Baby Dolls Topless Saloons, Inc. v. City of Dallas

• Citation: 114 F.Supp.2d 531
• Decision Date: 02 May 2000
• Docket Number: No. CIV.A.3:97-CV-1331-R.,CIV.A.3:97-CV-1331-R.
• Parties: BABY DOLLS TOPLESS SALOONS, INC., d/b/a Baby Dolls Saloon-East Plaintiff, MD II Entertainment, Inc., d/b/a the Fare West, and D. Burch, Inc., d/b/a Baby Dolls Topless Saloon, Intervenors, Mainstage, Inc., d/b/a P.T.'s Gentlemen's Club; Club Hospitality, Inc., d/b/a Club Lipstick; Frank Smith, d/b/a Sheer D'Lite; OGC Restaurants, L.L.C., d/b/a Obsessions; Santa Fe Cabaret, L.L.C., d/b/a Santa Fe Cabaret; and Case and Point, Inc., d/b/a Bare Facts, Intervenors, Dimitri Papathansiou, d/b/a Doll's House; Tom K. Lazanas, d/b/a Baby G's and d/b/a Faces; and VJAC Investments, Inc., d/b/a Venus, Intervenors v. CITY OF DALLAS, Defendant.
• Court: U.S. District Court — Northern District of Texas

Page 531

114 F.Supp.2d 531

BABY DOLLS TOPLESS SALOONS, INC., d/b/a Baby Dolls Saloon-East Plaintiff, MD II Entertainment, Inc., d/b/a the Fare West, and D. Burch, Inc., d/b/a Baby Dolls Topless Saloon, Intervenors, Mainstage, Inc., d/b/a P.T.'s Gentlemen's Club; Club Hospitality, Inc., d/b/a Club Lipstick; Frank Smith, d/b/a Sheer D'Lite; OGC Restaurants, L.L.C., d/b/a Obsessions; Santa Fe Cabaret, L.L.C., d/b/a Santa Fe Cabaret; and Case and Point, Inc., d/b/a Bare Facts, Intervenors, Dimitri Papathansiou, d/b/a Doll's House; Tom K. Lazanas, d/b/a Baby G's and d/b/a Faces; and VJAC Investments, Inc., d/b/a Venus, Intervenors v. CITY OF DALLAS, Defendant.

No. CIV.A.3:97-CV-1331-R.

United States District Court, N.D. Texas, Dallas Division.

May 2, 2000.

COPYRIGHT MATERIAL OMITTED

Steven Hershey Swander, Law Office of Steven H. Swander, Fort Worth, TX, Charles J. Quaid, Quaid & Quaid, Dallas, TX, for Baby Dolls Topless Saloons Inc. dba Baby Dolls Saloon-East, plaintiffs.

Walter C. Davis, III, Sangeeta Sharma Kuruppillai, Dallas City Attorney's Office, Dallas City Hall, Dallas, TX, for City of Dallas Texas, defendants.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

BUCHMEYER, Chief Judge.

Plaintiff Baby Dolls Topless Saloons, Inc. d/b/a Baby Dolls Saloon-East and Intervenors MD II Entertainment, Inc. d/b/a The Fare West; D. Burch, Inc. d/b/a Baby Dolls Topless Saloon; Mainstage, Inc. d/b/a P.T.'s Gentlemen's Club; Club Hospitality, Inc. D/b/a Club Lipstick; Frank Smith d/b/a Sheer D'Lite; OGC Restaurants, L.L.C. d/b/a Obsessions; Santa Fe Cabaret, L.L.C. d/b/a Santa Fe Cabaret; Case and Point, Inc. d/b/a The Bare Facts; Dimitri Papathansiou d/b/a Doll's House; Tom K. Lazanas d/b/a Baby G's and d/b/a Faces; and VJAC Investments, Inc. d/b/a Venus brought this action against Defendant City of Dallas ("the City") alleging that Dallas City Code Chapter 41A, as amended by City Ordinance No. 23137 ("the Ordinance"), violates their rights protected by the First and Fourteenth Amendments to the Constitution, and seeking declaratory and injunctive relief. The Court partially granted injunctive relief for Intervenors on March 2, 1998. The injunction enjoined Defendant from enforcing Chapter 41A, as amended by the Ordinance, against Intervenors through the amended definition of "specified anatomical areas" in §§ 41A-2(3), (4), (6), and (7). The Court also enjoined Defendant from enforcing the amended amortization requirements of §§ 41A-13(f)-(i) against certain Intervenors. The Court denied all other requests for injunctive relief.

The Court tried this action without a jury on September 8-10, 14, and 15, 1998. Pursuant to Rule 52(a) of the Federal Rules of Civil Procedure, the Court makes its findings of fact and conclusions of law as follows:

I. FINDINGS OF FACT

A. Preliminary Findings

1. Plaintiff and Intervenors operate nightclubs that present live entertainment consisting of female striptease and topless dancing at various locations in the City of Dallas, Texas.

2. The City is a home-rule city within Dallas County, Texas.

3. In 1986, the City enacted Chapter 41A of the Dallas City Code as a comprehensive zoning and licensing regulation for "sexually oriented businesses." The purpose of Chapter 41A was "to regulate sexually oriented businesses to promote the health, safety, morals, and general welfare of the citizens of the city, and to establish reasonable and uniform regulations to prevent the continued concentration of sexually oriented businesses within the city." DALLAS CITY CODE § 41A-1. The City enacted Chapter 41A after studying the efforts of other cities in regulating such businesses. Chapter 41A originally defined "sexually oriented business" as follows:

SEXUALLY ORIENTED BUSINESS means an adult arcade, adult bookstore or adult video store, adult cabaret, adult motel, adult motion picture theater, adult theater, escort agency, nude model studio, or sexual encounter center.

Ch. 41A-2(17) (1986). An "adult cabaret" was defined as

ADULT CABARET means a nightclub, bar, restaurant, or similar commercial establishment which regularly features:

(a) persons who appear in a state of nudity; or

(b) live performances which are characterized by the exposure of "specified anatomical areas" or by "specified sexual activities"; or

(c) films, motion pictures, video cassettes, slides, or other photographic reproductions which are characterized by the depiction or description of "specified sexual activities" or "specified anatomical areas."

Id. § 41A-2(3) (emphasis added). "Specified anatomical areas" was defined as

SPECIFIED ANATOMICAL AREAS means human genitals in a state of sexual arousal.

Id. § 41A-2(18). "Nudity or a state of nudity" was defined as

NUDITY or a STATE OF NUDITY means the appearance of a bare buttock, anus, male genitals, female genitals, or female breast.

Id. § 41A-2(13). Also among the regulations was a requirement that a sexually oriented business be at least 1,000 feet from another sexually oriented business, a church, a school, a residential area, or park. See id. § 41A-13. The above definitions and the location restrictions were held to be constitutional by this Court and the U.S. Court of Appeals for the Fifth Circuit. See Dumas v. City of Dallas, 648 F.Supp. 1061 (N.D.Tex.1986) (Buchmeyer, J.), aff'd sub nom. FW/PBS, Inc. v. City of Dallas, 837 F.2d 1298 (5th Cir.1988), aff'd in part, rev'd in part on other grounds, 493 U.S. 215, 110 S.Ct. 596, 107 L.Ed.2d 603 (1990).

4. In light of these decisions, a sexually oriented business that sought to continue offering female striptease and topless dancing could either relocate to a site that complied with Chapter 41A and be licensed as a sexually oriented business, or change their dancers' attire to "simulate" nudity, and be licensed as a "dance hall" under Dallas City Code Chapter 14 — which did not, and wasn't designed to, regulate sexually oriented businesses — and remain at their existing locations. This was possible because the definition of nudity in Chapter 41A did not include "simulated" nudity. See supra Findings of Fact ¶ 3 [hereinafter FOF]. Most of Intervenors' businesses chose to change their dancers' attire by requiring them to simulate nudity by wearing flesh-colored pasties over their areolae and bikini bottoms. This allowed Intervenors' businesses to avoid being regulated as a sexually oriented business under Chapter 41A, to obtain theater or dance hall licenses pursuant to Chapter 14, and to operate at their existing locations.

5. On January 22, 1992, the City enacted Ordinance No. 21184 amending Chapter 14 to create a new classification of dance halls, "Class D Dance Halls." The City enacted Ordinance No. 21184 because Intervenors' businesses had found a way to circumvent the intent of Chapter 41A and to avoid its location restrictions by featuring semi- or simulated nudity. See Ints. Ex. 290 at 4. By creating Class D Dance Halls, the City sought to prevent Intervenors' businesses from operating as a theater or dance hall and to subject them to location restrictions similar to those imposed by Chapter 41A. See id. Ordinance No. 21184 contained the following relevant definitions:

(5) CLASS D DANCE HALL means any place:

(A) where dancing is permitted one day a week or more by a person in a state of semi-nudity or simulated nudity; ...

(14) SEMI-NUDITY means a state of dress in which clothing covers no more than the genitals, pubic region, buttocks, and areolae of the female breast, as well as parts of the body covered by supporting straps or devices.

(15) SIMULATED NUDITY means a state of dress in which any device or covering, exposed to view, is worn that simulates any part of the genitals, buttocks, public region, or areolae of the female breast.

DALLAS CITY ORDINANCE No. 21184. Ordinance No. 21184 provided an eighteen-month amortization period in which businesses not conforming to the location restrictions could comply with the new requirements. Ordinance No. 21184 also required Intervenors' businesses to comply with various advertising regulations. The City issued to most Intervenors' businesses Class D Dance Hall licenses valid for their existing locations until the end of the amortization period on July 22, 1993.

6. This Court, in MD II Entertainment, Inc. v. City of Dallas, Civ. A. No. 3:92-CV-1090-H, 1993 WL 227774 (N.D.Tex. Apr. 15, 1993) (Sanders, C.J.) [hereinafter MD II(1)], aff'd, 28 F.3d 492 (5th Cir.1994), found Ordinance No. 21184's advertising requirements unconstitutional. However, the Court also found that Ordinance No. 21184's location restrictions and the definition of simulated nudity did not violate the First Amendment. The Court also did not address the constitutionality of the ordinance's definition of semi-nudity. See id. at *3 n. 9.

7. In response to Judge Sanders' decision in MD II(1), most Intervenors applied for and obtained a "Class A Dance Hall" license under Chapter 14. To obtain Class A Dance Hall licenses, Intervenors businesses again restructured their operations by requiring their dancers to wear non-flesh colored, opaque pasties to cover their areolae, and bikini bottoms substantially covering their buttocks and pubic area. Such licenses were for one year only, but were subject to renewal.

8. On October 13, 1993, the City enacted Ordinance No. 21837 amending Chapters 14 and 41A "because certain businesses[, such as Intervenors',] featuring adult entertainment found a way to circumvent the locational restrictions set forth in Chapters 14 and 41A." Specifically, the City found that

To avoid locational restrictions, female dancers had replaced their flesh-colored latex pasties with contrasting colored pasties that covered a little more than the areola of the breasts. This modification in the dancers' attire removed the clubs from coming under the definitions of semi-nudity or simulated nudity, and allowed them to operate under a Class A dance hall license, without additional...