Stansberry v. Holmes

613 F.2d 1285
CourtCourt of Appeals for the Fifth Circuit
DecidedMarch 17, 1980
DocketNo. 79-3606
StatusPublished
Cited by62 cases

This text of 613 F.2d 1285 (Stansberry v. Holmes) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Stansberry v. Holmes, 613 F.2d 1285 (5th Cir. 1980).

Opinion

TUTTLE, Circuit Judge:

This case involves an appeal from a district court’s order permanently enjoining the enforcement of Regulations §§ 4(k) and (1) of the Regulations of Harris County, Texas dealing with the zoning of certain sexually oriented commercial enterprises. We reverse the decision of the trial court.

For a number of years Texas municipalities have sought to regulate the location or operation of sexually oriented businesses.1 Faced with the problem of many of those businesses moving outside city limits, in May 1979 the Texas Legislature enacted enabling acts 2372 v and w authorizing the commissioners court of any county to adopt regulations in the unincorporated territory of the county governing the operation of massage establishments and the location “of massage parlors, nude studios, modeling studios, love parlors, and other similar commercial enterprises whose major business is the offering of a service which is intended to provide sexual stimulation or sexual gratification to the customer.” [See Appendix A].

Pursuant to that authority, the Commissioners Court of Harris County, Texas in September 1979 adopted regulations restricting the location of certain sexually oriented commercial enterprises, to be effective in October 1979. [See Appendix B]. In part, the regulations made it unlawful for any person to operate a sexually orient[1287]*1287ed commercial enterprise without a valid permit issued by the sheriff and stated that no permit could be issued unless the applicant could show that the enterprise was at least 1500 feet from a child care facility, a church or place of worship, a dwelling, public building or public park, school, hospital or a building in which alcohol was sold. A “sexually oriented commercial enterprise” was defined as a “massage parlor, nude studio, modeling studio, love parlor and any other similar commercial enterprise whose major business is the offering of a service which is intended to provide sexual stimulation or sexual gratification to the customer.” The regulations specifically exempted any bookstore, movie theatre or business licensed to sell alcoholic beverages; any business operated by or employing licensed psychologists, licensed physical therapists, licensed athletic trainers, cosmetologists or barbers; or any business employing or operated by licensed physicians or licensed chiropractors.

The penalty for non-compliance with the regulation was a penal sanction, a class B misdemeanor,2 and the operation of any such sexually oriented commercial enterprise without a permit was declared a public nuisance.

On October 10, 1979, the plaintiffs filed suit challenging the ordinance under 42 U.S.C. §§ 1981,1983, 1985, and 1986. They charged, among other things, that the Texas Act as applied through this local ordinance constituted the taking of property without due process or compensation; that the Act and ordinance were unconstitutionally vague; and that the Act and ordinance violated the First Amendment and the Due Process Clause of the Fourteenth Amendment. The trial court granted a temporary restraining order. After a hearing on the merits, the trial court entered an order decreeing that the definitions of “school” in section 4(k) and “sexually oriented commercial enterprise” in section 4(7)3 were unconstitutionally vague and overbroad. Specifically, the court found that the definition of “sexually oriented commercial enterprise” could encompass such businesses as art schools and dancing studios which the court described as “perfectly legitimate commercial enterprises.” The court also pointed out that the definition of “school” was unclear since the definition might apply to such enterprises as bartending or Karate schools. The trial court also stated that the regulations “possibly” violated the Fifth Amendment privilege against self-incrimination, since any people who admitted that they operated a sexually oriented commercial enterprise as defined in § 4(7), admitted in effect that they were violating § 43.02 of the Texas Penal Code which makes prostitution a crime.4 The trial court therefore granted a permanent injunction prohibiting enforcement of §§ 4(k) and (7) of the regulations of Harris County. This appeal followed.5

The appellants assert initially that the case does not contain any First Amendment issues, but involves rather an exercise of [1288]*1288the state’s police power through zoning.6 Since the regulations were tailored to avoid any effect on speech protected by the First Amendment, they contend that the regulations must be analyzed by the standard traditionally applied to zoning regulations— whether the regulations are arbitrary and unreasonable, having no rational relationship to a legitimate governmental interest. See Stone v. City of Maitland, 446 F.2d 83, 87 (5th Cir. 1971). The appellants then argue that the district court erred in holding that the definitions of “school” and “sexually oriented commercial enterprise” are vague and overbroad.

The appellees assert that the regulations are, as found by the trial court, vague and overbroad, failing to define the terms “school” and “sexually oriented commercial enterprise” so that a person of ordinary intelligence has fair notice of the conduct that is proscribed. They also contend that the regulations conflict with an individual’s Fifth Amendment right against self-incrimination because of the similarity between the definition of a sexually oriented commercial enterprise and the Texas Penal Code’s definition of prostitution. See Texas Penal Code § 43.02, supra note 4.

I.

It is important to note at the outset that the regulations in question do not attempt to zone businesses such as bookstores or movie theatres, which fall within the protection of the First Amendment. In Young v. American Mini Theatres, Inc., 427 U.S. 50, 96 S.Ct. 2440, 49 L.Ed.2d 310, rehearing denied, 429 U.S. 813, 97 S.Ct. 191, 50 L.Ed.2d 155 (1976), the Supreme Court held that “adult” theatres may be subject to municipal zoning regulations, despite the traditional rule that expression may not be classified on the basis of content. 427 U.S. at 72-73, 96 S.Ct. at 2453. Although Young affords certain “speech” activities lesser protection than under traditional First Amendment principles, it nonetheless requires a more stringent review than is applicable to regulations zoning conduct not protected under the First Amendment. See id.; Note, Developments in the Law — Zoning, 91 Harv.L.Rev. 1427, 1560 (1978). However no First Amendment interests are at stake here; we therefore analyze the provisions by the traditional standards applicable to zoning regulations.

II.

If the district court, in calling the ordinance “overbroad” and “vague” means that this ordinance is beyond the police power, it is certainly mistaken.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Petroplex International v. St. James Parish
158 F. Supp. 3d 537 (E.D. Louisiana, 2016)
Brown, Patrick Marcel
Texas Supreme Court, 2015
MJJG Restaurant LLC v. Horry County
102 F. Supp. 3d 770 (D. South Carolina, 2015)
Villarreal v. State
267 S.W.3d 204 (Court of Appeals of Texas, 2008)
Beatrice Villarreal v. State
Court of Appeals of Texas, 2008
State v. CARAMACO
203 S.W.3d 596 (Court of Appeals of Texas, 2006)
Wisconsin Vendors, Inc. v. Lake County, Ill.
152 F. Supp. 2d 1087 (N.D. Illinois, 2001)
N.W. Enterprises, Inc. v. City of Houston
27 F. Supp. 2d 754 (S.D. Texas, 1998)
Mayhew v. Town of Sunnyvale
964 S.W.2d 922 (Texas Supreme Court, 1998)
Schleuter v. City of Fort Worth
947 S.W.2d 920 (Court of Appeals of Texas, 1997)
Mayo v. State
877 S.W.2d 385 (Court of Appeals of Texas, 1994)
Sabetti v. DiPaolo
First Circuit, 1994
TK's Video, Inc. v. Denton County, Tex.
830 F. Supp. 335 (E.D. Texas, 1993)
Brown v. Crawford County
960 F.2d 1002 (Eleventh Circuit, 1992)
State v. Garcia
823 S.W.2d 793 (Court of Appeals of Texas, 1992)
United States v. Juan Ramon Canals-Jimenez
943 F.2d 1284 (Eleventh Circuit, 1991)
Executive 100, Inc. v. Martin County
922 F.2d 1536 (Eleventh Circuit, 1991)

Cite This Page — Counsel Stack

Bluebook (online)
613 F.2d 1285, Counsel Stack Legal Research, https://law.counselstack.com/opinion/stansberry-v-holmes-ca5-1980.