2300, Inc. v. City of Arlington, Tex., 2-94-00135-CV

• Decision Date: 19 October 1994
• Docket Number: No. 2-94-00135-CV,2-94-00135-CV
• Citation: 888 S.W.2d 123
• Parties: 2300, INC. d/b/a 2300 Club and Centerfold, Inc. d/b/a La Bare, Appellants, v. CITY OF ARLINGTON, TEXAS, Appellee.
• Court: Texas Court of Appeals

Page 123

888 S.W.2d 123

2300, INC. d/b/a 2300 Club and Centerfold, Inc. d/b/a La Bare, Appellants, v. CITY OF ARLINGTON, TEXAS, Appellee.

No. 2-94-00135-CV.

Court of Appeals of Texas Fort Worth.

Oct. 19, 1994.

Ordered Published Nov. 22, 1994.

Rehearing Overruled Nov. 22, 1994.

Steven H. Swander, Fort Worth, for appellants.

Thomas P. Brandt, Fanning, Harper & Martinson, Dallas, for appellee.

Before HILL, C.J., and FARRIS and HICKS, JJ.

OPINION

HICKS, Justice.

Appeal was taken from the trial court's denial of a temporary injunction against the City of Arlington. 2300, Inc. d/b/a 2300 Club and Centerfold, Inc. d/b/a La Bare ("appellants") challenge the constitutionality of the City of Arlington Ordinance No. 92-117 Sections 5.01(A) and (B) entitled "Additional Regulations for Adult Cabaret" (the "no touch" provisions). The trial court found the "no touch" provisions constitutional as enacted. In two points of error, appellants allege error by the trial court in denying the temporary injunction.

We affirm.

BACKGROUND

Appellants are two adult cabarets operating in Arlington, Texas. In November, 1992, the City of Arlington passed and approved the "no touch" provisions as part of the Adult Entertainment Chapter of the Code of the City of Arlington, Texas, to regulate adult entertainment. ¹ Appellants contend they are adversely affected by the application of the "no touch" provisions.

In March, 1993, Arlington police began enforcing the "no touch" provisions and issued tickets to violators which included dancers and patrons of the clubs. The clubs themselves, however, were not cited. Appellants sought the injunction to prevent enforcement of the "no touch" provisions pending a determination of the constitutionality of the ordinance. Appellants contend that although they sought to make costume changes so that their dancers would not be performing in a "state of nudity, ² " the "no touch" provisions are facially overbroad and violate their equal protection rights under the Texas Constitution.

STANDARD OF REVIEW

Generally under Texas law, the trial court has broad discretion in determining whether to issue a temporary injunction to preserve the rights of the parties pending a final trial on the merits. Davis v. Huey, 571 S.W.2d 859, 861-62 (Tex.1978); Valenzuela v. Aquino, 763 S.W.2d 43, 44 (Tex.App.--Corpus Christi 1988, no writ). Accordingly, the standard of review for an order granting or denying a temporary injunction is whether or not there has been a clear abuse of discretion by the trial court. Id.

The trial court abuses its discretion in granting or denying a temporary injunction when it misapplies the law to the established facts or when the evidence does not reasonably support the conclusion that the applicant has a probable right of recovery. See e.g., State v. Southwestern Bell Telephone Co., 526 S.W.2d 526, 528 (Tex.1975); Kinkaid School, Inc. v. McCarthy, 833 S.W.2d 226, 229 (Tex.App.--Houston [1st Dist.] 1992, no writ). In reviewing the trial court's order denying the temporary injunction, this court will draw all legitimate inferences from the evidence in the light most favorable to the trial court's judgment. Valenzuela, 763 S.W.2d at 44. Because the facts are undisputed and conclusions of law were not filed, this Court will uphold the trial court's judgment on any legal theory supported by the evidence. Id.; Seaman v. Seaman, 425 S.W.2d 339 (Tex.1968).

MERITS

I. THE "NO TOUCH" PROVISIONS ARE NOT FACIALLY OVERBROAD

In point of error number one, appellants contend that the "no touch" provisions are facially overbroad in violation of Article I section 8 of the Texas Constitution. We disagree. When addressing an overbreadth challenge, the inquiry is to (1) determine whether the enactment of the ordinance reaches a substantial amount of constitutionally protected conduct and (2) apply an appropriate constitutional test for restrictions on the protected speech. Rahmani v. State, 748 S.W.2d 618, 621 (Tex.App.--Houston [1st Dist.] 1988, pet. ref'd) (quoting Village of Hoffman Estates v. Flipside, Hoffman Estates, 455 U.S. 489, 494-95, 102 S.Ct. 1186, 1191, 71 L.Ed.2d 362 (1982).

A. Constitutionally Protected Conduct

Topless/exotic dancing has been recognized as being within the constitutional protections of the First and Fourteenth Amendments. See generally Schad v. Bourough of Mount Ephraim, 452 U.S. 61, 65, 101 S.Ct. 2176, 2181, 68 L.Ed.2d 671, 678 (1981); Doran v. Salem Inn, Inc., 422 U.S. 922, 932-33, 95 S.Ct. 2561, 2568-69, 45 L.Ed.2d 648, 660 (1975).

B. Constitutional Standard Applicable to Restrictions

Since it is apparent that topless/exotic dancing is constitutionally protected conduct, this Court will look to see if some exception applies which would justify the trial court's action. In challenging the "no touch" provisions, appellants rely upon the standard imposed in Ex parte Tucci, which sets forth a stringent test for restrictions on protected speech: 1) the restrictions must be targeted at the effect of expression rather than at the expression itself and 2) any limitation must represent the least restrictive means to prevent the harmful effects. Ex parte Tucci, 859 S.W.2d 1, 5-6 (Tex.1993). Appellants' reliance on Tucci as the applicable constitutional standard is misplaced. As appellants have correctly pointed out, Article I section 8 of the Texas Constitution does provide broader rights of free speech than those provided by the First Amendment of the United States Constitution, Davenport v. Garcia, 834 S.W.2d 4, 8 (Tex.1992); however, the greater protection afforded by Article I section 8 is not applicable to restrictions on topless/exotic dancing. See generally, RAHMANI , 748 S.W.2D AT 618;³ EX PARTE TUCCI , 859 S.W.2D AT 1.⁴ Recognizing that the Texas Constitution does afford greater protection of free speech than the First Amendment, the cases interpreting this protection have been limited in scope and thus far, have not included topless/exotic dancing. Based on case law and the history surrounding Article I section 8, the trial court reasonably concluded that topless/exotic dancing probably was not contemplated as being included in the expanded protections of the Texas Constitution when Article I section 8 was drafted. This Court will not disturb this conclusion because no clear abuse of discretion was established.

Additionally, although First Amendment coverage extends to topless/exotic dancing, it does not guarantee the right to engage in the protected expression at all times and places or in any manner that may be desired. See Heffron v. International Society for Krishna Consciousness, Inc., 452 U.S. 640, 647, 101 S.Ct. 2559, 2564, 69 L.Ed.2d 298, 306 (1981); Kev, Inc. v. Kitsap County, 793 F.2d 1053, 1058 (9th Cir.1986). A governmental entity, when acting to further legitimate ends of the community, may impose incidental burdens on free speech. City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 45-46, 106 S.Ct. 925, 928-29, 89 L.Ed.2d 29, 36 (1986). Time, place and manner restrictions are permissible if they are: (1) content neutral; (2) narrowly tailored to serve a significant government interest; and (3) leave open ample alternative channels for communication. Rahmani, 748 S.W.2d at 622 (quoting Clark v. Community for Creative Non-Violence, 468 U.S. 288, 293, 104 S.Ct. 3065, 3068, 82 L.Ed.2d 221 (1984)).

Applying the "time, place and manner" test, this Court upholds the trial court's conclusion that the "no touch" provisions are content-neutral. Although the provisions specifically apply to adult cabarets, they do not discriminate on the basis of the content of the dance performance. Rather, the provisions are directed at the secondary effects of adult cabarets, namely crimes such as prostitution, drug trafficking and assault, which is constitutionally permissible. See generally City of Renton, 475 U.S. at 45-46, 106 S.Ct. at 929, 89 L.Ed.2d at 36. The trial court's conclusion that the "no touch" provisions are content-neutral is reasonable and may be justified without reference to the content of the dance performance.

As to the requirement that the ordinance be narrowly tailored, an ordinance is sufficiently "well tailored" if it effectively promotes the government's stated interest without infringing significantly upon protected conduct. SDJ, Inc. v. City of Houston, 837 F.2d 1268, 1275 (5th Cir.1988). The City of Arlington drafted an ordinance to control problems it found to be serious. This Court notes that the "no touch" provisions were drafted to limit themselves to a specific business environment--adult cabarets--and the regulation of that environment, specifically in terms of the physical exchanges between the dancers and the patrons. The ordinance is sufficiently well tailored. Addressing the requirement that the government's interest be significant, the stated purpose of the ordinance attests to the importance and substantiality of the governmental interest involved. ⁵ This Court upholds the trial court when it concluded in the record:

What the city did, rather than creating a vagueness question, they were very clear in what they were prohibiting, and they prohibited touching of all forms while the dancer was in any state of nudity. That state of nudity is defined. I see no question with regard to any of the language in the ordinance that would make it vague. It's as clear as clear can be.

Dancers in a state of nudity are not to touch customers. I see nothing constitutionally wrong with that. It's not for me to judge the wisdom of the City Council's act. I express no opinion on that. I'm here only to resolve the issue of whether or not the act by the City Council of Arlington is prohibited by the constitution of this State. I find that it is not prohibited.

As to the third requirement, the provisions leave open ample alternative communication channels. Appellants rely on Dubuisson v. Texas, 572 S.W.2d 694 (Tex.Crim.App. [Panel Op.] 1978...