Lleh, Inc. v. Wichita County, Tex., CIV.A.7:00-CV-0042-R.

• Decision Date: 19 September 2000
• Docket Number: No. CIV.A.7:00-CV-0042-R.,CIV.A.7:00-CV-0042-R.
• Citation: 121 F.Supp.2d 513
• Parties: LLEH, INC., et al., Plaintiffs, v. WICHITA COUNTY, TEXAS Defendant.
• Court: U.S. District Court — Northern District of Texas

Page 513

121 F.Supp.2d 513

LLEH, INC., et al., Plaintiffs, v. WICHITA COUNTY, TEXAS Defendant.

No. CIV.A.7:00-CV-0042-R.

United States District Court, N.D. Texas, Wichita Falls Division.

September 19, 2000.

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Gerald Hopkins, Law Office of Gerald Hopkins, Santa Fe, NM, for Plaintiffs.

Douglas Lantz Baker, Wichita County Attorney'S Office, Wichita Falls, TX, for Defendants.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

BUCHMEYER, Chief Judge.

In the fall of 1999, the Wichita County Commissioners' Court learned of Mr. William Essary's plans to open "Babes," a sexually oriented business, in Wichita County just outside the city limits of Wichita Falls, Texas.¹ In response, on December 6, 1999, the Commissioners' Court adopted new regulations governing sexually oriented businesses in the unincorporated areas of the County — i.e., the Regulations For Sexually Oriented Businesses in the Unincorporated Areas of Wichita County, Texas ("the Order").

On March 9, 2000, the Plaintiffs LLEH, Inc., d/b/a BABE's ("Babe's") and three Babe's employees — April Cooper, Anita Jackson, and Sarah Blackstock — filed suite to enjoin the enforcement of certain portions of the Order. A hearing on Babe's motion for temporary injunction was held on April 25, 2000, at which time this Court considered only one of the restrictions in the Order, the so-called "6 Foot Rule."² At the conclusion of this hearing, the Court granted a temporary injunction against the enforcement of the 6 Foot Rule by Wichita County. The case was then tried on the merits on July 10, 2000. 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:

FINDINGS OF FACT

1. Mrs. Pearl Carter ("Carter") owned 240 acres in Wichita County, on which her home is located. There is minimal development around her property. In fact, there is a large pasture across the road from her land. Next door to her home, Mrs. Carter's son and his family reside in another house that she owns. On the other side of Mrs. Carter's residence is a barn. The street running by Mrs. Carter's house from the highway to Wichita Falls first runs through a light industrial area, then by the Babe's building and her two houses, and then by single family residences widely set apart by the normal custom of rural family living. Also nearby, at the end of McKinney Street, is a state prison, the North Central Correctional Facility. In sum, this is certainly not a densely populated area, but instead, a very rural one.³

2. Mrs. Carter has been trying to sell parcels of her 240 acres of land since 1981. She sold the owner of Babe's, Mr. Essary ("Essary"), the property where Babe's is located for approximately $32,000. Mrs. Carter had previously operated a liquor store and an antique/gift store on the property which she sold to Essary (knowing he wanted it for Babe's, a sexually oriented business).

3. Mrs. Carter's other land is still on the market for approximately $1500 per acre. When Carter inquired into the effect of Babe's on the valuation of her other property, she was advised by her appraiser that no decrease in value was to be expected. In fact, Mrs. Carter has since sold another piece of her land, subsequent to the opening of Babe's, for the market value that she has been seeking.

4. Essary purchased the land from Mrs. Carter because it was easily accessible to the freeway, it was outside of Wichita Falls city limits, and Wichita County did not have a sexually oriented business ("SOB") regulation. Essary also told Carter of his intentions to operate a SOB and she did not— and does not— have any objections. In fact, Mrs. Carter testified that she feels safer now because she is no longer out in the country by herself, and because she is friends with the dancers and other employees at Babe's.⁴

5. Construction on the physical facilities of "Babe's" commenced in June of 1999, and work was done on a regular basis until it was completed. During construction, a sign was not posted identifying the site as a future location of a sexually oriented business. When the true nature of the construction became known, opposition against the club began to mount; this included a visit from an irate County Commissioner who threatened Essary with physical violence.

6. "Babe's" opened for business on November 1, 1999, immediately following the completion of construction. At the time, it was the only adult cabaret in Wichita County.

7. Wichita County Commissioner's Court reviewed, to some extent, sexually oriented business studies from other governmental entities; they also heard testimony from individuals about the need to regulate sexually oriented business. Some people at these meetings were openly seeking ways to close Babe's.

8. Wichita County, acting under the authority of Texas Local Government Code, Chapter 243, enacted a sexually oriented business order on December 6, 1999 ("the Order"). This was some six months after Essary began construction and one month after Babe's had opened for business.

9. Babe's is a "BYOB" ("bring your own bottle") establishment; it does not sell alcoholic beverages and, therefore, it is exempt under the Texas Alcoholic Beverage Code ("TABC").

10. The term "partially nude" is not defined in the Order.

11. The evidence suggests that the Commissioner's Court did not understand or comprehend the difference between "stage" and "table" dancing at Babe's.

12. Section X of the Order requires employees to obtain an identification badge before they can perform. The Sheriff of Wichita County issues temporary badges immediately upon application, pending investigation into the applicant's criminal history and complete processing of the application. The Sheriff also requires badges for prospective dancers to audition, for transient "weekenders"⁵ to work on Friday, Saturday, or Sunday nights, and for "headliners"⁶ to appear on special occasions.

13. The SOB club must obtain a permit before a dancer can audition for employment.

14. The Sheriff requires the applicant to sign a blanket release so he can obtain a complete criminal history from the Texas Department of Public Safety (DPS), including any felony convictions during the five-year period prior to application, any misdemeanor convictions within two years of the application, and any convictions for crimes other than for "disqualifying crimes" under the Order. However, no security measures are taken by the Sheriff to ensure the confidentiality of these criminal records after they are obtained from the DPS.

15. The Plaintiff corporation (LLEH, Inc.) applied for a sexually oriented business permit (SOBP) and for a contingent SOBP seeking time to recoup its investment should the SOBP be denied.

16. After a sixty day grace period, in February 2000 the Wichita County Sheriff's Department began enforcement of the Order. Numerous misdemeanor charges against Babe's dancers and managers — primarily for violation of the six foot buffer zone — were filed. However, some of the arrests were prompted by Plaintiffs in an attempt to gain standing in order to seek judicial review of the Order.

17. Wichita County Sheriff's Department officers never made an arrest on the premises of "Babe's," but instead allowed club employees and dancers one week in which to turn themselves in and to be "booked in & booked out."

18. An employee or employees of Babe's destroyed a video tape, which depicted a nude dancer violating "no touch" provisions of the Order as testified to by a Wichita County sheriff's deputy. However, the deputy did not arrest the alleged violators even though he witnessed the violations on the surveillance cameras.

19. Wichita County reduced the six foot dancer distance rule to a three foot rule and waived the 1500 foot location rule to allow the enterprise to remain at the current location until at least November 1, 2002.

20. The Wichita County Commissioner's Court is composed of five members, all voting, and any action taken by the Court must be by majority vote.

21. The only member of the Wichita County Commissioner's Court who was up for election during relevant times to the passage of the Order was Precinct One Commissioner Joe Miller, and he is running unopposed in the general election on November 7, 2000.

CONCLUSIONS OF LAW

I. APPLICABLE LAW

In the area of nude dancing under the First Amendment to the United States Constitution, the supreme court law is complicated by the fact that many of the opinions are plurality opinions, as opposed to majority opinions. See City of Erie v. Pap's A.M., 529 U.S. 277, 120 S.Ct. 1382, 146 L.Ed.2d 265 (2000); Barnes v. Glen Theatre, Inc., 501 U.S. 560, 111 S.Ct. 2456, 115 L.Ed.2d 504 (1991); City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 106 S.Ct. 925, 89 L.Ed.2d 29 (1986); Young v. American Mini Theatres, Inc., 427 U.S. 50, 96 S.Ct. 2440, 49 L.Ed.2d 310 (1976). However, there are a few principals that can be gathered in this area. First, nude dancing is protected under the First Amendment. See J & B Entertainment, Inc. v. City of Jackson, 152 F.3d 362, 369 (5th Cir.1998). Second, government action aimed at the content of the message is reviewed under strict scrutiny. See Texas v. Johnson, 491 U.S. 397, 109 S.Ct. 2533, 105 L.Ed.2d 342 (1989). Third, content-neutral regulations are subjected to intermediate scrutiny. See J & B, 152 F.3d at 369-71. There is little disagreement about these conclusions. Yet, there is a significant amount of dispute over which test should be used when evaluating government regulations under intermediate scrutiny.⁷

While the opinions from the United States Supreme Court refer to the O'Brien test, see Erie, 529 U.S. at ___, 120 S.Ct. at 1391; Barnes, 501 U.S. at 570, 111 S.Ct. 2456, the Supreme Court has appeared to apply the traditional time, place, and manner restrictions test instead of the O'Brien test that it cites for the...