Petition — Stansberry v. Holmes

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79-1878 9 | “ow

MICHAEL RODAK, JR., CLES

ae

Supreme Court of the United States

APRIL TERM

No. 79-3606

JESSIE STANSBERRY, D/B/A

UNIVERSAL STUDIO, ET AL,

Petitioner

Vv.

JOHN HOLMES,

Harris County District Attorney,

and

JACK HEARD,

Sheriff of Harris County,

Each in their official capacity,

Respondents

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

DOHERTY, VELA, POSER,

SEARS AND COLLINS

STAN“.EY G. SCHNEIDER

2225 LaBranch

Houston, Texas 77002

713/652-5711

Attorneys for Petitioner

ARERR. 9 OEE TERRE TUTTO IMR Is NINA RT

Alpha Law Brief Co., One Main Plaza, No. 1 Main St., Houston, Texas 77002

SUBJECT INDEX

CITATIONS TO OPINIONS BELOW ................

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GUNTIORE PROMINTED oo. ooo ds ee

QUESTION NUMBER ONE ................-ceeeee:

Whether Sections 4(k) and 4(1) of the regulations

of Harris County, Texas, for the location of certain

sexually oriented commercial enterprises are uncon-

stitutionally vague and in violation of the due process

clause of the Fourteenth Amendment of the United

States Constitution.

HOW THE .EDERAL QUESTIONS WERE RAISED

I GREE? GS | vk.v ko ndecncsncaveuewheess

CONSTITUTIONAL AND STATUTORY PROVISIONS

PEE ak gee khsvanne saute n ones OO RERa RD eee

APPENDIX A (Order Denying Petition for Rehearing and

Opinion. of the United States Court of Appeals, Fifth

|S RR ey beg ger eo arama tt An lA AS a

LIST OF AUTHORITIES

CASES

Cramp v. Board of Public Instruction of Orange County,

Se. a a Oe COMORD Sack bine cde eee us ences

Grayned v. City of Rockford, 408 U.S. 104 (1972) .

Papachristou v. City of Jacksonville, 405 U.S. 156 (1972)

Rabe v. Washington, 405 U.S. 313 (1972) ............

Smith v. Goguen, 415 U.S. 566 (1974) ...........c00.8.

United States v. Harris, 347 U.S. 612 (1954) ..........

Young v. American Mini-Theatres, Inc., et al, 427 USS.

My PR CPE Fan 00 Oh aha cesvee ea cs aNe eu auackooee

Ny M DH ND

11

II

Page

UNITED STATES CONSTITUTION

ad and oo wy s ies cbc eabceaee 4,6,9

rs ke bs bac eve vcedsccecsevas 2,4, 6,9

UNITED STATES STATUTES

ES 2

28 U.S.C. §§ 1331, 1343, 2201, 2202, and 2403 ........ 4

42 US.C. §§ 1981, 1983, 1985, and 1986 .............. 4

TEXAS STATUTES

EE ae 3,4

REGULATIONS OF HARRIS COUNTY

EES 4,3, 5,9

De abide casa seccevaccccces 2,3,5

MISCELLANEOUS

Note, Developments in the Law—Zoning, 91 Harv. L.

I oven saves ec setesesccene 5,6

Supreme Court of the Wnited States

APRIL TERM

No. 79-3606

JESSIE STANSBERRY, D/B/A

UNIVERSAL STUDIO, ET AL,

Petitioner

V.

JOHN HOLMES,

Harris County District Attorney,

and

JACK HEARD,

Sheriff of Harris County,

Each in their official capacity,

Respondents

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

Petitioner prays that a writ of certiorari issue to review

the judgment of the United States Court of Appeals for

the Fifth Circuit, entered March 17, 1980, rehearing

denied April 28, 1980.

2

CITATIONS TO OPINIONS BELOW

The opinion of the United States Court of Appeals

for the Fifth Circuit is reported at 613 Fed.2d 1285

(1980) and attached as Appendix A.

JURISDICTION

Jurisdiction of this Court is invoked pursuant to 28

U.S.C. Sec. 1254, petitioner having challenged the con-

Stitutionality of an ordinance promulgated by Harris

County, Texas.

QUESTION PRESENTED

QUESTION NUMBER ONE

Whether Sections 4(k) and 4(1) of the regulations

of Harris County, Texas, for the location of certain

sexually oriented commercial enterprises are uncon-

stitutionally vague and in violation of the due process

clause of the Fourteenth Amendment of the United

States Constitution.

Upon presentation of Petitioners’ original complaint,

the Hon. John V. Singleton, United States District Judge,

Southern District of Texas, issued a restraining order.

A hearing was scheduled for October 26, 1979, at which

time Appellees and Appellants put on evidence concern-

ing the Regulations. After hearing evidence and review-

ing the pleadings and briefs submitted, the District Court

entered an order holding that Sections 4(k) and 4(1)

of the Regulations of Harris County, Texas for certain

sexually oriented commercial enterprises violate the due

process component of the Fourteenth Amendment of the

3

United States Constitution. The basis for the District

Court’s order was that Section 4(1)’s definition of sexu-

ally oriented commercial enterprises was vague and over-

broad in that the county’s inherent police powers may be

used to harass perfectly legitimate commercial enterprises

which engage in activities that might sexually stimulate

their patrons. Judge Singleton further stated that Section

4(k), which provides the definition of the term “school,”

does not provide certainty as to its definition and thus

is unconstitutionally vague. Respondents gave notice of

appeal and urged the Fifth Circuit to reverse the decision

of the District Court.

On Appeal, the Fifth Circuit Court held that the Regu-

lation was Constitutional and disagreed with the District

Court in that portions of the act, specifically Section

4(k) and 4(1), were not vague and that the definition

provided by the ordinance was “sufficiently clear and pro-

vided adequate warning of the prescribed conduct.” Re-

hearing was denied; however, the Court modified its

opinion by adding a footnote.

HOW THE FEDERAL QUESTIONS WERE

RAISED AND DECIDED BELOW

In its original complaint Petitioner attacked the con-

stitutionality of both the enabling act, V.A.T.S. Article

2372w, and the Harris County Regulation as being

unconstitutionally vague and in violation of the Fifth and

Fourteenth Amendments to the United States Constitu-

tion. The District Court ruled on Petitioners behalf. The

United States Court of Appeals for the Fifth Circuit

reversed the decision of the District Court, holding that

the definitions in the ordinance were not vague.

4

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

1. This case involves the Fifth and Fourteenth Amend-

ments to the Constitution of the United States.

2. This case also involves the following provisions of

Texas Law: Texas Civil Statutes, Article 2372w and the

regulations of Harris County, Texas for the location of

certain sexually oriented commercial enterprises which

the appeals court included as Appendix A and Appendix

B of its original opinion and are included as such in

Appendix A of this petition.

STATEMENT

On May 17, 1979, V.A.T.S. Article 2372w, hereafter

referred to as the Act was enacted by the State of Texas

to permit counties and cities to enact ordinances and

orders regulating the location of certain sexually oriented

commercial activities. The act provided that noncompli-

ance with any regulation adopted pursuant to it could

result in penal sanctions. On August 6, 1979, the Com-

missioner’s Court of Harris County, Texas adopted by

order their Regulations of Harris County, Texas for the

location of certain sexually oriented commercial enter-

prises, hereafter referred to as Regulations. The Regula-

tions created penal sanctions for noncompliance with the

Regulations and set October 15, 1979 as the effective

date of the Regulations. On October 10, 1979, Petitioner

filed suit in Federal District Court pursuant to 42 U.S.C.

1981, 1983, 1985, and 1986 and, 28 U.S.C., Secs. 1331,

1343, 2201, 2202, and 2403, seeking to enjoin enforce-

ment of V.A.T.S., Art. 2372w and the Regulations of

Harris County, Texas.

3

REASONS FOR GRANTING THE WRIT

Petitioners assert that this Court should grant certiorari

to determine whether Sections 4(k) and 4(1) of the

ordinance promulgated by Harris County, are unconstitu-

tional pursuant to the Fifth and Fourteenth Amendments

to the United States Constitution. In determining whether

or not the ordinance is unconstitutionally vague this Court

should not view the ordinance in terms of a zoning re-

striction placed by a local legislative body. In accordance

with the Fifth Circuit’s decision, the local legislative

bodies could use zoning as a means of exercising control

over private property. Note, Developments in the Law—

Zoning, 91 Harv. L. Rev. 1427, 1429 (1978). The Fifth

Circuit noted that with the rapid development of a highly

urban industrial society, the importance of zoning as a

form of land use control has increased. The past decade

has seen a growing popular acceptance of the notion that

infinite uncontrolled growth often produces the unsightly

sprawl that threatens to turn every major street into a

neon commercial carnival. Justice Powell recognized these

same principles in his concurring opinion in Young v.

American Mini-Theatres, Inc., et al, 427 U.S. 50, 74

(1976), in the power of local municipalities to utilize

the novel controls of land use regulation in order to

meet effectively the increasing encroachment of urbani-

zation upon the quality of life of its citizens. However,

in ascertaining the measure of authority or power of the

Harris County Municipal Courts to regulate and adopt

zoning procedures, and interpret the constitutionality of

the contested ordinance, this Court should recognize that

in Houston and Harris County, Texas there is no uniform

zoning ordinance throughout the city. As noted in the

Harvard Law Review article, Houston, Texas is one of

6

the only cities with a population of over 250,000 that

has not enacted any zoning ordinances. Consequently,

the authority of Harris County must be viewed in terms

of the actual statute itself and not in terms of the au-

thority of a legislative body to zone. See Note, Develop-

ments in the Law—dZoning, supra, 1427, 1439.

Thereby, since the violation of the regulations can re-

sult in a criminal prosecution, Petitioner asserts that the

regulation must be couched in terms precise enough to

give fair notice of the conduct constituting the criminal

violation in order to meet the requirements of due process

as guaranteed by the Fifth and Fourteenth Amendments

to the Constitution of the United States.‘ Rabe v. Wash-

ington, 405 U.S. 313 (1972).

Petitioners assert that the Regulations do not satisfy

such requirements as the acts which are forbidden by the

Statute and are so vague and indefinite that men of ordinary

intelligence must necessarily guess at their meaning and

differ as to their application. See Papachristou v. City

of Jacksonville, 405 U.S. 156 (1972); Grayned v. City

of Rockford, 408 U.S. 104 (1972); Smith v. Goguen,

415 U.S. 566 (1974); Cramp v. Board of Public Instruc-

tion of Orange County, Florida, 368 U.S. 278 (1961);

United States v. Harris, 347 U.S. 612 (1954).

In Smith v. Goguen, the Supreme Court specifically

stated:

The (due process) doctrine (of vagueness) in-

corporates notions of fair notice or warning. More-

1. A violation of the Regulations subjects the offender to punish-

ment for a Class B misdemeanor which provides a maximum punish-

ment of a $1,000.00 fine and/or confinement in jail for a term not

to exceed 180 days.

7

over, it requires legislatures to set reasonable clear

guidelines for law enforcement officials and triers

of fact in order to prevent arbitrary and discrimina-

tory enforcement . . . Statutory language of such a

standardless sweep allows policemen, prosecutors,

and juries to pursue their personal predilections.

Legislature may not so abdicate responsibility for

setting a standard for criminal law. (415 U.S. at

572, 575).

Petitioners assert that the Regulations are vague and

fail to describe what is meant by “major business” of

the establishment. In conjunction with the lack of a

definition, it implies that the businesses are intended to

provide for the sexual stimulation or sexual gratification

of their customers.

Contrary to the Fifth Circuit’s decision, the concept

of “major business” was not defined by the ordinance.

Thereby, it is possible that a person could be prosecuted

if ten percent (10%), forty percent (40%) or sixty

percent (60%) of their business could be “intended to

provide sexual stimulation or sexual gratification.” Con-

sequently, Petitioners assert that such a vague concept

of “major business” could tend to allow for the arbitrary

and capricious enforcement of the act by county au-

thorities.

Section 4(1) defines sexually oriented commercial en-

terprises as

a massage parlor, a nude studio, modeling studio,

love parlor, or any 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.

8

Petitioner asserts that this section of the regulation is

so vague and overbroad in its sweep that the counties

police power may be used to harass perfectly legitimate

commercial enterprises engaged in activities that may

sexually stimulate their patrons. The Regulations fail to

define such important terms as massage parlor, nude

studio, modeling studio and love parlor. This act does

not specify whether the regulations apply to those busi-

nesses that have one of those terms in its name. Thereby,

This ordinance is void of vagueness, both in the

sense that it fails to give a person of ordinary in-

telligence fair notice that its contemplated conduct

is prohibited by the statute and because it encour-

ages arbitrary and erratic arrests and convictions.

Papachristou v. City of Jacksonville, 405 U.S. 156,

162 (1972).

Section 4(k) of the regulations defines “school” as being

A building where persons regularly assemble for

the purpose of instruction, together with playgrounds,

dormitories, stadiums and other structures or grounds

used in conjunction therewith.

Petitioners feel that the definition as stated is unclear

as to whether this section means schools where children

attend classes daily from September to May, or all build-

ings where information of any type is disseminated. For

example,

are karate schoois, bartending schools, and buildings

where Dale Carnegie courses, Tye-chi dancing or

hypnotism are taught, intended to fall within the

meaning of Section 4(k).

9

Consequently, Petitioners maintain that this definition

does not provide the certainty required to uphold the

constitutionality of Section 4(k). Therefore, Appellees

maintain that the Regulations as adopted are unconstitu-

tionally vague. The Regulations allow for the selective

enforcement by the Respondent and thereby Petitioners

assert that their right to due process of law as guaranteed

by the Fifth and Fourteenth Amendments to the United

States Constitution would be abrogated.

CONCLUSION

Petitioner prays that the petition for writ of certiorari

be granted.

Respectfully submitted,

DOHERTY, VELA, POSER,

SEARS AND COLLINS

STANLEY G. SCHNEIDER

2225 LaBranch

Houston, Texas 77002

713/652-5711

Attorneys for Petitioner

Dated: Houston, Texas

May 27, 1980

10

CERTIFICATE OF SERVICE

I hereby certify that on this the 27th day of May,

1980, a true and correct copy of the foregoing Petition

for Writ of Certiorari was delivered via certified U.S.

mail, return receipt requested, to the following parties:

Anthony D. Sheppard

Assistant County Attorney

1001 Preston, Suite 634

Houston, Texas 77002

Mr. Clyde F. DeWitt, ITI

Assistant District Attorney

201 Fannin

Houston, Texas 77002

STANLEY G. SCHNEIDER

11

APPENDIX A

Jessie STANSBERRY d/b/a Universal Studio et al.,

Plaintiffs-Appellees,

Vv.

John HOLMES, Harris County District Attorney,

Jack Heard, Sheriff of Harris County, Texas,

each in their official capacities,

Defendants-Appellants.

No. 79-3606.

UNITED STATES COURT OF APPEALS

Fifth Circuit.

April 28, 1980.

Appeal from the United States District Court

for the Southern District of Texas;

John V. Singleton, Jr., Judge.

AMENDED ORDER

ON PETITION FOR REHEARING AND PETITION

FOR REHEARING EN BANC

(Opinion 3-17-80, 5 Cir., 1980, 613 F.2d 1285).

Before TUTTLE, FAY and THOMAS A. CLARK,

Circuit Judges:

PER CURIAM:

The Petition for Rehearing is DENIED and no member

of this panel nor Judge in regular active service on the

12

Court having requested that the Court be polled on

rehearing en banc, (Rule 35 Federal Rules of Appellate

Procedure; Local Fifth Circuit Rule 16) the Petition for

Rehearing En Banc is DENIED.

The Court, sua sponte, adds the following language

to footnote 10:

We do not reach questions arising under this pro-

vision of the Constitution because since appellees

prevailed on their due process claim, they did not

urge this point before us. It remins open on remand

to the district court.

13

Jessie STANSBERRY d/b/a Universal Studio et al.,

Plaintiffs-Appellees,

Vv.

John HOLMES, Harris County District Attorney,

Jack Heard, Sheriff of Harris County, Texas,

each in their official capaci: es,

Defendants-Appellants.

No. 79-3606.

UNITED STATES COURT OF APPEALS

Fifth Circuit.

March 17, 1980.

The United States District Court for the Southern

District of Texas at Houston, John V. Singleton, Jr.,

Chief Judge, permanently enjoined enforcement of county

regulations dealing with zoning of certain sexually ori-

ented commercial enterprises. On appeal by county of-

ficers, the Court of Appeals, Tuttle, Circuit Judge, held

that the regulations were not invalid as violative of

constitutional rights of free speech nor were the regula-

tions objectionable as being unconstitutionally vague and

overbroad.

Judgment reversed and case remanded.

* * *

Appeal from the United States District Court

for the Southern District of Texas

Before TUTTLE, FAY and THOMAS A. CLARK,

Circuit Judge.

TUTTLE, Circuit Judge:

This case involves an appeal from a district court’s

order permanently enjoining the enforcement of Regula-

14

tions §§4(k) and (/) 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.’ Faced with the problem of many of those

businesses moving outside city limits, in May 1979 the

Texas Legislature enacted enabling acts 2372v and w

authorizing the commissioners court of any county to

adopt regulations in the unincorporated territory of the

county governing the operation of massage establish-

ments and the location “of massage parlors, nude studios,

modeling studios, love parlors, and other similar com-

mercia enterprises whose major business is the offering

of a service which is intended to provide sexual stimula-

tion or sexual gratification to the customer.” [See Ap-

pendix Aj].

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 oriented

commercial enterprise without a valid permit issued by

the sheriff and stated that no permit could be issued un-

less the applicant could show that the enterprise was at

least 1500 feet from a child care facility, a church or

1. See, e. g., Patterson v. City of Dallas, 355 S.W.2d 838 (Tex.

Civ. App. 1962), appeal dismissed, 372 U.S. 251, 83 S.Ct. 873,

9 L.Ed.2d 732 (1963) (Dallas); City of Houston v. Shober, 362

S.W.2d 886 (Tex. Civ. App. 1962) (Houston); Holt v. City of

San Antonio, 547 S.W.2d 715 (Tex. Civ. App. 1977) (San Antonio).

15

place of worship, a dwelling, public building or public

park, school, hospital or a building in which alcohol

was sold. A “sexually oriented commercial esterprise”

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 theapists, 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,’ and the

operation of any such sexually oriented commercial enter-

prise without a permit was declared a public nuisance.

On October 10, 1979, the plaintiffs filed suit chal-

lenging 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 un-

constitutionally 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

2. According to § 12.22 of Vernon’s Texas Code Annotated-Penal

(1974), a class B misdemeanor is punishable by a fine not exceeding

$1,000 and a jail sentence not exceeding 180 days.

16

oriented commercial enterprise” in section 4(/)* 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 sexu-

ally oriented commercial enterprise as defined in § 4(/),

admitted in effect that they were violating § 43.02 of the

Texas Penal Code which makes prostitution a crime.‘

The trial court therefore granted a permanent injunction

prohibiting enforcement of $$ 4(k) and (/) of the regu-

lations of Harris County. This appeal followed.°

3. Section 4(k) states:

“School” means a building where persons regularly assemble

for the purpose of instruction or education together with the

playgrounds, dormitories, stadiums, and other structures or

grounds used in conjunction therewith;

Section 4(/) states:

“Sexually oriented commercial enterprise’ means a massage

parlor, nude studio, modeling studio, love parlor and any other

similar commercial enterprise whose major business is the offer-

ing of a service which is intended to provide sexual stimulation

or sexual gratification to the customers.

4. Texas Penal Code § 43.02 defines the crime of prostitution as

knowingly offering to engage or soliciting another to engage in an

act which involves (1) contact between the genitals of one person

and the mouth or anus of another person, (2) any touching of the

anus or any part of the genitals of another person or the breast of

a female 10 years or older with intent to arouse or gratify the sexual

desire of any person or (3) penetration of the female sex organ by

the male sex organ.

5. The court apparently found no merit in the other arguments

of the plaintiffs. The order states that the enabling act is constitu-

17

The appellants assert initially that the case does not

contain any First Amendment issues, but involves rather

an exercise of the state’s police power through zoning.°

Since the regulations were tailored to avoid any eflect

on speech protected by the First Amendment, they con-

tend 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 (Sth 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

tional, and cites an opinion holding that the Harris County massage

parlor regulations are a constitutional exercise of the police power.

See Magdalene Harper v. John Lindsay, No. 77-1435 (S.D. Tex.,

May 31, 1978).

6. Several of the cases relied upon by the district court involved

regulations affecting speech protected by the First Amendment. See

Young v. American Mini Theatres, 427 U.S. 50, 96 S.Ct. 2440, 49

L.Ed.2d 310, rehearing denied, 429 U.S. 873, 97 S.Ct. 191, 50 L.Ed.

2d 155 (1976); Grayned v. City of Rockford, 408 U.S. 104, 92

S.Ct. 2294, 33 L.Ed.2d 222 (1972). The appellants are apparently

concerned that the court might apply the stricter standards appli-

cable to cases involving protected speech.

18

definition of prostitution. See Texas Penal Code § 43.02,

supra note 4.

I.

[1] It is important to note at the outset that the regu-

lations 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 re-

quires a more stringent review than is applicable to regu-

lations 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 there-

fore analyze the provisions by the traditional standards

applicable to zoning regulations.

II.

[2] If the district court, in calling the ordinance

“overbroad” and “vague” means that this ordinance is

beyond the police power, it is certainly mistaken. In our

age, zoning has become “the predominant technique by

which governments . . . [exercise] . . . control over

private property.” Note, Developments in the Law—

Zoning, 91 Harv. L. Rev. 1427, 1429 (1978). With

19

the rapid development of a highly urban and industrial-

ized society, the importance of zoning as a form of land

use control has increased. The past decade has seen a

growing popular acceptance of the notion that infinite

uncontrolled growth often produces the unsightly sprawl

that threatens to turn every major street into a neon

commercial carnival.

The Supreme Court has recognized the key role that

the zoning power can play in maintaining for citizens

an acceptable quality of life. Zoning is the local com-

munity’s most powerful weapon against a wave of com-

mercialism that threatens to permeate not only the major

thoroughfares but the quiet residential neighborhoods with

their parks, trees, and children at play. Without the

power to zone, every person would be at the mercy of

the entrepeneur who chose to develop on the next corner.

Zoning provides one of the firmest and most basic of

the rights of local control. Since 1928, the Supreme

Court has never held that a zoning measure exceeded

the police power.’ In Berman v. Parker, 348 U.S. 26, 33,

75 S.Ct. 98, 102, 99 L.Ed. 27 (1954), the Court held

that land use regulations may promote “values [which]

are spiritual as well as physical, aesthetic as well as

monetary.” In Village of Bele Terre v. Boraas, 416 U.S.

1, 9, 94 S.Ct. 1536, 1541, 39 L.Ed.2d 797 (1974),

the Court said that zoning could be used to create and

7. Some might consider an exception to be Moore v. City of

East Cleveland, 431 US. 494, 97 S.Ct. 1932, 52 L.Ed.2d 531

(1977), a recent case which involved a city single-family ordinance

which created a very limited definition of what constituted a family.

The ordinance was struck down by a plurality on the grounds that

it chose “to regulate the occupancy of its housing by slicing deeply

into the family itself.” Jd. at 498, 97 S.Ct. at 1935. That case thus

struck the statute down, not because it exceeded the police power,

but because it was too narrowly drawn. See Developments, p. 1443.

20

promote living areas that protect “family values [and]

youth values.” Given these pronouncements and the im-

portance of zoning as an instrument of community con-

trol over private property, this Court has decided that

the proper standard of review of zoning ordinances is

limited to the question “whether the action . . . is arbi-

trary and capricious, having no substantial relation to

the general welfare.” South Gwinnett Venture v. Pruitt,

491 F.2d 5, 7 (Sth Cir. 1974), cert. denied, 419 US.

837, 95 S.Ct. 66, 42 L.Ed.2d 64 (1974). See also,

Blackman v. City of Big Sandy, Texas, 507 F.2d 935

(Sth Cir. 1975).° The requirements of procedural due

process also must be observed,’ and a zoning decision

cannot violate the Fifth Amendment which says that

“private property [shall not] be taken for public use,

without just compensation.”’°

[3] In this case, the zoning measures at issue clearly

overcome the “arbitrary and capricious” standard. Not

only were the State of Texas and Harris County’s regula-

tions not arbitrary and capricious, they were a rational

and understandable effort to deal with a perceived evil

that affected living conditions in their area. Nor was

the county under a “compulsion to deal with all other

8. We do not address, of course, in this opinion recent cases that

attack the clear inequities promuigated by socially or class-oriented

exclusionary zoning, nor do we endorse such a narrow standard of

review in such cases. For an example of the attempts of recent state

courts to grapple with the issue, see Surrick v. Zoning Hearing Bd.

of U. Providence Tp., 476 Pa. 182, 382 A.2d 105 (1977); Southern

Burlington County NAACP v. Township of Mt. Laurel, 67 N.J.

151, 336 A.2d 713, appeal dismissed, 423 U.S. 808, 96 S.Ct. 18,

46 L.Ed.2d 28 (1975).

9. See Note, Developments in the Law—Zoning, 91 Harv. L. Rev.

1427, 1502-1549.

10. See Ibid., pp. 1462-1502,

21

evils that are seen to be equally serious” in the same or

other ordinances to pass the test of constitutionality. See

Stone v. City of Maitland, 446 F.2d 83, 88 (Sth Cir.

1971). The county clearly had the power to make the

judgment it did in this case in an attempt to insure a

more aesthetic quality of life for its people.

[4-6] We also disagree with the district court’s find-

ing that the terms “school” and “sexually oriented com-

mercial enterprise” are impermissibly vague. Any statute

or ordinance which proscribes certain conduct must be

sufficiently definite to “give a person of ordinary in-

telligence fair notice that his contemplated conduct is

forbidden by the statute,” and to avoid the possibility

of arbitrary and erratic arrests and convictions. Papa-

christou v. City of Jacksonville, 405 U.S. 156, 162,

92 S.Ct. 839, 843, 31 L.Ed.2d 110 (1971). A provision

need not, however, be cast in terms that are mathemati-

cally precise; it need only give fair warning of the con-

duct proscribed, in light of common understanding and

practices. Grayned v. City of Rockford, 408 U.S. 104,

110, 92 S.Ct. 2294, 2300, 33 L.Ed.2d 222 (1971);

United States v. National Dairy Products Corp., 372

U.S. 29, 32, 83 S.Ct. 594, 597, 9 L.Ed.2d 561 (1963);

United States v. Mikelburg, 517 F.2d 246, 252 (Sth

Cir. 1975), cert. denied, 424 U.S. 909, 96 S.Ct. 1104,

47 L.Ed.2d 313 (1976). The district court found that

the definition of “school” was vague because it could

possibly include “Karate schools, bartending schools, and

buildings where Dale Carnegie courses, t’ai, ch’i’ dancing

or hypnotism [are] taught.” We disagree. The reference

in the provision to “the playgrounds, dormitories, stadiums

and other structures or grounds used in conjunction there-

with” clearly narrows the definition to schools for pri-

‘

22

mary, secondary, and college education. The definition,

read as a whole, provides the necessary measure of cer-

tainty and is not unconstitutionally vague. The district

court also held that section 4(/) defining “sexually ori-

ented commercial enterprise” was “so vague and at the

same time overbroad in its sweep that the police power

might be used to harass perfectly legitimate commercial

enterprises that engage in activities that may sexually

Stimulate the patrons or customers such as dancing

studios, clubs featuring disco dancing or art schools

where nude models are used.” We do not agree with

the trial court’s reading of the definition. The definition

is limited to businesses “whose major business is the

offering of a service which is intended to provide sexual

stimulation or sexual gratification.” (Emphasis added.)

By including the phrase “major business,” the county

commissioners have excluded businesses whose activities

might incidentally cause sexual stimulation. Certainly no

one would contend that the major business of an art

school or dance studio was the provision of services in-

tended for sexual gratification. Additional definiteness

is provided by the fact that the section specifically list

three types of regulated businesses—massage parlors,

nude studios, and love parlors—and applies the defini-

tion to “any other similar commercial enterprise.” We

find that this definition is sufficiently clear and provides

adequate warning of the proscribed conduct.

[7] The district court also noted that the regulations

possibly conflict with the Fifth Amendment right against

self-incrimination because of the similarity between the

definition of sexually oriented commercial enterprise and

prostitution. The court cites Marchetti v. United States,

23

390 U.S. 39, 88 S.Ct. 697, 19 L.Ed.2d 889 (1967) as

an indication of this conflict. In Marchetti, the Court

held that a taxpayer could not be prosecuted for willful

failure to report income from wagering, since wagering

is prohibited by both state and federal law. Jd. at 60-61,

88 S.Ct. at 709. The direct self-incrimination present in

Marchetti is not, however, present in the instant case.

The definition of “prostitution” is very narrow and specifi-

cally drawn. Although a “business whose major purpose

is the provision of a service intended to provide sexual

stimulation or gratification” would certainly include prosti-

tution, the two are not synonymous. The definition in

section 4(/) encompasses a much broader range of con-

duct. Thus, application for a permit under these regula-

tions would in no way constitute an admission that an

individual was engaged in prostitution.

The judgment is REVERSED and the case is RE-

MANDED for further proceedings not inconsistent with

this opinion.

APPENDIX A

An Act

relating to the authority of cities and counties to regulate

the location of certain sexually oriented commercial ac-

tivities; providing penalties.

Be it enacted by the Legislature of the State of Texas:

Section 1. (a) The legislature finds that the unre-

stricted location of certain sexually oriented commercial

enterprises may be detrimental to the public health, safety,

and welfare by contributing to the decline of residential

24

and business neighborhoods and the growth of criminal

activity. The purpose of this Act is to provide local gov-

ernments a means of remedying this problem.

(b) This Act neither enhances nor diminishes the au-

thority of local governments to regulate commercial en-

terprises covered by this Act with regard to matters other

than their location.

Sec. 2. In this Act “city” means an incorporated city,

town, or village and includes a home-rule city.

Sec. 3. (a) A city by ordinance or a county by order

of the commissioners court may adopt regulations restrict-

ing the location of massage parlors, nude studios, model-

ing 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.

(b) Nothing in this Act is intended to authorize the

regulation of any bookstore, movie theatre, or business

licensed to sell alcoholic beverages, nor does it authorize

regulation of any business:

(1) operated by or employing licensed psychologists,

licensed physical therapists, licensed athletic trainers, li-

censed cosmetologists, or licensed barbers engaged in

performing functions authorized under the license held; or

(2) operated by or employing licensed physicians or

licensed chiropractors engaged in practicing the healing

arts.

(c) City regulations apply only inside the city’s cor-

porate limits. County regulations apply only to the parts

of the county outside the corporate limits of a city.

25

Sec. 4. (a) Regulations adopted under this Act may

restrict the location of regulated enterprises to particular

areas, restrict the density of regulated enterprises, or pro-

hibit the operation of a restricted enterprise within a

certain distance of a school, regular place of religious

worship, residential neighborhood, or other specified land

use the governing body of the city or county finds to be

inconsistent with the operation of a restricted establish-

ment.

(b) The city or county may require the obtaining of

a permit for the operation of a restricted establishment.

The city or county may charge a fee for the permit, but

the fee may not exceed the actual cost of processing the

permit application.

(c) A city that has in effect a comprehensive zoning

ordinance adopted under Chapter 283, Acts of the 40th

Legislature, Regular Session, 1927, as amended (Article

10lla, et seq., Vernon’s Texas Civil Statutes), must

comply with all applicable procedural requirements of

that statute in adopting regulations under this Act within

the scope of that statute.

Sec. 5. (a) A city or county may sue in the district

court to enjoin the violation of a regulation adopted

under this Act.

(b) Violation of a county regulation adopted under

this Act is a Class B misdemeanor.

(c) In a city that has a comprehensive zoning ordi-

nance as described in Subsection (c), Section 4, of this

Act, a violation of an ordinance adopted under this Act

is punishable by the same penalty prescribed for a viola-

tion of the zoning ordinance. In all other cities, violation

26

of an ordinance adopted under this Act is a Class B

misdemeanor.

Sec. 6. This Act does not legalize anything prohibited

under the Penal Code or other state law.

Sec. 7. If any provision of this Act or its application

to any person or circumstances is held invalid for any

reason, the invalidity does not affect any other provision

or application of this Act which can be given effect

without the invalid provision or application, and to this

end the provisions of this Act are declared to be severable.

Sec. 8. The importance of this legislation and the

crowded condition of the calendars in both houses create

an emergency and an imperative public necessity that the

constitutional rule requiring bills to be read on three

several days in each house be suspended, and this rule

is hereby suspended, and that this Act take effect and

be in force from and after its passage, and it is so enacted.

APPENDIX B

REGULATIONS OF HARRIS COUNTY, TEXAS

FOR THE LOCATION OF CERTAIN SEXUALLY

ORIENTED COMMERCIAL ENTERPRISES

Section 1. Authority

These Regulations are adopted by the Commissioners’

Court of Harris County, Texas, acting in its capacity as

the governing body oi Harris County, Texas. Authority

of Harris County to adopt these Regulations is House

Bill No. 654, enacted by the 66th Legislature of the

State of Texas and signed by the Governor on or about

May 17, 1979.

27

Section 2. Administration

The Commissioners’ Court hereby designates the Sheriff

to inspect and issue permits pursuant to the above au-

thority. The administration of these Regulations including

but not limited to issuance of permits and inspections

hereunder, shall be performed by the Sheriff or his duly

authorized deputy. Any peace officer certified by the

State of Texas may enforce these Regulations.

Section 3. Area Covered By Regulations

These Regulations apply only to the parts of the county

outside the corporate limits of a city.

Section 4. Definitions

As used in these Regulations:

(a) “Commissioners’ Court” means the Commissioners’

Court of Harris County, Texas;

(b) “County” means Harris County, Texas;

(c) “Church or place of religious worship” means a

building in which persons regularly assemble for

worship, intended primarily for purposes con-

nected with faith, or for propagating a particular

form of belief;

(d) “Child Care Facility” means a building used as a

day nursery, children’s boarding home, child plac-

ing agency or other place for the care or custody

of children under fifteen years of age, licensed by

the State of Texas pursuant to Article 4442a,

Vernon’s Texas Civil Statutes;

(e) “Dwelling” means a house, duplex, apartment,

28

townhouse, condominium, mobile home or any

other building used for residential purposes;

(f) “Hospital” means a building used to provide health

services for human in-patient medical care for the

sick or injured licensed pursuant to the Texas

Hospital Licensing Law (Article 4437f Vernon’s

Texas Civil Statutes) or operated by an agency

of the federal government, or a convalescent facil-

ity licensed pursuant to Article 4442c, Vernon’s

Texas Civil Statutes;

(g) “Person” means an individual, partnership, cor-

(h)

(i)

()

(k)

(J)

poration, or other entity;

“Public Building” means a building used by fed-

eral, state, or local government and open to the

general public;

“Public Park” means a tract of land maintained

by the federal, state, or local government for the

recreation and enjoyment of the general public;

“Regulations” means Regulations of Harris Coun-

ty, Texas, for the Location of Certain Sexually

Oriented Commercial Enterprises;

“School” means a building where persons regular-

ly assemble for the purpose of instruction or edu-

cation together with the playgrounds, dormitories,

stadiums, and other structures or grounds used

in conjunction therewith;

“Sexually Oriented Commercial Enterprise” means

a massage parlor, nude studio, modeling studio,

love parlor and any other similar commercial en-

terprise whose major business is the offering of a

29

service which is intended to provide sexual stimu-

lation or sexual gratification to the customer;

(m) “Sheriff’ means the Sheriff of Harris County,

(n)

(0)

Texas;

“State” means the State of Texas;

“City” means an incorporated city, town, or

village and includes a home-rule city.

Section 5. Bookstores, etc. Excepted

These Regulations do not apply to the following:

(a)

(b)

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, licensed cosmetologists, or li-

censed barbers performing functions authorized

under the license held;

(c) Any business operated by or employing licensed

physicians or licensed chiropractors engaged in

practicing the healing arts.

Section 6. Permit Required

(a) It shall be unlawful for any person to own or

(b)

operate a Sexually Oriented Commercial Enter-

prise at a location in the parts of the County

outside the corporate limits of a city without a

valid permit issued therefor by the Sheriff in ac-

cordance with the provisions of these Regulations.

Before the issuance of a permit, the applicant

must certify that the proposed Sexually Oriented

30

Commercial Enterprise will be located a minimum

of 1500 feet from the following, which the Com-

missioners’ Court hereby finds to be inconsistent

with the operation of a restricted establishment,

to-wit:

(1) A child care facility;

(2) Achurch or place of religious worship;

(3) A dwelling;

(4) A hospital;

(5) A building in which alcoholic beverages are

sold;

(6) A public building;

(7) A public park;

(8) A school.

(c) Subsection (b) of this Section 6 will apply to all

Sexually Oriented Commercial Enterprises regard-

less of whether or not existing on the effective

date of these Regulations. However, should any

Court determine that such requirement is uncon-

stitutional or invalid insofar as it applies to Sexu-

ally Oriented Commercial Enterprises existing on

the effective date of these Regulations, then and

in that event, the applicant may certify that the

Sexually Oriented Commercial Enterprise was in

existence on the effective date of these Regulations

in lieu of making the certification provided for in

said Subsection (b). Provided, however, that any

permit issued on the basis of an application mak-

ing a certification pursuant to this subsection (c)

in lieu of certification under subsection (b) shall

31

have written thereon “This permit is valid for

only one (1) year from October 1, 1979.”

(d) For the purposes of this section, measurements

shall be made in a straight line, without regard

to intervening structures or objects, from the near-

est portion of the building or structure used by

the restricted establishment to the nearest portion

of the building, structure, or facility set forth in

subsection (b).

Section 7. Permit Displayed

A Sexually Oriented Commercial Enterprise permit

issued under these Regulations shall be displayed at all

times in an open and conspicuous place in the restricted

establishment for which it was issued.

Section 8. Permit Application

Any person desiring a Sexually Oriented Commercial

Enterprise permit shall file a written application with

the Sheriff on a form to be prescribed by him.

(a) The application shall set forth the following:

(1) The name of the applicant and whether the

applicant is an individual, general partner-

ship, limited partnership, corporation or other

entity;

(2) The name under which the restricted estab-

lishment is to be operated and a general

description of the service to be provided;

(3) The address and a full legal description of

the parcel of land on which the restricted

establishment is to be located;

(4)

(5)

32

The name, residence address and telephone

number, if any, of the manager or other in-

dividual to be principally in charge of the

operation of the restricted establishment;

Written declaration that the information con-

tained in the application is true and correct,

said declaration being duly dated and signed

in the County. If the applicant is an indi-

vidual, the application shall be signed and

sworn to by the applicant. If the applicant

is a partnership, the application shall be

signed and sworn to by a partner thereof.

If the applicant is a corporation or other

entity, the application shall be signed and

sworn to by an authorized officer of such

corporation or entity.

(b) The application shall be accompanied by the fol-

lowing:

(1)

(2)

(3)

A tender of the correct permit fee as herein-

after provided;

A certified copy of the assumed name certifi-

cate filed in compliance with the Assumed

Business or Professional Name Act (Ver-

non’s Texas Codes Annotated, Business and

Commerce Code, Chapter 36) if the appli-

cant is to operate the restricted establish-

ment under an assumed name;

A certified copy of the article of incorpora-

tion, together with all amendments thereto,

if applicant is a Texas Corporation;

33

(4) A certified copy of the certificate of authority

to transact business in this State, together

with all amendments thereto, if applicant is

a foreign corporation;

(5) A certified copy of the certificate of limited

' partnership, together with all amendments

thereto, filed in the Office of the Secretary of

State under The Texas Limited Partnership

Act (Article 6132a, Vernon’s Texas Civil

Statutes), if the applicant is a limited partner-

ship formed under the laws of Texas;

(6) A certified copy of the certificate of limited

partnership and the qualification documents,

together with all amendments thereto, filed

in the office of the Secretary of State under

the Texas Limited Partnership Act, if the

applicant is a foreign limited partnership.

Section 9. Investigation by Sheriff

Upon receiving the application for a Sexually Oriented

Commercial Enterprise permit, the Sheriff shall caused

to be conducted an investigation for the purpose of deter-

mining whether or not such premises comply with the

location requirements as set forth in these Regulations.

Section 10. Issuance of Sexually Oriented Commercial

Enterprise Permit

(a) Any permit required by these Regulations shall

be issued and signed by the Sheriff or his duly

authorized deputy.

(b) The Sheriff shall issue a Sexually Oriented Com-

34

mercial Enterprise permit within thirty (30) days

of receipt of the application unless he finds that:

(1) The correct permit fee has not been tendered

to the Sheriff;

(2) The operation as proposed by the applica-

tion is prohibited by law;

(3) The applicant has made any false, misleading

or fraudulent statement of fact in the permit

application or in any document required by

these Regulations to accompany the applica-

tion;

(4) The application or the establishment location

does not meet all requirements of these Regu-

lations.

Section 11. Fees

To defray the actual cost of processing the Sexually

Oriented Commercial Enterprise permit application, the

permit fee shall be One Hundred ($100.00) Dollars.

Section 12. Return of Fee

No portion of any fee collected under these Regulations

shall be returned after a permit has been issued or refused.

Section 13. Transfer Prohibited

A Sexually Oriented Commercial Enterprise permit is

not transferable, assignable or divisible.

Section 14. Permit Valid for Specified Location

Each permit issued under these Regulations shall be

valid at the location therein specified, and not otherwise.

35

Section 15. Obtaining Permit by Fraud

It shall be unlawful for any person to knowingly make

any false, fraudulent or untruthful statement, either writ-

ten or oral, or in any way knowingly to conceal any

material fact, or to give or use any assumed name or

fictitious name other than one duly filed for record in

compliance with the Assumed Business or Professional

Name Act (Vernon’s Texas Codes Annotated, Business

and Commerce Code, Chapter 36).

Section 16. Fraudulent Use of Permit of Another

It shall be unlawful for any person to use a Sexually

Oriented Commercial Enterprise permit which has been

issued to another person.

Section 17. Counterfeiting, Changing, Defacing Permit

It shall be unlawful for any person to counterfeit,

forge, change, deface, or alter a Sexually Oriented Com-

mercial Enterprise permit.

Section 18. Misdemeanor

Violation of any provision of these Regulations is a

Class B misdemeanor.

Section 19. Nuisance

The operation of a Sexually Oriented Commercial En-

terprise without a Sexually Oriented Commercial Enter-

prise Permit is hereby declared to be a public nuisance.

36

Section 20. Injunction

The County may sue in District Court to enjoin the

violation of any provision of these Regulations.

Section 21. Effect on State Law

These Regulations do not legalize anything prohibited

under the Penal Code or other State Law.

Section 22. Severability

If any provision of these Regulations or its application

to any person or circumstances is held invalid for any

reasons, the invalidity does not affect any other provisions

or application of these Regulations which can be given

effect without the invalid provision or application, and

to this end the provisions of these Regulations are de-

clared to be severable.

Section 23. Effective Date

These Regulations shall become effective on the fif-

teenth day of October, 1979.