Laredo Road Co. v. Maverick County, Texas

• Citation: 389 F.Supp.2d 729
• Decision Date: 14 July 2005
• Docket Number: No. CIV. DR-05-CA-18-AML.,CIV. DR-05-CA-18-AML.
• Parties: The LAREDO ROAD CO., Plaintiff, v. MAVERICK COUNTY, TEXAS Defendant.
• Court: U.S. District Court — Western District of Texas

389 F.Supp.2d 729

The LAREDO ROAD CO., Plaintiff, v. MAVERICK COUNTY, TEXAS Defendant.

No. CIV. DR-05-CA-18-AML.

United States District Court, W.D. Texas, Del Rio Division.

July 14, 2005.

COPYRIGHT MATERIAL OMITTED

Gerald E. Hopkins, Langtry, TX, for Plaintiff.

Portia Fleck Bosse, Allison, Bass & Associates L.L.P., Austin, TX, for Defendant.

ORDER GRANTING PRELIMINARY INJUNCTION

LUDLUM, District Judge.

Pending before the Court in the above-styled and numbered cause is the Laredo Road Company's ("Plaintiff") application for a preliminary injunction. Based on the forthcoming reasons, the Plaintiff's application is GRANTED.

I. BACKGROUND

On July 7, 2004, Plaintiff posted a sign, pursuant to § 243.0075 Tex. Loc. Gov't Code,¹ giving public notice that it intended to establish and operate a Sexually Oriented Business ("SOB"), doing business as "Babe's." According to the Plaintiff, construction on the location of the business commenced in August 2004.² On October 15, 2004, the Defendant adopted an Order to regulate SOBs within the unincorporated areas of Maverick County ("Defendant"), Texas.³ The Defendant's Order also prohibited SOBs from operating "within a one (1) mile distance of a school, regular place of religious worship, residential neighborhood...." § 100.006 MAVERICK COUNTY REGULATIONS REGARDING/CONCERNING SEXUALLY ORIENTED BUSINESSES; cf. § 243.006(a)(2) TEX. LOC. GOV'T CODE. Subsequent to the adoption of the Order by the county, Plaintiff claims that it modified its business so that it would not operate as an SOB under the definitions contained in the Defendant's Order. The Plaintiff opened its business on February 23, 2005, after overcoming what it perceived to be "harassment" on the Defendant's part regarding issues such as electricity, water, and sewage connections for the premises.

On February 25, 2005, after what it perceived to be a threat from the Defendant to file criminal charges, the actual filing of criminal charges against an employee⁴, and the possibility of applying for injunctive relief to stop the Plaintiff from operating its business, the Plaintiff filed for an emergency application for a Temporary Restraining Order ("TRO") and preliminary injunction. In its application, the Plaintiff claimed that the Defendant's Order, specifically § 100.002,⁵ did not apply to its business and that even if it did, it was unconstitutional for numerous reasons.⁶ On March 3, 2005, this Court denied Plaintiff's request for a TRO and scheduled a hearing to address the application for a preliminary injunction.⁷

Regarding the preliminary injunction, Plaintiff reiterates the primary argument it raised in the TRO application that Babe's does not fall under the definition of an SOB in the Defendant's Order, because its business is a "50-50" or "mixed" establishment, as known in the industry, whose primary business is the offering of all types of books, magazines, videos, DVD's, soft drinks, games, novelties, and live entertainment — including, but not limited to dancing, bands, singers, and a variety of other acts and performances. (See First Amended Complaint at 3 (Docket Entry # 3.)) It further argues that any adult materials it sells are incidental to its primary business, and that the material and entertainment offered by the Plaintiff is protected by the First Amendment of the United States Constitution. In the alternative, Plaintiff argues that if it is found to be an SOB, the regulation, facially and as applied, is unconstitutional and Plaintiff seeks declaratory relief stating such. Other than the charges against Plaintiff's employee, which were eventually dropped, there has been no further action taken against the Plaintiff's business by the Defendant, and the Plaintiff has been operating its business without limitations.

At this time, the Court chooses to apply its equitable powers and rule only on the injunctive relief aspects of this case while reserving the opportunity to rule on the merits as the record further develops. This Court specifically admonished all parties that the preliminary injunction hearing was just that, a hearing on the preliminary injunction, and that the Court was not consolidating the hearing, pursuant to FED. R. CIV. P. 65(a)(2), with a trial on the merits.

II. DISCUSSION

A. Jurisdiction

The Court first looks to determine whether it has jurisdiction to hear this case. The Supreme Court has made it clear that "it is the duty of this court to see to it that the jurisdiction of the [district court], which is defined and limited by statute, is not exceeded." City of Kenosha v. Bruno, 412 U.S. 507, 511, 93 S.Ct. 2222, 37 L.Ed.2d 109 (1973) (quoting Louisville & Nashville R. Co. v. Mottley, 211 U.S. 149, 152, 29 S.Ct. 42, 53 L.Ed. 126 (1908)). Plaintiff invoked this request for a preliminary injunction through 42 U.S.C. § 1983, and advised the Court that it had jurisdiction through 28 U.S.C. § 1343(a)(3) and (4), as well as federal question jurisdiction under 28 U.S.C. § 1331.

Section 1983 states in pertinent part:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress....

"Section 1983 allows `citizens' and `other person[s] within the jurisdiction' of the United States to seek legal and equitable relief from `persons' who, under color of state law, deprive them of federally protected rights." Va. Office for Prot. & Advocacy v. Reinhard, 405 F.3d 185, 188-89 (4th Cir.2005) (emphasis in original). Plaintiff, a corporation, is a "person" as stated by § 1983 and defined by 1 U.S.C. § 1, which explains that "the words `person' and `whoever' include corporations, companies, associations, firms, partnerships, societies, and joint stock companies, as well as individuals." The Defendant, Maverick County, falls under the auspices of "person" as stated in § 1983 per the instruction of the Supreme Court in Monell v. Dep't of Soc. Servs. of the City of New York, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). The Court is satisfied that it has jurisdiction under § 1983, and consequently § 1343(a)(3) & (4), which provide that federal courts have jurisdiction:

(3) To redress the deprivation, under color of any State law, statute, ordinance, regulation, custom or usage, of any right, privilege or immunity secured by the Constitution of the United States or by any Act of Congress providing for equal rights of citizens or of all persons within the jurisdiction of the United States;

(4) To recover damages or to secure equitable or other relief under any Act of Congress providing for the protection of civil rights, including the right to vote.

Having established jurisdiction under § 1343 for equitable relief in this case, the Court need not address whether § 1331 jurisdiction is satisfied.

Finally, under 28 U.S.C. § 1367, the Court also has supplemental, or pendent, jurisdiction to determine whether the Plaintiff's business falls under the definitions of an SOB in the Defendant's Order and the Texas statute. See also United Mine Workers of America v. Gibbs, 383 U.S. 715, 725, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966) ("The state and federal claims must derive from a common nucleus of operative fact. But if, considered without regard to their federal or state character, a plaintiff's claims are such that he would ordinarily be expected to try them all in one judicial proceeding, then ... there is power in federal courts to hear the whole.") (emphasis in original). Initially, this Court ruled that the state courts were competent to hear all of the Plaintiff's arguments in the pending criminal cases. Since those cases have been dismissed, the present action is the only available forum to determine the issues presented by the Plaintiff.

B. Plaintiff's Business is an SOB

In its previous denial of the Plaintiff's application for a TRO, this Court ruled that based on the definitions in § 100.002 of the Defendant's regulation, as well as § 243.002 of the TEX. LOC. GOV'T CODE, the Plaintiff was indeed operating an SOB. (See Ct. Order Den. TRO March 3, 2005 (Docket Entry # 7.)) The Court's understanding was further solidified by the testimony of John N. Skruck III, stockholder, "general operator," and a person with twenty (20) years experience in running businesses such as the Plaintiff's. He testified about the Plaintiff's business in question during the preliminary injunction hearing. Even though Mr. Skruck had three (3) months between this Court's denial of Plaintiff's TRO application and the preliminary injunction hearing, he could give the Court no specific details regarding the Plaintiff's inventory.⁸ He did state, however, that the Plaintiff had a two-to-one ratio of adult to non-adult videos in inventory and a three-to-one ratio of adult-fare magazines to non-adult fare magazines in inventory. He also stated that Plaintiff's business would provide, among other things, premises for the private viewing of adult videos, the availability of sex toys and novelties for purchase, and the ability to view topless and nude female dancers on certain days and at certain times.⁹

The Defendant's Order defines SOBs as "sex parlors, nude studios, modeling studios, love parlors, adult bookstores, adult movie theaters, adult video arcades, adult movie arcades, adult video stores, adult motels, and/or any other commercial enterprise the primary business of which is the offering of a service or the selling, renting, or exhibiting of devices or any other items intended to provide sexual stimulation or sexual gratification to the customer." § 100.002 MAVERICK COUNTY REGULATIONS REGARDING...