Rosenblatt v. City of Houston

• Decision Date: 19 October 2000
• Docket Number: No. 13-99-692-CV,13-99-692-CV
• Citation: 31 S.W.3d 399
• Parties: (Tex.App.-Corpus Christi 2000) BERNARD ROSENBLATT, AS APPLICANT FOR AVW, INC., D/B/A ADULT VIDEO MEGAPLEXXX, Appellant, v. CITY OF HOUSTON, Appellee.
• Court: Texas Court of Appeals

Page 399

31 S.W.3d 399 (Tex.App.-Corpus Christi 2000)

BERNARD ROSENBLATT, AS APPLICANT FOR AVW, INC., D/B/A ADULT VIDEO MEGAPLEXXX, Appellant, v. CITY OF HOUSTON, Appellee.

No. 13-99-692-CV

COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS, CORPUS CHRISTI.

October 19, 2000

On appeal from the 189th District Court of Harris County, Texas. [Copyrighted Material Omitted]

Before Justices Hinojosa, Yanez, and Rodriguez.

OPINION

Opinion by Justice Rodriguez.

Bernard Rosenblatt, as applicant for AVW, Inc. d/b/a Adult Video Megaplexxx, appellant, appeals from the granting of a motion for summary judgment. Appellant challenges the summary judgment by seven issues. We affirm.

Adult Video Megaplexxx (Megaplexxx) is an adult bookstore located in Houston, Texas. It contains adult video arcades¹ where customers can enter booths to watch sexually explicit videos. In 1997, the City of Houston (the City) enacted Ordinance 97-75, which amended chapter 28 of its municipal code, having to do with sexually oriented businesses. Section 28-10, which is found in division 3 governing adult arcade and adult mini-theatre design, provides as follows:

(a) If an adult arcade or adult mini-theatre has one (1) manager's station designated pursuant to section 28-92(c) of this Code, then the interior of the adult arcade or adult mini-theatre shall be configured in such a manner that there is an unobstructed view of every area of the adult arcade or adult mini-theatre to which any patron is permitted access for any purpose from that manager's station. If an adult arcade or adult mini-theatre has two (2) or more manager's stations designated pursuant to section 28-92(c) of this Code, then the interior of the adult arcade or adult mini-theatre shall be configured in such a manner that there is an unobstructed view of each area of the adult arcade or adult mini-theatre to which any patron is permitted access for any purpose from at least one (1) of the manager's stations. The view required in this subsection must be by direct line of sight from the manager's station.

(b) It shall be the duty of the owners and operator, and it shall also be the duty of any agents and employees present in an adult arcade or adult mini-theatre, to ensure that the view area specified in subsection (a) remains unobstructed by any merchandise, display racks or other materials at all times that any patron is present in the adult arcade or adult mini-theatre and to ensure that no patron is permitted access to any area of the adult arcade or adult mini-theatre which has been designated as an area in which patrons will not be permitted in the plan filed pursuant to section 28-92 of this Code.

Houston, Tex., Municipal Code, Ord. 97-75, § 28-101(a) (emphasis added).

According to an affidavit of John Bratton, president of AVW, Inc., video cameras were installed in the arcade booths at Megaplexxx to comply with the "direct line of sight" provision of Ordinance 97-75. Bratton affied that "[t]he cameras in the arcades transmit a picture of the inside of the arcade to a monitor located in the manager's station. The video coverage is live, and simultaneously transmits a picture of the inside of each and every arcade, as well as the hallways." According to Bratton, "[p]atrons are advised in writing that their activities are being monitored by a video camera, and that Adult Video Megaplexxx does not permit lewd conduct of any kind."

According to an officer of the Houston Police Department, Vice Division, during an inspection of Megaplexxx, he observed there is not an unobstructed view of every area to which a patron is permitted access. He also observed there was not a direct line of sight from the manager's station and that the arcades have doors. Appellant does not contest that, without the use of video surveillance, there is no direct, unobstructed view from the manager's station to each area of the adult arcade or adult mini-theatre to which any patron is permitted access.

Appellant applied for an adult arcade/adult mini-theater permit with the City. The City denied the application by written letter on July 15, 1998. According to the letter, the City denied the permit because (1) "[the] adult arcade is in violation of Section 28-93(b)(1)² of the Adult Arcade/Adult Mini-Theater Ordinance having to do with the view design, and lighting requirements[,]" and (2) "the application . . . submitted is in violation of Section 28-92(c)."³

Appellant pursued an appeal as authorized by the ordinance. A hearing was held on the appeal on August 19, 1998, and the hearing officer⁴ concluded by stating, "I'm going to hold that the denial of the permit was improper and then maybe [City] Council can straighten this out." On August 24, 1998, the City moved for the hearing officer to reconsider and uphold the denial of the permit. Appellant responded to the motion for reconsideration on August 26, 1998. On September 22, 1998, the hearing officer reversed his prior ruling and signed a decision affirming the denial of the permit. The decision states that the denial of the permit "was based upon violations of Section 28-101(a); Adult Video Megaplexxx Arcade's internal configuration does not permit an unobstructed view from the manager's station by direct line of sight of every area of the adult arcade to which patrons are permitted access." Thereafter, appellant appealed the hearing officer's decision to a district court in Harris County. Both parties moved for summary judgment. The court granted the City's motion for summary judgment without specifying the grounds on which it was rendered. This appeal ensued.

The proper inquiry on appeal is whether the defendant, in seeking summary judgment, fulfilled his initial burden (1) to establish as a matter of law that there remained no genuine issue of material fact as to one or more essential elements of the plaintiff's cause of action or (2) to establish his affirmative defense to the plaintiff's cause of action as a matter of law. Casso v. Brand, 776 S.W.2d 551, 556 (Tex.1989); Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex.1985); Pena v. State Farm Lloyds, 980 S.W.2d 949, 953 (Tex. App.--Corpus Christi 1998, no pet.). In deciding whether there is a disputed material fact issue precluding summary judgment, evidence favorable to the non-movant must be taken as true. Nixon, 690 S.W.2d at 549. Every reasonable inference must be indulged in favor of the non-movant and any doubts resolved in his favor. Id. In this case, the trial court granted summary judgment for the City; hence, we view all evidence favorable to appellant, the non-movant, as true and indulge every inference in its favor.

When there are multiple grounds for summary judgment and the order does not specify the ground on which the summary judgment was rendered, appellant must negate all grounds on appeal. State Farm Fire & Cas. Co. v. S. S., 858 S.W.2d 374, 389 (Tex. 1993). If the appellant fails to negate each ground on which the judgment may have been rendered, we must uphold the summary judgment. Id.

In its fourth and fifth issues, appellant avers the trial court erred in granting summary judgment because appellant was in full compliance with the ordinance as a matter of law, and there was a fact issue regarding whether appellant substantially complied with the ordinance.⁵

Appellant first maintains it complied with the direct line of sight provision of the ordinance by installing video cameras in the arcades. According to appellant, the video cameras afford the manager a direct line of sight inside the arcades. The City urges that the direct line of sight provision requires arcades to be visible from the manager's station without the use of a medium.

The rules that apply to the construction of statutes apply as well to the construction of municipal ordinances. Wende v. The Board of Adjustment of the City of San Antonio, 27 S.W.3d 162, 169-70 (Tex.App.-San Antonio 2000, no pet. h.) (citing Mills v. Brown, 159 Tex. 110, 114, 316 S.W.2d 720, 723 (1958)). The cardinal rule of statutory construction is to discern and give effect to the intent of the enacting body. Sorokolit v. Rhodes, 889 S.W.2d 239, 241 (Tex. 1994). We must first seek to discern that intent from the plain language of the statute or ordinance. Id.

The ordinance provides that there must be an unobstructed view of every area of the adult arcade or adult mini-theatre to which any patron is permitted access from the manager's station and this view must be by direct line of sight. The Houston City Council did not define direct line of sight in the ordinance; thus we use the commonly understood, everyday definition of the word direct when interpreting the ordinance. Tex. Gov't Code Ann. § 311.011 (Vernon 1998). Black's Law Dictionary defines direct as "[i]mmediate; proximate; by the shortest course; without circuity; operating by an immediate connection or relation, instead of operating through a medium; the opposite of indirect." Black's Law Dictionary 315 (6th ed. 1990) (emphasis added). Webster's Dictionary defines direct as "a proceeding from one point to another in time or space without any deviation or interruption . . . marked by absence of an intervening agency, instrumentality, or influence. . ." Webster's New Collegiate Dictionary 571 (1981 ed.) (emphasis added).

Using the rules of construction, we presume the city council chose the words "direct line of sight" carefully and intended for them to have meaning and purpose. As provided in the ordinance, therefore, the use of video cameras within enclosed booths does not satisfy the direct line of sight requirement because it involves the use of a medium and intervening agency.

Appellant responds that such an interpretation of direct is unreasonable, as it would result in a person from the manager's station not being able to use eyeglasses, which are arguably a medium, to view the arcades. We must avoid interpretations that would produce...