RCI ENTERTAINMENT (SAN ANTONIO), INC. d/b/a XTC Cabaret; and Players Club, LLC d/b/a Players Club a/k/a Paradise Gentlemen‘s Club v. CITY OF SAN ANTONIO
No. 04-11-00045-CV
Court of Appeals of Texas, San Antonio.
Feb. 8, 2012.
Savita Rai, Office of the City Attorney, Prosecution Division, William M. McKamie, McKamie Kruger, LLP, San Antonio, TX, for Appellee.
Sitting: SANDEE BRYAN MARION, Justice, PHYLIS J. SPEEDLIN, Justice, MARIALYN BARNARD, Justice.
OPINION
Opinion by: SANDEE BRYAN MARION, Justice.
This is an appeal from a permanent injunction and declaratory judgment adverse to the appellants. We conclude the ordinance is not preempted by or inconsistent with the Texas Penal Code or the Texas Business and Commerce Code, and is not an unconstitutional restraint on freedom of expression. However, because the injunction is overly broad in scope, we reverse in part and remand.
THE ORDINANCE
In 2005, the City of San Antonio (the City) adopted an ordinance, later codified in the City‘s Code of Ordinances, that prohibits nudity and semi-nudity in public places and requires permits for human display establishments. The ordinance makes 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.
those 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.
The ordinance defines nude or nudity or state of nudity as a state of undress 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.
Any violation of the ordinance is punishable as a Class C misdemeanor with a fine not to exceed $2,000.00.
BACKGROUND
Appellant RCI Entertainment (San Antonio), Inc. d/b/a XTC Cabaret (RCI) operates a cabaret-type establishment that offers live nude entertainment. Appellant Players Club, LLC a/k/a Players Club a/k/a Paradise Gentlemen‘s Club (Players) also operates a cabaret-type establishment that offers live nude entertainment. Both companies have operated their businesses within San Antonio, Texas since 1999 and 2002 respectively.
One evening in December 2009, the San Antonio Police Department appeared at the appellants’ businesses to conduct inspections. At both establishments, police arrested entertainers for appearing in a state of nudity in a public place and managers for allowing the entertainers to appear in a state of nudity in a human display establishment. In separate lawsuits, which were later consolidated, appellants sued the City seeking declaratory and injunctive relief on the grounds that the ordinance was preempted by the
Following a bench trial, the trial court rendered judgment in favor of the City and denied all claims for relief asserted by the appellants. Appellants are permanently enjoined as follows:
[Appellants] 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].
The judgment provided that the restraint was binding on RCI and Players 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.
Appellants’ motion for new trial was overruled by operation of law, and this appeal ensued.
PREEMPTION
Appellants first argue the challenged portion of the ordinance (subsections (a), (c), and (e) of section 21-205), is preempted by the
When reviewing the validity of a city ordinance, an appellate court is to presume the ordinance is valid. City of Brookside Village v. Comeau, 633 S.W.2d 790, 792 (Tex. 1982). The burden of showing that a city ordinance is invalid rests on the party attacking it. Home-rule cities, such as San Antonio, have full power of self-government and authority to do anything the Legislature could have authorized them to do.
On appeal, appellants argue the Texas Legislature has clearly indicated its intent to limit the power of cities to regulate certain behavior by the enactment of
If the Legislature decides to preempt a subject matter normally within a home-rule city‘s broad powers, it must do so with unmistakable clarity. Dallas Merchant‘s, 852 S.W.2d at 491; Chacon, 273 S.W.3d at 378. A city ordinance that attempts to regulate a subject matter a state statute preempts is unenforceable to the extent it conflicts with the state statute. In re Sanchez, 81 S.W.3d at 796; Dallas Merchant‘s, 852 S.W.2d at 491. Thus, the mere fact that the legislature has enacted a law addressing a subject does not mean that the subject matter is completely preempted. Responsible Dog Owners, 794 S.W.2d at 19. When there is no conflict between a state law and a city ordinance, the ordinance is not void. Id. Accordingly, courts will not hold a state law and a city ordinance repugnant to each
A. Does the Texas Penal Code Preempt the Ordinance?
Appellants contend the City‘s ordinance is an attempt to regulate the same conduct as the Penal Code, i.e., under what circumstances it is illegal to appear in public in a state of nudity. We first must determine whether the City is attempting to regulate the same conduct as the State. If the ordinance is an attempt to regulate the same conduct governed by the Penal Code, then we next must decide whether the ordinance conflicts with the applicable Penal Code sections.
The Penal Code sections at issue here criminalize public lewdness, indecent exposure, disorderly conduct, and public indecency. Under
(1) act of sexual intercourse;
(2) act of deviate sexual intercourse;
(3) act of sexual contact; or
(4) act involving contact between the person‘s mouth or genitals and the anus or genitals of an animal or fowl.
Under
A person commits [the offense of public indecency] if, knowing its content and character:
(1) promotes or possesses with intent to promote any obscene material or obscene device; or
(2) produces, presents, or directs an obscene performance or participates in a portion thereof that is obscene or that contributes to its obscenity.
None of these sections contain an explicit expression of the Legislature‘s intent that the Penal Code exclusively governs the criminalization of an intentional or knowing appearance in a state of nudity in a public place.3 Appellants argue that
We conclude the ordinance is not preempted by Penal Code sections 21.07, 21.08, or 43.23 because these sections are not directed at the same conduct as the ordinance.
We acknowledge, however, that a comparison between
B. Does the Texas Business and Commerce Code Preempt the Ordinance?
Appellants also contend the Legislature recognized nude entertainment as lawful conduct when it enacted
In McDonald, the City of Fort Worth enacted an ordinance that defined marble boards as a nuisance per se; made their ownership, operation, or exhibition a misdemeanor; prescribed a fine up to $200 for each day of violation; and provided for summary seizure by any police officer. Id. at 258. A state statute at the time levied an occupation tax on owners of skill or pleasure coin-operated machines, which included marble machines, marble table machines, and marble shooting machines. The court of appeals held that merely because a city has the power by charter and statute to define and prevent a nuisance does not mean a city may by an arbitrary standard, declare that to be a nuisance which is not so in fact. Id. The court concluded a city has no right to supersede a revenue statute by declaration that a licensed business is a nuisance. Id. However, the court noted no general statute allowed the Fort Worth City Council to prevent or prohibit marble boards. Id.
Here,
CONSTITUTIONAL RIGHTS
Finally, appellants assert the ordinance violates
The difference between the federal constitution and our state constitution is that the
However, the scope of this greater protection has been questioned. See Tex. Dep‘t of Transp. v. Barber, 111 S.W.3d 86, 106 (Tex. 2003); Operation Rescue—Nat‘l v. Planned Parenthood of Houston & Se. Tex., Inc., 975 S.W.2d 546, 558-60 (Tex. 1998). The mere assertion that freedom of expression protections are broader under the
On appeal, appellants argue we must scrutinize the ordinance under the higher standard of the
A. Is the Ordinance Content-Based or Content-Neutral?
On its face, the ordinance does not ban expression in the form of nude dancing. Instead, the ordinance is a general prohibition against public nudity. Thus, the ordinance regulates conduct and not the content of anyone‘s speech. See Erie v. Pap‘s A.M., 529 U.S. 277, 284, 290 (2000) (plurality) (holding same regarding ordinance that made it an offense for a person who knowingly or intentionally, in a public place . . . appears in a state of nudity
The Erie Court rejected an argument similar to the first argument made by appellants here. In Erie, the respondent argued the ordinance was aimed at suppressing expression through a ban on nude dancing. 529 U.S. at 284. 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.
We also note that the ordinance was enacted pursuant to
Appellants also argue 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. Appellants point to the exception contained within the ordinance that exists for a person engaged in expressing a matter of serious literary, artistic, scientific, political, or social value.
Sufficient government interests justifying content-neutral regulations include preventing harmful secondary effects, Erie, 529 U.S. at 293, and protecting morals and public order, Barnes, 501 U.S. at 569, both classic expressions of state police powers. While the messages conveyed by erotic dancing and theatrical nudity may be similar, the social by-products of each medium may be considerably different. See Boyd v. County of Henrico, 42 Va. App. 495, 592 S.E.2d 768, 776 (2004). Within the limited field of regulations on public exhibitions of adult entertainment, therefore, the presence of negative secondary effects permits public nudity regulations to be treated as content-neutral and so subject only to intermediate scrutiny. Id. (internal citation omitted). We therefore conclude the exception contained in the ordinance does nothing more than ensure that the ordinance incidentally restricts the least amount of expressive conduct, and thus, protects the ordinance against an overbreadth challenge.
We hold that 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; Boyd, 592 S.E.2d at 776. Because we believe the ordinance is content-neutral, we also conclude the ordinance is not entitled to the broader free speech protections granted under the
B. Intermediate Scrutiny
A content-neutral restriction on speech withstands intermediate scrutiny if it (i) falls within the constitutional power of the City, (ii) furthers an important or substantial government interest, (iii) furthers that interest in a manner unrelated to the suppression of free expression, and (iv) imposes no greater incidental restriction on protected speech than is essential to the furtherance of that interest. United States v. O‘Brien, 391 U.S. 367, 376-77 (1968). Appellants do not contest the ordinance falls within the City‘s constitutional power. As discussed above, the ordinance furthers an important or substantial government interest,
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.
Boyd, 592 S.E.2d at 777-78 (internal citations omitted).
We agree with the Boyd court that being in a state of nudity is not an inherently expressive condition. 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. Id. 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; 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.).5 Therefore, we conclude the ordinance imposes no greater incidental restriction on protected speech than is essential to the furtherance of the governmental interest at which the ordinance is aimed. Accordingly, the ordinance withstands intermediate scrutiny.
C. Prior Restraint of Speech
Appellants also assert the ordinance has a chilling effect on speech by impeding an individual‘s desire to express herself through dance and by discouraging a patron‘s right to receive the message. However, as we concluded above, this is a content-neutral ordinance. By its terms, the ordinance regulates conduct alone. See Erie, 529 U.S. at 290. Consequently, the ordinance is not an unconstitutional prior restraint on speech.
PERMANENT INJUNCTION
Finally, appellants challenge the trial court‘s injunction on a variety of grounds. Appellants’ first complaint is directed toward the following trial court findings of fact:
5. The ordinance prohibits an individual from intentionally or knowingly appearing in a state of nudity or semi-nudity in a public place and prohibits a manager, operator or owner-operator of a Human Display Establishment from intentionally or knowingly allowing an individual to appear on the premises of
the establishment in a state of nudity or semi-nudity. 6. RCI/Players’ establishments offer live nude entertainment.
On appeal, appellants contend that although the trial court found that appellants’ businesses provided live nude entertainment, the court did not specifically find or conclude that offering live nude entertainment violated subsections (a), (c), or (e) of the ordinance. Therefore, appellants contend the City failed to show the existence of a wrongful act, a prerequisite to obtaining a permanent injunction. Appellants also assert the trial court was required to find, but did not find, that their conduct was illegal.
The ordinance provides for criminal prosecution for any violation.
In several related complaints, appellants challenge the scope and breath of the injunction. Appellants assert the injunction acts as a prior restraint on future expressive conduct because the injunction forbids nude dance prior to any performance protected by the exception contained in the ordinance. Appellants also assert the injunction improperly fails to include the exception contained in section 21-207(c)(1). Appellants argue the trial court had to, but did not, find that the exception contained in section 21-207 of the ordinance did not apply. Appellants also contend the injunction improperly eliminates the scienter requirement contained in section 21-205. According to appellants, not including the intentionally and knowingly language of section 21-205, and instead, restraining appellants from allowing nudity is vague and subject to more than one interpretation.
Every order granting an injunction and every restraining order shall set forth the reasons for its issuance; shall be specific in terms; shall describe in reasonable detail and not by reference to the complaint or other document, the act or acts sought to be restrained. . . .
An injunction should be broad enough to prevent a repetition of the wrong sought to be corrected. Id. But, it must not be so broad as to enjoin a defendant from activities that are a lawful and proper exercise of his rights. Id. Where a party‘s acts are divisible, and some acts are permissible and some are not, an injunction should not issue to restrain actions that are legal or about which there is no asserted complaint. Id. Thus, the entry of an injunction that enjoins lawful as well as unlawful acts may constitute an abuse of discretion. Id.
The City of San Antonio . . . enacted Sections 21-205(c) and (e) of the City Code, a zoning ordinance that makes it unlawful for entities that manage, own or operate Human Display Establishments to intentionally or knowingly allow individuals to appear on the premises in a state of nudity. [Appellants] intentionally and knowingly permit individuals to appear in a state of nudity.
The trial court‘s final judgment then enjoins appellants
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]. (Emphasis added.)
The judgment provides that the restraint is binding on RCI and Players 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.
The judgment thus specifically states that the ordinance makes it unlawful for entities that manage, own or operate Human Display Establishments to intentionally or knowingly allow individuals to appear on the premises in a state of nudity. (Emphasis added.) The decretal paragraph specifically enjoins appellants from violating Article IX, Section 21-205(a), (c), and (e) of the City of San Antonio Code of Ordinances. The complained-of language is additional language contained in a parenthetical. We conclude the use of knowingly in a parenthetical does not render the injunction vague.
However, we believe that because the injunction restrains all appearances in a state of nudity, the injunction does not, as definitely, clearly, and precisely as possible, inform appellants of the acts they are restrained from doing without calling on appellants for inferences or conclusions about which persons might well differ and without leaving anything for further trial. Although we do not believe the trial court was required to find that the exception did not apply, we agree with appellants that the injunction as worded has the potential to act as a prior restraint on persons engaged in expressing a matter of serious literary, artistic, scientific, political, or social value.
Finally, appellants contend the injunction violates
CONCLUSION
Because the trial court‘s order is overly broad with regard to the scope of the persons included and because the injunction operates as a prior restraint on persons engaged in expressing a matter of serious literary, artistic, scientific, political, or social value, we reverse the permanent injunction in part and remand the cause to the trial court with instructions to modify the scope of the injunction order consistent with this opinion. We affirm the judgment in all other respects.
Notes
(a) Except as is expressly authorized by this code, a regulation, charter, or ordinance promulgated by a governmental entity of this state may not impose stricter standards on premises or businesses required to have a license or permit under this code than are imposed on similar premises or businesses that are not required to have such a license or permit.
(b) It is the intent of the legislature that this code shall exclusively govern the regulation of alcoholic beverages in this state, and that except as permitted by this code, a governmental entity of this state may not discriminate against a business holding a license or permit under this code.