Dfw Vending, Inc. v. Jefferson County, Tex.

• Decision Date: 07 January 1998
• Docket Number: No. 1:97-CV-611.,1:97-CV-611.
• Citation: 991 F.Supp. 578
• Parties: DFW VENDING, INC. d/b/a Baby Dolls # 5, Buddy Wayne Robinson, M.M. Allen, M. Beazley, C. Coon, S.L. Belinsky, G. Moore, and B. Coffman, Plaintiffs, v. JEFFERSON COUNTY, TEXAS, and Mitch Woods, Jefferson County Sheriff, Defendants.
• Court: U.S. District Court — Eastern District of Texas

991 F.Supp. 578

DFW VENDING, INC. d/b/a Baby Dolls # 5, Buddy Wayne Robinson, M.M. Allen, M. Beazley, C. Coon, S.L. Belinsky, G. Moore, and B. Coffman, Plaintiffs, v. JEFFERSON COUNTY, TEXAS, and Mitch Woods, Jefferson County Sheriff, Defendants.

No. 1:97-CV-611.

United States District Court, E.D. Texas, Beaumont Division.

January 7, 1998.

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Nelson T. Hensley, Houston, TX, for Plaintiffs.

Thomas F. Rugg, Asst. Dist. Atty., Beaumont, TX, for Defendants.

ORDER OVERRULING PLAINTIFFS' OBJECTIONS AND ADOPTING REPORT OF UNITED STATES MAGISTRATE JUDGE DENYING PLAINTIFFS' MOTION FOR TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION

SCHELL, Chief Judge.

Plaintiffs DFW VENDING, INC., d/b/a BABY DOLLS # 5, M.M. ALLEN, M. BEAZLEY, C. COON, S.L. BELINSKY, G. MOORE, and B. COFFMAN, filed the present action on October 23, 1997. The complaint requests injunctive relief from the Sexually Oriented Business Regulations ("Regulations") adopted by the Commissioners Court of Jefferson County, Texas, and a declaratory judgment ruling the Regulations unconstitutional. Pls.' Am.Compl. at 13-14. Additionally, the complaint asks for monetary damages.¹ Also on October 23, 1997, Plaintiffs filed a Motion for Temporary Restraining Order and Preliminary Injunction.

The case was referred to United States Magistrate Judge Earl S. Hines pursuant to Title 28, United States Code § 636,² for review, hearing if necessary, and report and recommendation of all pretrial matters and jury selection, if any. The magistrate judge filed a Report and Recommendation on November 26, 1997. The magistrate judge recommends that Plaintiffs' Motion for a Temporary Restraining Order and Preliminary Injunction be denied. Plaintiffs filed Objections to the Report and Recommendation on December 8, 1997 (hereinafter "Plaintiff's Objections"). This court has received and considered the Report and Recommendation, along with the record, pleadings, and all available evidence. The court is required to conduct a de novo review of the specific portions of the report to which objections are made. FED.R.CIV.P. 72(b).³

In this case, the court has conducted a de novo review and Plaintiffs' Objections are OVERRULED. The court hereby ADOPTS the Report and Recommendation in its entirety. Plaintiffs' Motion for Temporary Restraining Order and Preliminary Injunction is hereby DENIED.

I. FACTUAL BACKGROUND

Plaintiffs have sued Jefferson County and its sheriff in order to enjoin enforcement of the Sexually Oriented Business Regulations ("Regulations") adopted by the Commissioners Court of Jefferson County. The magistrate judge includes in his Report and Recommendation a full background of the history behind the regulations, and any recitation of the applicable facts would be unduly repetitive. See Report and Recommendation at 2-5, 6-9, 10-11. The court hereby ADOPTS the facts as determined by the magistrate judge in the Report and Recommendation.

II. PLAINTIFFS' OBJECTIONS

Plaintiffs object to the Report and Recommendation on three specific grounds. First, Plaintiffs claim that they were denied an opportunity to present testimony and other essential evidence in support of their motion. Pls.' Objs. at 2, ¶ 2. Second, Plaintiffs challenge the conclusion that the ordinance is content-neutral. Id. at 2, ¶ 3. Third, Plaintiffs argue that the preliminary injunction should at least issue against the provisions prohibiting alcohol consumption and possession, because state law completely preempts local governmental regulation. Id. at 3, ¶ 4.

A. Plaintiffs Had the Opportunity to Present Evidence

Plaintiffs claim that they were denied the opportunity to present testimony and other evidence in support of their motion. Id. at 2, ¶ 2. The court disagrees. The magistrate judge held two separate evidentiary hearings. The court admitted all evidence proffered by the parties, and no evidence was excluded. Plaintiffs chose only to offer sworn affidavits in the first hearing, and a copy of a Harris County ordinance in the second. The court finds no evidence that Plaintiffs were prevented or discouraged from offering evidence at either hearing. Indeed, the court finds that the magistrate judge provided ample opportunity to present evidence. Thus, Plaintiffs' objection is OVERRULED.

B. The Regulations are Content-Neutral

Plaintiffs also object to the Report and Recommendation insofar as it finds that the Regulations are content-neutral. Id. at 2, ¶ 3. Plaintiffs' primary argument is that the magistrate judge based his conclusion on insufficient evidence. Id. First, Plaintiffs assert that the magistrate judge improperly relied on Jefferson County's adoption of findings made by Harris County. Second, Plaintiffs argue that the magistrate judge also relied on a state law to justify the Regulations, but that the state law relied upon was ambiguous as to the effects of sexually oriented businesses and, therefore, was insufficient to support a finding of content-neutrality. Id.

In determining whether undesirable secondary effects accompany sexually oriented businesses, Jefferson County can properly rely on findings of the Harris County Commissioners Court. City of Renton v. Playtime Theatres, 475 U.S. 41, 51-52, 106 S.Ct. 925, 89 L.Ed.2d 29 (1986); Lakeland Lounge of Jackson v. City of Jackson, 973 F.2d 1255, 1258 (5th Cir.1992), cert. denied, 507 U.S. 1030, 113 S.Ct. 1845, 123 L.Ed.2d 469 (1993); see also Report and Recommendation at 17-18 (detailing the Harris County findings and case law indicating it was proper for Jefferson County to base its regulations on findings from another legislative body). Harris County gathered those findings when it adopted regulations governing sexually oriented businesses. These findings are sufficient to establish the Regulations as content-neutral. Report and Recommendation at 18. Jefferson County does not have to make its own independent findings in order to support the Regulations. Lakeland Lounge, 973 F.2d at 1258; Report and Recommendation at 18, and cases cited therein.⁴

Additionally, even assuming the Harris County findings were inadequate or could not be properly used in Jefferson County, the Jefferson County Commissioners had ample support for the Regulations in the absence of the Harris County findings. The Commissioners also relied on the findings of Judge Carl R. Griffith, Jr., a former Jefferson County sheriff, that sexually oriented businesses in Jefferson County lead to increased prostitution. Report and Recommendation at 11. Further, the Commissioners relied upon findings by the Texas legislature that such businesses may cause increased criminal activity. Report and Recommendation at 18-19 (citing TEX.LOC.GOV'T.CODE § 243.001(a)).

Plaintiffs object to the use of TEX.LOC. GOV'T.CODE § 243.001(a) as support for a finding that detrimental secondary effects arise from sexually oriented businesses and thus that the Regulations are content-neutral. Pls.' Objs. at 2-3. Section 243.001(a) reads, in relevant part: "The legislature finds that the unrestricted operation of certain sexually oriented businesses may be detrimental to the public health, safety, and welfare by contributing to the decline of residential and business neighborhoods and the growth of criminal activity." TEX.LOC. GOV'T.CODE § 243.001(a) (Vernon Supp.1998). Plaintiffs' argument is that since the word "may" is used in the provision, the legislature did not specifically find that sexually oriented businesses are detrimental, only that they may be detrimental.

Plaintiffs' objection is without merit. First, this statute is only one finding relied upon by Jefferson County and, subsequently, the magistrate judge. As stated above, the other findings used by the Jefferson County Commissioners are sufficient to establish the content-neutrality of the Regulations. Second, simply because the Texas legislature used the word "may" does not mean that the legislature did not make a finding. "The purpose of [Chapter 243] is to provide local governments a means of remedying this problem." Id. The finding that the detrimental secondary effects may occur is one way in which the state helps local communities accomplish that goal.

As the magistrate judge points out, the process of relying on a legislative report is within the discretion of the legislature contemplating a particular action. "The choice of whether [Jefferson County] should rely upon one report over another is fully within legislative discretion, [and] the court need only conclude that a reasonable legislature would have enacted the challenged ordinance." Id. at 19 (citing SDJ, Inc. v. City of Houston, 837 F.2d 1268, 1274 (5th Cir.1988), cert. denied, 489 U.S. 1052, 109 S.Ct. 1310, 103 L.Ed.2d 579 (1989)). It is reasonable that to conclude that, if the Texas legislature found that detrimental secondary effects may occur as a result of sexually oriented businesses, then Jefferson County may find that its community is no exception and that these detrimental secondary effects have in fact occurred. Plaintiffs had the opportunity to present evidence in opposition to this finding, but failed to do so. Accordingly, the court agrees with the Report and Recommendation that the Regulations are content-neutral. See Report and Recommendation at 15-19. Plaintiffs' objection is OVERRULED.

C. The Court did not Invoke Supplemental Jurisdiction to Determine the Applicability of the Alcohol Regulations

Plaintiffs' final objection is that state law preempts the local government regulation of possession and consumption of alcohol. Pls.' Objs. at 3, ¶ 4. This matter is not properly before the court. Plaintiffs' complaint does not invoke the court's supplemental jurisdiction; it attacks the Regulations only on federal constitutional grounds. See Pls.' Am. Compl. at 1-2, ¶ 1. Moreover, the record reflects that at oral argument, Plaintiffs' counsel attacked the...