Schleuter v. City of Fort Worth, 2-96-028-CV

• Decision Date: 29 May 1997
• Docket Number: No. 2-96-028-CV,2-96-028-CV
• Citation: 947 S.W.2d 920
• Parties: John Michael SCHLEUTER, Individually and as Owner/Operator of "Fantasy Sports, Inc.", Fantasy Sports, Inc., and Staci Jones, Appellants, v. CITY OF FORT WORTH, Appellee.
• Court: Texas Court of Appeals

Page 920

947 S.W.2d 920

John Michael SCHLEUTER, Individually and as Owner/Operator of "Fantasy Sports, Inc.", Fantasy Sports, Inc. and Staci Jones, Appellants, v. CITY OF FORT WORTH, Appellee.

No. 2-96-028-CV.

Court of Appeals of Texas Fort Worth.

May 29, 1997.

Rehearing Overruled July 31, 1997.

Peter H. Fulton, Robert L. Russell Bush, Bush, Fulton, Hurlbut & Morrison, P.C., Arlington, for Appellants.

Theodore P. Gorski, Marcella Olson, Assistant City Attorneys, Fort Worth, for Appellee.

Before the Court en banc.

OPINION

RICHARDS, Justice.

The trial court ¹ issued a permanent injunction to prevent Appellants John Michael Schleuter, Fantasy Sports, Inc., and Staci Jones ("Fantasy Sports") from operating a "sports bar" that featured female dancers dressed in "T-back" bottoms and latex pasties. The trial court found that operation of the "sports bar" violated a Fort Worth zoning ordinance forbidding sexually oriented businesses from featuring female dancers with their breasts uncovered within 1,000 feet of a residential neighborhood.

The issue in this appeal from the permanent injunction is whether the trial court erred in upholding the applicable provisions of the Comprehensive Zoning Ordinance (CZO) against claims that the definition of nudity in the ordinance violates the Texas Equal Rights Amendment (TERA). Additionally, Fantasy Sports claims that the CZO restrictions violate the First Amendment, the CZO is unconstitutionally vague, the trial court erred in allowing the City to present evidence in the form of affidavits, the City failed to show imminent harm or that it had no adequate remedy at law, the CZO is arbitrary and unreasonable, and the injunction does not comply with procedural rule requirements. The City brings one cross-point alleging that the trial court abused its discretion in allowing Fantasy Sports to amend its petition to include a TERA count.

We uphold the permanent injunction.

I. FACTS

In an attempt to mitigate the negative secondary effects of sexually oriented businesses, the City of Fort Worth added sections 18A, 18B, and 18C to Ordinance 3011 of the City Code, the "Comprehensive Zoning Ordinance." A person violates the CZO if he or she operates a "sexually oriented business" within 1000 feet of residentially zoned property. FORT WORTH, TEX., CITY CODE app. A, Ord. 3011 § 18A(B)(2)(d). "Sexually oriented business" is defined as any commercial venture whose operations include the "providing, featuring or offering of employees or entertainment personnel who appear on the premises while in a state of nudity or simulated nudity." Id. § 18A(G)(1)(a). "Nudity or state of nudity" is defined as:

appearing while any of the following portions of the human body are less than completely and opaquely covered:

(a) Genitals, whether or not in a state of sexual arousal; or

(b) Pubic region or pubic hair; or

(c) Buttock(s); or (d) The portions of the female breast(s) beginning from a point immediately above the top of the areola and continuing downward to the lowest portion of the breast(s); or

(e) any combination of the above.

Id. § 18A(G)(19). "Simulated nudity" is defined as "a state of dress in which any artificial device or covering is worn on a person and exposed to view so as to simulate an actual 'state of nudity.' " Id. § 18A(G)(30).

Section 18B applies only to "Adult Entertainment Cabarets," but places no substantive regulations relevant to this case other than those under section 18A. See id. § 18B. Section 18C requires that all proprietors obtain a "Specialized Certificate of Occupancy" (SCO) before operating or continuing the operation of a "sexually oriented business." Id. § 18C(A)(1).

On May 11, 1995, Sports Fantasy opened for business at 1541 Merrimac Circle in Fort Worth. Sports Fantasy is a "sports bar" owned and operated by Fantasy Sports, Inc. John Michael Schleuter is the president and majority stockholder in Fantasy Sports, Inc. Schleuter described Sports Fantasy as an "upscale sports bar ... catered to gentlemen clientele." Sports Fantasy featured entertainment in the form of "stage dancing" by "female entertainers." While dancing, the female entertainers would strip their clothing off to the point where they would only be wearing "T-back" bottoms ² and latex pasties covering only the areola of their breasts. Although he was aware of the zoning ordinances regarding "sexually oriented businesses," Schleuter did not apply for a Specialized Certificate of Occupancy under section 18C because he did not believe Sports Fantasy was a "sexually oriented business." Sports Fantasy was located within 1,000 feet of residentially zoned property. ³

After Schleuter opened Sports Fantasy, the City filed a petition for a temporary restraining order and a permanent injunction to prohibit the operation of Sports Fantasy. The trial court granted the temporary restraining order against the operation of Sports Fantasy. Fantasy Sports answered the petition and counterclaimed for declaratory relief. As of its last live pleading, Fantasy Sports contended that sections 18A, 18B, and 18C were unconstitutionally vague and violated the First Amendment, TERA, and the Equal Protection Clause of the United States Constitution.

After a bench trial, the trial court entered judgment in favor of the City and a permanent injunction against Fantasy Sports. Fantasy Sports timely perfected an appeal of the trial court's judgment and permanent injunction to this court.

II. TEXAS EQUAL RIGHTS AMENDMENT

In its fourth point of error, Fantasy Sports claims that the definition of "nudity" in section 18A requires us to hold that the ordinance violates the Equal Rights Amendment of the Texas Constitution. ⁴ TEX. CONST. art. I, § 3a. Specifically, Fantasy Sports argues that the inclusion of "the portions of the female breast(s)" in the definition, without inclusion of a similar provision regulating male breasts, unconstitutionally discriminates against women. See CITY CODE § 18(G)(19)(d) (emphasis added).

A. The Trial Amendment

The record indicates that in a written motion after the bench trial on the merits, Fantasy Sports requested that the trial court allow it to amend its petition to include the TERA claim. The trial court granted Fantasy Sports's request. Thereafter, Fantasy Sports filed a written supplemental answer and counterclaim including a TERA count. In its cross-point, the City argues that the trial court abused its discretion in allowing Fantasy Sports to amend their counterclaim after trial. Therefore, the City contends, the TERA claim is not properly presented in this appeal.

We will only reverse the decision of a trial court to allow a trial amendment if there was a clear abuse of discretion. Hardin v. Hardin, 597 S.W.2d 347, 349-50 (Tex.1980). To determine whether a trial court abused its discretion, we must decide "whether the trial court acted without reference to any guiding rules or principles; in other words, whether the act was arbitrary or unreasonable." Worford v. Stamper, 801 S.W.2d 108, 109 (Tex.1990). Merely because a trial judge may decide a matter within its discretion in a different manner than an appellate court in a similar circumstance does not demonstrate that an abuse of discretion occurred. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex.1985), cert. denied, 476 U.S. 1159, 106 S.Ct. 2279, 90 L.Ed.2d 721 (1986).

Based on the record before us, we cannot say that the trial court's decision was arbitrary or unreasonable. Accordingly, we will address Fantasy Sports's TERA claim. The City's cross-point is overruled.

B. ANALYSIS

In Williams v. City of Fort Worth, 782 S.W.2d 290, 296 (Tex.App.--Fort Worth 1989, writ denied), this court held that the prior ordinance's definition of "state of nudity," which, as in the ordinance challenged in the instant case, included "female breasts" but not "male breasts," violated TERA as a matter of law. Id. at 297. This court has since reaffirmed the Williams decision in dicta. Maloy v. City of Lewisville, 848 S.W.2d 380, 384 (Tex.App.--Fort Worth 1993, no writ) (facially discriminatory definition of nudity would be unconstitutional under TERA if not for procedural default).

The court in Williams determined that "the ordinance discriminates against women on its face in its definition of nudity." ⁵ Williams, 782 S.W.2d at 298. Thus, the court held that the ordinance discriminates solely on the basis of gender. Id. at 297. After ruling on the first prong of the analysis by holding that the ordinance discriminated against female based solely on gender, the Williams court held that the City had not proved that the ordinance was the only means of achieving a compelling state interest. Id. at 297-98.

We are not unmindful of our general reliance on precedence as a guide for resolution of future issues; however, after careful reconsideration of the question of whether a city may make distinctions between men's and women's breasts in drafting ordinances to regulate sexually oriented businesses, we disapprove of this court's prior decisions in Williams and Maloy to the extent they hold that the Texas Equal Rights Amendment was intended to apply to an ordinance prohibiting female topless dancing in residential neighborhoods.

We are not persuaded that a constitutional provision enacted to insure equality under the law to all Texans, regardless of gender, race, creed, or national origin, should be utilized to strike down an ordinance limiting the locations where female topless dancing is permitted. We emphasize that under the present ordinance, Fantasy Sports may open a "sports bar" where Staci Jones and other women may dance topless so long as the bar is not within 1,000 feet of a school, church, public park, or residential property. But, we do not believe that justice or equality is served by application of TERA to this situation. ⁶ The Fifth Circuit addressed this very issue in a case where a topless bar challenged a ...