TBCH, Inc. v. City of Albuquerque

• Decision Date: 25 March 1994
• Docket Number: No. 14522,14522
• Parties: TBCH, INC., a New Mexico corporation, d/b/a T.D.'s Showclub, Petitioner-Appellant, v. CITY OF ALBUQUERQUE, Respondent-Appellee.
• Court: Court of Appeals of New Mexico

Page 30

874 P.2d 30

117 N.M. 569

TBCH, INC., a New Mexico corporation, d/b/a T.D.'s Showclub, Petitioner-Appellant, v. CITY OF ALBUQUERQUE, Respondent-Appellee.

No. 14522.

Court of Appeals of New Mexico.

March 25, 1994.

John E. Farrow, Fairfield, Farrow, Hunt, Reecer & Strotz, P.C., Albuquerque, for petitioner-appellant.

[117 N.M. 570] David S. Campbell, City Atty., and Laura J. Mason, Asst. City Atty., Albuquerque, for respondent-appellee.

OPINION

PICKARD, Judge.

TBCH, Inc. appeals from a district court order dismissing its appeal from a declaratory ruling adopted by the City of Albuquerque. The declaratory ruling purported to explain the meaning of "completely and opaquely covered" female breasts as that term is used in the City's Comprehensive City Zoning Code. Under the City's ruling, TBCH's property would not be in compliance with the Zoning Code and would consequently have to be relocated. TBCH raises the following issues on appeal: (1) that it is in compliance with the plain and unambiguous language of the Zoning Code, (2) that the City's interpretation of "completely and opaquely covered" is unconstitutionally vague, (3) that the City's interpretation of "completely and opaquely covered" is arbitrary and capricious, and (4) that the Zoning Code discriminates against women in violation of the New Mexico Equal Rights Amendment. We hold that TBCH complied with the Zoning Code as written, and we reverse the trial court's order of dismissal. Because this issue is dispositive of the appeal, we do not reach TBCH's other issues.

BACKGROUND

The Zoning Code contains provisions that address the zoning of what are referred to as adult entertainment establishments. See Albuquerque, N.M., Rev.Ordinances ch. 7, art. XIV, Secs. 5(B)(1); 5(B)(114); 22(B)(1); 40(D)(1)(a)(1)(b) (1993). Adult entertainment establishments are conditional uses under the Zoning Code, and as such they must meet certain locational requirements. See id. Sec. 22(B)(1)(a) & (b). The Zoning Code has three definitions of an adult entertainment establishment, only one of which is argued by the parties as being relevant to this case. That particular definition defines an adult entertainment establishment as "[a]n establishment which provides amusement or entertainment which is distinguished or characterized by an emphasis on material depicting, describing, or relating to ... specified anatomical areas." Id. Sec. 5(B)(1)(a). The Zoning Code defines "specified anatomical areas" as, among other things:

Less than completely and opaquely covered:

....

(3) Female breast below a point immediately above the top of the areola to and including the bottom of the breast; covering of only the nipple and areola of the breast does not constitute such covering....

Id. Sec. 5(B)(114)(a).

TBCH's property is a nightclub that features female dancers. The practice of TBCH is to have its dancers apply heavy flesh-colored theatrical makeup to their breasts and areolae and to affix flesh-colored plastic circles to their nipples. In July 1991, the city zoning manager notified TBCH that it was classified as an adult entertainment establishment because its dancers' breasts were not "completely and opaquely covered." The zoning manager ordered TBCH to comply with the Zoning Code or to vacate its property and relocate to a zone that allows adult entertainment establishments.

In response to a request by TBCH as to whether its makeup practices satisfied the "clearly and opaquely covered" language of the Zoning Code, in September 1991 the zoning manager issued a declaratory ruling, stating that the wording of the ordinance "clearly eliminates the use of 'pasties' or nipple covers of any type. Only some sort of clothing which would cover the entire lower breast is acceptable." TBCH first appealed the zoning manager's ruling to the City's Environmental Planning Commission. See NMSA 1978, Sec. 3-21-8 (Repl.1985). A hearing was held in October 1991, the Commission agreed with the zoning manager, and the declaratory ruling was adopted as official policy.

Next, TBCH appealed the Commission's decision to the City Council. In January 1992, the City Council denied the appeal, and found that "[t]he Council's legislative intent in adopting the language 'completely and opaquely covered' as applied to the female breast is to conceal. Body makeup can be opaque but it does not 'completely cover' the breast if the appearance of the breast is apparent to the viewer."

TBCH then appealed the City Council's decision to the district court by writ of certiorari. See NMSA 1978, Sec. 3-21-9 (Repl.1985). The district court found against TBCH, dismissed the appeal with prejudice, and quashed the writ. Finally, TBCH appeals the district court's order to this Court.

THE MEANING OF "COVERED" AS USED IN THE ALBUQUERQUE ZONING CODE

Both parties agree that TBCH will be in compliance with the Zoning Code and will not have to relocate its business if TBCH's makeup procedures constitute a complete and opaque covering of the dancers' breasts. At the October 1991 hearing before the Environmental Planning Commission, TBCH presented evidence, and the City did not dispute, that the makeup it used for its dancers was in fact opaque. Similarly, TBCH presented unrebutted evidence that the makeup was used on the complete area of the breast specified by the Zoning Code. The meaning of the word "covered," however, was disputed. While TBCH argued that female breasts may be "covered" by makeup, the declaratory ruling adopted by the City maintained that "[o]nly some sort of clothing which would cover the entire breast" would satisfy the Zoning Code. Further, the City Commission found that "[c]overing the female breast with body makeup does not serve to further the intent of the Zoning Code." Thus, this case turns on the meaning of "covered" as that term is used in the Zoning Code.

"Legislative intent is determined primarily by the language of the act and statutory construction is proper only in the case of ambiguity." State ex rel. Mountain States Mut. Casualty Co. v. KNC, Inc., 106 N.M. 140, 141, 740 P.2d 690, 691 (1987); see also State ex rel. Helman v. Gallegos, 117 N.M. 346, 352, 871 P.2d 1352, 1358 (N.M.1994). Both parties contend that the language at issue is unambiguous. We agree. Webster's defines "cover" variously as "to put, lay, or spread something over, on, or before," "to lie over: spread over: be placed on or often over whole surface of," and "to put a surface layer over usu[ally] completely." Webster's Third New International Dictionary 524 (Philip B. Gove ed., 1961). We believe that such definitions support TBCH's interpretation of the ordinance. Further, we are aware that "cover" is also defined as "to protect or conceal (one's body or a part of it) from view typically with an article of clothing or bedding." Id. (emphasis added). By its very use of the word "typically," however, this definition does not mean, as the City's declaratory ruling asserts, that only some sort of clothing can act as a cover. Nor is this a case, such as Helman in which a seemingly unambiguous statute is made ambiguous by another, contradictory statute. See Helman, 117 N.M. at 354, 871 P.2d at 1360. We hold, therefore, that the theatrical makeup, which was spread completely over the required surfaces of the dancers' breasts, and the plastic circles, which were placed on the dancers' nipples, satisfied the plain and unambiguous language of the ordinance.

The City argues that allowing makeup to "cover" a breast, even though such a practice could give the appearance of the actual breast, is absurd and contrary to the intent behind the ordinance. See State v. Nance, 77 N.M. 39, 46, 419 P.2d 242, 247 (1966) (court will not be bound by a literal interpretation of the words of a statute if such strict interpretation would defeat the intended object of the legislature or be absurd), cert. denied, 386 U.S. 1039, 87 S.Ct. 1495, 18 L.Ed.2d 605 (1967); see also Helman, 117 N.M. at 352-353, 871 P.2d at 1358-59. However, we do not believe that requiring a complete and opaque covering that might simulate the specified anatomical area is necessarily absurd or contrary to the legislative intent. In this connection, we note that the City has no quarrel with the use of skin-tight spandex tights as a form of "cover" for the dancers' buttocks, another specified anatomical area. Therefore, the City itself condones a method of "covering" which, like TBCH's method, could show the outline of the specified area and give the appearance of that area. All that the law requires is an opaque covering. Heavy theatrical makeup is such a covering. While the viewing public may not readily distinguish between so covered areas and uncovered areas, the areas are distinguishable upon close inspection. We cannot say, as a matter of law, that it is absurd to insist on a distinction that is apparent only on close inspection but not apparent at a distance.

Further, if the City Council actually intended that a breast is not "covered" if "the appearance of the breast is apparent to the viewer," it could easily have made that intent more clear. See, e.g., Louisville, Ky., Ordinances Sec. 111.053(A), reprinted in City of Louisville v. Commonwealth of Kentucky, Nos. 92-CA-1529-S, 92-CA-1712-S, 92-CA-1761-S, 1993 WL 166937, at 3 (Ky.Ct.App. May 21, 1993) (not for publication) (under zoning ordinance, person shall not expose to public view a bare female breast "or employ any device or covering intended to give the appearance of or simulate" a female breast). Consequently, we do not believe that our interpretation is absurd or that it defeats the intent of the ordinance.

As the language of the ordinance is unambiguous, and as our interpretation does not produce an absurd result, there is no need for us to construe the ordinance. See KNC, Inc., 106 N.M. at 141, 740 P.2d at 691. However, even if we believed this ordinance to be ambiguous so as to require us to...