Baby Dolls Topless v. City of Dallas Texas

New Orleans, LA - First Amendment rights lawyer represented Plaintiff-Appellant with arguing whether the City of Dallas violated certain establishments' First Amendment rights claim.

In 1986, after studying other cities' efforts in regulating

SOBs, the City enacted Chapter 41A of the Dallas City Code "to

promote the health, safety, morals, and general welfare of the

citizens of the city, and to establish reasonable and uniform

regulations to prevent the continued concentration of [SOBs] within

the city”. DALLAS, TEX., CODE § 41A-1 (1986). Among other things,

Chapter 41A subjected SOBs to certain zoning restrictions,

including the requirement that they be located at least 1,000 feet

from other SOBs, churches, schools, residential areas, and parks

(location provision). It defined a SOB as "an adult arcade, adult

3

bookstore or adult video store, adult cabaret, adult motel, adult

motion picture theater, adult theater, escort agency, nude model

studio, or sexual encounter center”. Id. § 41A-2(17). Chapter

41A-2 contained the following definitions:

(3) ADULT CABARET means a nightclub, bar,

restaurant, or similar commercial

establishment which regularly features:

(a) persons who appear in a state of

nudity; or

(b) live performances which are

characterized by the exposure of "specified

anatomical areas” or by "specified sexual

activities”; or

(c) films, motion pictures, video

cassettes, slides, or other photographic

reproductions which are characterized by the

depiction or description of "specified sexual

activities” or "specified anatomical areas.”

....

(13) NUDITY OR STATE OF NUDITY means the

appearance of a bare buttock, anus, male

genitals, female genitals, or female breast.

....

(18) SPECIFIED ANATOMICAL AREAS means human

genitals in a state of sexual arousal.

(Emphasis added.) These definitions, as well as the location

provision, were held constitutional. See Dumas v. City of Dallas,

648 F. Supp. 1061 (N.D. Tex. 1986), aff'd sub nom. FW/PBS, Inc. v.

City of Dallas, 837 F.2d 1298 (5th Cir. 1988), aff'd in part, rev'd

in part and vacated in part on other grounds, 493 U.S. 215 (1990).

4

In order to avoid SOB status and, as a result, inter alia,

having to relocate, some establishments (including most of

Plaintiffs') changed their dancers' attire to "simulate” nudity:

bikini bottoms and flesh-colored pasties over the areolae of the

female breast. Doing so enabled them to obtain "dance hall”

licenses under Dallas City Code Chapter 14. (As the district court

noted in this action, consistent with findings stated in the

Ordinance at issue, Chapter 14 "did not, and wasn't designed to,

regulate [SOBs]”. Baby Dolls Topless Saloons, Inc. v. City of

Dallas, 114 F. Supp. 2d 531, 535 (N.D. Tex. 2000).)

In the face of this attempt, through Chapter 14, to avoid SOB

status, the City enacted Ordinance 21184 in 1992, amending Chapter

14 to create a new classification of dance halls: Class D.

Establishments receiving the new Class D classification were

subject to location provisions similar to those in Chapter 41A,

covering SOBs. In short, the new Class D status was equivalent to

being a SOB.

That ordinance contained, inter alia, the following

definitions:

CLASS D DANCE HALL means any place:

(A) where dancing is permitted one day a

week or more by a person in a state of seminudity or simulated nudity[.]

....

SEMI-NUDITY means a state of dress in which

clothing covers no more than the genitals,

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pubic region, buttocks, and areolae of the

female breast....

SIMULATED NUDITY means a state of dress in

which a device or covering, exposed to view,

is worn that simulates any part of the

genitals, buttocks, pubic region, or areolae

of the female breast.

Dallas, Tex., Ordinance 21184 (emphasis added). The location

provisions and simulated nudity definition were upheld against

First Amendment challenges. See MD II Entm't, Inc. v. City of

Dallas, No. 3:92-CV-1090-H, 1993 WL 227774 (N.D. Tex. 1993) (MD II

(1)), aff'd, 28 F.3d 492 (5th Cir. 1994).

Therefore, again to avoid SOB status and resulting relocation,

many establishments (including most of Plaintiffs') once more

changed their dancers' attire: to non-flesh-colored, opaque

pasties and bikini bottoms substantially covering the pubic region

and buttocks. Doing so enabled them to apply for, and operate

under, Class A dance hall licenses, instead of having Class D/SOB

status and being required to relocate.

As a result, in 1993, the City enacted Ordinances 21837 and

21838, amending Chapters 14 and 41A respectively, "because certain

businesses featuring adult entertainment [had] found a way to

circumvent the location restrictions set forth in [those]

Chapters”. Baby Dolls, 114 F. Supp. 2d at 536. The new ordinances

included the following definitions:

NUDITY or a STATE OF NUDITY means:

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(A) the appearance of a human bare

buttock, anus, male genitals, female genitals,

or female breast; or

(B) a state of dress that fails to

opaquely cover a human buttock, anus, male

genitals, female genitals, or any part of the

female breast below the top of the areola.

....

SEMI-NUDITY means a state of dress in which

clothing covers no more than the genitals,

pubic region, buttocks, and any part of the

female breast below the top of the areolae....

....

SIMULATED NUDITY means a state of dress in

which any device or covering, exposed to view,

is worn that simulates any part of the

genitals, buttocks, pubic region, or any part

of the female breast below the top of the

areolae.

Dallas, Tex., Ordinances 21837, 21838 (emphasis added; 21837

(amending § 14) and 21838 (amending § 41A) were enacted the same

day.) The effect of the ordinances was to require dancers at

businesses such as Plaintiffs' to, among other things, wear bikini

tops in order for the businesses to avoid SOB classification and

concomitant relocation.

The amendments to the terms "nudity”, "semi-nudity”, and

"simulated nudity” were held violative of the First Amendment. See

MD II Entm't, Inc. v. City of Dallas, 935 F. Supp. 1394 (N.D. Tex.

1995) (MD II (2)), aff'd, 85 F.3d 624 (5th Cir. 1996) (per curiam;

table). Among other things, the district court held: "no evidence

indicate[d] that the drafters of the 1993 amendments relied upon

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any studies indicating [the amendments'] necessity or

effectiveness”, id. at 1397; and "no evidence indicates that a

requirement that dancers wear bikini tops instead of pasties will

reduce deleterious secondary effects”, id. at 1398. In this light,

the district court concluded that the challenged amendments were

content-based and impermissible restrictions on protected

expression. Id. at 1399.

In a one paragraph opinion, our court affirmed. It agreed

with the district court's finding "'no evidence indicat[ing] that

a requirement that dancers wear bikini tops instead of pasties will

reduce deleterious secondary effects'”. No. 95-10322 (5th Cir. 30

Apr. 1996) (per curiam; unpublished).

In the light of MD II (2), the City consulted, and considered,

data and studies concerning the deleterious secondary effects of

SOBs, including: 1983, 1986, 1991, and 1997 studies by the City of

Houston (Houston studies); a summary of land use studies compiled

by the National Law Center for Children and Families; and 1994 and

1997 studies conducted, at the City's request, by the Malin Group

(Malin studies).

The Malin Group reviewed studies completed by Austin, Los

Angeles, Indianapolis, Phoenix, and New York (which found SOBs to

have a variety of deleterious secondary effects, including

increased crime rates, lowered property values, and the

deterioration of community character and quality of life). In

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addition, the Malin Group studied the secondary effects of SOBs in

Dallas.

The Dallas study compared a study area containing seven SOBs

to two control areas, the first containing no SOBs and the second

containing two SOBs located a half-mile apart but within 1000 feet

of residential uses. After gathering data on a number of

categories of crime, the study concluded that sex-related crime

rates in the study area were more than three times higher than the

city-wide average and five to ten times higher than in the control

areas. In addition, the study found that, inter alia, properties

in areas surrounding SOBs had lower values, were more difficult to

lease, and remained on the market longer than in other areas.

The Malin studies did not consider whether the contested

change in dancer attire (from pasties to bikini tops) would impact

these deleterious secondary effects. Likewise, as Malin testified

during a preliminary injunction hearing, the other studies his

group had reviewed did not consider that question.

Beyond the mentioned studies, the City Plan Commission and

City Council conducted four public hearings regarding SOBs and the

proposed amendments. The City Zoning Ordinance Advisory Committee

received public comment on the amendments. And, the City Council

held at least six town hall meetings regarding SOBs and the

proposed amendments.

9

In 1997, the ordinance at issue was enacted by the City:

Ordinance 23137 (the Ordinance), which again amended Chapters 14

and 41A. The district court found:

The enactment of [the] Ordinance ... was a

response to the City Council's expressed

concern to better protect the public health,

safety, and welfare, and was intended to

address the deleterious secondary effects of

[SOBs], and to enhance land use protection for

residential areas and other surrounding areas.

Baby Dolls, 114 F. Supp. 2d at 539.

The Ordinance eliminates the Chapter 14 Class D (SOB) dance

hall classification and retains the definition of "sexually

oriented business”: "an adult arcade, adult bookstore or adult

video store, adult cabaret, adult motel, adult motion picture

theater, adult theater, escort agency, nude model studio, or sexual

encounter center”. But, it amends Chapter 41A-2 to read, in

pertinent part:

(3) ADULT BOOKSTORE or ADULT VIDEO STORE

means a commercial establishment that as one

of its principal business purposes offers for

sale or rental for any form of consideration

any one or more of the following:

(A) books, magazines, periodicals or

other printed matter, or photographs, films,

motion pictures, video cassettes or video

reproductions, slides, or other visual

representations that depict or describe ...

"specified anatomical areas”....

(4) ADULT CABARET means a commercial

establishment that regularly features the

offering to customers of live entertainment

that:

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(A) is intended to provide sexual

stimulation or sexual gratification to such

customers; and

(B) is distinguished by or characterized

by an emphasis on matter depicting,

simulating, describing, or relating to

"specified anatomical areas”....

....

(6) ADULT MOTION PICTURE THEATER means a

commercial establishment where, for any form

of consideration, films, motion pictures,

video cassettes, slides, or similar

photographic reproductions are regularly shown

that are characterized by the depiction or

description of ... "specified anatomical

areas.”

....

(17) NUDITY or a STATE OF NUDITY means:

(A) the appearance of a human bare

buttock, anus, male genitals, female genitals,

or female breast; or

(B) a state of dress that fails to

completely and opaquely cover a human buttock,

anus, male genitals, female genitals, or any

part of the female breast or breasts that is

situated below a point immediately above the

top of the areola.

....

(24) SPECIFIED ANATOMICAL AREAS means:

(A) any of the following, or any

combination of the following, when less than

completely and opaquely covered:

(i) any human genitals, pubic region, or

pubic hair;

(ii) any buttock; or

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(iii)any portion of the female

breast or breasts that is situated

below a point immediately above the

top of the areola....

(Emphasis added.) The amended definitions of "specified anatomical

areas” and "nudity or a state of nudity” contain substantially the

same language as had Ordinances 21837 and 21838 (1993), held in MD

II (2) violative of the Constitution.

These amended definitions operate to classify Plaintiffs as

SOBs (i.e., adult cabarets). Accordingly, Plaintiffs must either

comply with Chapter 41A's SOB location and licensing provisions or

avoid SOB classification (and, therefore, remain at their current

locations) by requiring their dancers to, inter alia, wear bikini

tops.

In June 1997, Plaintiff Baby Dolls Topless Saloons, Inc.,

which had been denied a SOB license because of non-compliance with

Chapter 41A's location provisions (the specific issue, discussed

infra, concerned zoning to streets' center lines), brought this

action as an as-applied challenge to its license denial. The

district court permitted intervention by 11 other establishments

which challenged the Ordinance on a variety of First and Fourteenth

Amendment grounds and sought declaratory and injunctive relief. In

March 1998, the court preliminarily enjoined the City from, inter

alia, enforcing Chapter 41A against Plaintiffs through the amended

definition of "specified anatomical areas”.

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Following a bench trial in September 1998, the district court

entered judgment for the City in May 2000. In extremely detailed

and comprehensive findings and conclusions, the court held: the

City was not precluded from litigating the Ordinance's

constitutionality, 114 F. Supp. 2d at 542; the Ordinance was a

content-neutral time, place, or manner regulation and satisfied the

test for such regulations, id. at 544-49; the Ordinance is not

overbroad, id. at 543-44; a related "no-touch” provision of Chapter

41A-18.1 is constitutional, id. at 549; and zoning residential

districts to the center line of streets (which resulted in the

denial of Baby Dolls' SOB license) was constitutional, id. at 542-

43.

II.

Bench trial findings of fact are reviewed for clear error;

conclusions of law, de novo. E.g., Joslyn Mfg. Co. v. Koppers Co.,

Inc., 40 F.3d 750, 753 (5th Cir. 1994). Although numerous

conclusions of law are challenged in this appeal, no findings of

fact are. Our standard of review is further discussed with respect

to each issue.

A.

Plaintiffs contend that, in the light of MD II (2), the City

is collaterally estopped from litigating the Ordinance's

constitutionality. Collateral estoppel vel non is a question of

law reviewed de novo. E.g., United States v. Brackett, 113 F.3d

13

1396, 1398 (5th Cir.), cert. denied, 522 U.S. 934 (1997). In

considering collateral estoppel, we decide whether

(1) the issue under consideration is identical

to that litigated in the prior action; (2) the

issue was fully and vigorously litigated in

the prior action; (3) the issue was necessary

to support the judgment in the prior case; and

(4) there is no special circumstance that

would make it unfair to apply the doctrine.

Winters v. Diamond Shamrock Chem. Co., 149 F.3d 387, 391 (5th Cir.

1998) (emphasis added; quoting Copeland v. Merrill Lynch & Co., 47

F.3d 1415, 1422 (5th Cir. 1995)), cert. denied, 526 U.S. 1034

(1999). Here, the first and fourth prongs are of primary concern.

As noted, MD II (2) concerned the constitutionality of 1993

amendments to the definitions of nudity, semi-nudity, and simulated

nudity to include "any part of the female breast below the top of

the areola”. The district court then held: as quoted earlier,

"[n]o evidence indicates that the drafters of the 1993 amendments

relied upon any studies indicating their necessity or

effectiveness”, 935 F. Supp. at 1397; "[n]o evidence indicates

that the city conducted public meetings to consider any information

regarding semi-nude dancing, deleterious secondary effects, or the

relationship of the two”, id. at 1398; and, as also quoted earlier,

"no evidence indicates that a requirement that dancers wear bikini

tops instead of pasties will reduce deleterious secondary effects”,

id. Accordingly, it held: the City had "failed to show that a

substantial governmental interest was the predominant factor

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motivating it in enacting the amendments”, id. at 1397 (emphasis

added); and "the 1993 amendments [were] content-based restrictions

on protected expression”, id. at 1399. Accordingly, it awarded

plaintiffs summary judgment. As stated, our court affirmed. 85

F.3d 624 (5th Cir. 1996) (per curiam; table).

For this action, in holding the City not estopped from

litigating the constitutionality of the Ordinance (enacted in

1997), the district court concluded:

The issue in this case is not "identical” [to

that] in MD II (2) because this case presents

the constitutionality of a[] different

ordinance, which uses the same language as the

unconstitutional ordinance in MD II (2), that

was enacted by the City after considerable

study and fact-finding, which were lacking in

MD II (2).

Baby Dolls, 114 F. Supp. 2d at 542. It also held that, per the

fourth collateral estoppel prong, "the enactment of [the] Ordinance

... after the City's fact-finding is a 'special circumstance' that

makes the application of issue preclusion unfair”. Id.

Plaintiffs maintain the merits-issue here is identical to that

in MD II (2). They characterize it as "whether the regulation of

dancer attire through requiring the bottom half of a dancer's

breasts to be covered is an impermissible content-based

restriction”. (Emphasis added.) Content-neutrality vel non is an

issue in both cases, but only in a general sense. The contentneutrality vel non of a given ordinance is, as discussed below, a

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function of a city's predominant concern in enacting that

ordinance, and the ordinance at issue here is not the same as was

at issue in MD II (2).

"[C]hanges in facts essential to a judgment will render

collateral estoppel inapplicable in a subsequent action raising the

same issues”. Montana v. United States, 440 U.S. 147, 159 (1979).

As discussed, between MD II (2) and enactment of the Ordinance, the

City conducted and reviewed studies, held public hearings, and took

public comment on the proposed amendments and the SOBs' secondary

effects. Plaintiffs may not agree that those activities are

reasonably believed to be related to deleterious secondary effects

of their establishments. But, that is a separate issue on the

merits, to be answered in the light of the evidence that the City

gathered and considered in enacting the Ordinance.

B.

"Whether ... free speech rights have been infringed is a mixed

question of law and fact [and t]he appropriate standard of review

is de novo”. Int'l Soc'y for Krishna Consciousness of New Orleans,

Inc. v. Baton Rouge, 876 F.2d 494, 496 (5th Cir. 1989) (citing

Dunagin v. City of Oxford, 718 F.2d 738, 748 n.8 (5th Cir. 1983),

cert. denied, 467 U.S. 1259 (1984)).

Plaintiffs maintain that, in reviewing their First Amendment

challenge to the amended definition of "specified anatomical areas”

(SAAs), the district court erred by applying the test for content-

16

neutral time, place, or manner regulations set out in City of

Renton v. Playtime Theatres, Inc., 475 U.S. 41, 47 (1986). They

assert: the Ordinance is not content-neutral because it "targets

the essential expressive nature of the featured entertainment of

the Cabarets' business”; and its "justification ... was not shown

to be related to the 'secondary effects' focus of the Ordinance”.

Under Renton, "zoning ordinances designed to combat the

undesirable secondary effects of [SOBs] are to be reviewed under

the standards applicable to 'content-neutral' time, place, and

manner regulations”. 475 U.S. at 49 (emphasis added). And,

"findings of the [City] as to the secondary effects of sexually

oriented businesses [can] satisfy us ... that [its] predominant

concern was with secondary effects and not the content of

expression itself”. SDJ, Inc. v. City of Houston, 837 F.2d 1268,

1273 (5th Cir. 1988), cert. denied, 489 U.S. 1052 (1989). SDJ,

Inc., involved a similar zoning scheme that imposed location

restrictions on establishments "characterized by an emphasis on

matter depicting, describing or relating to ... specified

anatomical areas”, defined as "[l]ess than completely and opaquely

covered ... [f]emale breast[s] ... below a point immediately above

the top of the areola”. Id. at 1278 n.36 (emphasis added).

As noted, for the ordinance at issue here, the City

commissioned studies and engaged in a series of public hearings,

comment-taking, and town hall meetings regarding SOBs' deleterious

17

effects. The City's concerns are adequately expressed in the

Ordinance's preambulary language:

WHEREAS, the provisions of Chapter 14

governing Class A dance halls are intended to

regulate businesses where clothed patrons

dance and not businesses where unclothed or

scantily clad dancers perform to provide

sexual stimulation and gratification to

patrons; and

WHEREAS, the city council finds that such

[latter] businesses operating as Class A dance

halls under Chapter 14[, thereby avoiding

Class D status and the concomitant location

provision,] are, in effect, [SOBs] and have

the same harmful secondary effects on the

surrounding community as the [SOBs] currently

regulated under Chapter 41A; ...

....

WHEREAS, the city council finds that a

concentration of [SOBs] continue[s] to

contribute to a decline in the value of

surrounding properties, to an increase in

criminal activities in the surrounding

community, and to urban blight and a downgrade

in the quality of life in the surrounding

community; ...

....

WHEREAS, the city council believes that,

to better protect the public health, safety,

and welfare, it is necessary to adopt

additional amendments to Chapter 41A that

would enhance land use protection to

residential areas and other surrounding areas;

... restrict the location of [SOBs] near

child-care facilities to protect the children

that attend those facilities; and establish

rules of conduct for certain [SOB] employees

and customers....

Dallas, Tex., Ordinance No. 23137 at 2-5 (emphasis added).

18

Plaintiffs maintain, however, that the evidence the City

relied upon is irrelevant to the Ordinance. They reiterate one of

the several earlier-quoted concerns of MD II (2): "No evidence

indicates that a requirement that all dancers wear bikini tops

instead of pasties will reduce deleterious secondary effects”. 935

F. Supp. 1398-99. In this regard, Plaintiffs emphasize two of the

district court's findings in the action at hand: "the Malin

studies did not study whether a change in a dancer's attire from

pasties to bikini tops would affect secondary effects”; and "Malin

... testified that his studies indicated that the change in attire

would not have an impact on secondary effects”. Baby Dolls, 114 F.

Supp. 2d at 540. According to Plaintiffs, there must be specific

evidence linking bikini tops to reducing secondary effects.

Renton, however, does not require a "city to demonstrate[,]

... with empirical data, that its ordinance will successfully lower

crime”, at least "not without actual and convincing evidence from

plaintiffs to the contrary”. City of Los Angeles v. Alameda Books,

Inc., 122 S. Ct. 1728, 2002 WL 970712, at *9 (U.S. 13 May 2002)

(plurality). "Such a requirement would go too far in undermining

[the] settled position that municipalities must be given a

reasonable opportunity to experiment with solutions to address the

secondary effects of protected speech”. Id. (internal citations

and quotation marks omitted).

19

Renton teaches us that the government must

produce some evidence of adverse secondary

effects produced by ... adult entertainment in

order to justify a challenged enactment using

the secondary effects doctrine.... Renton also

instructs us that a government must present

sufficient evidence to demonstrate "a link

between the regulation and the asserted

governmental interest,” under a "reasonable

belief” standard....

J&B Entm't, Inc. v. City of Jackson, 152 F.3d 362, 371-72 (5th Cir.

1998) (emphasis added; quoting Renton, 475 U.S. at 51-52).

Accordingly, we must determine whether, under this reasonable

belief standard, the City's evidence demonstrates a link between

its interest in combating secondary effects and the Ordinance.

That standard is satisfied. The Ordinance was enacted, in

part, because the City had found that, through Chapter 14, entities

that were, in effect, SOBs were avoiding that classification; and

that concentrated SOBs "continue to contribute to ... an increase

in criminal activities in the surrounding community”. Dallas,

Tex., Ordinance 23137 (preamble). Among other relied-upon data,

the 1997 Malin Study supports that increased-criminal-activities

finding. From January 1993 through March 1997, there were 396

arrests for sex crimes ("Rape, Prostitution/Commercial Vice[,] and

other Sex Offenses”) in the study area (which included a

concentration of seven SOBs), as compared to 133 such arrests in

one control area (containing two SOBs located approximately a half-

20

mile apart) and 77 such arrests in another control area (containing

no SOBs).

In short, sex crime arrests were three to five times more

frequent in the study area. While the Malin Study is careful not

to attribute this disparity entirely to SOBs, it did find a

correlation between SOBs — specifically, their "hours of operation

and the type of people which SOBs attract” — and higher crime

rates.

These findings are "reasonably believed to be relevant to the

problem that the [C]ity addresses”. Renton, 475 U.S. at 51-52

(emphasis added). The City relied upon specific evidence showing,

inter alia, higher crime rates in the vicinity of SOBs. The City's

attempts to deal with that reality had been continuously frustrated

in the past, most recently by "exploitation of a 'loophole' in the

City Code that permitted such businesses to avoid the location

restrictions by obtaining dance hall licenses pursuant to Chapter

14, which was not originally designed to regulate such businesses”.

Baby Dolls, 114 F. Supp. 2d at 547 (emphasis added).

"[T]he Ordinance is a comprehensive amendment to Chapters 14

and 41A to carry out the City's original intent in combating

secondary effects associated with [SOBs]”. Id. (emphasis added).

"[T]he evidence does not connect the wearing of bikini tops to the

reduction of secondary effects”, id.; but, in the light of the data

considered by the City and other steps taken by it prior to

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enacting the Ordinance, it was not necessary to make that

connection. Instead, it was reasonable for the City to conclude

that establishments featuring performers in attire more revealing

than bikini tops pose the same types of problems associated with

other SOBs.

C.

Plaintiffs next contend that the amended definition of SAAs is

overbroad because it will operate to classify a number of

"mainstream” businesses (movie theaters, video stores, and live

theaters) as SOBs (adult motion picture theaters, adult video

stores, and adult theaters). The City, however, recently amended

Chapter 41A-2 to remove adult theaters (theaters, auditoriums,

concert halls, etc., featuring live entertainment) from the

definition of SOBs. Dallas, Tex., Ordinance 24699 (22 Aug. 2001).

As a result, we limit our overbreadth inquiry to whether the SAAs

amended definition operates to classify "mainstream” movie theaters

and video stores as "adult” motion picture theaters and video

stores.

Facial overbreadth claims, being constitutional challenges,

are reviewed de novo. E.g., United States v. Stansell, 847 F.2d

609, 612 (9th Cir. 1988). "[F]acial overbreadth adjudication is an

exception to ... traditional rules of practice”. Broadrick v.

Oklahoma, 413 U.S. 601, 615 (1973). It should be employed

"sparingly, and only as a last resort”. Id. at 613. "[W]here

22

conduct and not merely speech is involved, ... the overbreadth of

a statute must not only be real, but substantial as well, judged in

relation to the statute's plainly legitimate sweep”. Id. at 615.

The Ordinance is not facially overbroad.

With respect to movie theaters, Chapter 41A defines an adult

motion picture theater as

a commercial establishment where, for any form

of consideration, films, motion pictures,

video cassettes, slides, or similar

photographic reproductions are regularly shown

that are characterized by the depiction or

description of ... "[SAAs].”

DALLAS, TEX., CODE § 41A-2(6) (emphasis added). "Characterize” means

"to describe the essential character or quality of”. WEBSTER'S THIRD

NEW INTERNATIONAL DICTIONARY 376 (1986) (emphasis added) (hereinafter

WEBSTER'S). The chance that "mainstream” movie theaters will show

films with depictions of SAAs as their essential quality, and will

do so regularly, is highly improbable, as is the chance that they

will be classified as "adult” motion picture theaters (and thus

SOBs).

With respect to video stores, an adult video store is defined

as

a commercial establishment that as one of its

principal business purposes offers for sale or

rental for any form of consideration any one

or more of the following ... films, motion

pictures, video cassettes or video

reproductions, slides, or other visual

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representations that depict or describe ...

"[SAAs]”.

DALLAS, TEX., CODE § 41A-2(3) (emphasis added). "Principal” is

defined as "most important, consequential, or influential:

relegating comparable matters [or] items ... to secondary rank”.

WEBSTER'S 1802. The likelihood of a "mainstream” video store's

falling within the definition of an "adult” video store, and thus

of a SOB, is, as with movie theaters, highly improbable.

At any rate, if there is any real overbreadth in Chapter 41A,

it is certainly not "substantial [when] judged in relation to [its]

plainly legitimate sweep”. Broadrick, 413 U.S. at 615. This

understanding of the plain language of Chapter 41A-2, as amended,

is confirmed by the limiting construction by the City Attorney

post-enactment of the Ordinance and filing of this action. That

limiting construction provides that businesses "which feature adult

magazines, NC-17 or R-rated video tapes, and NC-17 or R-rated

motion pictures”, shall not be classified as SOBs by virtue of

their featuring such products. Memorandum from City Attorney to

Chief of Police 2-3 (5 June 1998). The City's Police Chief

testified that his department relies on the limiting construction,

and the City has an established history of not classifying

mainstream businesses as SOBs.

"Administrative interpretation and implementation of a

regulation are, of course, highly relevant to our analysis, for

'[i]n evaluating a facial challenge to a state law, a federal court

24

must ... consider any limiting construction that a state court or

enforcement agency has proffered.'” Ward v. Rock Against Racism,

491 U.S. 781, 795-96 (1989) (quoting Village of Hoffman Estates v.

The Flipside, Hoffman Estates, Inc., 455 U.S. 489, 494, n.5

(1982)). The district court characterized the limiting

construction as "preclud[ing] the classification of mainstream

businesses as [SOBs] even if such businesses feature an article or

activity that display[s] a [SAA]”. Baby Dolls, 114 F. Supp. 2d at

543-44.

Plaintiffs maintain that City of Lakewood v. Plain Dealer

Publishing Co., 486 U.S. 750 (1988), requires that "the limits the

city claims are in its law be made explicit by textual

incorporation, binding judicial or administrative construction, or

well-established practice”. Id. at 770 (emphasis added). That

case concerned a city ordinance vesting the mayor with unfettered

discretion to grant or deny applications from publishers for

permits to place newsracks on public property. The Court noted

that, in the area of free expression, a licensing scheme placing

unbridled discretion with a public official amounts to a prior

restraint, id. at 757, and held: "[T]he doctrine forbidding

unbridled discretion ... requires that the limits that the city

claims are implicit in its law be made explicit”, id. at 770

(emphasis added).

25

The Ordinance does not vest unbridled discretion in the City

or in any City official. It is not a prior restraint. As the

Court noted in Plain Dealer Publishing, it would "presume any

narrowing construction or practice to which the law is 'fairly

susceptible'”. Id. at 770 n.11; see also Broadrick, 413 U.S. at

613 ("Facial overbreadth has not been invoked when a limiting

construction has been or could be placed on the challenged

statute.” (Emphasis added.)).

D.

Plaintiffs next contend the district court erred in holding

that, as applied, the following "no touch” provision is not an

unconstitutional, content-based restriction on speech. The

provision provides:

(a) An employee of an adult cabaret,

while exposing any [SAAs], commits an offense

if the employee touches a customer or the

clothing of a customer.

(b) A customer at an adult cabaret

commits an offense if he touches an employee

who is exposing any [SAAs] or touches the

clothing of the employee.

DALLAS, TEX., CODE § 41A-18.1 (emphasis added). Again, free speech

claims present a mixed question of law and fact, reviewed de novo.

26

E.g., Int'l Soc'y for Krishna Consciousness, 876 F.2d at 496.

As the district court noted, see Baby Dolls, 114 F. Supp. 2d

at 549, our court held in Hang On, Inc. v. City of Arlington, 65

F.3d 1248, 1253 (5th Cir. 1995) (first emphasis added):

[I]ntentional contact between a nude dancer

and a ... 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....

Similarly, patrons have no First

Amendment right to touch a nude dancer.

Hang On concerned a facial challenge to a provision almost

identical to the one at issue here. See id. at 1251.

Plaintiffs point to the fact that the SOB in Hang On did not

offer evidence of the expressive nature of touch in the course of

a "table” or "lap dance” ("which involves contact between the

dancer, while exposing [SAAs], and the customer”, Baby Dolls, 114

F. Supp. 2d at 541). Plaintiffs, on the other hand, did provide

the following testimony by one of their witnesses (a cultural

anthropologist) that innocuous touch between a dancer and patron

communicates a distinct message: "concern, affection, caring and

... eliminat[ion of] the sense of distance and coldness[;] the

message that the dancers really want to get across ... is the man

is king for the moment, as it were”. They contend: "Touch is an

essential element of 'private dance' expression”.

27

Hang On did not hold that such innocuous touch may contain

unique, expressive elements. Instead, as emphasized in the abovequoted passage, it held: "The conduct at that point [intentional

contact] has overwhelmed any expressive strains it may contain”.

Id. at 1253 (emphasis added). Restated, that holding did not turn

on evidence vel non presented by an SOB. It controls here.

E.

Finally, Plaintiff Baby Dolls appeals the denial of its SOB

permit (and, previously, one for Class D) because its proposed

location was within 1000 feet of a freeway, which is zoned a

residential district. The district court noted: a zoning

regulation is ordinarily constitutional so long as there is "any

possible rational basis” for it, SDJ, Inc., 837 F.2d at 1273

(quoting Shelton v. City of College Station, 780 F.2d 475, 479 (5th

Cir. 1986) (en banc)); the zoning of the freeway as a residential

district was consistent with the City's Development Code and

historical zoning practices; and, most importantly, the zoning

classification "predates the existence of [SOBs] and was not

motivated to restrict any form of expression”. Baby Dolls, 114 F.

Supp. 2d at 543 (emphasis added). Accordingly, and citing

Employment Division, Department of Human Resources of Oregon v.

Smith, 494 U.S. 872, 882 (1990), the district court held: "[T]he

classification is a content-neutral, generally applicable law that

does not violate the First Amendment even if it incidentally

28

burdens [Baby Dolls'] protected expression”. Baby Dolls, 114 F.

Supp. 2d at 543.

Baby Dolls maintains the district court "misconstrued the

First Amendment claim as being a challenge to the City's policy of

zoning to the middle of the street”. "What is properly to be

evaluated”, according to Baby Dolls, "is the application of [the]

one thousand (1000) foot distance restriction from residentially

zoned property when that property is a freeway and there is no

likelihood of residential use”. In that light, Baby Dolls urges us

to apply the four-part test for incidental limitations on

expressive conduct set out in United States v. O'Brien, 391 U.S.

367 (1968).

Even if we accept Baby Dolls' framing of the appropriate

inquiry and review its claim de novo, its contention fails.

"Regulations that burden speech incidentally or control the time,

place, and manner of expression must be evaluated in terms of their

general effect.” United States v. Albertini, 472 U.S. 675, 688-89

(1985) (emphasis added; citation omitted). "The First Amendment

does not bar application of a neutral regulation that incidentally

burdens speech merely because a party contends that allowing an

exception in the particular case will not threaten important

government interests.” Id. at 688 (emphasis added; citing Clark v.

Cmty. for Creative Non-Violence, 468 U.S. 288, 296-297 (1984)).

For the foregoing reasons, the judgment is AFFIRMED