THE CASE OF THE ITSY BITSY TEENY WEENY BIKINI TOP V. THE (MORE) ITSY BITSY TEENY WEENY PASTIE
ORDER CONCERNING PRELIMINARY INJUNCTION
An ordinance dealing with semi-nude dancers has once again fallen on the Court’s lap. The City of San Antonio (“City”) wants exotic dancers employed by Plaintiffs to wear larger pieces of fabric to cover more of the female breast. Thus, the age old question before the Court, now with constitutional implications, is: Does size matter?
The genesis of this gentlemen’s clubs case can be found at
The City has amended Ordinance 97497 such that Plaintiffs and their employees would be more strictly regulated by a licensing process which includes:
* background checks;
* criminal records preventing them from working or continuing to work in clubs;
* wearing identification wristlets.
Plaintiffs clothe themselves in the First Amendment seeking to provide cover
The Court infers Plaintiffs fear enforcement of the ordinance would strip them of their profits, adversely impacting their bottom line. Conversely, the City asserts these businesses contribute to reduced property values, violent crime, increased drug sales, prostitution and other sex crimes, and therefore need to be girdled more tightly.
While the Court has not received amicus curiae briefs, the Court has been blessed with volunteers known in South Texas as “curious amigos” to be inspectors general to perform on sight visits at the locations in question.
However, they would have enjoyed far more the sight of Miss Wiggles, truly an exotic artist of physical self expression even into her eighties, when she performed fully clothed in the 1960s at San Antonio’s Eastwood Country Club. Miss Wiggles passed October 14, 2012 at the age of ninety.
BACKGROUND
Following settlement of litigation arising out of the previous 2003 ordinance regulating gentlemen’s
In 2009, operators of certain adult enter^innient clubs sued in state court chalfenging the ban on nude dancing as a violation of the entertainer’s right to free speech. The state trial court ruled in favor the City and the operators appealed, In a well reasoned and well written opinion, the Fourth Court of Appeals, Justice Sandee Bryan Marion writing for the panel, found the City ordinance prohibiting nudity and semi-nudity in public places
In order to avoid being classified as human display establishments, Plaintiffs changed their dancers’ attire to g-strings and pasties over the areolae of the female breast. Doing so enabled them to operate under dance hall licenses instead of having SOB status and having to obtain permits, reconfigure buildings and possibly relocate.
As a result, not a single human display establishment permit request was made and no such permits issued. In 2012, the City enacted Ordinance 2012-12-06-0934, amending Chapter 21, “because certain businesses featuring adult dance entertainment had found a way to circumvent the restrictions set forth in the 2005 ordinance.” The new ordinance eliminates human display establishment status and includes the following definition:
SEMI-NUDITY means a state of dress that fails to completely and opaquely cover (a) human genitals, pubic region, pubic hair or (b) crevice of buttocks or anus, or (c) any portion of the female breast that is situated below a point immediately above the top of the areola, or (d) any combination of (a), (b) or (c).
The effect of the ordinance is to require dancers at Plaintiffs’ businesses to wear bikini tops in order for the businesses to avoid SOB classification and the concomitant licensing, building and location requirements. Plaintiffs argue the ordinance is a constitutionally impermissible restriction on the dancers’ protected expression and unconstitutional because there is no evidence that the contested change in dancer attire (from pasties to bikini tops) would impact negative secondary effects. The City contends it is not a violation of the First Amendment to require Plaintiffs to choose whether they want to be licensed and offer topless dancing or be free of licensing requirements and the other regulations in the ordinance by offering dancers wearing bikini tops.
DISCUSSION
Plaintiffs must carry their burden of proof for the four requirements for a preliminary injunction: “substantial likelihood of success on the merits, substantial threat of irreparable harm absent an injunction, a balance of hardships in Plaintiffs’ favor, and no disservice to the public interest.” Daniels Health Scis., L.L.C. v. Vascular Health Sciences, L.L.C.,
Plaintiffs have not shown they are likely to prevail on the merits of their claims. The Fifth Circuit Court of Appeals has determined it is not a First Amendment violation to require gentlemen’s clubs to decide whether they want to be licensed and offer dancers wearing pasties or performing topless or, alternatively, to be free of licensing requirements, building and zoning regulations in the ordinance by offering dancers who wear slightly more fabric, i.e., a bikini top. Baby Dolls Topless Saloons, Inc. v. City of Dallas,
Although Plaintiffs have shown they will suffer irreparable harm because they are alleging a First Amendment violation which cannot be remedied by an award of economic damages, Deerfield Med. Ctr. v. City of Deerfield Beach,
To bare, or not to bare, that is the question.
Accordingly, the request for preliminary injunction is DENIED.
Should the parties choose to string this case out to trial on the merits, the Court encourages reasonable discovery inter
It is so ORDERED.
APPENDIX
Primarily at issue is whether the City of San Antonio violated certain business establishments’ First Amendment rights when it amended its City code to effectively require female performers to wear bikini tops in order for those establishments to avoid being classified as sexually oriented businesses (“SOBs”) subject to heightened licensing and zoning restrictions. Plaintiffs, operators of the establishments, contend the amendment impermissibly targets the essential expressive nature of the featured entertainment and the relied-upon studies impermissibly fail to show a correlation between the bikini top requirement and the amelioration of secondary effects.
BACKGROUND
In 2003, after studying other cities’ efforts to regulate SOBs and evaluating negative secondary effects SOBs had on crime and property values in San Antonio, the City enacted a “Human Display Establishment” ordinance pursuant to Chapter 21, Article IX of the San Antonio City Code. Ordinance 97497 authorized regulation of the location of adult establishments featuring live nude and semi-nude dancing and adult stores, as well as regulation regarding their operations. The Ordinance imposed new structural, visibility and lighting requirements on such SOBs and added new regulations affecting individuals working in these nude and semi-nude dance establishments and adult retail outlets. The new structural provisions required many businesses to remodel their interior spaces to include a “manager’s station” with an unobstructed view of almost the entire floor. The new regulations banned public nudity and prohibited touching between entertainers and patrons. Moreover, owners and managers who worked in these establishments were required to obtain individual permits, for which they had to divulge personal information and undergo criminal backgrounds checks.
Owners, operators and exotic dancers filed a complaint and application for a temporary restraining order and preliminary injunction based on a First Amendment restriction of expression challenge to the human display establishment ordinance in federal court in May of 2003, and the case was randomly assigned to this Court’s docket. Following a hearing on May 14, 2003, the Court entered an order preserving the status quo until a considered opinion could be drafted. There were four prohibitions in the ordinance which the City sought to exempt from a preliminary injunction:
* A ban on total nudity;
* A ban on touching by entertainers;
* A ban on private rooms in human display establishments; and
* A ban on locked “VIP” rooms.
On May 16, 2003, this Court issued an Interim Order Granting in Part and Denying in Part Plaintiffs’ and Plaintiff-Intervenors’ Réquest for Preliminary Injunction. Allstars v. City of San Antonio, Civil Action No. 5:SA-03-CA-356-FB, docket no. 29 (Biery, J.). The interim order enjoined the City from enforcing Human Display Establishment ordinance 97497 “with the exception of the ban on total nudity and the ban on touching between entertainer and patron.” Id. at 7. The City was allowed to “enforce the unobstructed view provision of the ordinance as it relate[d] to private rooms and locked VIP rooms....” Id.
A settlement was reached in 2005, and the parties stipulated to the dismissal of
[T]hose premises, including those subject to regulation under Chapters 54 or 243 of the Texas Local Government Code, as amended, wherein there is conducted the business of furnishing, providing or procuring dancers, entertainers, or models who appear live at said premises in a state of nudity or semi-nudity, or while performing specified sexual activities.....
San Antonio, Tex., Code § 21-200 (2005). The ordinance contained the following definitions:
Nude, Nudity or State of Nudity. The term “nude,” or “nudity” or “state of nudity” shall mean a state of dress which fails to fully and opaquely cover the anus, crevice of the buttocks, genitals, pubic region, or perineum anal region, regardless of whether the nipple and areola of the human breast are exposed.
Id. It made it unlawful:
(a) for an individual to intentionally or knowingly appear in a state of nudity in a public place.
(c) for an individual, person, corporation, or association that manages, or operates a Human Display Establishment to intentionally or knowingly allow an individual to appear on the premises of said establishment in a state of nudity.
(e) for an owner-operator of a Human Display Establishment to intentionally or knowingly allow an individual to appear on the premises of said establishment in a state of nudity.
Id. § 21-205(a), (c), (e); see also San Antonio, Tex., Code § 21-300(1), (3), (5) (2005).
RCI Entm’t, Inc. v. City of San Antonio
These definitions were held constitutional. RCI Entm’t, Inc. v. City of San Antonio,
Following a bench trial, the state court district judge rendered judgment in favor of the City and denied all claims for relief asserted by the nude dance venues. Id.
[Plaintiffs] and their respective agents, servants, employees, representatives, contractors, and those in active concert or participation with it or them are restrained from violating Article IX, Section 21-205(a), (c), and (e) of the City of San Antonio Code of Ordinances [specifically restrained from allowing individuals to appear in a state of nudity at d/b/a The Players Club a/k/a Paradise Gentlemen’s Club and RCI Entertainment (San Antonio), Inc. d/b/a XTC Cabaret],
Id. at 594-95 (alteration in original).
The judgment provided that the restraint was binding on Plaintiffs “and upon those persons described in Section 21-205(c) and (e) in active concert or participation with it or them who receive actual notice of the order by personal service or otherwise.” Id. at 595. The nude dance venues filed a motion for new trial which was overruled by operation of law and an appeal to the Fourth Court of Appeals in San Antonio ensued. Id.
Among other things, the nude dance venues asserted the Human Display Ordinance violated article 1, section 8 of the Texas Constitution, which provides: “Every person shall be at liberty to speak, write or publish his opinions on any subject, being responsible for the abuse of that privilege; and no law shall ever be passed curtailing the liberty of speech or of the press.” RCI Entm’t Inc.,
The Fourth Court of Appeals, Justice Sandee Bryan Marion writing for the panel, began by discussing Davenport v. Garcia,
The difference between the federal constitution and our state constitution is that the First Amendment to the U.S. Constitution represents a restriction on governmental interference with speech, while “Texas [in drafting our state constitution] chose from the beginning to assure the liberties for which they were struggling with a specific guarantee of an affirmative right to speak.” Davenport v. Garcia,834 S.W.2d 4 , 7-8 (Tex.1992). Over the years, through various constitutional redrafts and amendments, and even “amidst intense public debate over secession and reconstruction,” Texans continued to include ‘an expansive freedom of expression clause” and reject the “more narrow protections” of the federal constitution, indicating a “desire in Texas to ensure broad liberty of speech.” Id. at 8. “Consistent with this history, the Texas Supreme Court has recognized that “in some aspects our free speech provision is broader than the First Amendment [to the U.S. Constitution].” Id. Under this broader guarantee, it has been and remains the preference of the Texas Supreme Court “to sanction a speaker after, rather than before, the speech occurs” because this “comports with article one, section eight of the Texas Constitution, which both grants an affirmative right to ‘speak ... on any subject,’ but also holds the speaker ‘responsible for the abuse of that privilege.’ ” Id. at 9.
Id. at 598-99.
Notwithstanding Garcia’s finding that Article 1, Section 8 of the Texas Constitu
“[T]o assume automatically ‘that the state constitutional provision must be more protective than its federal counterpart illegitimizes any effort to determine state constitutional standards.’ If the Texas Constitution is more protective of a particular type of speech, ‘it must be because of the text, history, and purpose of the provision.’ ” Comm’n for Lawyer Discipline v. Benton,980 S.W.2d 425 , 434 (Tex.1998) (quoting Operation Rescue[-National],975 S.W.2d at 559 (internal citations omitted)). The Benton Court noted that the cases in which the Texas Supreme Court has held the Texas Constitution creates a higher standard than the First Amendment involved prior restraints in the form of court orders prohibiting or restricting speech.
RCI Entm’t, Inc.,
In considering whether the ordinance is content-based or content-neutral, the Court noted that “the ordinance does not ban expression in the form of nude dancing.” Id. Instead, the opinion continues, “the ordinance regulates conduct and not the content of anyone’s speech.” Id. at 599-600 (citing Erie v. Pap’s A.M.,
(1) only dancers, managers, and owners of human display establishments — as opposed to anyone else appearing in a state of public nudity — are subject to criminal and civil liability under the ordinance; and (2) the ordinance allows an exception to liability based on the content of the speech for any “person engaged in expressing a matter of serious literary, artistic, scientific, political, or social value.” SAN ANTONIO, TEX., CODE § 21 — 207(c)(1).
Id.
The United States Supreme Court rejected an argument similar to the first argument made by appellants. The Fourth Court of Appeals also rejected the argument:
In Erie, the respondent argued the ordinance was “aimed” at suppressing expression through a ban on nude dancing.529 U.S. at 284 ,120 S.Ct. 1382 . The respondent supported this argument by pointing to statements made by the City attorney that the public nudity ban was not intended to apply to ‘legitimate” theater productions. The Court concluded this was “really an argument that the City council also had an illicit motive in enacting the ordinance.” Id. The Court rejected the argument noting it would “not strike down an otherwise constitutional statute on the basis of an alleged illicit motive.” Id. Likewise, here, we will not strike down an ordinance on the grounds that only human displays establishments are targeted by the ordinance. Also, we do not agree that only dancers, managers, and owners of human display establishments are targeted by the ordinance. The ordinance makes it unlawful “for an individual to intentionally or knowingly appear in a state of nudity” in “all locations owned or open to the general public” and is not limited only to human display establishments. San Antonio, Tex., Code § 21-200.
Id. The Fourth Court further pointed out that the ordinance was enacted pursuant to Texas Local Government Code section 243.001, which expresses the Texas Legislature’s concern “that the unrestricted operation of certain sexually oriented businesses may be detrimental to the public health, safety, and welfare by contributing to the decline of residential and business neighborhoods and the growth of criminal activity.” Id. (citing Tex. Loc. Gov’t Code § 243.001(a)). Accordingly, the opinion states, “[w]e believe the ordinance is not aimed at any expressive content of appearing nude but at the secondary effects of appearing nude in public.” RCI Entm’t,
The Fourth Court of Appeals next addressed appellants’ argument the ordinance is content-based because it provides an exception from the general ban on nudity based entirely on the content of the message conveyed by the dancers. Id. Appellants pointed to the exception contained within the ordinance which exists for a “person engaged in expressing a matter of serious literary, artistic, scientific, political, or social value.” Id. (quoting San Antonio, Tex., Code § 21-207(c)(l)). According to appellants, the inclusion of this exception means that the City values
Regulations that “by their terms distinguish favored speech from disfavored speech in the basis of ideas or views expressed are content based.” Turner Broad. Sys. v. FCC,512 U.S. 622 , 643,114 S.Ct. 2445 ,129 L.Ed.2d 497 (1994). Thus, a rule that is applied because of disagreement with a message presented or a rule that has a substantial risk of eliminating certain ideas or viewpoints from the public dialogue is content-based. See id. at 642,114 S.Ct. 2445 . If, on the other hand, the regulation is justified without reference to the content of the speech or serves purposes unrelated to the content, it is a content-neutral regulation, even if it has an incidental effect on some speakers or messages but not others. Horton v. City of Houston, 179 N3d 188, 193 (5th Cir.1999). cert. denied,528 U.S. 1021 ,120 S.Ct. 530 ,145 L.Ed.2d 411 (1999).
RCI Entm’t,
[Tjhat the ordinance’s public nudity ban should be “properly evaluated as a content-neutral restriction because the interest in combating the secondary effects associated with [sexually oriented businesses] is unrelated to the suppression of the erotic message conveyed by nude dancing.” Erie,529 U.S. at 296 ,120 S.Ct. 1382 , Boyd,592 S.E.2d at 776 .
RCI Entm’t,
Accordingly, the Court of Appeals applied “the same intermediate scrutiny analysis under the Texas Constitution as under the First Amendment to the U.S. Constitution” and referred “to federal cases analyzing the First Amendment to the U.S. Constitution for guidance.” Id.
* falls within “the constitutional power” of the City of San Antonio,
* furthers an “important or substantial government interest,”
* furthers this interest in a manner “unrelated to the suppression of free expression,” and
* “imposes no greater incidental restriction on protected speech “than is essential to the furtherance of that interest.”
Id. (quoting United States v. O'Brien,
In applying the O’Brien factors, the Fourth Court noted that appellants did not contest that the ordinance falls within the City’s constitutional power. Id. With regard to the second and third factors, the Court reiterated its beliefs that the ordinance furthers an “important or substantial government interest” and further stated “we believe the ordinance furthers that interest in a manner unrelated to the suppression of free expression.” RCI Entm’t,
The only constitutional right here (albeit one “marginally” within the “outer perimeters” of the First Amendment) is the erotic message implicit in nude or semi-nude dancing. There is no general right to take one’s clothes off in public. Nor is there a constitutional right to wear pasties and G-strings rather than the lingerie-like tops and bottoms required by the Henrico [County] ordinance. Thus, we cannot ask whether requiring slightly more clothes restricts the erotic dancer’s right to be less clothed. Being in a state of nudity, after all, is not an inherently expressive condition. Instead, we must ask whether the ordinance unduly burdens the dancer’s ability to express her erotic message by requiring her to cover up slightly more of her body with slightly more fabric.
“A flasher in a public mall may genuinely intend to communicate a message— whether erotic, neurotic, or both. But the communicative element in his conduct should receive no constitutional protection.” [Boyd, 592 S.E.2d] at 775. Similarly, going from complete nudity to being partly clothed involves a de minimis impact on the ability of a dancer to express eroticism. See Erie,529 U.S. at 294 ,120 S.Ct. 1382 ; see also Boyd,592 S.E.2d at 779 (“The dancer’s erotic message still reaches its intended audience. The additional clothing just “makes the message slightly less graphic” ”). Therefore, we conclude the ordinance imposes no greater incidental restriction on protected speech than is essential to the furtherance of the government interest at which the ordinance is aimed.
Id. at 602. Accordingly, the Texas appellate court found San Antonio’s 2005 ordinance prohibiting nudity and regulating semi-nudity withstood intermediate scrutiny and was structured only to reduce negative secondary effects. Id.
Baby Dolls Topless Saloons, Inc. v. City of Dallas
The United States Circuit Court of Appeals for the Fifth Circuit upheld a Dallas regulation of sexually oriented businesses which restricted the activities of semi-nude
Under Renton, “zoning ordinances designed to combat the undesirable secondary effects of [SOBs] are to be reviewed under the standards applicable to ‘content-neutral’ time, place, and manner restrictions.”475 U.S. at 49 ,106 S.Ct. 925 (emphasis added). And, “findings of the [City] as to the secondary effects of sexually oriented businesses [can] satisfy us ... that [its] predominant concern was with secondary effects and not the content of expression itself.” SDJ, Inc. v. City of Houston,837 F.2d 1268 , 1273 (5th Cir.1988), cert. denied,489 U.S. 1052 ,109 S.Ct. 1310 ,103 L.Ed.2d 579 (1989). SDJ, Inc., involved a similar zoning scheme that imposed location restrictions on establishments “characterized by an emphasis on matter depicting, describing or relating to ... specified anatomical areas,” defined as “[l]ess than completely and opaquely covered ... [fjemale breast[s] ... below a point immediately above the top of the areola.” Id. at 1278 n. 36 (emphasis added).
Id. at 480. The Court pointed out that the City of Dallas had relied on other cities’ efforts regulating SOBs, commissioned studies and engaged in a series of public hearings, comment-taking and town hall meetings regarding SOBs deleterious effects, id. at 474, 481, and found the City’s concerns to be adequately expressed in the ordinance’s preambulary language:
WHEREAS the City council finds that a concentration of [SOBs] continues to contribute to a decline in the value of surrounding properties, to an increase in criminal activities in the surrounding community, and to urban blight and a downgrade in the quality of life in the surrounding community....
WHEREAS, the City council believes that, to better protect the public health, safety, and welfare it is necessary to adopt additional amendments to [the SOB ordinance] that would enhance land use protection to residential areas and other surrounding areas; restrict the location of [SOBs] near child-care facilities to protect the children that attend those facilities; and establish rules of conduct for certain [SOB] employees and customers....
Id. at 480 (quoting Dallas, Tex., Ordinance No. 23137 at 2-5) (emphasis in original).
Plaintiffs maintained, however, that the evidence the City relied upon was irrelevant to the ordinance. Id. at 481. They argued “[n]o evidence indicates that a requirement that all dancers wear bikini tops instead of pasties will reduce deleterious
In rejecting this argument, the Fifth Circuit explained:
Renton, however, does not require a “city to demonstrate!],] • • • with empirical data, that its ordinance will successfully lower crime,” at least “not without actual and convincing evidence from plaintiffs’ to the contrary.” City of Los Angeles v. Alameda Books, Inc.,535 U.S. 425 ,122 S.Ct. 1728 , 1736,152 L.Ed.2d 670 (2002) (plurality). “Such a requirement would go too far in undermining [the] settled position that municipalities must be given a reasonable opportunity to experiment with solutions to address the secondary effects of protected speech.” Id. (internal citations and question marks omitted).
Renton teaches us that the government must produce some evidence of adverse secondary effects produced by ... adult entertainment in order to justify a challenged enactment using the secondary effects doctrine.... Renton also instructs us that a government must present sufficient evidence to demonstrate “a link between the regulation and the asserted governmental interest,” under a “reasonable belief” standard.
Id. (quoting J & B Entm’t, Inc. v. City of Jackson,
The Fifth Circuit found the standard had been satisfied. The Court noted the ordinance was enacted, in part, because the City had found that “entities that were, in effect, SOBs were avoiding that classification” by having its dancers wear pasties and that “concentrated SOBs continued to contribute to an increase in criminal activities in the surrounding community.” Id. (quoting Dallas, Tex., Ordinance 23137 (preamble)). Among other relied upon data, the City presented evidence that sex crimes were more frequent in the study area. Id. The Court noted:
While the ... study is careful not to attribute this disparity entirely to SOBs, it did find a correlation between SOBs— specifically their “hours of operation and the type of people which SOBs attract” — and higher crime rates.
Baby Dolls Topless Saloons, Inc.,
The [C]ity relied upon specific evidence showing, inter alia, higher crime rates in the vicinity of SOBs. The City’s attempts to deal with that reality had been continuously frustrated in the past, most recently by “exploitation of a ‘loophole’ in the City code that permitted such businesses to avoid the location restrictions by obtaining dance hall licenses pursuant to Chapter 14, which was not originally designed to regulate suchbusinesses.” Baby Dolls, 114 F.Supp.2d at 547 (emphasis added).
Id. at 482. The ordinance, the Court pointed out, was a comprehensive amendment to carry out the City’s “original intent in combating secondary effects associated with [SOBs].” Id. Importantly,
“[T]he evidence does not connect the wearing of bikini tops to the reduction of secondary effects,” id.; but, in the light of the data considered by the City and other steps taken by it prior to enacting the ordinance, it was not necessary to make that connection. Instead, it was reasonable for the City to conclude that establishments featuring performers in attire more revealing than bikini tops pose the same types of problems associated with other SOBs.
Id.
DISCUSSION
To obtain a preliminary injunction, Plaintiffs must show the following: (1) there is a substantial likelihood of success on the merits; (2) there is a substantial threat that Plaintiffs will suffer irreparable injury if the injunction is denied; (3) the threatened injury outweighs any damage the injunction might cause the City; and (4) granting the injunction will not disserve the public interest. Daniels Health Scis., L.L.C. v. Vascular Health Sciences, L.L.C.,
Likelihood of Success
When determining the likelihood of success on the merits, courts look to the standards of the substantive law. Roho, Inc. v. Marquis,
Because the restriction of Plaintiffs’ right to feature semi-nude dancing implicates the First Amendment, the City must show that its restriction on SOBs is a narrowly tailored time, place and manner regulation. Baby Dolls Topless Saloons, Inc. v. City of Dallas,
In RCI Entm’t, Inc. v. City of San Antonio,
In Baby Dolls Topless Saloons, Inc. v. City of Dallas,
Plaintiffs argue Baby Dolls Topless Saloons, Inc. is not applicable because the decision fails to take into consideration the Supreme Court’s discussion of ample avenues of communication in City of Los Angeles v. Alameda Books. Inc.,
Irreparable Injury
An irreparable injury is one which cannot be remedied by an award of economic damages. Deerfield Med. Ctr. v. City of Deerfield Beach,
Threatened Injury
Next, Plaintiffs must show that the injury they will suffer if the Court denies the preliminary injunction is greater than the injury the City will suffer if the injunction is granted. Sugar Busters LLC v. Brennan,
Injunctive relief is an extraordinary remedy and Plaintiffs must clearly carry the burden of persuasion on each factor in order to obtain the injunction. Mississippi Power & Light Co.,
The Public Interest
Two public interests are implicated in this case. The public has an interest in protecting the First Amendment rights of individuals and businesses such as Plain
Conclusion
The City ordinance effectively requiring exotic dancers to wear bikini tops in order for the operators to avoid sexually oriented business licensing, building and zoning requirements is reviewable under the standard governing content-neutral time, place and manner restrictions on free speech. Even though the City did not produce specific evidence linking bikini tops to reduction of harmful secondary effects of sexually oriented businesses, prior to the ordinance’s enactment and subsequent amendment, the City reviewed studies and case law and held hearings resulting in its finding that the ordinance was necessary to address the same harmful secondary effects as other such businesses already subject to regulation. Accordingly, Plaintiffs have not shown a substantial likelihood of success on the merits of their claim that it is a violation of the First Amendment to require them to decide if they want to be licensed and offer topless dancers or be free of licensing requirements and the other regulations in the ordinance by offering dancers wearing bikini tops. This finding renders the remaining factors for obtaining a preliminary injunction moot. The Court has weighed the remaining factors and determined that Plaintiffs’ threatened injury does not outweigh the interest of the City and the public and that the Order Concerning Preliminary Injunction is supported by the factual record and case law.
. Itsy Bitsy Teeny Weeny Yellow Polka Dot Bikini (Knapp Records 1960).
. And Salomé, dressed only in seven thin veils, danced lasciviously at a men's club called the Palace ... of King Herod, that is. The result was a fatal secondary effect for John the Baptist.
Adapted and paraphrased by the Court from the Bible, Mark 6:16-28, and the play Salomé written by Oscar Wilde starring Sarah Bernhardt as Salome and produced in Paris in 1894. Allstars v. City of San Antonio, No. Civ. A. SA-03-CA-356-FB,
. The City examined thousands of pages of reports, studies and related court opinions regarding various aspects of SOB regulation. The legislative record is 3,223 pages long and includes ninety-three studies. See e.g., "Texas City Attorneys Association Crime and Value Related Effects of Sexually Oriented Businesses” (concluding that sexually oriented businesses decrease property values); "Adult Business Study” (Town of Ellicottville, N.Y.) (concluding SOB regulation necessary because of negative economic impact and increase in crime associated with such venues); "The Freedom and Justice Center: Strip Club Testimony” (concluding that “degree of sexual violence perpetrated against strippers explodes the myths about stripping as harmless entertainment”); "Why and How Our City Organized a Joint County-Wide Sexually Oriented Business Task Force” (City of Cleburne, TX) (documenting negative effect of SOBS on "moral core, general health and local property values”); "An Analysis of The Effects of SOBs on the Surrounding Neighborhoods in Dallas, Texas” (1997) (finding that venues featuring live nude and semi-nude dancing lead to higher crime in surrounding neighborhoods); "Crime Impact Studies by Municipal and State Governments on Harmful Secondary Effects of Sexually Oriented Businesses” (National Law Center) (summarizing studies conducted in thirty-five metropolitan areas, including cities in Texas); "Adult Entertainment Study” (City of New York) (discussing impacts and trends surrounding location of SOBs); “Director’s Report: Proposed Land Use Code Texas Amendment, Adult Cabaret’s” ("In the law and planning literature on adult entertainment uses, public safety hazards are the most often cited adverse impact on surrounding communities.”).
. Our Texas Magazine, Winter 1995, at 9 (photograph); Mike Dunham, Mourners Recall the Humanitarian Side of Miss Wiggles, Anchorage Daily News, Oct. 22, 2012; Paula Allen, "Utopia, Baby," San Antonio Express News, Feb. 26, 2006.
. "gen«tle*man .... n.... 2. A polite, gracious or considerate man having high standards of propriety or correct behavior.” Webster's II Dictionary 526 (New Riverside Univ. ed. 1984). The term is loosely used in this context.
. William Shakespeare. The First Folio of Hamlet, Prince of Denmark act 1, sc. 1 ("To be, or not to be, that is the question:....”)
. United States v. Guevara, SA-10-CR-870FB, a case on this Court’s docket involving two men who began a twenty-four hour carjacking crime spree in 2010 after exiting XTC, a gentlemen's club, which only ended because they were caught. Each pleaded guilty and was sentenced to twenty years in prison. See also Katrina Webber, Man Shot During Robbery at South San Antonio Strip Club, April 3, 2013; Ana Ley, Two Patrons and Dancer Shot During Strip Club Brawl, San Antonio Express News, January 31, 2013.
. As observed by young Scout in To Kill a Mockingbird, "I came to the conclusion that people were just peculiar.” Harper Lee, To Kill a Mockingbird 280 (Harper Collins, ed., 1960).
. As noted by Justice Bryan Marion, other Texas courts have addressed ordinances aimed at regulating human display establishments, but have not considered the ban on nudity issue raised in the appeal before the Fourth Court. Id. at n. 4; see e.g., Combs v. Texas Entm’t Ass’n,
. The legislative record of the 2012 ordinance is slightly different from that of the 2005 ordinance. In 2005, the City placed into the record over eighty studies on the negative secondary effects of adult businesses. The 2005 legislative record includes but is not limited to court opinions, reports and studies relied upon by the City in support of the 2005 ordinance. Prior to voting on the 2012 ordinance, the City considered eight new studies and other information supporting the conclusion that sexually oriented businesses are linked to a variety of secondary effects. For example, Legislative Record Study # 2, "Appraising Sex in Texas” examines the effects SOB classified businesses have on surrounding property values. This study was not available during the drafting of the 2005 ordinance or the initial settlement position in April of 2005.
The supplemented legislative record before the City in support of the 2012 ordinance is 3,233 pages long, includes ninety-three studies and covers cases and reports documenting various topics related to secondary effects caused by SOBs. The 2012 ordinance states that the City relied on these various sources in enacting the ordinance.
. Dr. Randy Fisher testified at the hearing on the request for injunctive relief and, with permission from the Court, Plaintiffs filed supplemental opinions from Dr. Fisher and from Dr. Judith Hanna, which the Court has reviewed. Plaintiffs contend the legislative predicate relied on by the City is not “methodologically sound.” As noted, they also argue bikini tops and increased coverage operates to unconstitutionally infringe on the communicative aspects of the exotic dancers’ activities.