Kaczmarek v. State, 10-97-137-CR

• Decision Date: 06 January 1999
• Docket Number: No. 10-97-137-CR,10-97-137-CR
• Citation: 986 S.W.2d 287
• Parties: Charles Joseph KACZMAREK, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 287

986 S.W.2d 287

Charles Joseph KACZMAREK, Appellant, v. The STATE of Texas, Appellee.

No. 10-97-137-CR

Court of Appeals of Texas,

Waco.

Jan. 6, 1999.

Tom Zakes, Houston, for appellant.

John B. Holmes, Jr., Dist. Atty., Keli Pool Roper, Asst. Dist. Atty., Houston, for appellee.

Before Chief Justice DAVIS, Justice VANCE and Justice MALONEY (sitting by assignment) ¹.

O P I N I O N

FRANK MALONEY, Justice (Assigned).

On September 5, 1996, Appellant, Charles Joseph Kaczmarek, was charged by complaint and information with the misdemeanor offense of operating a sexually oriented business without a permit in violation of Houston Code of Ordinances Sections 28-121 to 28-135. Kaczmarek entered a plea of not guilty to the offense, and the case was tried before a jury. On February 25, 1997, the jury found Kaczmarek guilty as charged, and the court assessed his punishment at confinement in the Harris County Jail for ninety days, probated for one year and a $1,000.00 fine.

Kaczmarek raises seven points on appeal:

I. Houston Code of Ordinances Section 28-122 is unconstitutional in that it violates the First Amendment to the United States Constitution--granting the Houston Chief of Police unbridled administrative discretion;

II. Section 28-122 is unconstitutional in that it violates rights protected by Article I, Section 8, and

III. Article I, Section 6 of the Texas Constitution;

IV. Section 28-122 is unconstitutionally vague;

V. The trial court erred in denying Appellant's motion to quash the charging information because it did not give adequate notice of the charges against him;

VI. The trial court erred in denying Appellant's motion to suppress evidence obtained following an unlawful warrantless arrest; and

VII. The trial court erred in admitting certain photographs into evidence over Appellant's objection that they were unduly prejudicial and such prejudice outweighed their probative value. We affirm.

Procedural and Factual Background

On September 4, 1996, Charles Kaczmarek was employed as the manager of Le Bare, an adult lounge with male dancers, located in the City of Houston, Harris County, Texas. At approximately 8:00 p.m. on September 4, 1996, three City of Houston Police Department vice division officers entered the Le Bare night club. The officers were casually dressed in plainclothes and were not in uniform. After paying a cover charge, the officers remained at the club for approximately one and a half hours.

While at Le Bare, the officers observed several dancers on stage. The dancers' performances consisted of the dancers entering the stage costumed in different outfits and removing those outfits while dancing, to reveal a swimsuit sized g-string exposing the buttocks. The dancers perform on a main stage, but also provide "table dances," a dance performed off the main stage for a smaller group of customers for a larger tip. The dancers are not paid a salary, but rather perform for tips. Under City of Houston Ordinance Section 28-122(a), an adult cabaret such as La Bare requires acquisition of a Sexually Oriented Business permit in order to operate legally. La Bare has no such permit.

While in the club, the officers determined that Kaczmarek was the manager. After exiting the club, the officers notified an arrest team outside the club that illegal activity was occurring and described Kaczmarek as the manager. Five arresting officers entered the premises and, after speaking to Kaczmarek about the lack of a Sexually Oriented Business permit, placed him under arrest. During the course of the arrest, several photographs were taken of the dancers in their dancing attire. At trial, these photographs were admitted in evidence over Kaczmarek's objection. Based upon the evidence presented at trial, the jury found that Kaczmarek, as manager of La Bare, had operated an adult cabaret without a permit and found him guilty as charged.

POINT I

Whether Sections 28-121 to 28-135 of the Houston Code of Ordinances violate rights protected by the First Amendment to the United States Constitution.

In his first point, Kaczmarek asserts that his conviction must be overturned because enforcement of Section 28-122 violates his In Renton, the Supreme Court found that zoning provisions which prohibited locating sexually oriented businesses near surrounding churches, residential areas, schools, and parks are acceptable, so long as they serve a substantial governmental interest and do not unreasonably limit alternative avenues of communication. City of Renton, 475 U.S. at 47, 106 S.Ct. 925. The Supreme Court held that such an ordinance was to be treated as a content neutral, time, place, or manner restriction. Id.In so holding, the Court concluded that the purpose of such a regulation was not to prevent the message of speech, but was to prevent the secondary effects caused by these businesses on the surrounding community. Id.Therefore, such an ordinance is not "content based." Id.

First Amendment freedom of expression. Both the State and appellant recognize that exotic dancing does receive some amount of First Amendment protection. See Schad v. Borough of Mount Ephraim, 452 U.S. 61, 101 S.Ct. 2176, 68 L.Ed.2d 671 (1981); Doran v. Salem Inn, Inc., 422 U.S. 922, 932-33, 95 S.Ct. 2561, 45 L.Ed.2d 648 (1975). We therefore begin by noting that in Smith v. State, 866 S.W.2d 760, 764 (Tex.App.--Houston [1st Dist.] 1993, writ denied), this very ordinance was held not to violate the protections of the First Amendment. In Smith, the First Court of Appeals observed that the United States Supreme Court had considered the constitutionality of a similar ordinance in City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 106 S.Ct. 925, 89 L.Ed.2d 29 (1986).

In Smith,addressing the City of Renton standard of review, the First Court affirmed the holding reached repeatedly by that court--that such ordinances serve a substantial governmental interest. Smith, 866 S.W.2d at 764 (citing Lindsay v. Papageorgiou, 751 S.W.2d 544, 549 (Tex.App.--Houston [1st Dist.], 1988, writ denied)) (upholding Harris County regulations regarding the location of sexually oriented enterprises); Rahmani v. State, 748 S.W.2d 618, 622-23 (Tex.App.--Houston [1st Dist.] 1988, pet. ref'd) (upholding the city of Houston's ordinance regulating adult arcades); Jolar Cinema of Houston v. City of Houston, 695 S.W.2d 353, 355 (Tex.App.--Houston [1st Dist] 1985, no writ) (upholding an earlier version of the ordinance currently before this court). Further, Smithheld that the ordinance left open ample alternative channels of communication. Smith, 866 S.W.2d at 764.

However, in Smith, the appellant did not raise the issue raised here, that is whether the ordinance gave the Houston Chief of Police unbridled administrative discretion. Kaczmarek urges that the ordinance grants "unbridled discretion" to grant or deny a permit, and that such a scheme, in effect, allows the City of Houston to place a prior restraint upon the expressive conduct found in the dancing. This argument is not convincing. The boundaries of unbridled administrative discretion are laid out in City of Lakewood v. Plain Dealer Publishing Co., 486 U.S. 750, 108 S.Ct. 2138, 100 L.Ed.2d 771 (1988). In Lakewood, unbridled discretion was defined as the "existence of the licensor's unfettered discretion." Lakewood, 486 U.S. at 757, 108 S.Ct. 2138. The only way to prevent such discretion, Lakewood notes, is the presence of standards limiting discretion. Id. at 758, 108 S.Ct. 2138. The City of Houston Ordinance contains such standards. The Ordinance states that the Chief of Police shall grant the permit unless one of nine exacting conditions exists. Section 28-124(b), (1)-(9). See also SDJ, Inc. v. City of Houston, 837 F.2d 1268, 1277-78 (5th Cir.1988) (holding that an earlier version of the ordinance did not provide the City of Houston's Chief of Police with unbridled discretion). One of the listed exceptions includes the enterprise being located within 750 feet of a school. See Section 28-124(b)(1). The ordinance provides a specific and detailed process of performing the measurement. Id.We hold that the use of the word "shall," combined with the detailed procedure for measuring distances, indicates that the Chief of Police does not, in fact, have unbridled discretion. We agree with the United States Court of Appeals for the Fifth Circuit's holding in SDJ, that the ordinance provides the Chief of Police with a "definitive, intelligible standard," that is not unbridled. SDJ, 837 F.2d at 1278. Kaczmarek's first point is overruled.

POINT II

Whether Sections 28-121 to 28-135 of the Houston Code of Ordinances violate rights protected by Article I, Section 8 of the Texas Constitution.

In his second point, Kaczmarek argues that the provisions of Article I, Section 8 of the Texas Constitution provide greater protection of speech than the First Amendment to the United States Constitution. Therefore, Kaczmarek urges that the conviction should be reversed and the charges dropped. The Texas Supreme Court has held that the Texas Constitution does provide greater protection of freedom of speech than the First Amendment. Ex parte Tucci, 859 S.W.2d 1, 4 (Tex.1993). However, in Lindsay, the court held that the Renton standard applied to the Sexually Oriented Business ordinance under the Texas Constitution as well as the United States Constitution. Lindsay, 751 S.W.2d at 549. It has been argued, although not in this case, that Tucci (decided after Lindsay ) impliedly overruled Lindsay. Woodall v. City of El Paso, 49 F.3d 1120, 1127 (5th Cir.1995). We are not persuaded by that argument. Tucci concerned political speech, the most protected form of speech. See Tucci, 859 S.W.2d at 3; Young v. American Mini Theatres, 427 U.S. 50, 61, 96 S.Ct. 2440, 49 L.Ed.2d 310 (1976) (noting the higher importance of political speech). No mention is made in Tucci regarding sexually oriented expression, nor of the Lindsay decision. In...