Hang On, Inc. v. City of Arlington

• Decision Date: 20 September 1995
• Docket Number: No. 94-10959,94-10959
• Citation: 65 F.3d 1248
• Parties: HANG ON, INC., d/b/a Hardbody's of Arlington, Plaintiff-Appellant, v. CITY OF ARLINGTON, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1248

65 F.3d 1248

HANG ON, INC., d/b/a Hardbody's of Arlington, Plaintiff-Appellant, v. CITY OF ARLINGTON, Defendant-Appellee.

No. 94-10959.

United States Court of Appeals Fifth Circuit.

Sept. 20, 1995.

John L. Gamboa, Acuff, Gamboa & Moore, Ft. Worth, TX, for appellant.

Thomas Phillip Brandt, Sharon Hauder, Fanning, Harper & Martinson, Dallas, TX, for appellee.

Appeals from the United States District Court for the Northern District of Texas.

Before REYNALDO G. GARZA, KING and HIGGINBOTHAM, Circuit Judges.

PATRICK E. HIGGINBOTHAM, Circuit Judge:

Hang On, Inc. appeals from the judgment of the United States District Court dismissing Hang On's federal constitutional, state constitutional, and state law challenges to the City of Arlington's Adult Entertainment Ordinance No. 92-117.

I.

After amassing studies describing noxious secondary effects of adult entertainment establishments, the Arlington city council passed Ordinance No. 92-117 on November 17, 1992. The Ordinance's stated purpose was "to regulate Adult Entertainment Establishments to promote the health, safety, morals and general welfare of the citizens of the City." The Ordinance expressly disclaimed intent to "restrict or deny access by adults to sexually oriented materials protected by the First Amendment or to deny access by the distributors and exhibitors of sexually oriented entertainment to their intended market."

The Ordinance created a comprehensive regulatory scheme for adult entertainment establishments in the City of Arlington. Among its provisions, the Ordinance provided:

Section 5.01 Additional Regulations for Adult Cabaret

A. An employee of an adult cabaret, while appearing in a state of nudity, commits an offense if he touches a customer or the clothing of a customer.

B. A customer at an adult cabaret commits an offense if he touches an employee appearing in a state of nudity or clothing of the employee.

The Ordinance defined a "state of nudity" as a state of dress that fails to opaquely cover a human buttock, anus, male genitals, female genitals, or female breast.

On December 17, 1993, Hang On, which operates a topless bar in Arlington, filed suit against Arlington in Texas state court pursuant to 42 U.S.C. Sec. 1983, alleging that the Ordinance violates the First, Fourth, and Fourteenth Amendments to the United States Constitution. In particular, Hang On charged that the Ordinance's "no touch" provision is unconstitutionally overbroad because it criminalizes casual or inadvertent touching and unconstitutionally vague because it does not define "touches". In addition, Hang On argued that Arlington's enforcement of the Ordinance had been conducted in a harassing and discriminatory manner. Finally, Hang On alleged that the Ordinance's exclusion of male breasts from the definition of nudity violates the Equal Rights Amendment of the Texas Constitution, Tex. Const. art. I, Sec. 3a, and that the Ordinance violates the Texas Alcoholic Beverage Code by discriminating against business with alcoholic beverage licenses. Tex.Alco.Bev.Code Ann. Sec. 109.57.

Arlington removed the case to the United States District Court for the Northern District of Texas. On September 21, 1994, the district court granted summary judgment for Arlington on all of Hang On's claims and awarded costs and attorney's fees to Arlington. Hang On has timely appealed, and we now affirm the judgment of the district court.

II.

We first examine whether Hang On has standing to bring these claims. "The federal courts are under an independent obligation to examine their own jurisdiction, and standing 'is perhaps the most important of [the jurisdictional] doctrines.' " United States v. Hays, --- U.S. ----, ----, 115 S.Ct. 2431, 2435, 132 L.Ed.2d 635 (1995) (quoting FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 231, 110 S.Ct. 596, 607, 107 L.Ed.2d 603 (1990) (citations omitted)).

A party seeking to enlist the court's jurisdiction "must assert his own legal rights and interests, and cannot rest his claim to relief on the legal rights or interests of third parties." Warth v. Seldin, 422 U.S. 490, 499, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975). Hang On asserts that the intrusive searches by the Arlington police have violated its own right to be free from unreasonable searches. Similarly, Hang On asserts its own rights when it claims that Arlington's ordinance violates the Texas Alcoholic Beverage Code. Its standing to assert these two claims is plain.

Hang On's claim that the "no touch" provision violates the First Amendment implicates the general requirement that a litigant assert its own rights. Hang On does not claim any denial of its own First Amendment rights. The specific prohibition of the ordinance at issue in this case is part of a general regulation of adult cabarets, including Hang On, but the "no touch" provision regulates dancers and customers, not the bar itself.

Assuming that the case or controversy requirements of Article III are met, the Constitution does not universally forbid a party from asserting the rights of others. Rather, the general rule prohibiting such surrogate claims is prudential. Whitmore v. Arkansas, 495 U.S. 149, 161 n. 2, 110 S.Ct. 1717, 109 L.Ed.2d 135 (1990). Accordingly, we examine exceptions to this general rule. One exception allows a litigant to assert the rights of individuals with whom she has a close relationship. See Pierce v. Society of the Sisters, 268 U.S. 510, 535, 45 S.Ct. 571, 69 L.Ed. 1070 (1925) (holding that organization's interest in preserving its own business permitted it to assert rights of patrons). The history of this exception is checkered. Compare McGowan v. Maryland, 366 U.S. 420, 429-30, 81 S.Ct. 1101, 6 L.Ed.2d 393 (1961) with Craig v. Boren, 429 U.S. 190, 97 S.Ct. 451, 50 L.Ed.2d 397 (1976) and Secretary of State of Md. v. Joseph H. Munson Co., Inc., 467 U.S. 947, 954-58, 104 S.Ct. 2839, 81 L.Ed.2d 786 (1984). Ordinarily, a business like Hang On may properly assert its employees' or customers' First Amendment rights where the violation of those rights adversely affects the financial interests or patronage of the business. That Hang On's employees and customers could encounter practical difficulties in asserting their own rights may place this case within a distinct exception; at minimum, this fact reinforces the close relationship prerequisite to surrogate standing here. See Spiegel v. City of Houston, 636 F.2d 997, 1001 (5th Cir. Unit A Feb. 1981); Gajon Bar & Grill, Inc. v. Kelly, 508 F.2d 1317, 1322 (2d Cir.1974) (upholding standing of corporation to assert First Amendment rights of its employees and patrons); Black Jack Distributors, Inc. v. Beame, 433 F.Supp. 1297, 1303 (S.D.N.Y.1977) (upholding vendor's standing to assert First Amendment right of patrons' to purchase sexually explicit material). We are persuaded that this exception is applicable and that Hang On has standing to challenge the "no touch" provision as violative of the First Amendment rights of its employees and customers.

We are also persuaded that Hang On may assert its employees' rights under the Texas Equal Rights Amendment. Tex. Const. art. I, Sec. 3A. We are cognizant of our holding in MD II Entertainment, Inc. v. City of Dallas, Tex., 28 F.3d 492, 497 (5th Cir.1994), that a dance hall did not have standing to raise its employees' rights under the Texas Equal Rights Amendment to challenge a municipal ordinance that excluded male breasts from its definition of "seminudity" and "simulated nudity". In MD II, we distinguished SDJ, Inc. v. City of Houston, 837 F.2d 1268 (5th Cir.), reh'g denied, 841 F.2d 107 (5th Cir.1988), cert. denied, 489 U.S. 1052, 109 S.Ct. 1310, 103 L.Ed.2d 579 (1989), on the ground that SDJ did not purport to hold that club owners "must be allowed to raise their dancer's rights." MD II, 28 F.3d at 498 (emphasis added). Prudential considerations such as the failure of MD II to explain the absence of its dancers from the litigation led us in MD II to conclude that "[g]ranting standing to MD II may, however, result in the unnecessary litigation of a question those parties most immediately affected may not dispute." Id. at 497.

Here, unlike in MD II, there is no suggestion that Hang On's dancers do not wish this litigation to go forward, and there is no indication that Hang On's interest in this litigation diverges from that of its dancers. See 13 Wright, Miller & Cooper, Federal Practice and Procedure: Jurisdiction 2d Sec. 3531.9, at 579 (arguing that employers may assert rights of their employees where there is "a congruence rather than conflict of interests"); see also Craig v. Boren, 429 U.S. at 195, 97 S.Ct. at 456 (noting "vendors and those in like positions have been uniformly permitted to resist efforts at restricting their operations by acting as advocates of the rights of third parties who seek access to their market or function"). Significantly, Arlington cannot dispute that its ordinance has a direct financial impact on Hang On, as well as Hang On's employees. Injury is essential to meeting the threshold case or controversy requirement of Article III, and injury of this type is usually a component of a relationship sufficiently "close" to meet prudential standing requirements.

By contrast, the causal link between the injury to the club owners in MD II and the Dallas ordinance's exclusion of male breasts from its definition of semi-nudity was attenuated at best. It was difficult to see any injury to MD II from the underinclusive character of the challenged regulations. The asserted defect was a failure to regulate the exposure of male breasts. We are persuaded that Hang On has standing to assert its dancers' First Amendment and state constitutional rights.

There is much to be said for shifting the analysis from judicial justifications for asserting the rights of others to a direct inquiry into the rights of the plaintiffs in those relationships, but we do not reach those questions today. See ...