City of Dallas, 28 F.3d 492 (5th cir. 1994)
An operator of a topless bar sued the City of Dallas challenging the City's ordinance
regulating such establishments. The Court of Appeals held that: (1) the ordinance regulated
speech; (2) portions of the ordinance regulating commercial advertising violated the free speech
clause of the 1st Amendment; and (3) the operator of the topless bar lacked standing to assert
claims on behalf of its dancers.
- Section 14-1(5)(B) of the ordinance imposed a zoning requirement on businesses only
because of the terms used in their advertising. The ordinance defined "Class D Dance Hall" as
any place:
8
"(A) where dancing is permitted one day a week or more by a person in a state of
semi-nudity or simulated nudity; or
(B) that is advertised either on or off the premises:
(i) as topless;
(ii) as a gentlemen's club, bar, or saloon;
(iii) as adult entertainment;
(iv) as x-rated; or
(v) by any other term calculated to attract patrons with nudity, semi-nudity,
or simulated nudity."
The Court of Appeals held that under the ordinance, businesses which use certain terms
in their advertising must close and relocate, while businesses which do not use these terms are
unaffected. The Court concluded that this provision plainly was a regulation of speech.
The Court held that the City of Dallas had no studies showing a link between advertising
and lowered property values or increased crime. As a result, the Court concluded that the City
of Dallas did not bear its burden of establishing a direct advancement of its interest through the
regulation of the speech.
The Court also found fault with the "particularly broad" language which forbids the use
of any "term calculated to attract patrons with nudity, semi-nudity, or simulated nudity." The
Court concluded that this definition was not narrowly tailored.
The topless bar cross-appealed arguing that the definitions of "semi-nudity" and
"simulated nudity" differed for males and females. The topless bar asserted that this difference
constituted sexual discrimination under Article I, Section 3a of the Texas Constitution. The
Court held that the topless bar lacked standing to assert a sex-discrimination challenge on behalf
of its employees.
In -a concurrence, Judge Edith Jones suggested that "the City of Dallas could have
avoided this adverse ruling if it had adopted regulations such as that for "simple signs," SDJ,
Inc. v. City of Houston, 837 F.2d 1268, 1278 (5th Cit. 1988), or that upheld in In re Town of
Islip v. Caviglia, 73 N.Y. 2d 544, 540 N.E.2d 215, 542 N.Y.S.2d 139 (1989)." Id., at 498.
The City of Houston's "simple sign" provision is set out verbatim in Appendix II.
Grand Brittain, Inc. v. City of Amarillo, 27 F.3d 1068 (5th Cit. 1994)
An adult book store brought action challenging Amarillo's SOB ordinance. The Court
of Appeals held that: (1) the city was required to maintain the status quo, during licensing
proceedings, for businesses which were operating when ordinance became effective, but (2) other
parts of ordinances were constitutional.
9
Smith v. State, 866 S.W.2d 760 (Tex.App.--Houston fist Dist.] 1993)
Defendant pled guilty to offense of operating a sexually oriented business without a
permit, was sentenced and he appealed. The Court of Appeals held that: (1) though the
ordinance restricting sexually oriented businesses, including adult bookstores, targeted the
content of the material, it did not.violate the First Amendment since it merely placed limit on
locations where such expression may be expressed, and (2) the ordinance did not deny defendant
equal protection on the ground that it requires permitting of enterprises whose primary business
is offering sexually oriented material but exempts those businesses whose activities might
incidentally include the offering of sexually oriented material.
M.
PENDING CASES
Centerfolds, Inc. d/b/a La Bare Y. City of Arlington
2300 Club, Inc. d/b/a Baby Dolls of Arlington v. City of Arlington, Texas and the License and
Amortization Appeals Board
These two cases are pending in two Tarrant County District Courts. The central issue
of the cases concerns amortization. Section 3.02B of Arlington's ordinance states:
"Notwithstanding anything contained herein to the contrary, the License and
Amortization Appeal Board may extend the amortization period hereinabove
provided to a reasonable period of time for any nonconforming Adult
Entertainment Establishment upon a showing by a particular business that without
an extension it will be unable to recoup its investment in the nonconforming
structure."
The License and Amortization Appeal Board has construed the phrase "investment in the-
nonconforming structure" to be limited to leasehold improvements while the topless bars prefer
a broader interpretation to include such "investments" as leases.
Riva Corporation, et al., v. Hams County, Texas, et al., Civil Action No. H-96-3277
Plaintiff Riva sought an order enjoining Harris county from enforcing its SOB ordinance.
The principal challenges to the ordinance related to the following aspects:
1. The "Six Foot Rule" - the rule requiring distance between patrons and performers;
2. The individual and corporate permit requirements;
3. The absolute prohibition against certain sexually oriented enterprises including sexually
oriented modeling studies and escort agencies;
4. The discretion afforded the Sheriff of Harris County in enforcing the ordinance; and
10
5. That portion of the ordinance which requires exterior signage relating to AIDS.
The district court ruled that four portions of the ordinance should be enjoined effective
on Plaintiff's filing a $10,000 bond. Since the bond was never filed, the injunction never
became effective. Nevertheless, the four portions of the ordinance which were subject to
injunction were the following:
I. The Badge Requirement
Section VI (b) of the ordinance states that "the individual shall wear a
clearly visible badge issued by the Sheriff showing the SOBP number any time
s/he is conducting business as an enterprise as defined in these regulations. "
H. The Home Address Requirement
Section VIII (b)(2)(h) states that "A Class II application must contain the
residential address of the applicant."
III. The Past Home Addresses Requirement
Section VIII (c)(1) mandates disclosure of "each of the applicant's
residential addresses for the three (3) years immediately preceding the date of the
application, indicating the dates of each residence and including the present
address and telephone number of the applicant."
IV. The AIDS Signage Requirement
Section XXII (d) states: "Each Class I enterprise shall have the duty to
post a sign containing the following educational AIDS message at eye level
adjacent to each entrance, in each public restroom and in any dressing room in
any Class I enterprise:
STOP AIDS. AVOID HIGH RISK BEHAVIOR.
AVOID CONTACT WITH SEXUAL FLUIDS OR
DIRTY NEEDLES. AIDS CAN BE
TRANSMITTED BY SEX WITHOUT CONDOMS
OR BY SHARING NEEDLES.
The signs shall be obtained from the Sheriffs Office."
11
i Z t y
1 r
APPENDIX I
CASELAW REGARDING SEXUALLY ORIENTED BUSINESSES
FEDERAL CASES
A. SUPREME COURT CASES
1. Young v. American Mini Theatres, Inc., 427 US 50, 49 L Ed 2d 310, 96
S.Ct. 2440, reh den (US) 50 L.Ed 2d 155, 97 S. Ct. 191.
2. Renton v. Playtime Theatres, Inc., 475 U.S. 41, 89 L.Ed. 2d 29, 106 S. Ct. 925.
3. FW/PBS, Inc., d1b/a Paris Adult Bookstore 11, et al v. City of Dallas, et al, 493
U.S. 215, 107 L.Ed. 29 603, 110 S. Ct. 596.
B. FIFTH CIRCUIT CASES
1. FW/PBS, Inc., et al v. The City of Dallas, 837 F.2d 1298 (5th Cir. Feb. 1988).
2. SDJ, Inc. v. City of Houston, 837 F.2d 1268 (5th Cir. 1988).
3. Grand Brittain, Inc., et al v. The City of Amarillo, Texas, 27 F.3d 1068 (5th Cir.
1994)
4. TK's Video, Inc. v. Denton County Texas, et al, 24 F.3d 705 (5th Cir. 1994).
5. Hang On, Inc. v. City of Arlington, 65 F.3d 1248 (5th Cir. 1995).
6. Woodall v. City of El Paso, 49 F.3d 1120 (5th Cir. 1995).
7. U.S. v. Byrd, 31 F.3d 1329 (5th Cir. 1995).
8. MD II Entertainment, Inc. v. City of Dallas, 28 F.3d 492 (5th Cir. 1994).
9. United States v. Investment Enterprises, 10 F.3d 263 (5th Cir. 1993).
i
C. OTHER FEDERAL CIRCUIT CASES
1. Kev, Inc. v. Kitsap County, et al., 793 F.2d 1053 (9th Cir. 1986).
2. Allen J. DeWeese v. Town of Palm Beach, 812 F.2d 1365 (11th Cir. 1987).
12
3. 11126 Baltimore v. Prince George's County, 58 F.3d 988 (4th Cir. 1995).
4. Chesapeake B&M, Inc. v. Harford City, 58 F.3d 1005 (4th Cir. 1995).
5. Redner v. Dean, 29 F.3d 1495 (11th Cir. 1994).
6. Ambassador Books & Video, Inc. v. City of Little Rock, 20 F.3d 858 (8th Cir.
1994).
7. Holmberg v. City of Ramsey, 12 F.3d 140 (8th Cir. 1993).
8. Mitchell v. Commission on Adult Entertainment Establishments of Delaware, 10
F.3d 123 (3rd Cir. 1993).
9. Graff v. City of Chicago, 9 F.3d 1309 (7th Cir. 1993).
10. Graff v. City of Chicago, 986 F.2d 1055 (7th Cir. 1993).
11. East Brooks Books, Inc. v. City of Memphis, 48 F.3d 220 (6th Cir. 1995).
12. ILO Invs. v. City of Rochester, 25 F.3d 1413 (8th Cir. 1994).
D. FEDERAL DISTRICT COURT CASES
1. Dumas v. City of Dallas, 648 F.Supp. 1061 (N.D.Tex. 1986).
2. Nakatomi Invs. v. City of Schenectady, 949 F.Supp. 988 (N.D. N.Y. 1997).
3. Bernstein v. United States Dept of State, 945 F.Supp. 1279 (N.D. Cal. 1996).
4. 1995 Venture I, Inc. v. Orange County, 947 F.Supp. 271 (E.D. Tex. 1996).
5. Tee & Bee, Inc. v. City of West Allis, 936 F.Supp. 1479 (E.D. Wis. 1996).
6. Vicary v. City of Corona, 935 F.Supp. 1083 (C.D. Cal. 1996).
7. Z.J. GiftsD-2, L.L.C. v. City of Aurora, 932 F.Supp. 1256 (D. Col. 1996).
8. Faraone v. City of East Providence, 935 F.Supp. 82 (D. R.I. 1996).
9. 3570 East Foothill Blvd., Inc. v. City of Pasadena, 912 F.Supp. 1257 (C.D. Cal.
1995).
10. K Hope, Inc. v. Onslow County, 911 F.Supp. 948 (E.D. N.C. 1995).
13
11. Rouse v. City of Aurora, 901 F.Supp. 1533 (D. Col. 1995).
12. DLS, Inc. v. City of Chattanooga, 894 F.Supp. 1140 (E.D. Ten. 1995).
13. Burke v. City of Charleston, 893 F.Supp. 589 (D. S.C. 1995).
14. Hooters, Inc. v. City of Texarkana, 897 F.Supp. 946 (E.D. Tex. 1995).
15. Reich v. Priba Corp., 890 F.Supp. 586 (N.D. Tex. 1995).
16. MD II Entertainment, Inc. v. City of Dallas, 935 F.Supp. 1394 (N.D. Tex.
1995).
17. Steverson v. City of Vicksburg, 900 F.Supp. 1 (S.D. Miss. 1994).
18. Bukaka, Inc. v. Counry of Benton, 852 F.Supp. 807 (D. Minn. 1993).
19, Chesapeake B & M, Inc. v. Harford Cty., 831 F.Supp. 1241 (D. MD 1993).
20. Dease v. City of Anaheim, 826 F.Supp. 336 (C.D. Cal. 1993).
21. T.K. 's Video, Inc. v. Denton Cry., 830 F.Supp. 335 (E.D. Tex. 1993).
22. Dodger's Bar & Grill v. Johnson Cty. Bd. of Commrs., 815 F.Supp. 399 (D.
Kan. 1993).
TEXAS CASES
1. Maloy v. City of Lewisville, Tex., 848 S.W.2d 380 (Tex. App.-Fort Worth
1993).
2. Rahmani v. State, 748 S.W.2d 618 (Tex. App.--Houston [1st Dist.] 1988).
3. Martinez v. State, 744 S.W.2d 224 (Tex. App.--Houston [14th Dist.] 1987.
4. State v. Garcia, 823 S.W.2d 793 (Tex. App.--San Antonio 1992).
5. M.J.R. 's v. Permit & License Appeal Bd., 823 S.W.2d 327 (Tex. App.--Dallas
1991).
6. MJR's Fare of Dallas v. City of Dallas, 792 S.W.2d 569 (Tex. App.-Dallas
1990).
7. Ciry of Houston v. Cascades, Inc., 730 S.W.2d 59 (Tex. App.-Houston [14th
14
Dist.] 1987).
8. Jolar Cinema of Houston v. City of Houston, 695 S.W.2d 353 (Tex. App. 1 Dist.
1985).
9. Smith v. Copeland, 787 S.W. 2d 420 (Tex. App.--San Antonio 1990).
10. Onyide v. State, 756 S.W. 2d 370 (Tex. App.--Houston [14th Dist.] 1988).
11. Lopez v. State, 756 S.W.2d 49 (Tex. App.--Houston [1st Dist.] 1988).
12. Lindsay v. Papageorgiou, 751 S.W.2d 544 (Tex. App.--Houston [1st Dist.]
1988).
13. Williams v. City of Fort Worth, 782 S.W. 2d 290 (Tex. App.--Fort Worth 1989).
14. Schope v. State, 647 S.W. 2d 675 (Tex. App.--Houston [14th Dist.] 1982).
15. Memet v. State, 642 S.W.2d 518 (Tex.App.--Houston [14th Dist.] 1982).
OTHER STATE CASES
1. City of Everett v. Traci A. Heim, 859 P.2d 55 (Wash. App. Div. 1 1993), 71
Wash.App. 392.
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APPENDIX 11
THE CITY OF HOUSTON'S "SIMPLE SIGN" REOUIREMENT
Sign. Any display, design, pictorial, or other representation, which shall be so
constructed, placed, attached, painted, erected, fastened or manufactured in any manner
whatsoever so that the same is visible from the outside of an enterprise and that is used to seek
the attraction of the public to any goods, services or merchandise available at such enterprise.
The term "sign" shall also include such representations painted on or otherwise affixed to any
exterior portion of an enterprise as well as such representations painted on or otherwise affixed
to any part of the tract upon which such an enterprise is situated.
Sec. 28-129. Exterior portions of enterprises.
(a) It shall be unlawful for an owner or operator of an enterprise to allow the
merchandise or activities of the enterprise to be visible from any point outside such enterprise.
(b) It shall be unlawful for the owner or operator of an enterprise to allow the exterior
portions of the enterprise to have flashing lights, or any words, lettering, photographs,
silhouettes, drawings, or pictorial representations of any manner except to the extent permitted
by the provisions of this article.
(c) It shall be unlawful for the owner or operator of an enterprise to allow exterior
portions of the enterprise to be painted any color other than a single achromatic color. This
provision shall not apply to an enterprise if the following conditions are met:
(1) The enterprise is a part of a commercial multi-unit center; and
(2) The exterior portions of each individual unit in the commercial multi-unit
center, including the exterior portions of the enterprise, are painted the
same color as one another or are painted in such a way so as to be a
component of the overall architectural style or pattern of the commercial
multi-unit center.
(d) Nothing in this article shall be construed to require the painting of an otherwise
unpainted exterior portion of an enterprise.
Sec. 28-130. Signage.
(a) Notwithstanding chapter 46 of the City of Houston Building Code--General
Provisions or any other city ordinance, code, or regulation to the contrary, it shall be unlawful
for the owner or operator of any enterprise or any other person to erect, construct, or maintain
any sign for the enterprise other than one (1) primary sign and one (1) secondary sign, as
provided herein.
16
(b) Primary signs shall have no more than two (2) display surfaces. Each such
display surface shall:
(1) Not contain any flashing lights;
(2) Be a flat plane, rectangular in shape;
(3) Not exceed seventy-five (75) square feet in area; and
(4) Not exceed ten (10) feet in height or ten (10) feet in length.
(c) Primary signs shall contain no photographs, silhouettes, drawings or pictorial
representations of any manner, and may contain only:
(1) The name of the enterprise; and/or
(2) One (1) or more of the following phrases:
a. "Adult bookstore."
b. "Adult movie theatre."
C. "Adult encounter parlor."
d. "Adult cabaret."
e. "Adult lounge."
f. "Adult novelties."
g. "Adult entertainment."
h. "Adult modeling studio."
(3) Primary signs for adult movie theatres may contain the additional phrase,
"Movie Titles Posted on Premises."
(d) Each letter forming a word on a primary sign shall be of a solid color, and each
such letter shall be the same print-type, size and color. The background behind such lettering
on the display surface of a primary sign shall be of a uniform and solid color.
(e) Secondary signs shall have only one (1) display surface. Such display surface
shall:
17
(1) Be a flat plane, rectangular in shape;
(2) Not exceed twenty (20) square feet in area;
(3) Not exceed five (5) feet in height and four (4) feet in width; and
(4) Be affixed or attached to any wall or door of the enterprise.
(f) The provisions of item (1) of subsection (b) and subsections (c) and (d) shall also
apply to secondary signs.
(g) Any sign located on the premises of a commercial multi-unit center containing an
enterprise that displays the name, or any portion of the name of the enterprise, any name under
which any enterprise was formerly operated on the premises, or that contains any of the terms
set forth in item (2) of subsection (c) or any other terminology that is commonly used to
identify, or is associated with the presence of a sexually oriented business, shall comply with
all restrictions of this section. The intent of this subsection is to prevent the use of signage
identifying the commercial multi-tenant center itself from being used as a subterfuge to evade
the restrictions on sexually oriented business signs set forth in this section.
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i
APPENDIX III
THE CITY OF ARLINGTON'$ "NO TOUCH" PROVISION
Section 5.01 of the Arlington ordinance contains the following additional regulations for
adult cabarets:
"A. An employee of an adult cabaret while appearing in a state of nudity commits an
offense if he touches a customer or the clothing of a customer.
B. A customer at an adult cabaret commits an offense if he touches an employee
appearing in a state of nudity or clothing of the employee.
C. A licensee or employee commits an offense if he permits 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 closed area, excluding
restrooms."
19
ABOUT THE AUTHOR
Tom Brandt is a participating director in the law firm of Fanning, Harper & Martinson.
Mr. Brandt's practice focuses on the defense of governmental entities and public officials. Mr.
Brandt represents cities, counties, school districts and their officials in civil rights and
employment cages.
Mr. Brandt has been involved with defending constitutional challenges to sexually
oriented business ordinance for approximately 10 years. Mr. Brandt has defended the sexually
oriented business ordinances of the City of Dallas and the City of Arlington. Mr. Brandt
participated in the following cases relating to sexually oriented businesses:
1. FW/PBS, Inc. v. City of Dallas, 493 U.S. 215 (1990)
2. FW/PBS, Inc. v. City of Dallas, 837 F.2d 1298 (5th Cir. 1988)
3. Hang On, Inc. v. City of Arlington, 65 F.3d 1248 (5th Cir. 1995)
4. 2300, Inc. v. City of Arlington, 888 S.W.2d 123 (Tex.App.--Fort Worth 1994)
Mr. Brandt has addressed the Texas City Attorney's Association on numerous occasions.
Mr. Brandt currently serves as City Attorney for the City of Hutchins, Texas.
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