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The Mild, Mild West

By C.S. Wiggins

From the Seventh Court of Appeals of Texas comes this case. It concerns Kenneth Smartt, who began operating a business involving nude dancers (Xoticas) outside the city limits of Laredo in 1995. In 1998, Laredo annexed the property. Four years later, Laredo amended a previously existing ordinance to require those operating sexually oriented businesses to obtain a license and to refrain from conducting operations within 1,000 feet of a residential area. Laredo sued for an injunction seeking to stop Smartt from operating his business because it purportedly violated the 1,000 foot restriction. A hearing was held, and the trial court granted the relief requested."

On appeal, Smartt argued that the trial court got it wrong because "1) the business does not 'fit' the definition of 'establishment' as used in the ordinance, 2) the ordinance is unconstitutional and 3) Laredo had an adequate remedy at law." He lost.

Argument #1 caught my eye. Smartt argued that Xoticas did not fit the definitions of the ordinance because (a) it was "grandfathered," and (b) it did not meet the definition of an "establishment." Regarding the grandfather argument, the court of appeals held, "[S]imply because Xoticas may have been in operation before the zoning ordinances were implemented does not mean that it is ipso facto immune from those ordinances." It then moved to the argument regarding the definition of "establishment," holding:

As for the argument about the business not falling within the definition of an "establishment," we note that the ordinance makes it illegal "for any person to operate a sexually oriented business without a valid sexually oriented business license . . . ." LAREDO, TEX., LAND DEVELOPMENT Code ch. 18A, §4(a). The ordinance similarly prohibits a "person [from] operat[ing] or caus[ing] to be operated a sexually oriented business within one thousand (1000) feet of . . . a church . . . [a] public or private . . . school . . . [a] boundary of any residential district . . . [a] public park . . ." and various other locations. Id. §13(b). Moreover, the word "person" encompasses "an individual, proprietorship, partnership, corporation, association, or other legal entity." Id. §2(q). In none of these several provisions appears the term "establishment." Instead, they purport to regulate "persons" and Smartt falls within the definition of a "person."

To the extent that Smartt somehow relies on the word "establishment" to exclude Xoticas from the scope of a sexually oriented business, we note that the latter is defined as, among other things, an "adult cabaret" and "sexual encounter center." The former includes "a nightclub, bar, restaurant, or similar establishment whose major business is? offering . . . live entertainment . . . intended to provide sexual stimulation or sexual gratification . . . ." Id. §2(c). A "sexual encounter center" encompasses, among other things, "a business or commercial enterprise that . . . offers for any form of consideration . . . activities between male and female persons . . . when one or more of the persons is in a state of nudity or is semi-nude . . . ." Id. §2(s). According to the record, Xoticas is "a nightclub which features . . . female performers" dancing topless but with "covered nipples" (while the other portions of the breast remain uncovered) and "bikini bottoms." Those indicia depict both live entertainment intended to provide sexual stimulation and activities between males and females with one being semi-nude. Consequently, evidence exists supporting the trial court's determination that Xoticas is a sexually oriented business, irrespective of the definition of "establishment."

Two thoughts here. First, the ordinance targets businesses -- regardless of whether they are run by sole proprietorships, corporations or actual "person[s]." There's always a human touch. So it seems somewhat odd to highlight that language when describing the ordinance's injunctive reach. To annex property and terminate a recognized land use should require an amortization period at least. (And the opinion doesn't say whether Xoticas' use was amortized.) Second, regarding the definition argument, I would have deposed the city's officials and pinned down what, exactly, constitutes a "sexual encounter center." That definition seems pretty broad.

Full post as published by Meeting the Sin Laws on October 28, 2007 (boomark / email).