Three Expo Events, L.L.C. v. City of Dall., Civil Action No. 3:16-CV-0513-D

• Court: United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Northern District of Texas
• Citation: 182 F.Supp.3d 614
• Docket Number: Civil Action No. 3:16-CV-0513-D
• Parties: Three Expo Events, L.L.C., Plaintiff, v. City of Dallas, Texas, Defendant.
• Decision Date: 21 April 2016

182 F.Supp.3d 614

Three Expo Events, L.L.C., Plaintiff,
v.
City of Dallas, Texas, Defendant.

Civil Action No. 3:16-CV-0513-D

United States District Court, N.D. Texas, Dallas Division.

Signed April 21, 2016

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Roger Albright, Law Office of Roger Albright, Dallas, TX, J. Michael Murray, Berkman Gordon Murray & Devan, Cleveland, OH, for Plaintiff.

Thomas P. Brandt, Francisco J. Valenzuela, Laura Dahl O'Leary, Fanning Harper Martinson Brandt & Kutchin PC, Dallas, TX, Scott D. Bergthold, Law Office of Scott D. Bergthold, PLLC, Chattanooga, TN, for Defendant.

Robert C. Walters, James C. Ho, Rebekah Perry Ricketts, William T. Thompson, Gibson, Dunn & Crutcher LLP for Amici Curiae Dallas Citizens Council.

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Ken Paxton, Jeffrey C. Mateer, Scott A. Keller, Prerak Shah, for Amicus Curiae State of Texas.

MEMORANDUM OPINION AND ORDER

SIDNEY A. FITZWATER, UNITED STATES DISTRICT JUDGE

Plaintiff Three Expo Events, L.L.C. ("Three Expo")—a promoter of adult-content conventions—moves for a preliminary injunction compelling defendant City of Dallas, Texas (the "City" or "City of Dallas")¹ to contract with Three Expo a second time for use of the City's Kay Bailey Hutchison Convention Center ("Convention Center") to hold a three-day adult entertainment expo called "Exxxotica." Concluding that Three Expo has at most shown that the Convention Center is a limited public forum, and that the City has established that its decision to decline to contract with Three Expo a second time was both reasonable and viewpoint neutral, the court denies the motion.²

I

Three Expo is an event promoter that, along with its affiliates, has for the past decade staged conventions "with erotic, but non-obscene messages" throughout the country. Compl. ¶ 1. The City of Dallas is the owner and operator of the Convention Center. Since 1957, the Convention Center has offered space to a variety of exhibitions, trade shows, and other events.

In 2014 Three Expo, through its director, Jeffrey Handy ("Handy"), contacted City officials about staging an exposition at the Convention Center in calendar year 2015. According to Three Expo, the exposition, called "Exxxotica," was "a positive celebration and educational event for adults—only adults—who were curious about and interested in sex," and was to consist of seminars and booths, contests, product displays, and celebrity appearances to inform, educate, and entertain the attendees. P. Br. 1.

Three Expo alleges that, in preparation for Exxxotica, it fully disclosed to City officials the nature of the event. It represented in its promotional literature that Exxxotica would be "a gathering place of all things exotic, erotic, sensual and sexy." D. App. 55. Three Expo also stated that "[Exxxotica] is not a 'pornographic' event. There is no live nudity or lewd acts, but rather an upscale gathering of products and services catering to the adult lifestyle." Id. According to the City, Handy specifically represented that Exxxotica always abides by its "Operating Requirements," which state, inter alia , that all patrons and personnel at Exxxotica are prohibited from "[t]he display of less than completely and opaquely covered genitals, pubic region, anus or female breasts below

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a point immediately above the top of the areolas"; that sexual activities, including "the fondling or other erotic touching of genitals, pubic region, buttocks, anus or female breasts" are prohibited; that no adult or obscene materials will be visible from any public right of way; and that no one under 18 years of age will be admitted. Id. at 58.

In January 2015 the City and Handy, on behalf of "Exotica Texas, LLC,"³ executed a contract for the three-day Exxxotica event to take place at the Convention Center in August 2015. During a July 29, 2015 meeting with City representatives, the Dallas Police Department ("DPD"), and the Convention Center, Handy agreed that "no one under eighteen (18) would be allowed into the expo, sexual activities would be prohibited and no Penal Code offenses such as obscenity, public lewdness, etc. would be permitted." Compl. ¶ 7.

The 2015 Exxxotica expo took place as scheduled. Three Expo maintains that the event was a "success." P. Br. 2. It contends that ten to fifteen thousand adults attended; that the City of Dallas and area businesses gained revenue from the event; that undercover police officers who attended the expo did not observe any criminal activity, including violations of Texas obscenity laws; and that the Chief of the DPD confirmed that there had been no increase in crime in the Convention Center area during the three-day event.⁴

The City offers a different view of what occurred at the 2015 Exxxotica expo. According to the City, Three Expo violated many of the terms of its Operating Requirements, despite Handy's representation that he would monitor compliance with its terms and supervise the show and exhibitor conduct at all times. For example, the City has introduced evidence that many of the women at Exxxotica wore only pasties or tape covering their nipples and areolas and otherwise exposed their breasts; that sexual activities, including "the fondling or other erotic touching of genitals, pubic region, buttocks, anus or female breasts," D. Br. 5, took place at Exxxotica and were observed and recorded; that Three Expo did not arrange for drapes or screens to be positioned so as to block the view of the exhibit space from the lobby, and that, when entrance and exit doors were open to permit passage, persons in the Convention Center lobby could observe adult material; that identification was not uniformly checked, and attendees of Exxxotica saw a young woman in the exhibit space who did not appear to be age 18; and that Three Expo failed to post signs at the entrance doors prohibiting unlawful conduct, as it had promised. The City also contends that Three Expo violated state law by permitting lewd acts, assault, and human trafficking to occur at Exxxotica, and violated various provisions of the City of Dallas's sexually oriented business ordinance, Dallas, Tex., City Code § 41A (2015) ( the "SOB Ordinance" or "Chapter 41A").

Subsequent to the 2015 Exxxotica expo, Handy advised the Convention Center that he wanted to schedule a similar convention for 2016. Convention Center staff provided Handy several tentative dates for 2016, Handy indicated that his preferred dates were May 20-22, 2016, and he asked to be penciled in for those dates. On January 19, 2016 the Convention Center advised Three Expo that it was still working on getting a

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contract together for the Exxxotica event to be held in May.

In early February 2016, Dallas Mayor Mike Rawlings ("Mayor Rawlings") advised the Dallas City Council ("City Council") that he did not want Exxxotica to return to Dallas in 2016. Despite the fact that the City Attorney had concluded that the First Amendment prohibited the City from banning Exxxotica and that Chapter 41A did not apply to Three Expo's temporary event at the Convention Center, Mayor Rawlings asked the City Attorney's Office to draft a resolution directing the City Manager not to enter into a contract with Three Expo for lease of the Convention Center. On February 10, 2016, by a vote of eight to seven, the City Council passed Resolution No. 160308 ("Resolution"), which provides:

WHEREAS, Three Expo Events, LLC requests to contract with the City to hold a three-day adult entertainment expo at the Dallas Convention Center; Now, Therefore,

BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF DALLAS:

Section 1. That the City Council directs the City Manager to not enter into a contract with Three Expo Events, LLC, for the lease of the Dallas Convention Center.

Section 2. That this resolution shall take effect immediately from and after its passage in accordance with the provisions of the Charter of the City of Dallas, and it is accordingly so resolved.

Compl. Ex. 1 (bold font omitted). Three Expo alleges that the City Council passed the resolution because its members disliked Exxxotica's subject matter.

On February 24, 2016 Three Expo brought this lawsuit against the City of Dallas and various City officials in their official capacities. It asserts claims under 42 U.S.C. § 1983, alleging, inter alia , that the City's denial of the use of municipal facilities for the Exxxotica convention based solely on the personal opinions or beliefs of a slim majority of the City Council as to the subject matter or content of the production violates Three Expo's First and Fourteenth Amendment rights. In addition to damages and declaratory relief, it seeks an injunction enjoining the City of Dallas from enforcing the Resolution and ordering the City to honor its commitment to enter into a contract with Three Expo so that it can hold its exposition on May 20-22, 2016 at the Convention Center.⁵

On March 4, 2016 Three Expo filed the instant motion for a preliminary injunction, which the City of Dallas opposes. Three Expo asks the court to enjoin the City from interfering with the 2016 Exxxotica expo that Three Expo seeks to hold at the Convention Center, and ordering that the City enter into a contract with...