Williams v. City of Fort Worth
| Decision Date | 30 November 1989 |
| Docket Number | No. 2-87-249-CV,2-87-249-CV |
| Citation | 782 S.W.2d 290 |
| Parties | R.B. WILLIAMS, City Vending Co., Inc. and R.B. Management Corporation, Appellants, v. The CITY OF FORT WORTH, Appellee. |
| Court | Texas Court of Appeals |
Price & Swander and Steven H. Swander, Fort Worth, for appellants.
Wade Adkins, City Atty., and Daniel M. Tartaglia, Asst. City Atty., Fort Worth, for appellee.
Before KELTNER, LATTIMORE and MEYERS, JJ.
The issue in this appeal from a declaratory judgment is whether the trial court erred in upholding the validity of a city zoning ordinance against attacks that it violated the constitutions of the United States and Texas and also violated state law.
R.B. Williams, and others, (Williams) owned and operated a nightclub named Sinbad's. They brought this suit seeking a declaratory judgment that city zoning Ordinance No. 9957, which regulates sexually oriented businesses, is unconstitutional. The trial court entered a judgment upholding the constitutionality of the ordinance and filed extensive findings of fact and conclusions of law.
We modify the judgment of the trial court and, as modified, affirm the judgment of the trial court.
The City of Fort Worth passed a detailed zoning ordinance in 1987 which regulates sexually oriented businesses. Generally, the ordinance restricts the operation of topless bars and nightclubs located within 1,000 feet of a church, school, residential property, public park, or another sexually oriented business. Such businesses are required to conform to a number of restrictions regulating dress and other aspects of the operation. Nightclubs which are more than 1,000 feet away from such property are not subject to the same regulation.
The ordinance defines nudity as:
(9) NUDITY or a STATE OF NUDITY means less than completely and opaquely covered:
c) Female breast or breasts below a point immediately above the top of the areola, ...
The ordinance also contains an amortization clause. Amortization is a technique often employed in zoning ordinances which allows the property owner to recover his investment in the structures already on the affected property.
The amortization provision in the Fort Worth ordinance allowed the owners of the sexually oriented businesses one year to recover their investment. However, if the owners could demonstrate that they were not able to recover their investment within this period, they were allowed to seek an extension of the amortization period.
The ordinance was a product of several city agencies. The Fort Worth City Council initially became concerned about the effects of sexually oriented businesses and directed a study of the situation. The City Council, together with the Zoning Commission, reviewed reports and studies prepared by the City Planning Department. That department's research revealed that sexually oriented businesses generally affect the surrounding area by (1) increasing the crime rate; (2) decreasing property values; and (3) accelerating neighborhood deterioration. As a result, the City Council passed Ordinance No. 9780 in December of 1986. Thereafter, in September, 1987, Ordinance No. 9780 was amended in part and superseded in part by 9957, which is the subject of this appeal.
When Ordinance No. 9957 became effective, Williams filed an application for a permanent injunction and a petition for declaratory judgment. The City then filed a cross-claim for declaratory judgment and injunctive relief. After a trial to the court, the court denied Williams relief; but granted declaratory judgment for the City.
The trial court filed extensive findings of fact and conclusions of law including the following:
FINDINGS OF FACT
1. Ordinance No. 9957 is a validly enacted zoning ordinance of the City of Fort Worth, Texas, designed to reduce the adverse secondary effects of certain sexually oriented businesses, as defined therein, by requiring that they be located more than one thousand (1,000) feet from churches, schools, public parks or residentially zoned property.
....
3. The Zoning Commission and the City Council of the City of Fort Worth, Texas, relied on studies, maps, reports and summaries thereof compiled by the Fort Worth Planning Department to support their conclusion that sexually oriented businesses have adverse secondary effects, such as a higher incidence of crime and the lowering of property values on businesses and residences within one thousand (1,000) feet of sexually oriented businesses.
....
8. Ordinance No. 9957 pertains to a substantial and important government interest.
....
10. The primary purpose of Ordinance No. 9957 is to prevent the adverse secondary effects of sexually oriented businesses.
....
15. There is available accessible real estate within the City of Fort Worth in which sexually oriented businesses may operate without undue or material deprivation of access by the public.
....
CONCLUSIONS OF LAW
....
3. The regulation of the location of sexually oriented businesses under Ordinance No. 9957 is an important and substantial governmental interest.
....
5. The adoption of Ordinance No. 9957 is unrelated to the suppression of free expression.
6. Any incidental restriction on First Amendment freedoms resulting from the adoption of Ordinance No. 9957 is no greater than is essential to the furtherance of the substantial governmental interests furthered by the ordinance.
7. Ordinance No. 9957 is a content neutral time, place and manner regulation designed to serve a substantial governmental interest and does not unreasonably limit alternate avenues of communication.
8. Ordinance No. 9957 has as its predominant purpose the prevention of adverse secondary effects of sexually oriented businesses, such as the reduction of crime and the protection of property values and the prevention of neighborhood blight.
....
11. The definition of "nudity" in Ordinance No. 9957 is not unconstitutionally overbroad.
....
15. The one-year amortization period provided by Ordinance No. 9957 is not unconstitutional.
16. The Texas Alcoholic Beverage Code does not preempt home rule municipalities from further regulating the location of sexually oriented businesses under their zoning authority.
....
18. Ordinance No. 9957 is a valid zoning ordinance of the City of Fort Worth which conforms to the Zoning Enabling Act.
19. Ordinance No. 9957 does not violate the rights of female topless dancers to equal protection under the law.
20. Amortization is a valid method of eliminating existing, nonconforming uses of land in Texas.
Williams challenges the ordinance on a number of constitutional grounds. In his first point of error, Williams contends that the definition of "nudity" is overbroad.
The United States Supreme Court has recognized the tension between the need for sufficiently narrow laws and the need for vast zoning powers of municipal government.
Despite the need for a comprehensive zoning framework, zoning ordinances must still pass constitutional muster. When a zoning ordinance is attacked for overbreadth, the Supreme Court has stated the ordinance must meet a two-part test. First, it must be narrowly tailored and second, it must further a substantial or important governmental interest. Schad v. Borough of Mount Ephraim, 452 U.S. 61, 68, 101 S.Ct. 2176, 2181, 68 L.Ed.2d 671, 680 (1981).
The United States Court of Appeals for the Fifth Circuit has recently been called upon to apply this test on two zoning ordinances that closely resemble the Fort Worth ordinance. See SDJ, Inc. v. City of Houston, 837 F.2d 1268 (5th Cir.1988); FW/PBS, Inc. v. City of Dallas, 837 F.2d 1298 (5th Cir.1988).
In interpreting an ordinance, the Fifth Circuit recognized that topless dancing is a form of expression protected by the first amendment; however, the court also noted that sexually oriented expression does not enjoy full first amendment protection.
In applying the overbreadth test to an ordinance regulating topless dancing, the court stated:
[N]arrow tailoring is less important when the potential for overbreadth burdens a category of speech subject to less than full first amendment protection; sexually-oriented expression falls into such a category.
It follows that the less protection afforded a form of expression, the broader a limitation can be without violating the first amendment.
The question before us is whether Ordinance No. 9957, with its definition of nudity, is narrowly tailored and furthers a substantial governmental interest.
The trial court entered extensive findings of fact and conclusions of law. In the findings and the conclusions, the trial court found and held that the ordinance fulfilled a substantial and important interest and was narrowly tailored. Further, the court concluded that any infringement upon first amendment rights was no more than was necessary to carry out the stated goals of the ordinance. Most importantly, the trial court noted that the ordinance did not attempt to ban topless dancing; rather, it only regulated topless dancing in certain areas of the city. The court also found that there were numerous places in the city where this sort of expression could be conducted without regulation.
The trial court's findings and holdings comport with the Fifth Circuit's analysis of the Dallas and Houston ordinances which are substantially similar to Ordinance No. 9957. SDJ, 837 F.2d 1268; FW/PBS, 837 F.2d 1298.
We agree with the trial court's rulings and hold that the trial court did not err in finding the definition of nudity was not overbroad. Therefore, we overrule Williams' first point of error.
In his second point of error, Williams contends that the trial court erred in declaring the ordinance valid because the ordinance attempts to use amortization as a technique to eliminate non-conforming uses of land. In the same point of error, Williams argues that...
To continue reading
Request your trial
-
State v. Lilley, 2017-0116
...584 P.2d at 921 ; City of Albuquerque v. Sachs, 135 N.M. 578, 92 P.3d 24, 27, 29 (N.M. Ct. App. 2004). Compare Williams v. City of Fort Worth, 782 S.W.2d 290, 296 (Tex. App. 1989) (recognizing that sex is a suspect class under Texas Constitution), with Schleuter, 947 S.W.2d at 925-26 (apply......
-
Hang On, Inc. v. City of Arlington
...determine whether the ordinance discriminates against one sex "simply on the basis of gender." Williams v. City of Fort Worth, 782 S.W.2d 290, 296 (Tex.App.--Fort Worth 1989, writ denied). In MJR's Fare of Dallas v. City of Dallas, 792 S.W.2d 569, 575 (Tex.App.--Dallas 1990, writ denied), t......
-
Free the Nipple—Fort Collins v. City of Fort Collins
...it is "a suspect cultural artifact rooted in centuries of prejudice and bias toward women"); see also Williams v. City of Fort Worth , 782 S.W.2d 290, 297 (Tex. App.–Fort Worth 1989) (noting "the concept that the breasts of female[s] ... unlike their male counterparts, are commonly associat......
-
Eller Media Co. v. City of Houston
...in inventory after business became nonconforming does not increase period of amortization); Williams v. City of Fort Worth, 782 S.W.2d 290, 294 (Tex.App.-Fort Worth 1989, writ denied) (recognizing amortization as a valid method of forcing property owners to comply with zoning restrictions);......
-
Does an Equal Rights Amendment make a difference?
...and gestational mothers to be two different persons. (64) 792 S.W.2d 569 (Tex. App. 1990). (65) 538 S.W.2d 201 (Tex. App. 1976). (66) 782 S.W.2d 290 (Tex. App. (67) Id. at 296. (68) Id. at 297. (69) 848 S.W.2d 380 (Tex. App. 1993). (70) 744 S.W.2d 217 (Tex. App. 1987). (71) 818 S.W.2d 466 (......