Advanced Zoning: Cleaning up the SOB’S in Dallas

For many, many years the City of Dallas waged war against the “sexually oriented business” industry (commonly known as “SOBs”). Or maybe the clubs were at war against Dallas. Time and again Dallas amended its zoning ordinance, only to have it struck down as unconstitutional under the First Amendment.

It got started in earnest in 1986, with the enactment of the infamous Section 41A of the Dallas City Code to “prevent the continued concentration of SOBs.” In 1988, the federal 5th Circuit Court of Appeals first held that Dallas’ definitions of SOBs, and their location restrictions, were an unconstitutional restraint on 1st Amendment freedom of speech, with a revised order after rehearing in 1990.

Some of the SOBs, in a fairly creative move, began requiring their dancers to dress in a manner such that the business could classify itself as a “dance hall” under an entirely different section of the zoning codes, and then not have to even worry about relocating. Dallas said “not so fast” and changed the code to create a new class of dance hall, the dreaded Class D. To be a Class D dance hall was then equivalent to being an SOB.

Now it was the establishments’ turn again, and they filed a lawsuit challenging the new Class D SOB. But the trial court upheld the constitutionality of the regulations, and so the “SOB dance halls” required their entertainers to change their attire to once again to avoid SOB status and required relocation. This change moved them all the way up to “Class A” dance hall status, as I’m sure many of their regular patrons believed they deserved anyway.

Dallas again changed their regulations “because certain businesses featuring adult entertainment [had] found a way to circumvent the location restrictions set forth in [those] chapters.” And away everyone went to court all over again, where, in 1996, the district court ruled that the new definitions of “nudity” and “semi-nudity” and “simulated nudity” violated the 1st Amendment. Later in 1996, with a one paragraph opinion, the federal 5th Circuit Court of Appeals affirmed the district court.

And so back to the old drawing board went Dallas. It decided to beef up the non-content based justification of its regulations governing SOBs, known as “deliterious secondary effects” of the SOB industry, such as increased crime and negative effects on close neighborhoods. The city study concluded that sex-related crime rates in the SOB areas were more than three times higher than the city-wide average and five to ten times higher than in the non-SOB areas. It found a correlation between (a) the hours of operation and type of people which SOBs attract, and (b) higher crime rates. In addition, the study found that properties in areas surrounding SOBs had lower values, were more difficult to lease, and remained on the market longer than in other areas. The definitions of “nudity” and “semi-nudity” and “simulated nudity”, and several other key definitions, were changed back to the 1993 versions which had previously been held unconstitutional. All of the changes meant that the topless clubs, strip joints, adult cabarets, or whatever other euphemism you care to use, were now inarguably classified as “SOBs” and required to obtain licenses and relocate.

And so, in June of 1997, Baby Dolls Topless Saloons, Inc., which had been denied an SOB license because of its location, took everyone back to court yet again. Eleven other SOBs joined in, and the fight by the Topless Twelve was on. In September, 1998, the federal district court held trial and later, in May of 2000, entered a very detailed written judgment for the city, upholding the new zoning regulations. The Topless Twelve appealed. But finally, on June 20, 2002, the Topless Twelve lost in the 5th Circuit.

Among the more interesting parts of an otherwise very dry and technical opinion, there was some involved discussion of touching between dancer and patron. Prior to this case, the 5th Circuit had held that “patrons have no First Amendment right to touch a nude dancer” because “the conduct at that point has overwhelmed any expressive strains it may contain.” But undaunted, the Topless Twelve called a cultural anthropologist to the witness stand at trial, and had him testify that innocuous touch between a dancer and patron should be constitutionally protected as free speech because the touch communicates a distinct message, namely that of concern, affection, caring and elimination of the sense of distance and coldness. The dancer wants to convince the man that he is “king for the moment, as it were.” But the court wasn’t buying it.

And so Dallas entered the modern era of regulated SOBs. At one time Dallas was home to more strip joints than any other city in America, and if my memory is right, it was at the same time home base for more televangelists than any other U.S. city. I have no idea what that might prove, if anything, but I do think it may be a bit more than pure coincidence.

In any event, this case continued a trend in the courts of allowing cities more and more authority to control land use, especially in the wake of urban sprawl many see as out of control. If you face a fight over zoning regulations and land use, it is important to retain qualified legal counsel early in the process in order to either negotiate a mutually acceptable solution, find and exploit a loophole, or posture the matter to increase your chances of winning in court.

Baby Dolls Topless Saloons, Inc. v. City of Dallas, Texas, Case No. 00-10651

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