Dumas v. City of Dallas
| Decision Date | 12 September 1986 |
| Docket Number | No. CA 3-86-1759-R.,CA 3-86-1759-R. |
| Citation | 648 F. Supp. 1061 |
| Parties | John Randall DUMAS, d/b/a Geno's; Calvin Berry, III; Saujay Patel; Rudolf Fernandez; Dallas Motel Assoc., An Unincorporated Assoc.; FW/PBS, Inc., d/b/a Paris Adult Bookstore II; FW/PBS, Inc., d/b/a Paris Adult Video Center; FW/PBS, Inc., d/b/a Film-world; DSB, Inc., d/b/a Denmark Bookstore; Charles E. Carlock, d/b/a Paris Adult Bookstore I; Lone Star Multi Theatres, Inc. d/b/a New Fine Arts Adult Theatre; Lone Star Multi Theatres, Inc. d/b/a La Cage; Beverly Van Dusen d/b/a Loan Star Bookstore; Beverly K. Van Dusen d/b/a Elite Bookstore; Bill Staten Jr. d/b/a Royal Land Bookstore; Bill Staten Jr. d/b/a New Venture Video; Bill Staten Jr. d/b/a Mockingbird Lane News; Bi-Ti Enterprises, Inc. d/b/a Red Letter News; Ghetti Corporation d/b/a Fantasy Land; Ghetti Corporation d/b/a Video Land Arcade; Ghetti Corporation d/b/a Video Stop; J.R.E. Enterprises d/b/a Kazbah Bookstore; Entertainment Unlimited d/b/a Eros Dallas v. The CITY OF DALLAS, A Texas Incorporated Municipality; A. Starke Taylor, Mayor of the City of Dallas, In His Rep. Capacity; Billy Prince, Chief of Police of the City of Dallas, In His Rep. Capacity. |
| Court | U.S. District Court — Northern District of Texas |
Ralph C. Jones, Carter, Jones, Magee, Redberg & Mays, Dallas, Tex., for Dumas.
Frank P. Hernandez, Dallas, Tex., for Berry, Patel, Fernandez and Dallas Motel Ass'n Malcolm Dade, Dallas, Tex., Arthur M. Schwartz, Denver, Colo., for other plaintiffs.
David Labrec, Sol Villasana, Mark O'Briant, Office of City Atty., Dallas, Tex., for defendants.
The law of zoning allows the will of a majority, expressed through a representative body, to control the evolution of a community and shape its character.1 The law of free speech, in contrast, prevents the majority will from suppressing minority expression that the majority finds intolerable.2 It is perhaps inevitable that the two values should clash, when a zoning ordinance attempts to limit the freedoms of those involved in expressing unpopular views.3 A body of first amendment/zoning jurisprudence has thus emerged, in an attempt to reconcile this potential for conflict.4 Because the zoning law under attack in this case — the recently enacted "sexually oriented business" ordinance of the City of Dallas — follows the dictates of this recent hybrid body of law, it is constitutional, except for the four minor exceptions discussed below.5
On June 12, 1986, the Dallas city attorney presented a proposed ordinance regulating sexually oriented businesses to the Dallas City Plan Commission. The Commission considered studies carried out in other cities, but did not undertake a study of Dallas. See Defendants' Exhibit (DX) 6 (Austin), DX 7 (Indianapolis), and DX 11 (Los Angeles). The Commission did consider, however, a map of Dallas indicating areas in which sexually oriented businesses could locate under the proposed ordinance. See Transcript (DX 1) at 5, 30-33. The Commission also heard public testimony, both for and against the proposed ordinance. See id. at 11-51. The Commission voted unanimously to recommend adoption of an ordinance regulating sexually oriented businesses.6
The Ordinance went before the Dallas City Council on June 18, 1986. The Council considered the three studies that were before the Commission, see Transcript (DX 17) at 3. The Council also considered a Dallas study comparing crime rates in two commercial sections, one with sexually oriented businesses and one without. See id. at 3 (). After hearing public comment — unanimously in favor of the ordinance — the Council adopted it by unanimous vote. See id. at 28. Both representative bodies were in unanimous accord on the benefits of the ordinance.
Legislative intent. Divining the intent of a legislative body is inherantly problematic,7 but the intent of both the Commission and the Council in adopting the Ordinance is transparently clear. Five of the 15 members of the Commission8 and four of the 11 members of the Council9 stated unequivocally — to no dissent — that the Ordinance was concerned solely with controlling the secondary effects of sexually oriented businesses on surrounding neighborhoods.10 Both groups stated that they were concerned not with the content of the speech associated with sexually oriented businesses, but with the crime, urban blight, and plummeting property values that inevitably seize the neighborhoods where such businesses locate. It is of no moment that the public speakers in favor of the Ordinance supported it almost singularly in hopes that it would indeed suppress the speech purveyed by sexually oriented businesses,11 as neither the Council nor the Commission relied on the specious view that pornography "causes" various social ills and should thus be eliminated.12 The intent of the City in passing the Ordinance was solely to control the secondary effects of sexually oriented speech on the neighborhoods its purveyors inhabit, rather than to eliminate the speech itself.
The Council's findings. The Ordinance enacted by the City incorporated several findings. The City first found that it has authority to regulate businesses pursuant to its police power, and that licensing is a reasonable means to ensure that subject businesses comply with regulations. See Ordinance (DX 16) at 2. The Council then found that a substantial number of sexually oriented businesses require regulation to protect the "health, safety, and welfare" of the establishments' patrons and citizens in general. Public safety authorities should regulate such businesses, the Council reasoned, because the businesses "are frequently used for unlawful sexual activities, including prostitution and sexual liasons of a casual nature" and because of the "concern over sexually transmitted disease." Id. The Council next found that arrests for sex-related crimes near sexually oriented businesses have been "substantial," and that there is "convincing documented evidence" that sexually oriented businesses are associated with falling property values of surrounding business and residential areas. Then, the Council found that when such businesses are located in close proximity to one another, "urban blight" and a decrease of the quality of life in adjacent areas results. Finally, the Council stated that its intent was to minimize these adverse effects, thus preserving property values in surrounding neighborhoods, detering the spread of urban blight, and decreasing crime. Id. at 5. The Council emphasized, however, that it did not intend to limit access by adults to sexually oriented material protected by the first amendment. Id.13
The Ordinance's terms. Based on these findings, the Council enacted an ordinance that pervasively regulates the operation of all sexually oriented businesses in Dallas. The most important changes made by the Ordinance, which is discussed in detail with the relevant arguments, are (1) strict locational prohibitions, including the requirement that a business be at least 1,000 feet from another sexually oriented business, or a church, school, residential area, or park;14 (2) required licensing and inspection for all regulated businesses; (3) disqualification from licensure of any applicant who has been convicted of a specified crime, or whose spouse has been so convicted; (4) requirements that all patrons in an arcade — even if within a closed booth — be within the sight of a manager; and (5) various layout, furnishing, hiring, and lighting restrictions on regulated businesses.
The plaintiffs in this case operate seven of the nine types of sexually oriented businesses classified in the Ordinance: (1) adult arcades; (2) adult bookstores or adult videostores; (3) adult cabarets; (4) adult motels; (5) adult motion picture theatres; (6) adult theatres; and (7) nude model studios. There are no escort agencies or sexual encounter centers that have appeared to challenge the Ordinance.15
Under section 41A-13(f) of the Ordinance, each business is deemed a "nonconforming use" because of its location within 1000 feet of another sexually oriented business, or a church, school, residential district, or park. The plaintiffs may continue their business for a period of three years from June 18, 1986, unless "sooner terminated for any reason or voluntarily discontinued for a period of 30 days or more." Plaintiffs are also prohibited from "increasing, extending, or altering" their businesses unless they are changed to a conforming use. At the conclusion of the three-year period under 41A-13(f), only the "first-established and continually operating" sexually oriented business at a particular location may continue to operate — so that the dispersal of sexually oriented businesses in Dallas will be completed by June 18, 1989.16
The Ordinance would force many plaintiffs to relocate. Many are near specified-use areas; others are within 1000 feet of one another — as are plaintiffs Deja Vu, Texas Rose, Baby Dolls Saloon, Million Dollar Saloon II, Expose, and Bachman Cafe. The relocation provisions threaten the businesses with enormous expenditures; many have great investments in their locations and the value of their property — such as S.B. Sugars, Inc., which has obtained financing on a parking lot valued at $1,000,000. Other plaintiffs face economic hardship from the Ordinance's restrictions on their activities. Adult motels, for example, will be restricted to renting rooms for at least ten hours, rather than the two-hour period common now — thus cutting their income by up to 80 percent.
The main attack in this case is, therefore, the location restriction and the three-year amortization period of section 41A-13(f). Plaintiffs also level attacks against each provision of the Ordinance that applies to them, claiming that the Ordinance's provisions are vague...
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