Agenda - Planning Commission - 02/07/1995

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Adult Entertainment-- City Says Nightclub Dancers Aren't Wearing Enough TBCH Inc. v. City of Albuquerque, 874 P. 2d 30 (New Mexico) 1994 The city of Albuquerque, N.M., had a zoning code that required adult en- tertainment establishments to get conditional use permits and be located in certain areas. The code defined adult entertainment establishments as places where the entertainment emphasized specified anatomical areas, including fe- male breasts that were "less than completely and opaquely covered" from a point immediately above the top of the nipple to a point immediately below the bottom of the breast. TBCH Inc., owned a nightclub that featured female dancers. TBCH required its dancers to apply heavy theatrical makeup to their breasts and affix flesh- colored plastic circles to their nipples. The city informed TBCH that the nightclub was an adult entertainment establishment because its dancers' breasts were not completely and opaquely covered. The city ordered TBCH to comply with the zoning code, or move the club to an area allowing adult entertainment. The city zoning manager issued a written ruling that the ordinance's lan- guage "clearly eliminates the use of 'pasties' or nipple covers of any type. Only some sort of clothing which would cover the entire lower breast is acceptable." TBCH appealed the ruling to the city's Environmental Planning Commis- sion, which upheld the decision and adopted it as an official city policy. The city council and the lower court also affirmed'the ruling, and TBCH appealed again. DECISION: Reversed, in favor of TBCH. TBCH was in compliance with the zoning code and did not have to relocate. TBCH proved the makeup its dancers used was opaque, and that the dancers applied the makeup to the entire breast area that the zoning code specified. The only disputed issue was the meaning of the word "covered." The dic- tionary defined "cover" several ways, including "to put, lay, or spread some- thing over, on, or before," "to lie over: spread over: be placed on or often over whole surface of," and "to put a surface layer over usu[ally] completely." Another definition was, "to protect or conceal (one's body or a part of it) from view tXpically with an article of clothing or bedding." However, as used in this definition, the word "typically" did not mean clothing was the only thing that could be used as a cover. The makeup and plastic circles were a cover within the zoning code's defi- nition, even though TBCH allowed the appearance of an actual breast to show. This was not an absurd interpretation of the ordinance. If the city council tended the definition of "covered" to mean the appearance of the breast should not be apparent to the viewer, it should have been more clear when writing the ordinance. Helman v. Gallegos, 871 P2d 1352 (1994). State v. Nance, 41_9 P2d 242 (!966).