IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 94-10959
HANG ON, INC., d/b/a Hardbody's
of Arlington,
Plaintiff-Appellant,
versus
CITY OF ARLINGTON,
Defendant-Appellee.
Appeals from the United States District Court
for the Northern District of Texas
( September 20, 1995 )
Before REYNALDO G. GARZA, KING, AND HIGGINBOTHAM, Circuit Judges.
HIGGINBOTHAM, Circuit Judge:
Hang On, Inc. appeals from the judgment of the United States
District Court dismissing Hang On's federal constitutional, state
constitutional, and state law challenges to the City of Arlington's
Adult Entertainment Ordinance No. 92-117.
I.
After amassing studies describing noxious secondary effects of
adult entertainment establishments, the Arlington city council
passed Ordinance No. 92-117 on November 17, 1992. The Ordinance's
stated purpose was "to regulate Adult Entertainment Establishments
to promote the health, safety, morals and general welfare of the
citizens of the City." The Ordinance expressly disclaimed intent
to "restrict or deny access by adults to sexually oriented
materials protected by the First Amendment or to deny access by the
distributors and exhibitors of sexually oriented entertainment to
their intended market."
The Ordinance created a comprehensive regulatory scheme for
adult entertainment establishments in the City of Arlington. Among
its provisions, the Ordinance provided:
Section 5.01 Additional Regulations for Adult Cabaret
A. An employee of an adult cabaret, while appearing in
a state of nudity, commits an offense if he touches
a customer or the clothing of a customer.
B. A customer at an adult cabaret commits an offense
if he touches an employee appearing in a state of
nudity or clothing of the employee.
The Ordinance defined a "state of nudity" as a state of dress that
fails to opaquely cover a human buttock, anus, male genitals,
female genitals, or female breast.
On December 17, 1993, Hang On, which operates a topless bar in
Arlington, filed suit against Arlington in Texas state court
pursuant to 42 U.S.C. § 1983, alleging that the Ordinance violates
the First, Fourth, and Fourteenth Amendments to the United States
Constitution. In particular, Hang On charged that the Ordinance's
"no touch" provision is unconstitutionally overbroad because it
criminalizes casual or inadvertent touching and unconstitutionally
vague because it does not define "touches". In addition, Hang On
argued that Arlington's enforcement of the Ordinance had been
conducted in a harassing and discriminatory manner. Finally, Hang
On alleged that the Ordinance's exclusion of male breasts from the
2
definition of nudity violates the Equal Rights Amendment of the
Texas Constitution, Tex. Const. art. I, § 3A, and that the
Ordinance violates the Texas Alcoholic Beverage Code by
discriminating against business with alcoholic beverage licenses.
Tex. Alco. Bev. Code Ann. § 109.57.
Arlington removed the case to the United States District Court
for the Northern District of Texas. On September 21, 1994, the
district court granted summary judgment for Arlington on all of
Hang On's claims and awarded costs and attorney's fees to
Arlington. Hang On has timely appealed, and we now affirm the
judgment of the district court.
II.
We first examine whether Hang On has standing to bring these
claims. "The federal courts are under an independent obligation to
examine their own jurisdiction, and standing 'is perhaps the most
important of [the jurisdictional] doctrines." United States v.
Hays, 115 S.Ct. 2431, 2435, 132 L.Ed.2d 635 (1995) (quoting FW/PBS,
Inc. v. City of Dallas, 493 U.S. 215, 231, 110 S.Ct. 596, 607, 107
L.Ed.2d 603 (1990) (citations omitted)).
A party seeking to enlist the court's jurisdiction "must
assert his own legal rights and interests, and cannot rest his
claim to relief on the legal rights or interests of third parties."
Warth v. Seldin, 422 U.S. 490, 499, 95 S.Ct. 2197, 45 L.Ed.2d 343
(1975). Hang On asserts that the intrusive searches by the
Arlington police have violated its own right to be free from
unreasonable searches. Similarly, Hang On asserts its own rights
3
when it claims that Arlington's ordinance violates the Texas
Alcoholic Beverage Code. Its standing to assert these two claims
is plain.
Hang On's claim that the "no touch" provision violates the
First Amendment implicates the general requirement that a litigant
assert its own rights. Hang On does not claim any denial of its
own First Amendment rights. The specific prohibition of the
ordinance at issue in this case is part of a general regulation of
adult cabarets, including Hang On, but the "no touch" provision
regulates dancers and customers, not the bar itself.
Assuming that the case or controversy requirements of Article
III are met, the Constitution does not universally forbid a party
from asserting the rights of others. Rather, the general rule
prohibiting such surrogate claims is prudential. Whitmore v.
Arkansas, 495 U.S. 149, 161 n.2, 110 S.Ct. 1717, 109 L.Ed.2d 135
(1990). Accordingly, we examine exceptions to this general rule.
One exception allows a litigant to assert the rights of individuals
with whom she has a close relationship. See Pierce v. Society of
the Sisters, 268 U.S. 510, 535, 45 S.Ct. 571, 69 L.Ed. 1070 (1925)
(holding that organization's interest in preserving its own
business permitted it to assert rights of patrons). The history of
this exception is checkered. Compare McGowan v. Maryland, 366 U.S.
420, 429-30, 81 S.Ct. 1101, 6 L.Ed.2d 393 (1961) with Craig v.
Boren, 429 U.S. 190, 97 S.Ct. 451, 50 L.Ed.2d 397 (1976) and
Secretary of State of Md. v. Joseph H. Munson Co., Inc., 467 U.S.
947, 954-58, 104 S.Ct. 2839, 81 L.Ed.2d 786 (1984). Ordinarily, a
4
business like Hang On may properly assert its employees' or
customers' First Amendment rights where the violation of those
rights adversely affects the financial interests or patronage of
the business. That Hang On's employees and customers could
encounter practical difficulties in asserting their own rights may
place this case within a distinct exception; at minimum, this fact
reinforces the close relationship prerequisite to surrogate
standing here. See Spiegel v. City of Houston, 636 F.2d 997, 1001
(5th Cir. Unit A Feb. 1981); Gajon Bar & Grill, Inc. v. Kelly, 508
F.2d 1317, 1322 (2d Cir. 1974) (upholding standing of corporation
to assert First Amendment rights of its employees and patrons);
Black Jack Distributors, Inc. v. Beame, 433 F.Supp. 1297, 1303
(S.D.N.Y. 1977) (upholding vendor's standing to assert First
Amendment right of patrons' to purchase sexually explicit
material). We are persuaded that this exception is applicable and
that Hang On has standing to challenge the "no touch" provision as
violative of the First Amendment rights of its employees and
customers.
We are also persuaded that Hang On may assert its employees'
rights under the Texas Equal Rights Amendment. Tex. Const. art. I,
§ 3A. We are cognizant of our holding in MD II Entertainment, Inc.
v. City of Dallas, Tex., 28 F.3d 492, 497 (5th Cir. 1994), that a
dance hall did not have standing to raise its employees' rights
under the Texas Equal Rights Amendment to challenge a municipal
ordinance that excluded male breasts from its definition of "semi-
nudity" and "simulated nudity". In MD II, we distinguished SDJ,
5
Inc. v. City of Houston, 837 F.2d 1268 (5th Cir.), reh'g denied,
841 F.2d 107 (5th Cir. 1988), cert. denied, 489 U.S. 1052, 109
S.Ct. 1310, 103 L.Ed.2d 579 (1989), on the ground that SDJ did not
purport to hold that club owners "must be allowed to raise their
dancer's rights." MD II, 28 F.3d at 498 (emphasis added).
Prudential considerations such as the failure of MD II to explain
the absence of its dancers from the litigation led us in MD II to
conclude that "[g]ranting standing to MD II may, however, result in
the unnecessary litigation of a question those parties most
immediately affected may not dispute." Id. at 497.
Here, unlike in MD II, there is no suggestion that Hang On's
dancers do not wish this litigation to go forward, and there is no
indication that Hang On's interest in this litigation diverges from
that of its dancers. See 13 Wright, Miller & Cooper, Federal
Practice and Procedure: Jurisdiction 2d § 3531.9, at 579 (arguing
that employers may assert rights of their employees where there is
"a congruence rather than conflict of interests"); see also Craig
v. Boren, 429 U.S. at 195 (noting "vendors and those in like
positions have been uniformly permitted to resist efforts at
restricting their operations by acting as advocates of the rights
of third parties who seek access to their market or function").
Significantly, Arlington cannot dispute that its ordinance has a
direct financial impact on Hang On, as well as Hang On's employees.
Injury is essential to meeting the threshold case or controversy
requirement of Article III, and injury of this type is usually a
6
component of a relationship sufficiently "close" to meet prudential
standing requirements.
By contrast, the causal link between the injury to the club
owners in MD II and the Dallas ordinance's exclusion of male
breasts from its definition of semi-nudity was attenuated at best.
It was difficult to see any injury to MD II from the underinclusive
character of the challenged regulations. The asserted defect was
a failure to regulate the exposure of male breasts. We are
persuaded that Hang On has standing to assert its dancers' First
Amendment and state constitutional rights.
There is much to be said for shifting the analysis from
judicial justifications for asserting the rights of others to a
direct inquiry into the rights of the plaintiffs in those
relationships, but we do not reach those questions today. See
Henry P. Monaghan, "Third Party Standing," 84 Colum. L. Rev. 277,
299 (1984).
III.
Hang On urges that summary judgment was inappropriate because
facial constitutional challenges "require a review of the
application of a statute to the conduct of the party before the
court" and this review "is a fact question for the trier of fact to
evaluate at time of trial." We disagree.
We note that claims that an ordinance is facially invalid are
better candidates for summary disposition than claims that an
ordinance was unconstitutionally applied. Claims of facial
invalidity do not depend upon the development of a "complex and
7
voluminous" factual record. Keystone Bituminous Coal Ass'n v.
DeBenedictis, 480 U.S. 470, 493, 107 S.Ct. 1232, 94 L.Ed.2d 472
(1987). The essence of a facial challenge usually is that the
statute on its face -- without regard to how it affects the
particular litigants -- violates the law. See, e.g., Johnson v.
American Credit Co. of Georgia, 581 F.2d 526, 533 (5th Cir. 1978).
Likewise, Hang On's argument that further discovery and trial
are necessary to permit it to develop its claims of facial
invalidity misses the mark. Claims of statutory overbreadth like
that alleged by Hang On do not present fact disputes regarding the
effects of an allegedly overbroad statute on a plaintiff. See
Village of Schaumburg v. Citizens for a Better Environment, 444
U.S. 620, 634, 100 S.Ct. 826, 63 L.Ed.2d 73 (1980) (affirming
summary judgment on overbreadth challenge while noting that such a
challenge was "a question of law that involved no dispute about the
characteristics of [the plaintiff]"). Hang On does not tell us how
further time and proceedings are necessary to the adjudication of
its facial challenges.
A.
Hang On argues that the "no touch" provision is
unconstitutionally overbroad in violation of the First Amendment.
Barnes v. Glen Theatre, Inc., 501 U.S. 560, 111 S.Ct. 2456, 2460,
115 L.Ed.2d 504 (1991), held that nude dancing itself "is
expressive conduct within the outer perimeters of the First
Amendment." It does not inevitably follow, however, that touching
between a nude performer and a customer is protected expression.
8
We recognize that the theater of expressive dancing may be
limited only by the art and creativity of the performers. "It is
possible to find some kernel of expression in almost every activity
a person undertakes . . . but such a kernel is not sufficient to
bring the activity within the protection of the First Amendment."
City of Dallas v. Stanglin, 490 U.S. 19, 25, 109 S.Ct. 1591, 104
L.Ed.2d 18 (1989). This said, intentional contact between a nude
dancer and a bar patron is conduct beyond the expressive scope of
the dancing itself. The conduct at that point has overwhelmed any
expressive strains it may contain. That the physical contact
occurs while in the course of protected activity does not bring it
within the scope of the First Amendment. Cf. Barnes, 111 S.Ct. at
2466 (Scalia, J., concurring in the judgment) (noting that the
Court has "never invalidated the application of a general law
simply because the conduct that it reached was being engaged in for
expressive purposes").
Similarly, patrons have no First Amendment right to touch a
nude dancer. Cf. Geaneas v. Willets, 911 F.2d 579, 586 (11th Cir.
1990) (holding that bar patrons have no First Amendment right to
wear revealing clothing), cert. denied, 499 U.S. 955, 111 S.Ct.
1431, 113 L.Ed.2d 484 (1991); Dodger's Bar & Grill, Inc. v. Johnson
Cty. Bd. of Comm'rs, 32 F.3d 1436, 1443 (10th Cir. 1994) (same).
Hang On's argument that the "no touch" provision is overbroad
because it applies to all employees in a state of nudity, not just
dancers, is without merit. It is true that dancers possess First
Amendment rights, and we have discussed their limits. Non-
9
performing nude employees, however, cannot claim First Amendment
protection solely by virtue of their nudity. Rather, "nudity is
protected as speech only when combined with some mode of expression
which itself is entitled to first amendment protection." South
Florida Free Beaches, Inc. v. City of Miami, Fla., 734 F.2d 608,
610 (11th Cir. 1984) (alteration and internal quotes omitted).
Since employees not engaged in expressive conduct such as dancing
have no First Amendment right to appear in the nude, applying the
"no touch" provision to non-performing nude employees does not make
it overbroad.
Even if intentional contact between a topless dancer and a
customer is not inevitably and always beyond the umbrella of the
First Amendment, Arlington's "no touch" provision is not facially
overbroad. The First Amendment "does not guarantee the right to
[engage in protected expression] at all times and places or in any
manner that may be desired." Heffron v. International Soc'y for
Krishna Consciousness, Inc., 452 U.S. 640, 647, 101 S.Ct. 2559, 69
L.Ed.2d 298 (1981). The Court held in Barnes that content-neutral
regulations of time, place, or manner are permissible where the
regulations satisfy the four-part test announced in United States
v. O'Brien, 391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968).
The regulation is valid "if it is within the constitutional power
of the Government; if it furthers an important or substantial
governmental interest; if the governmental interest is unrelated to
the suppression of free expression; and if the incidental
restriction on alleged First Amendment freedoms is no greater than
10
is essential to the furtherance of that interest." O'Brien, 391
U.S. at 377.
Hang On does not dispute nor is there any doubt that Arlington
possessed the authority to enact the "no touch" provision as part
of its adult entertainment ordinance. See MJR's Fare of Dallas,
Inc. v. City of Dallas, 792 S.W.2d 569, 576 (Tex. App.--Dallas
1990, writ denied) (holding municipality's police power encompassed
authority to enact ordinance regulating sexually oriented
businesses). Similarly, there is no dispute that the "no touch"
provision furthers a substantial governmental interest and is
unrelated to the suppression of free expression. Although the
Arlington city council did not make specific legislative findings
regarding the "no touch" provision, it now suggests that the
Ordinance serves to prevent prostitution, drug dealing and assault.
These justifications were offered for a similar "no touch"
provision upheld in Kev, Inc. v. Kitsap County, 793 F.2d 1053 (9th
Cir. 1986), and Hang On does not suggest that any alternative,
content-oriented interest motivated Arlington. To the contrary,
the Ordinance disclaims any intent to infringe upon protected
expression.
The essence of Hang On's overbreadth claim appears to be that
Arlington's "no touch" provision is unconstitutionally overbroad
because the ordinance criminalizes accidental or inadvertent
touching and, therefore, burdens more protected expression than is
necessary to further the city's interest in preventing
prostitution, drug dealing, and assault. This argument rests on a
11
premise that we reject, namely that Arlington's "no touch"
provision criminalizes any contact between nude employees and
customers. The State of Texas has provided that "[i]f the
definition of an offense does not prescribe a culpable mental
state, a culpable mental state is nevertheless required unless the
definition plainly dispenses with any mental element." Tex. Penal
Code Ann. § 6.02(b). Texas law further provides that "[i]f the
definition of an offense does not prescribe a culpable mental state
but one is nevertheless required [under the foregoing provision],
intent, knowledge, or recklessness suffices to establish criminal
responsibility." Tex. Penal Code Ann. § 6.02(c). The Arlington
ordinance does not specify a requisite mental state, but the
Ordinance does not dispense with any mental element. Under Texas
law, the Ordinance requires a culpable mental state and, therefore,
does not criminalize inadvertent or negligent touching. See
Pollard v. State, 687 S.W.2d 373, 374 (Tex. App.--Dallas 1985, writ
ref'd) (applying § 6.02 to city ordinance that did not specify a
required mental state). No evidence suggests that the City of
Arlington has sought to enforce the Ordinance against persons
unintentionally touching one another.
12
Given the limiting construction imposed by Texas law,1 we
conclude that Arlington's "no touch" provision does not burden more
protected expression than is essential to further substantial
governmental interests.2 We perceive no material difference
between Arlington's "no touch" provision and the "no touch"
provision upheld against a similar attack in Kev, Inc. v. Kitsap
County, 793 F.2d 1053 (9th Cir. 1986). In Kitsap County, the Ninth
Circuit upheld an ordinance that, in addition to prohibiting
topless dancers and customers from fondling or caressing one
another, required dancers to remain at least ten feet from the
customers and prohibited patrons from tipping dancers. Referring
to the "no touch" provision, the court concluded that "because of
the County's legitimate and substantial interest in preventing the
demonstrated likelihood of prostitution occurring in erotic dance
studios, the County may prevent dancers and patrons from sexually
1
We express no opinion on the constitutionality of an
ordinance prohibiting all touching between patrons and nude
dancers. We do not offer narrowing interpretations of a state
regulation. That is the task of the state courts. See Gooding v.
Wilson, 405 U.S. 518, 520, 92 S.Ct. 1103, 31 L.Ed.2d 408 (1972);
United States v. Thirty-seven Photographs, 402 U.S. 363, 369, 91
S.Ct. 1400, 28 L.Ed.2d 822 (1971). We parse no words or otherwise
engage in the interpretive enterprise. Rather, we simply apply all
the relevant statutes. See also City of Houston, Tex. v. Hill, 482
U.S. 451, 462 n.10, 468, 107 S.Ct. 2502, 96 L.Ed.2d 398 (1987)
(holding, without prior state court decisions for guidance, that
provision of state criminal code preempts parts of city ordinance).
2
In Ward v. Rock Against Racism, 491 U.S. 781, 798-99, 109
S.Ct. 2746, 105 L.Ed.2d 661 (1989), the Court noted that a time,
place, or manner restriction "need not be the least restrictive or
least intrusive means" of serving the government's interest.
Rather, the restriction is no greater than essential where the
governmental interest "would be achieved less effectively absent
the regulation." Id. at 799 (internal quotation marks omitted).
13
touching each other while the dancers are acting in the scope of
their employment." Id. at 1061 n.11. Arlington's "no touch"
provision does not criminalize more conduct than Kitsap County's.
We are persuaded that Arlington's ordinance burdens no more
protected expression than is essential to further Arlington's
interest in preventing prostitution, drug dealing, and assault.
B.
Hang On's contention that Arlington's "no touch" provision is
void for vagueness is without merit. Hang On has not specified
which terms in Arlington's ordinance are vague. Hang On appears to
claim that Arlington's ordinance is unconstitutionally vague
because it fails to define "dancer", which the Kitsap County
ordinance did define. The significance of this allegation eludes
us, particularly given that Arlington's ordinance criminalizes
touching between a customer and an "employee", which includes
dancers.
C.
Hang On argues that Arlington's decision to criminalize
touching in adult cabarets but not in other adult entertainment
establishments renders the ordinance unconstitutional on its face.
Hang On does not specify whether this feature of the ordinance
violates state or federal law.
To the extent that Hang On relies upon equal protection rights
guaranteed by the state constitution, its argument is without
merit. The Texas Court of Appeals in 2300, Inc. v. City of
Arlington, Tex., 888 S.W.2d 123, 129 (Tex. App.--Fort Worth 1994,
14
no writ), held that Arlington's decision to apply the "no touch"
provision only to adult cabarets did not violate the cabarets'
equal protection rights guaranteed by the state constitution. Tex.
Const. art. I, § 3.
The district court did not address the merits of this argument
because Hang On failed to include it in its complaint and raised
this claim for the first time in its response to Arlington's motion
for summary judgment. Although Hang On renews this allegation on
appeal, we agree with the district court that, because Hang On did
not raise the state constitutional claim in its complaint nor
provide any authority for its allegation, we should not address its
merits.
To the extent that Hang On asserts a violation of the
Fourteenth Amendment, it has failed to demonstrate that Arlington's
decision to apply the "no touch" provision only to adult cabarets
is an invidious classification or burdens a fundamental right.
Here, Arlington could rationally conclude that adult cabarets,
which typically serve alcohol and attract large crowds, are a more
likely venue than nude modeling studios for the evils of
prostitution, drug dealing, and sexual violence that the "no touch"
provision seeks to eliminate.
Nor does the Equal Protection Clause require Arlington to
prohibit touching between nude employees and customers in every
field in which it occurs. Cf. SDJ, Inc. v. City of Houston, 837
F.2d 1268, 1279 (5th Cir.) (rejecting similar underinclusive
argument), reh'g denied, 841 F.2d 107 (5th Cir. 1988), cert.
15
denied, 489 U.S. 1052, 109 S.Ct. 1310, 103 L.Ed.2d 579 (1989).
Rather, "reform may take one step at a time, addressing itself to
the phase of the problem which seems most acute to the legislative
mind." Williamson v. Lee Optical of Oklahoma, Inc., 348 U.S. 483,
489, 75 S.Ct. 461, 99 L.Ed. 563 (1955).
IV.
A.
Hang On contends that excluding male breasts from the
ordinance's definition of nudity violates the Equal Rights
Amendment of the Texas Constitution.3 Under Texas law, we must
first 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), the Texas Court of Appeals
held that the exclusion of male breasts from the definition of
nudity did not constitute discrimination against women "solely on
the basis of gender." The court noted that the city introduced
evidence showing that physiological and sexual distinctions exist
between male and female breasts; that female breasts differ
internally and externally from male breasts; and that the female
breast, unlike the male breast, is a mammary gland. Id. The court
concluded that the definition of nudity excluded male breasts on
grounds other than simply gender.
3
"Equality under the law shall not be denied or abridged
because of sex, race, color, creed, or national origin." Tex.
Const. art. I, § 3A.
16
Similarly, Arlington presented evidence to the district court
showing that the Arlington city council considered the
physiological and sexual distinctions between the female and male
breasts. In sworn testimony presented to the city council, Dr. J.
Douglas Crowder concluded that distinguishing between male and
female breasts in defining nudity is "certainly consistent with
what we know medically about human sexual response." Moreover, the
preamble of the Ordinance itself proclaimed that the city council
reviewed "[c]onvincing documented evidence regarding the
physiological and sexual distinctions between male and female
breasts." By contrast, Hang On presented no evidence to the
district court that Arlington's ordinance discriminated against
women solely on the basis of gender.
Hang On relies heavily on the Texas Court of Appeals' holding
in Williams that the exclusion of male breasts from the definition
of nudity discriminated against women solely on the basis of
gender. In Williams the court of appeals noted that the plaintiff
successfully carried its burden of proof to show that the
definition discriminated against women solely on account of gender
because the city offered "no evidence about the differences in
physical characteristics or how such differences relate to the
ordinance's goal of preventing secondary neighborhood effects."
782 S.W.2d at 296 n.2. Hang On's failure to offer any evidence
regarding Arlington's decision to exclude male breasts from the
definition of nudity, coupled with Arlington's introduction of
17
evidence showing that Arlington's decision was not motivated by
gender animus, distinguishes this case from Williams.
We cannot let pass without comment the energy expended in the
"trial" of such issues. Courts need no evidence to prove self-
evident truths about the human condition -- such as water is wet.
Nor should they tarry long with such foolishness and, in the
process, trivialize constitutional values intrinsic to our society.
The district court correctly concluded that Arlington's definition
of nudity did not discriminate against women solely on the basis of
gender.
B.
Hang On also claims that the application of the "no touch"
provision to adult cabarets violates § 109.57 of the Texas
Alcoholic Beverage Code because Arlington's "no touch" provision
applies to adult cabarets, which normally have alcoholic beverage
licenses, but does not apply to nude modeling studios, which do not
have such licenses. Holding that Hang On never presented evidence
to substantiate its claim, the district court granted summary
judgment to Arlington on this issue. We agree that Arlington is
entitled to summary judgment, not because Hang On failed to produce
any evidence indicating a genuine issue of material fact, but
because Hang On's legal theory is without merit.
In Dallas Merchant's & Concessionaire's Ass'n v. City of
Dallas, 852 S.W.2d 489, 492 (Tex. 1993), the Texas Supreme Court
held that § 109.57 preempted a municipal ordinance prohibiting the
sale of alcoholic beverages within 300 feet of a residential area.
18
The court was quick to point out that municipalities retained the
power to regulate businesses with alcoholic beverage licenses as
long as those regulations did not discriminate against such
businesses. The court explained:
[A]n ordinance requiring all businesses with the same
kind of premises to have a fire extinguisher on their
premises would not violate section 109.57(a). On the
other hand, an ordinance requiring an alcohol related
business to have two fire extinguishers and only
requiring a non-alcohol related business with the same
kind of premises to have one fire extinguisher would
violate section 109.57(a).
Id. at 492 n.5.
Arlington's "no touch" provision does not run afoul of
§ 109.57(a) because, unlike the fire extinguisher example from
Dallas Merchants, its coverage of the set of businesses with
alcoholic beverage licenses is both underinclusive and
overinclusive. Application of Arlington's "no touch" provision to
adult cabarets is underinclusive in that there are many businesses
with alcoholic beverage licenses that do not qualify as adult
cabarets and, therefore, are not subject to the "no touch"
provision. The scope of Arlington's "no touch" regulation is also
overinclusive in that adult cabarets not required to have alcoholic
beverage licenses are still subject to Arlington's "no touch"
provision. This loose fit between the regulatory scope of the "no
touch" provision and businesses serving alcohol leads us to
conclude that Arlington's ordinance does not impose stricter
standards on alcohol-related businesses than it does on non-alcohol
related businesses. Indeed, this loose fit is a far cry from the
Dallas ordinance invalidated in Dallas Merchants, which regulated
19
businesses if and only if they were in the business of selling
alcohol. Arlington's decision to limit the application of the "no
touch" provision to adult cabarets does not violate § 109.57(a) of
the Texas Alcoholic Beverage Code.4
V.
Finally, Hang On argues that Arlington's enforcement of the
Ordinance has been conducted in a harassing and offensive manner in
violation of its Fourth Amendment rights. The district court
rejected Hang On's claim, holding that Hang On presented no
evidence that it was the policy of Arlington to enforce the
Ordinance in a manner that violates Hang On's constitutional
rights. We review the district court's grant of summary judgment
de novo, viewing the evidence in the light most favorable to Hang
On. Richardson v. Oldham, 12 F.3d 1373, 1376 (5th Cir. 1994).
Hang On does not claim that it is the official policy of
Arlington to harass adult cabarets and their patrons. Indeed,
Arlington's ordinance expresses the exact opposite policy. "[I]t
is not the intent nor effect of this Chapter to restrict or deny
access by adults to sexually oriented materials protected by the
First Amendment or to deny access by the distributors and
exhibitors of sexually oriented entertainment to their intended
market." Instead, Hang On claims that Arlington's policy may be
4
Arlington's reliance on § 109.57(d) is unavailing since
that provision only permits a municipality to regulate the location
of a sexually oriented business. It does not purport to permit the
regulation of the manner in which a sexually oriented business
operates.
20
inferred from the police officers' repeated visits on a nightly
basis.
Although the district court found that Hang On had presented
evidence of a pattern or practice by Arlington of conducting the
allegedly unconstitutional searches, the court correctly concluded
that Hang On failed to present any evidence that policy-making
officials in Arlington had any knowledge, actual or constructive,
of the police officers actions during the investigative searches of
Hang On's cabaret. The only evidence presented by Hang On to rebut
Arlington's motion for summary judgment was the affidavit of Andy
Anderson, alleging that "defendant's agents" have entered its
business "on multiple occasions" and that the officers' manners and
actions became "more disruptive and abusive".5 Mr. Anderson's
affidavit noticeably omits any allegation that the principal of the
"defendant's agents," i.e., the City of Arlington, had any
knowledge of the action and behavior of its "agents". We find no
record evidence that Arlington knew of and was deliberately
indifferent to its police officers' conduct.
Hang On responds that the district court's grant of summary
judgment to Arlington dismissing Hang On's harassment claim was
erroneously based on the heightened pleading requirement
invalidated in Leatherman v. Tarrant County Narcotics Unit, 113
S.Ct. 1160, 122 L.Ed.2d 517 (1993). Hang On fails to grasp the
5
The district court did not rule on Arlington's numerous
objections to the Anderson affidavit. On appeal, Arlington renews
its objections. Given our disposition of the matter, we do not
reach the issue whether the district court abused its discretion in
considering the Anderson affidavit.
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difference between a motion to dismiss and a motion for summary
judgment.
VI.
We agree with the district court that Hang On's facial
challenges to Arlington's "no touch" provision are without merit
and that there was no genuine issue of material fact. We AFFIRM
the judgment of the district court, including its award of costs
and attorney's fees to Arlington.
22