Agenda - Planning Commission - 02/06/1996

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Page 2 -~ December 15, 1995 z.g. Adult E~tertainment- City Revokes License on Sexually Oriented Business! Opening Day Hooters Inc. v. CiO' of Texarkana, 897 F. Sut~p. 946 (Texas) ]995 Goler~an was the sole officer, director, and shareholder of Hooters Inc. (a Texas co~poration unrelated to the national restaurant chain). She wanted to operate airestaurant with nude dancing in the city of Texarkana, Texas. On Ja/h. 25, 1995, Goleman applied for a "License for a Sexually Oriented Business'! as required by a city ordinance. She also paid a nonrefundable $400 app!ication fee. The application stated the business would be an "[a]dult [c]abaret,! or food service, private or public parties and meeting area" called Hooters I~c., dfo/a EXecUtive Room. Apparently, the nude dancing would be the main [feature that drew customers into the restaurant. Undei the city ordinance, an adult cabaret was a nightclub or restaurant that featuied nudity (real or simulated), live performances in which "speci- fied anatdmical areas" were exposed, or films or videos showing sexual activ- i , ity or "s~ec~hed anatomical areas." Sexually oriented businesses were not allowed '&ithin 1,000 feet of a church or school. The ordinance defined a church as!"a building in which persons regularly assemble for religious wor- ship and act~wt~es." Two days after Goleman filed the application, the city's planning admini- strator se~t her a letter that stated the location was not within 1,000 feet of a church orischool. On Feb. 2, the city's police chief issued Goleman a license. Gole~an spent nearly $100,000 remodeling. On May 8, 1995, the night Goleman !planned to open the business, the police chief revoked the license. The chie~ said the business was within 1,000 feet of a church. The alleged church was inside the Bowie County Correctional Center. Hoote?s sued the city. Hooters claimed the city -- by revoking the license -- violated its free speech and due process rights under the state and federal constitutions. Hoot~Is also asked the court to order the city to let the business open and operate u~hder the license pending a trial. It said that although the county could legally provide religious services for its inmates, it could not fund a church. D~ring the hearing on Hooters' requested order, there was testimony that the c,0rrectional center used 2,400 of its 32,000 square feet for worship, preaching and singing. However, the actual space it used for these religious services grot shifted around and was used for other things as well. DECISIO~,I: Motion granted. Hooter's was entitled to an order letting it operate pending trial. The n~de dancing at the business was protected expression under the First Amendment to the federal Constitution. To deny Hooters the right to have nude dandling, even for a short time, would deprive it of its "primary drawing card." This harm outweighed the minimal threat to the city if the business were allo~ed to be open until trial. In that short period, there would not be enough ti~e for the secondary effects about which the city was concerned to //3