613 F.2d 1285 (5th Cir. 1980), 79-3606, Stansberry v. Holmes

Docket Nº:79-3606.
Citation:613 F.2d 1285
Party Name:Jessie STANSBERRY d/b/a Universal Studio et al., Plaintiffs-Appellees, v. John HOLMES, Harris County District Attorney, Jack Heard, Sheriff of Harris County, Texas, each in their official capacities, Defendants-Appellants.
Case Date:March 17, 1980
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

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613 F.2d 1285 (5th Cir. 1980)

Jessie STANSBERRY d/b/a Universal Studio et al., Plaintiffs-Appellees,


John HOLMES, Harris County District Attorney, Jack Heard,

Sheriff of Harris County, Texas, each in their

official capacities, Defendants-Appellants.

No. 79-3606.

United States Court of Appeals, Fifth Circuit

March 17, 1980

As Amended on Denial of Rehearing En Banc April 28, 1980.

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Joe Resweber, County Atty., Anthony D. Sheppard, Stephen Neel, T.M. Kemper, Asst. County Attys., Houston, Tex., for Heard.

Clyde F. DeWitt, III, Asst. Dist. Atty., Houston, Tex., for Holmes.

Stanley G. Schneider, Houston, Tex., for plaintiffs-appellees.

Appeal from the United States District Court for the Southern District of Texas.

Before TUTTLE, FAY and THOMAS A. CLARK, Circuit Judges.

TUTTLE, Circuit Judge:

This case involves an appeal from a district court's order permanently enjoining the enforcement of Regulations §§ 4(k) and (l) of the Regulations of Harris County, Texas dealing with the zoning of certain sexually oriented commercial enterprises. We reverse the decision of the trial court.

For a number of years Texas municipalities have sought to regulate the location or operation of sexually oriented businesses. 1 Faced with the problem of many of those businesses moving outside city limits, in May 1979 the Texas Legislature enacted enabling acts 2372 v and w authorizing the commissioners court of any county to adopt regulations in the unincorporated territory of the county governing the operation of massage establishments and the location "of massage parlors, nude studios, modeling studios, love parlors, and other similar commercial enterprises whose major business is the offering of a service which is intended to provide sexual stimulation or sexual gratification to the customer." (See Appendix A).

Pursuant to that authority, the Commissioners Court of Harris County, Texas in September 1979 adopted regulations restricting the location of certain sexually oriented commercial enterprises, to be effective in October 1979. (See Appendix B). In part, the regulations made it unlawful for any person to operate a sexually oriented

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commercial enterprise without a valid permit issued by the sheriff and stated that no permit could be issued unless the applicant could show that the enterprise was at least 1500 feet from a child care facility, a church or place of worship, a dwelling, public building or public park, school, hospital or a building in which alcohol was sold. A "sexually oriented commercial enterprise" was defined as a "massage parlor, nude studio, modeling studio, love parlor and any other similar commercial enterprise whose major business is the offering of a service which is intended to provide sexual stimulation or sexual gratification to the customer." The regulations specifically exempted any bookstore, movie theatre or business licensed to sell alcoholic beverages; any business operated by or employing licensed psychologists, licensed physical therapists, licensed athletic trainers, cosmetologists or barbers; or any business employing or operated by licensed physicians or licensed chiropractors.

The penalty for non-compliance with the regulation was a penal sanction, a class B misdemeanor, 2 and the operation of any such sexually oriented commercial enterprise without a permit was declared a public nuisance.

On October 10, 1979, the plaintiffs filed suit challenging the ordinance under 42 U.S.C. §§ 1981, 1983, 1985, and 1986. They charged, among other things, that the Texas Act as applied through this local ordinance constituted the taking of property without due process or compensation; that the Act and ordinance were unconstitutionally vague; and that the Act and ordinance violated the First Amendment and the Due Process Clause of the Fourteenth Amendment. The trial court granted a temporary restraining order. After a hearing on the merits, the trial court entered an order decreeing that the definitions of "school" in section 4(k) and "sexually oriented commercial enterprise" in section 4(l) 3 were unconstitutionally vague and overbroad. Specifically, the court found that the definition of "sexually oriented commercial enterprise" could encompass such businesses as art schools and dancing studios which the court described as "perfectly legitimate commercial enterprises." The court also pointed out that the definition of "school" was unclear since the definition might apply to such enterprises as bartending or Karate schools. The trial court also stated that the regulations "possibly" violated the Fifth Amendment privilege against self-incrimination, since any people who admitted that they operated a sexually oriented commercial enterprise as defined in § 4(l), admitted in effect that they were violating § 43.02 of the Texas Penal Code which makes prostitution a crime. 4 The trial court therefore granted a permanent injunction prohibiting enforcement of §§ 4(k) and (l) of the regulations of Harris County. This appeal followed. 5

The appellants assert initially that the case does not contain any First Amendment issues, but involves rather an exercise of

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the state's police power through zoning. 6 Since the regulations were tailored to avoid any effect on speech protected by the First Amendment, they contend that the regulations must be analyzed by the standard traditionally applied to zoning regulations whether the regulations are arbitrary and unreasonable, having no rational relationship to a legitimate governmental interest. See Stone v. City of Maitland, 446 F.2d 83, 87 (5th Cir. 1971). The appellants then argue that the district court erred in holding that the definitions of "school" and "sexually oriented commercial enterprise" are vague and overbroad.

The appellees assert that the regulations are, as found by the trial court, vague and overbroad, failing to define the terms "school" and "sexually oriented commercial enterprise" so that a person of ordinary intelligence has fair notice of the conduct that is proscribed. They also contend that the regulations conflict with an individual's Fifth Amendment right against self-incrimination because of the similarity between the definition of a sexually oriented commercial enterprise and the Texas Penal Code's definition of prostitution. See Texas Penal Code § 43.02, Supra note 4.


It is important to note at the outset that the regulations in question do not attempt to zone businesses such as bookstores or movie theatres, which fall within the protection of the First Amendment. In Young v. American Mini Theatres, Inc., 427 U.S. 50, 96 S.Ct. 2440, 49 L.Ed.2d 310, Rehearing denied, 429 U.S. 813, 97 S.Ct. 191, 50 L.Ed.2d 155 (1976), the Supreme Court held that "adult" theatres may be subject to municipal zoning regulations, despite the traditional rule that expression may not be classified on the basis of content. 427 U.S. at 72-73, 96 S.Ct. at 2453. Although Young affords certain "speech" activities lesser protection than under traditional First Amendment principles, it nonetheless requires a more stringent review than is applicable to regulations zoning conduct not protected under the First Amendment. See id.; Note, Developments in the Law Zoning, 91 Harv.L.Rev. 1427, 1560 (1978). However no First Amendment interests are at stake here; we therefore analyze the provisions by the traditional standards applicable to zoning regulations.


If the district court, in calling the ordinance "overbroad" and "vague" means that this ordinance is beyond the police power, it is certainly mistaken. In our age, zoning has become "the predominant technique by which governments . . . (exercise) . . . control over private property." Note, Developments in the Law Zoning, 91 Harv.L.Rev. 1427, 1429 (1978). With the rapid development of a highly urban and industrialized society, the importance of zoning as a form of land use control has increased. The past decade has seen a growing popular acceptance of the notion that infinite uncontrolled growth often produces the unsightly sprawl that threatens to turn every major street into a neon commercial carnival.

The Supreme Court has recognized the key role that the zoning power can play in maintaining for citizens an acceptable quality of life. Zoning is the local community's most powerful weapon against a wave of commercialism that threatens to permeate not only the major thoroughfares but the quiet residential neighborhoods with their parks, trees, and children at play. Without the power to zone, every person would be at the mercy of the entrepreneur who chose to develop on the next corner. Zoning provides one of the firmest and most basic of the rights of local control. Since 1928, the

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Supreme Court has never held that a zoning measure exceeded the police power. 7 In Berman v. Parker, 348 U.S. 26, 33, 75 S.Ct. 98, 102, 99 L.Ed. 27 (1954), the Court held that land use regulations may promote "values (which) are spiritual as well as physical, aesthetic as well as monetary." In Village of Belle Terre v. Boraas, 416 U.S. 1, 9, 94 S.Ct. 1536, 1541, 39 L.Ed.2d 797 (1974), the Court said that zoning could be used to create and promote living areas that protect "family values...

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