Bgha, L.L.C. v. City of Universal City, Texas

• Citation: 210 F.Supp.2d 821
• Decision Date: 24 January 2002
• Docket Number: No. CIV.A.SA-00-CA-1473-NN.,CIV.A.SA-00-CA-1473-NN.
• Parties: BGHA, L.L.C., d/b/a Camelot, Plaintiff, v. CITY OF UNIVERSAL CITY, TEXAS; Floyd Bryant, in his Individual and Official Capacity as Chief of Police; and Wesley Becken, in his Individual and Official Capacity as Mayor, Defendants.
• Court: U.S. District Court — Western District of Texas

210 F.Supp.2d 821

BGHA, L.L.C., d/b/a Camelot, Plaintiff, v. CITY OF UNIVERSAL CITY, TEXAS; Floyd Bryant, in his Individual and Official Capacity as Chief of Police; and Wesley Becken, in his Individual and Official Capacity as Mayor, Defendants.

No. CIV.A.SA-00-CA-1473-NN.

United States District Court, W.D. Texas, San Antonio Division.

January 24, 2002.

John Fahle, III, San Antonio, TX, for plaintiff.

Lowell F. Denton, George Edward Hyde, Denton, Navarro & Bernal, San Antonio, TX, for defendants.

MEMORANDUM OF DECISION AND ORDER

NOWAK, United States Magistrate Judge.

A. Introduction

Plaintiff, BGHA, L.L.C., d/b/a Camelot, an operator of a nightclub where "dancing is provided as entertainment in exchange for a fee," brings this action against Defendants Universal City ("the City"), Texas, the City's Police Chief Floyd Bryant and the City's Mayor Wesley Becken. Plaintiff's lawsuit, filed December 14, 2000, alleges that City Ordinance No. 504, an ordinance which imposes licensing and zoning restrictions on sexually oriented businesses ("SOBs"), violates its First and Fourteenth Amendments to the United States Constitution. Specifically, plaintiff claims that its business is not an "adult entertainment establishment" within the meaning of the Ordinance. For that reason, plaintiff has not deemed it necessary to procure a license under the Ordinance in order to operate its business. Nevertheless, the City has issued plaintiff over twenty citations for operating a business without a license, in violation of the Ordinance. In this lawsuit, plaintiff complains that the citations, resulting in a campaign of harassment, amount to an "as-applied" prior restraint on its free speech. Plaintiff also argues the Ordinance is unconstitutional on its face as a prior restraint on speech. Through the filing of this lawsuit under 42 U.S.C. § 1983, plaintiff seeks injunctive, declaratory and monetary relief for defendants' alleged constitutional violations.

The District Judge to which this case was originally assigned denied plaintiff's application for a temporary restraining order on December 15, 2000. See Docket Entry 3. The Court then referred plaintiff's request for injunctive relief to me for proposed findings of facts and recommendations, consistent with 28 U.S.C. § 636(b)(1). Plaintiff's request for preliminary injunctive relief was subsequently mooted when plaintiff combined its request for injunctive relief with a trial on the merits.

Pending before me are the parties' cross-motions for summary judgment on the following dispositive issues: whether plaintiff's business is an "adult entertainment establishment" subject to the licensing and zoning restrictions of SOB Ordinance No. 504, whether said Ordinance is constitutional as a matter of law, and whether defendants Bryant and Becken are entitled to the defense of qualified immunity when sued in their individual capacities. See defendants' motion for summary judgment, filed March 7, 2001 (Docket Entry 18) and plaintiff's response and cross motion for summary judgment, filed March 28, 2001 (Docket Entry 28).¹ On March 9, 2001, upon the parties' consent and consistent with 28 U.S.C. § 636(i), the case was assigned to me for all purposes, including trial and entry of judgment. See Docket Entry 20.

Having reviewed the parties' legal arguments and evidentiary support, the summary judgment record as a whole and the applicable case authority, it is my opinion that defendants' motion should be granted and plaintiff's cross-motion should be denied. The City has established, as a matter of law, that SOB Ordinance No. 504 is a content-neutral restriction on conduct and is justified under the standard originally set forth by the United States Supreme Court in United States v. O'Brien,² as subsequently applied by the courts, including the United States Supreme Court, to cases involving erotic nude dancing.³ The City has provided sufficient evidence of legislative findings made prior to the enactment of the Ordinance supporting the City's reasonable belief that the enactment of the Ordinance would further its interests of better protecting the public health, safety and welfare of its constituents, and would also effectively address the deleterious secondary effects of sexually oriented businesses by enhancing land use protection for residential areas and other surrounding areas. In addition to the legislative findings made prior to the enactment of the Ordinance, the City has also produced current summary judgment evidence supporting its continued "governmental interest" for enforcing the Ordinance. Further, contrary to plaintiff's position, the competent summary judgment evidence demonstrates that the Ordinance, and in particular its location and distance requirements, provides adequate alternative means for sexually oriented expression. Because plaintiff has failed to allege a violation of a clearly established constitutional right as a matter of law, I need not address the defense of qualified immunity raised by defendants Bryant and Becken.

B. Jurisdiction

The court has subject-matter jurisdiction over this action pursuant to 28 U.S.C. § 1331 and 42 U.S.C. § 1983.

C. Factual Background

Beginning in 1994, Universal City Council members became concerned with the adverse secondary effects sexually oriented businesses were bringing to neighboring communities, such as Bexar County and the City of Leon Valley. The secondary effects at issue consisted primarily of an increase in crime rate, including the use of illegal narcotics, public intoxication and prostitution. The summary judgment record indicates that at the time the City Council was considering drafting an ordinance to regulate sexually oriented businesses, three businesses were already operating in the City unregulated. Two of these businesses consisted of adult-video stores which had been the subject of numerous complaints lodged by City residents.⁴ The record further reveals that prior to enacting SOB Ordinance No. 504, the City Council, with the assistance of the City Attorney at the time, researched, studied and extensively discussed the issue, bringing the Ordinance to at least three Council meetings before its adoption on April 5, 1994.⁵ The City Council's legislative purpose for enacting SOB Ordinance No. 504 is best embodied in its preamble: "It is the purpose of this Ordinance to regulate Adult Entertainment Establishments 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 concentration of Adult Entertainment Establishments within the City."⁶

Relevant to the instant case, SOB Ordinance No. 504 defines the term "adult entertainment establishment" as including an adult cabaret.⁷ An "adult cabaret," is defined as:

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.'⁸

The term "nudity" or "state of nudity" is defined in the Ordinance as: "a. [t]he appearance of a human bare buttock, anus, male genitals, female genitals, or female breast; or b. [a] state of dress which fails to opaquely cover a human buttock, anus, male genitals, female genitals, or areola of the female breasts."⁹ The Ordinance further defines "specified anatomical areas" as "human genitals,"¹⁰ and "specified sexual activities" as:

a. The fondling or other erotic touching of human genitals, pubic region, pubic hair, perineum, buttocks, anus, or female breasts;

b. Sex acts, normal or abnormal, actual or simulated, including intercourse, oral copulation, sodomy or bestiality;

c. Masturbation, actual or simulated; or

d. Urinary or excretory functions.¹¹

The Ordinance requires an owner to obtain a license from the City before he or she may operate a sexually oriented business.¹² Failure to do so subjects the owner to criminal penalties.¹³ To obtain a license, an owner must demonstrate, among other things, that the business is in a permissible location.¹⁴ In that regard, the Ordinance requires that the business be located within a "specified zoning district" as set forth in the City of Universal City Zoning Code, and not be situated (1) within five hundred (500) feet of a church, school, daycare center or public park; (2) within three hundred (300) feet of a boundary of a residential district or property line of a residential use; (3) or within one thousand (1,000) feet of another licensee.¹⁵

While plaintiff does not dispute that it is in violation of the Ordinance because it is located within 300 feet of a residential district, plaintiff does dispute the application of the Ordinance to its business. It is plaintiff's position that its business does not fall within the Ordinance's definition of an "adult entertainment establishment" because the dancers at the nightclub do not appear in a "state of nudity" nor do their performances include any "specified sexual activities."¹⁶ According to plaintiff, "the dancers' costumes include a bikini-type bottom which fully covers the buttocks and genitalia, and they wear `pasties' which fully and opaquely cover the areola."¹⁷ Besides the pleaded assertions made in its complaint and/or summary judgment briefing, plaintiff has failed to attach any evidence supporting its position on the issue. On the other hand, defendants have provided competent summary judgment evidence to controvert plaintiff's characterization of its business and to argue that the Ordinance does apply to plaintiff's business because it is an "adult cabaret," within the meaning of the Ordinance.¹⁸ As such, ...