Jaguars V Dallas

FILED
DALLAS COUNTY
12/23/2014 10:51:18 PM
GARY FITZSIMMONS
DISTRICT CLERK
Teresa Jones
NO. DC-14-14655
CITY OF DALLAS,
Plaintiff,
vs.
JGC DALLAS, L.L.C., GOLDEN
PRODUCTIONS, L.L.C. and 11327
REEDER ROAD (in rem),
Defendants.
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IN THE DISTRICT COURT
DALLAS COUNTY, TEXAS
95TH JUDICIAL DISTRICT
DEFENDANTS= COUNTERCLAIM INCLUSIVE OF

THIRD PARTY ACTIONS
TO THE HONORABLE JUDGE OF SAID COURT:

Comes now Counter-Plaintiff JGC DALLAS, L.L.C., d/b/a Jaguars and Third
Party Counter-Plaintiff BRYAN FOSTER, complaining of Plaintiff/Counter-Defendant
City of Dallas, Texas, and Third Party Counter-Defendant David Brown, solely in his
official capacity as Chief of Police and pursuant to T.R.C.P. 38-40 & 97 for cause of
action would show the Court the following:
Discovery Control Plan
1.
Pursuant to T.R.C.P. Rule 190.3, this suit will be governed in accordance
with the Discovery Control Plan Level 2.

Jurisdiction and Venue
2.
This Court has jurisdiction of all parties to the suit due to their location
and operation in Dallas County, Texas. Further, this Court has jurisdiction under the
DEFENDANTS COUNTERCLAIM INCLUSIVE OF THIRD PARTY ACTIONS Page 1
Declaratory Judgments Act, Chapter 38 of the Texas Civil Practice and Remedies Code.
Venue is proper in this Court pursuant to Sections 15.001, 15.011, 15.012 and 15.013 of
the Texas Civil Practice & Remedies Code.
Finally, the City has consented to
jurisdiction and waived any claim of sovereign immunity pursuant to Section 41A-11,
Dallas City Code. Counter-Plaintiffs and Third Party Counter-Plaintiffs claims under
Chapter 41A, Dallas City Code are so related to claims in this action and arise out of the
same transaction or occurrence that they form part of the same case or controversy.
Parties
3.
Counter-Plaintiff JGC Dallas, L.L.C. d/b/a Jaguars (AJGC@ or in
conjunction with Foster, Jaguars) is a Texas limited liability company with its sole
place of business in Dallas County, Texas. JGCs predecessors have operated a licensed
adult business at 11327 Reeder Road, Dallas, Texas since approximately 1998. JGC has
operated an adult cabaret at this location since 2012. Third Party Counter-Plaintiff
Bryan Foster (Foster) is an individual and the Alicensee@ who holds the license under
which JGC operates. Counter-Defendant City of Dallas, Texas (City or Dallas) is a
home rule city located in Dallas County, Texas. Third Party Counter-Defendant David
Brown (Brown or the Chief) is sued solely in his official capacity as the Chief of
Police for the City of Dallas. Counter-Defendant and Third Party Counter-Defendant
may be served with process as follows:
DEFENDANTS COUNTERCLAIM INCLUSIVE OF THIRD PARTY ACTIONS Page 2
City of Dallas, Texas

Attn: Rosa A. Rios
City Secretary
1500 Marilla Street
Dallas, Texas 75201
David Brown
Chief of Police
City of Dallas
1400 S. Lamar Street
Dallas, Texas 75215
Preliminary Facts
4.
Jaguars is an existing adult cabaret. It holds a sexually oriented business
(ASOB@) license to feature Alive entertainment that is intended to provide sexual

stimulation or sexual gratification . . . distinguished by an emphasis on . . . specified
anatomical areas or specified sexual activities@ as those terms are used and defined
Chapter 41A, Dallas City Code. A true and correct copy of Chapter 41A, Dallas City
Code (the ASOB Ordinance@) is attached hereto, marked Exhibit AA@ and incorporated
herein by reference. This activity is protected speech within the purview of the First
Amendment and Article 1, Section 8 of the Texas Constitution. Jaguars is threatened
with the immediate loss of its established business, customers, and employees through
the revocation of its SOB license by reason of one or more of its employees having
allegedly allowed unrelated third party criminal conduct on the licensed premises. On
December 16, 2014, Jaguars received a letter of revocation of Jaguars license. That
revocation is stated to be based upon Chapter 41A, Section 41A-10(b)(2) of the Dallas
City Code.
Jaguars seek to enjoin the application of this section and have same
declared, in part, unconstitutional both facially and as applied.
Section 41A-10
provides:
(b)
The Chief of Police shall revoke a license if

the Chief of Police determines one or more of
DEFENDANTS= ORIGINAL ANSWER INCLUSIVE OF AFFIRMATIVE DEFENSES AND COUNTERCLAIM - Page 3
the following is true:

(2)
5.
a licensee or an operator1 has

knowingly allowed possession,
use or sale of controlled
substances on the premises.
Chapter 41A, Section 41A-10(b)(2) of the Dallas City Code mandates the
revocation of a sexually oriented business license for a mere allegation that an operator
allowed possession of a controlled substance by a third party unrelated to Jaguars on the
premises. However under the same Ordinance, this same offense could not be used as a
basis to deny the renewal of a license even if
(a) the actual Licensee2 (in this case
Foster) was the person charged with the crime and (b) the licensee had been criminally
convicted since the crime is unrelated to the Licensee=s fitness to operate a SOB (see
Section 41A-5(a)(8) listing the offenses which would prohibit issuance of a license).
This use of allegations of an employee allowing third party criminal conduct as the basis
to revoke a sexually oriented business license would terminate all future protected
expression at the licensees premises for one (1) year. The use of past conduct by
customers or an employee such as a waitress to revoke a license constitutes a prior
restraint of expression prohibited under the First Amendment to the U.S. Constitution
and Article 1, Section 8 of the Texas Constitution. Chapter 41A, Section 41A-10(b)(2)
The Ordinance defines an operator to be any person with on-site, day-to-day managerial control of
the sexually oriented business regardless of whether that person is actually a Designated Operator as
discussed hereinbelow.
2
The definitions of who is a Alicensee@ or an Aapplicant@ as set forth in the Ordinance are virtually
identical. The only distinction is that an SOB license Awill be issued@ to an applicant and a license Ahas
been issued@ to a licensee.
also violates the criteria for ordinances which implicate First Amendment rights as set
forth in United States v. O=Brien, 391 U.S. 367 (1968). This section of the Ordinance
allows a license to be revoked without a showing of culpability or mens rea on the part
of the Licensee, or its ADesignated Operators@3. This provision does not further a
governmental interest unrelated to suppression of free expression as it does not in part,
evaluate the conduct of the licensee. Additionally, this section=s restriction on First
Amendment freedoms is greater than necessary to further any governmental interest
because it terminates a business license based on the Astrict liability@ of the licensee for
the failure of employees to prevent criminal acts. Jaguars further avers that the stated
criteria for the business license revocation is properly viewed as a mere pretext to
suppress and prohibit the constitutionally protected expression which Jaguars features in
that the City has undertaken a course of conduct to shut down a venue it has labeled a
Ateenage drug club@ despite the fact that the activities are licensed, allowed and
protected. The use of draconian means to revoke business licenses causes the license
requirement itself to become a prior restraint designed to suppress the content of the
expression in violation of the First Amendment to the U.S. Constitution and Article 1,
Section 8 of the Texas Constitution.
6.
The Ordinance, as applied by the City, is unconstitutional as it denies
Jaguars both substantive and procedural due process guaranteed by the Fourteenth
The City amended its SOB Ordinance in 2008 to create the required position of Designated
Operator. One or more Designated Operators must be identified in the application, must be present on
the premises during all hours of operation, must submit criminal histories and other required documents
as per Section 41A-7.1 and be otherwise qualified to be a licensee.
3
Amendment to the U.S. Constitution and Article 1, Section 3 of the Texas Constitution.
Revocation of the existing license by the Chief of Police is based solely upon
allegations of conduct by third parties which the reporting officer(s) allege constitute a
crime. No criminal charges have been filed against the Licensee or any Designated
Operator of Licensee. Any charges which have been filed are based merely on an
indictment. There has been no trial to determine if customers/entertainers/employees
engaged in conduct prohibited by the Penal Code of the State of Texas or the criminal
statutes of the United States much less if such conduct was knowingly allowed by the
Licensee. Each of the alleged offenses are defined pursuant to the applicable provisions
of the statutes to be crimes punishable by imprisonment and thus, the state, in the
appropriate criminal forum, will have the burden of proving beyond a reasonable doubt
that the alleged conduct occurred.
7.
There is absolutely no evidence or allegation that the Licensee, that being
Foster, Athe person in whose name a license to operate a sexually oriented business has
been issued . . .@ (41A-2(18)) or a Designated Operator or any high managerial
employee knowingly allowed prohibited criminal acts on the premises operated by JGC.
Nonetheless, the Chief would use the mere allegation of misconduct by a customer, an
entertainer or employee to revoke the license. Section 41A-11 indicates that if the Chief
revokes a license, he must first deliver to the licensee by certified mail, return receipt
requested, or hand delivery written notice of the action and the right to an appeal. The
Ordinance provides a period of thirty (30) days in which to make an appeal to a state
district court after receipt of notice of the decision of the Chief of Police (41A-11(d)).
A copy of the letter of revocation received by the licensee on December 16, 2014 is
marked Exhibit AB@, attached hereto and incorporated herein by reference. Plaintiffs
appeal under the Ordinance stays a . . . revocation pending a judicial determination of
the appeal by the trial court, Chapter 41A-11(d). The City takes the position that the
notice hand delivered to counsel and/or JGCs registered agent on December 11, 2014
meets the notice requirements of the Ordinance. Even though the SOB Ordinance
provides thirty (30) days to appeal and even though an appeal stays the revocation, the
City further takes the position that until the appeal is filed, the City may begin
enforcement on the eleventh (11th) day after notice. This appeal is filed on the 10th day
after the City claims Jaguars was notified.
8.
The use of a mere allegation by the City to deny a license has already been
found to not pass constitutional scrutiny. See Dumas v. City of Dallas, 648 F.Supp. 106
(N.D. Tex., 1986) wherein Judge Buchmeyer struck down provisions of the Citys first
SOB Ordinance which allowed the denial of a license to an applicant who was Aunder
indictment or misdemeanor information@. Therein the Court found that Aan indictment
or information is not evidence of an applicant=s guilt, but merely indicates . . . an ex
parte procedure navigated solely by a prosecutor . . .@. Id. at 1074. Despite this
holding, the City is again using mere allegations to revoke Plaintiffs= license. Almost
twenty (20) years later, in Millennium Restaurants Group, et al. v. City of Dallas, Cause
No. 3:01-CV-0857-G, the Court again struck down provisions of the Citys subsequent
SOB Ordinance which Acalls for the automatic revocation of the license without
permitting any inquiry into the culpability of the licensee for the unlawful act@. See,
Memorandum Order of Judge A. Joe Fish entered February 21, 2002. Although on its
face, the current Ordinance confers discretion on the Chief of Police, (AChief of Police
shall revoke . . . if the Chief . . . determines . . . that a licensee has knowingly allowed . .
.@) the City in the present case is indifferent to the culpability of the licensee. Instead,
without any inquiry to or discussion with Jaguars, it immediately revoked the license
based merely upon indictment or arrest of a third party (again, no Designated Operator
or managerial employee has been charged). The Court in Millennium Restaurants
previously found the strict liability feature of the Ordinance was constitutionally suspect
because it did not relate to or further the governmental interest of assuring law abiding
licensees. Moreover, the Court found that imposition of strict liability which the City
argued was a system of Ajustified punishment under a theory of respondent superior@ to
be inappropriate since as in the present case, it would involve judicial approval of
restrictions on the future exercise of First Amendment rights and/or place the licensee in
a Aresponsible relation@ to unlawful conduct which involved imprisonment; neither of
which is supported as a matter of law. See Lady J Lingerie, Inc. v. City of Jacksonville,
176 F.3d 1358, 1367 (11th Cir. 1999, cert. denied), 529 S.Ct. 753, 2000. In summary,
Judge Fish found that the City=s attempt to revoke a sexually oriented business license
on the basis of criminal convictions based solely on employee conduct was an
unconstitutional prior restraint of First Amendment rights citing Universal Amusement
Company, Inc. v. Vance, 587 F.Supp. 159 (5th Cir. 1978) en banc, aff=d., 445 U.S. 308
(1980) and held that the license revocation was not justified under the third and fourth
prongs of the test set forth in O=Brien, 391 U.S. 367, 377 (1968)4. A true and correct
copy of the Memorandum Order entered by Judge Fish on February 21, 2002 is attached
hereto as Exhibit AC@.
9.
Jaguars rights, status or other legal relations are affected by the SOB
Ordinance of the City. As set forth above, they seek a legal determination of the
construction and validity of same pursuant to C.P.R.C. Section 37.004 and otherwise
(i.e., the Declaratory Judgment Act). In accordance with C.P.R.C. Section 37.006, the
Attorney General of the State of Texas has been served with a copy of Jaguars
Counterclaim and Third Party Action. Jaguars has retained the Law Offices of Roger
Albright to represent them and they seek an award of costs including reasonable and
necessary attorneys fees pursuant to C.P.R.C. Section 37.009.
10.
If the City and the Chief are allowed to proceed with the revocation of
JGCs license, under Chapter 41A, Section 41A-10(b)(2) irreparable harm will result to
Jaguars. The threatened injury to Jaguars outweigh the threatened harm to the City. The
granting of injunctive relief will not disserve the public interests and there is a
substantial likelihood that Jaguars will prevail on the merits. A strong presumption of
The OBrien test states that a content-neutral ordinance survives a constitutional challenge,
despite its adverse impact on the exercise of First Amendment rights, when (1) it is within the
constitutional power of the government; (2) it furthers an important or substantial government interest;
(3) the asserted government interest is unrelated to the suppression of free expression; and (4) the
incidental restrictions on alleged First Amendment freedoms is no greater than is essential to furtherance
of that interest (391 U.S. at 377).
irreparable injury exists in threatened infringement on First Amendment rights,

including protected expression as featured by JGC=s business.
JGC will also lose
customers and goodwill created over a number of years creating a monetary loss which
is difficult to calculate. If, for any reason, the City asserts that the revocation is not
stayed pending final trial of this matter pursuant to Chapter 41A-11(d), JGC requests
that a temporary injunction be entered restraining the Counter-Defendant/Defendant
from revoking the Plaintiffs= sexually oriented business license, and that the status quo
be preserved until this Court enters a final judgment including the adjudication of the
constitutionality of Chapter 41, Section 41-A-10(b)(2), Dallas City Code both facially
and as applied. All conditions precedent to the filing of the Petition have been met.
There are no pending administrative proceedings and further proceedings under the
Ordinance would be futile.
WHEREFORE, PREMISES CONSIDERED, Counter-Plaintiff and Third Party
Counter-Plaintiff pray that the Court grant relief as follows:
1.
Upon hearing, a temporary injunction be issued to preclude the revocation
of JGCs sexually oriented business license based on the provisions of Chapter 41,
'41A-10(b)(2) Dallas City Code or otherwise and to maintain the status quo pending
final trial;
2.
Following final trial, the Court enter an Order declaring Chapter 41,
'41A-10(b)(2) Dallas City Code, unconstitutional both facially and as applied in

violation of the First and Fourteenth Amendments to the United States Constitution and
Article 1, Sections 3 and 8 of the Texas Constitution as same operates as a prior

restraint by allowing the use of allegations of criminal conduct by an employee to
revoke a sexually oriented business license, and as such denies procedural and
substantive due process;
3.
An Order declaring Chapter 41, Section 41A-10(b)(2) unconstitutional as
applied in violation of the First Amendment to the United States Constitution and
Article 1, Sections 3 and 8 of the Texas Constitution, (as defined by O=Brien) as it
contains no mens rea requirement, which negates Licensee=s responsibility for the acts
which are the basis of the license revocation. The qualification of the licensee is not
considered by Chapter 41A, Section 41A-10(b)(2), therefore the revocation of the
license based on the acts of an employee is a greater restriction on expression than
necessary to achieve the governmental objective;
4.
For reasonable and necessary attorneys fees pursuant to C.P.R.C. Section
37.009;
5.
For costs of Court; and
6.
Such other and further relief to the Court seems just and proper.
Respectfully submitted,
/s Roger Albright ______________________

Roger Albright
(Bar No. 009 745 80)
Law Offices of Roger Albright
3301 Elm Street
Dallas, Texas 75226-2562
214.939.9222
214.939.9229 (Telecopier)
Email: ralaw@rogeralbright.com
COUNSEL FOR
DEFENDANTS/COUNTER-PLAINTIFFS
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing instrument has been
served upon the below-listed counsel of record, the Texas Rules of Civil Procedure,
District Courts ECF system on this the 23rd day of December, 2014:
Ms. Melissa A. Miles
Ms. Anna Welch
Assistant City Attorneys
1500 Marilla Street, Room 7BN
Dallas, Texas 75201
/s/ Roger Albright________________
Roger Albright
EXHIBIT "A"
C4lA
SEC. 4lA-1.
CHAPTER41A
SEXUALLY ORIENTED BUSINESSES
Sec.4IA-I.
Sec.4IA-2.
Sec.4IA-3.
Sec.4IA-4.
Sec.4IA-5.
Sec.4IA-6.
Sec.4IA-7.
See. 4IA-7.I.
See.4IA-B.
Sec.4IA-9.
Sec.4lA-lO.
See.4lA-1O.I.
Sec.4IA-IO.2.
,l,
41A2
Sexually Oriented Businesses
Sec.4IA-H.
Sec.4IA-12;
Sec. 4IA-13.
Sec.4IA-14.
Sec. 4IA-14.I.
Sec.4IA-14.2.
Sec.4IA-15.
Sec. 4IA-16.
Sec.4IA-17.
See. 4IA-IB.
Sec.4IA-IB.I.
See.4IA-19.
Sec. 4IA-20.
See. 4IA-20.1.
Sec. 41A-2I.
Sec. 41A-22.
Sec. 4IA-23.
Purpose and intent.
Definitions.
Classifica tion.
Ucense and designated operator
required.
Issuance of license.
Fees.
Inspection.
Identification records.
Expiration of license.
Suspension.
Revocation.
Denial, suspension, revocation, or
denial of renewal of a license for
criminal convictions.
Notice of denial of issuance or
renewal of license or suspension or
revocation of license; surrender of
license.
Appeal.
Transfer of license.
Location of sexually oriented
businesses.
Exemption from location restrictions.
Exterior portions of sexually
oriented businesses.
Sign requirements.
Additional regulations for escort
agencies.
Additional regulations for nude
model studios.
Additional regulations for adult
motion picture theaters.
motels.
cabarets.
Regulations pertaining to exhibition
of sexually explicit films or videos.
Display of sexually explicit
ma terial to minors.
Prohibitions against minors in
sexually oriented businesses.
Enforcement.
Injunction.
Amendment of this chapter.
PURPOSE AND INTENT.
(a) It is the purpose of this chapter to

regulate sexually oriented businesses to promote the
health, safety, morals, and general welfare of the
citizens of the city; to establish reasonable and
uniform regulations to prevent the continued
concentration of sexually oriented businesses within
the city; and to minimize the deleterious secondary
effects of sexually oriented businesses both inside
such businesses and outside in the surrounding
communities. The provisions of this chapter have
neither the purpose nor effect of imposing a
limitation or restriction on the content of any
communicative materials or performances, including
sexually oriented ma terials and performances.
Similarly, it is neither the intent nor effect of this
chapter to restrict or deny access by adults to sexually
oriented materials and performances protected by the
First Amendment, or to deny access by the distributors
and exhibitors of sexually oriented entertainment to
their intended market.
(b) It is the intent of the city council that this
chapter is promulgated pursuant to Chapter 243 of
the Texas Local Government Code, as amended.
(c) A license, permit, or decal granted under
this chapter or under any other city ordinance does
not authorize or legalize any conduct, activity, or
business that is illegal under state or federal law.
(Ord. Nos. 19196; 24440; 24699; 25296; 27139)
SEC. 41A-2.
DEFINITIONS.
In this chapter:
(1) ACHROMATIC means colorless or
lacking in saturation or hue. The term includes, but is
not limited to, grays, tans, and light earth tones. The
term does not include white, black, or any bold
coloration that attracts attention.
(2) ADULT ARCADE means any place
to which the public is permitted or invited wherein
coin-operated or slug-operated or electronically,
electrically, or mechanically controlled still or
motion picture machines, projectors, or other image
producing devices are maintained to show images to
five or fewer persons per machine at anyone time,
"'~
Dallas City Code
7/08
.1
41A-2
l,:
and where the images so displayed are distinguished

or characterized by the depicting or describing of
"specified sexual activities" or "specified
anatomical areas."
(3) ADULT BOOKSTORE or ADULT

VIDEO STORE means a commercial establishment
that as one of its principal business purposes offers for
sale or rental for any form of consideration anyone or
more of the following:
(A) books, magazines, periodicals
or other printed matter, or photographs, films,
motion pictures, DVD's, video cassettes or video
reproductions, slides, or other visual representations,
that depict or describe "specified sexual activities"
or "specified anatomical areas"; or
(B) instruments, devices, or
paraphernalia that are designed for use in connection
with "specified sexual activities,"
(4) ADULT CABARET means a
commercial establishment that regularly features
'11..e offering to customers of adult cabaret
,-"tertainment.
(5) ADULT CABARET ENTERTAINER

means an employee of a sexually oriented business
who engages in or performs adult cabaret
entertainment.
(6) A 0 U L T C A BAR E T
ENTERTAINMENT means live entertainment that:
(A) is intended to provide sexual

stimulation or sexual gratification; and
41A-2
by the depiction or description of "specified sexual

activities" or "specified anatomical areas"; and has
a sign visible from the public right-of-way that
advertises the availability of this adult type of
photographic reproductions; or
(B) offers a sleeping room for rent
for a period of time that is less than 10 hours; or
(C) allows a tenant or occupant of a
sleeping room to subrent the room for a period of time
that is less than 10 hours,
(8) ADULT
MOTION PICTURE
THEATER means a commercial establishment where,
for any form of consideration, films, motion pictures,
video cassettes, slides, or similar photographic
reproductions are regularly shown that are
characterized by the depiction or description of
"specified sexual activities" or "specified
anatomical areas,"
(9)
APPUCANT means:
(A) a person in whose name a

license to operate a sexually oriented business will be
issued;
(8) each individual who signs an
application for a sexually oriented business license as
required by Section 41A-4(d);
(C) each individual who is an

officer of a sexually oriented business for which a
license application is made under Section 41A-4,
regardless of whether the individual's name or
signature appears on the application;
f
is distingUished by or
characterized by an emphasis on matter depicting,
simulating, describing, or relating to "specified
anatomical areas" or "specified sexual activities."
(8)
(7) ADULT MOTEL means a hotel,

motel, or similar commercial establishment that:
(A) offers accommodations to the

public for any form of consideration; provides patrons
with closed-circuit television transmissions, films,
motion pictures, video cassettes, slides, or other
photographic reproductions that are characterized
L
2
(D) each individual who has a 20

percent or greater ownership interest in a sexually
oriented business for which a license application is
made under Section 41A-4, regardless of whether the
individual's name or signature appears on the
application; and
(E) each individual who exercises
substantial de facto control over a sexually oriented
business for which a license application is made
under Section 41A-4, regardless of whether the
individual's name or signature appears on the
application.
Dallas City Code

7/08
41A2
(10) CHIEF OF POLICE means the chief

of police of the city of Dallas or the chief's
designated agent.
(ll) CHILD-CARE FACILITY has the
meaning given that term in Section 51A-4.204 of the

Dallas Development Code, as amended.
(12) CHURCH has the meaning given
that term in Section 51A-4.204 of the Dallas
Development Code, as amended.
(13) CONVICTION means a conviction in
a federal court or a court of any state or foreign nation
or political subdivision of a state or foreign nation
that has not been reversed, vacated, or pardoned.
"Conviction" includes disposition of charges against a
person by probation or deferred adjudication.
(14) DESIGNATED OPERATOR means
the person or persons identified in the license
application, or in any supplement or amendment to
the license application, as being a designated
operator of the sexually oriented business.
41A2
(18) EST ADLISHMENT means

includes any of the following:
and
(A) the opening or commencement

of any sexually oriented business as a new business;
(D) the conversion of an existing
business, whether or not a sexually oriented business,
to any sexually oriented business;
(C) the addition of any sexually
oriented business to any other existing sexually
oriented business; or
(D) the relocation of any sexually

oriented business.
(19) HISTORIC DISTRICT means an
historic overlay zoning district as defined in the
Dallas Development Code, as amended.
(20) HOSPITAL has the meaning given
that term in Section 51A4.204 of the Dallas
(15) EMPLOYEE means any individual
(21) LICENSEE means:
who:
(A) is listed as a part-time, fuIl
time, temporary, or permanent employee on the
payroll of an applicant, licensee, or sexually oriented
business; or
performs or provides
(B)
entertainment on the sexually oriented business
premises for any form of compensation or
consideration.
(16) ESCORT means a person who, for
consideration, agrees or offers to act as a companion,
guide, or date for another person, or who agrees or
offers to privately model lingerie or to privately
perform a striptease for another person.
(17) ESCORT AGENCY means a person or
business association that furnishes, offers to furnish,
or advertises to furnish escorts as one of its primary
business purposes, for a fee, tip, or other
consideration.
(A) a person in whose name a

license to operate a sexuaHy oriented business has
been issued;
(B) each individual listed as an
applicant on the application for a license;
(C) each individual who is an
officer of a sexually oriented business for which a
license has been issued under this chapter, regardless

of whether the individual's name or signature
appears on the license application;
(D) each individual who has a 20
percent or greater ownership interest in a sexually
oriented business for which a license has been issued
under this chapter, regardless of whether the
individual's name or Signature appears on the license
application; and
(E) each individual who exercises
substantial de facto control over a sexually oriented
business for which a license has been issued under this
chapter, regardless of whether the individual's
name or Signature appears on the license application.
Dallas City Code
7/08
~41A-2
(22) MINOR means a person under the

age of 18 years.
(23) NUDE MODEL STUDIO means any
place where a person who appears in a state of nudity
or displays "specified anatomical areas" is provided
to be observed, sketched, drawn, painted, sculptured,
photographed, or similarly depicted by other persons
who pay money or any form of consideration.
(24) NUDITY or a STATE OF NUDITY
means:
(A) the appearance of a human
bare buttock, anus, male genitals, female genitals, or
female breast; or
41A2
park, mobile home subdivision, and campground" use
as defined in the Dallas Development Code, as
amended.
(31) SEXUALLY ORIENTED BUSINESS

means an adult arcade, adult bookstore or adult video
store, adult cabaret, adult motel, adult motion picture
theater, escort agency, nude model studio, or other
commercial enterprise the primary business of which
is the offering of a service or the selling, renting, or
exhibiting of devices or any other items intended to
provide sexual stimulation or sexual gratification to
the customer.
(32) SIGN means any display, design,

pictorial, or other representation that is:
II
(B) a state of dress that fails to

completely and opaquely cover a human buttock,
anus, male genitals, female genitals, or any part of
the female breast or breasts that is situated below a
point immediately above the top of the areola.
.
(J.
.
(25) OPERATES OR CAUSES TO BE

PERATED means to cause to function or to put or
ep in operation. A person may be found to be
. perating or causing to be operated a sexually
oriented business whether or not that person is an
owner, part owner, or licensee of the business.
(26) OPERATOR means any person who
has managerial control of the on-site, day-to-day
operations of a sexually oriented business, regardless
of whether that person is a designated operator of
the sexually oriented business.
(27) PERSON means an individual,
proprietorship, partnership, corporation,
association, or other legal entity.
(28) PUBLIC PARK has the meaning
given that term in Section 51A-4.208 of the Dallas
(29) RESIDENTIAL DISTRICT means a

single family, duplex, townhouse, multiple family, or
mobile home zoning district as defined in the Dallas
(30) RESIDENTIAL USE means a single
family, duplex, multiple family, or "mobile home
(A) constructed, placed, attached,
painted, erected, fastened, or manufactured in any
manner whatsoever so that it is visible from the
outside of a sexually oriented business; and
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(B) used to seek the attraction of
the public to any goods, services, or merchandise
available at the sexually oriented business.
The term "sign" also includes any representation

painted on or otherwise affixed to any exterior
portion of a sexually oriented business establishment
or to any part of the tract upon which the
establishment is situated.
(33) SPECIFIED ANATOMICAL AREAS
means:
(A) any of the following, or any
combination of the following, when less than
completely and opaquely covered:
(i) any human genitals,
pubic region, or pubic hair;
(ii) anybuttock;or
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(iii) any portion of the female

breast or breasts that is situated below a point
immediately above the top of the areola; or
(B) human male genitals in a

discernibly erect state, even if completely and
opaquely covered.
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(34) SPECIFIED SEXUAL ACTIVITIES

means and includes any of the following:
the business;
(A) the fondling or other erotic

touching of human genitals, pubic region, buttocks,
anus, or female breasts;
(B) the transfer of securities that
constitute a controlling interest in the business,
whether by sale, exchange, or similar means; or
(B) sex acts, normal or perverted,

actual or simulated, including intercourse, oral
copulation, or sodomy;
(C) the establishment of a trust,
gift, or other similar legal device that transfers the
ownership or control of the business, except for
transfer by bequest or other operation of law upon the
death of the person possessing the ownership or
control.
(C)
masturbation,
actual
or
simulated; or
(D) excretory functions as part of or
in connection with any of the activities set forth in
Paragraphs (A) through (C) of this subsection.
(35) SUBSTANTIAL ENLARGEMENT of

a sexually oriented business means an increase in the
floor area occupied by the business by more than 25
percent, as the floor area existed on:
(A) June 18, 1986, for any premises
that were used as a sexually oriented business on or
before that date, regardless of any subsequent changes
in applicants, licensees, owners, or operators of the
premises or the sexually oriented business;
(B) August 22, 2001, for any
premises that were used as a sexually oriented
business on or before August 22, 2001, but not on or
before June 18, 1986, regardless of any subsequent
changes in applicants, licensees, owners, or operators
of the premises or the sexually oriented business; or
(A) the sale, lease, or sublease of
(37) VIP ROOM means any separate
area, room, booth, cubicle, or other portion of the
interior of an adult cabaret (excluding a restroom and
excluding an area of which the entire interior is
clearly and completely visible from the exterior of
the area) to which one or more customers are allowed
access or occupancy and other customers are excluded.
(Ord. Nos. 19196; 19377; 20291; 20552; 21838; 23137;
24440;24699;25296;27139)
SEC. 41A3.
Sexually oriented businesses are classified as
follows:
(1)
adult arcades;
(2)
adult bookstores or adult video
(3)
adult cabarets;
(4)
adult motels;
(5)
adult motion picture theaters;
(6)
escort agencies; and
stores;
(C) for any premises not used as a

sexually oriented business on or before August 22, 2001,
the date an initial application for a license to use the

premises as a sexuaUy oriented business is received by
the chief of police designating the floor area of the
structure or proposed structure in which the sexually
oriented business will be conducted, regardless of any
subsequent changes in applicants, licensees, owners, or
operators of the premises or the sexually oriented
business.
CLASSIFICATION.
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(7) nude model studios. (Ord. Nos.

19196;24440;24699;25296;27139)
(36) TRANSFER OF OWNERSHIP OR

CONTROL of a sexually oriented business means and
includes any of the following:
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SEC. 41A-4.

UCENSE AND DESIGNATED
OPERATOR REQUIRED.
(a) A person commits an offense if he operates

a sexually oriented business without a valid license
issued by the city for the particular type of business.
(b) An application for a license must be made
on a form provided by the chief of police. The
application must be accompanied by a sketch or
diagram showing the configuration of the premises,
including a statement of total floor space occupied by
the business. The sketch or diagram need not be
professionally prepared but must be drawn to a
designated scale or drawn with marked dimensions of
the interior of the premises to an accuracy of plus or
minus six inches. Applicants who must comply with
Section 41A-19 of this chapter shall submit a
diagram meeting the requirements of Section 41A-19.
(c) Only a person who is an officer of or who
has an ownership interest in a sexually oriented
business may apply for a license for the business. Each
a. pplicant must be qualified according to the
,,--,)fOVisions of this chapter.
I.. .
(d) If a person who wishes to operate a

sexually oriented business is an individual, he must
sign the application for a license as the applicant. If
a person who wishes to operate a sexually oriented
business is other than an individual, each individual
who is an officer of the business or who has a 20
percent or greater ownership interest in the business
must sign the application for a license as an
applicant. The application must be sworn to be true
and correct by each applicant. Each applicant must be
qualified under Section 41A-5, and each applicant
shall be considered a licensee if a license is granted.
The fact that a person possesses a valid
dance hall license does not exempt the person from
the requirement of obtaining a sexually oriented
business license. A person who operates a sexually
oriented business and possesses a dance hall license
shall comply with the reqUirements and provisions of
this chapter as well as the reqUirements and
proviSions of Chapter 14 of this code when
applicable.
(e)
(f) In addition to identifying those persons
required to sign an application under Subsection (b),
41A-S
the application must identify all parent and related

corporations or entities of any person who will own or
operate the sexually oriented business and include
the names of the officers of each parent or related
corporation or entity.
(g) The application must also include the
name, address, and telephone number of one or more
designated operators who will be present on the
premises of the sexually oriented business during all
hours of operation. The applicant or licensee shall
maintain a current list of designated operators with
the chief of police. Before a person may serve as a
designated operator of the sexually oriented business,
the person must be named in the license application,
or a supplement or amendment to the license
application, and not be disqualified to operate a
sexually oriented business under this chapter.
(h) A licensee commits an offense if he fails to

maintain at least one designated operator present on
the premises of the sexually oriented business during
all hours of operation.
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(i) The application must include a current

official Texas criminal history report with a
fingerprint card (issued within the preceding 12
months) for the applicant, the applicant's spouse,
and each designated operator showing that they are
not disqualified to operate a sexually oriented
business under this chapter. (Ord. Nos. 19196; 20552;
21838;24440;24699;27139)
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SEC. 41A-S.
ISSUANCE OF UCENSE.
(a) The chief of police shall approve the

issuance of a license by the special collections
division of the water utilities department to an
applicant within 30 days after receipt of an
application unless the chief of police finds one or
more of the following to be true:
(1)
An applicant is a minor.
(2) An applicant or an applicant's

spouse is overdue in payment to the city of taxes, fees,
fines, or penalties assessed against or imposed upon
the applicant or the applicant's spouse in relation to
a sexually oriented business.
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(3) An applicant has failed to provide

information reasonably necessary for issuance of the
license or has falsely answered a question or request
for information on the application form.
(4) An applicant, an applicant's spouse,

or a designated operator has been convicted of a
violation of a provision of this chapter within two
years immediately preceding the application.
41A-5
(h h) possession of child
pornographYi
(ii) any of the following
offenses as described in Chapter 21 of the Texas Penal
Code:
(aa) public lewdness;

(bb) indecent exposure;
(5)
not been paid.
Any fee required by this chapter has
or
Reserved.
child;
(cc) indecency with a

(6)
(7) An applicant or the proposed

establishment is in violation of or is not in compliance
with Section 41A-7, 41A-7.1, 41A-12, 41A-13, 41A
14.1, 41A-142, 41A-15, 41A-16, 41A-17, 41A-18, 4'lA
18.1, 41A-19, 41A-20, or 41A-20.1(a).
(8) An applicant, an applicant's spouse,
or a designated operator has been convicted of a
crime:
(A) involving:
(i) any of the following
offenses as described in Chapter 43 of the Texas Penal
Code:
(a a) prostitution;
(bb) promotion
of
(iii) sexual assault or

aggravated sexual assault as described in Chapter 22
of the Texas Penal Code;
(iv) incest, solicitation of a
child, or harboring a runaway child as described in
Chapter 25 of the Texas Penal Code; or
(v) criminal attempt,
conspiracy, or solicitation to commit any of the
foregoing offenses;
(B)
for which:
( i ) less than two years have

elapsed since the date of conviction or the date of
release from confinement imposed for the conviction,
whichever is the later date, if the conviction is of a
misdemeanor offense;
prostitution;
(cc) aggravated promo
tion of prostitution;
(dd) compelling prosti
(ii) less than five years have

elapsed since the date of conviction or the date of
release from confinement for the conviction,
whichever is the later date, if the conviction is of a
felony offense; or
tution;
(ee) obscenity;
(if) sale, distribution,
or display of harmful material to a minor;
(gg) sexual performance
(iii) less than five years have

elapsed since the date of the last conviction or the
date of release from confinement for the last
conviction, whichever is the later date, if the
convictions are of two or more misdemeanor offenses or
combination of misdemeanor offenses occurring within
any 24-month period.
by a child; or
Dallas City Code
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(9) An applicant has been operating the
proposed business as a sexually oriented business
without a valid license issued under this chapter.
(10) Operation of the proposed sexually
oriented business would violate the city's zoning
ordinances.
sexually oriented business. The license must be posted

in a conspicuous place at or near the entrance to the
sexually oriented business so that it may be easily
read at any time. (Ord. Nos. 19196; 19377; 20552;
21629;21838;24206;24440;24699;27139;27697)
SEC. 41A-6.
(b) The fact that a conviction is being

appealed has no effect on the disqualification of the
applicant, the applicant's spouse, or a designated
operator under Subsection (a).
(c) Except as otherwise provided in this
subsection, when the chief of police denies issuance or
renewal of a license, the applicant may not apply for
or be issued a sexually oriented business license for one
year after the date the denial became final. If,
subsequent to the denial, the chief of police finds
that the basis for the denial has been corrected or
abated, the applicant may apply for and be granted a
license if at least 90 days have elapsed since the date
the denial became final. If issuance or renewal of a
license is denied under Subsection (a)(7) for a
/;iolation of Section 41A-13 only, the applicant may
~e granted a license immediately upon compliance
with Section 41A-13 of this chapter. If issuance or
renewal of a license is denied under Subsection
(a)(8)(A), the applicant may not apply for or be
issued another sexually oriented business license until
the appropriate number of years required by
Subsection (a)(8)(B) has elapsed. If issuance or
renewal of a license is denied under Subsection (a)(4),
the applicant may not apply for or be issued another
sexually oriented business license until the time
period required by Subsection (a)(4) has elapsed.
(d) The chief of police, upon approving
issuance of a sexually oriented business license, shall
send to the applicant, by certified mail, return
receipt requested, written notice of that action and
state where the applicant must pay the license fee
and obtain the license. The chief of police's approval
of the issuance of a license does not authorize the
applicant to operate a sexually oriented business
until the applicant has paid all fees required by this
chapter and obtained possession of the license.
(e) The license, if granted, must state on its
face the name of the person or persons to whOIT. it is
granted, the expiration date, and the addrel>~ of the
41A-7
FEES.
(a) The annual fee for a sexually oriented

business license is $1,400.
(b) In addition to the fees required by
Subsection (a) and (c), an applicant for an initial
sexually oriented business license shall, at the time
of making application, pay a nonrefundable fee of
$3,175 for the city to conduct a survey to ensure that
the proposed sexually oriented business is in
compliance with the locational restrictions set forth
in Section 41A-13.
(c) In addition to the fees required by
Subsections (a) and (b), an applicant for an initial
sexually oriented business license shall, at the time
of making application, pay a nonrefundable fee of $90
for the chief of police to obtain a letter of zoning
verification to ensure that the proposed sexually
oriented business is permitted in the zoning district in
which it will be located. The chief of police shall
request and obtain the letter of zoning verification
from the department of sustainable development and
construction within 30 days after receipt of the
license application. For any sexually oriented
business holding a valid license on October 25, 2000,
this subsection will apply to the first renewal of that
license issued after October 25, 2000. (Ord. Nos.
19196;20612; 21838i 22206; 24051i 24440;24699; 25047;
25048;25909;27697)
SEC. 41A-7.
INSPECTION.
(a) An applicant, licensee, operator, or

employee shall permit representatives of the police
department, the fire department, the department of
code compliance, and the building official to inspect
the premises of a sexually oriented business, for the
purpose of ensuring compliance with the law, at any
time it is occupied or open for business and at other
reasonable times upon request.
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(b) A person who operates a sexually oriented
business or the person's agent or employee commits an
offense if he refuses to permit a lawful inspection of
the premises by a representative of the police
department, the fire department, the department of
code compliance, or the building official at any time
the sexually oriented business is occupied or open for
business and at other reasonable times upon request.
(c) The provisions of this section do not apply
to areas of an adult motel that are currently being
rented by a customer for use a,s a permanent or
temporary habitation. (Ord. Nos. 19196; 19377;
22026;23694;24440;24699;27139;27697)
SEC. 41A-7.1.
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IDENTIFICATION RECORDS.
(a) A person commits an offense if he operates

a sexually oriented business without maintaining on
the premises a current registration card or file that
dearly and completely ide . ies all employees of
the sexually oriented business as requIre
this
section.
(b) The registration card or file must contain
the following information for each employee:
(1)
Full legal name.
(2)
All aliases or stage names.
(3)
Date of birth.
(4)
Race and gender.
(5)
Hair color, eye color, height, and
41A-7.1
(8) Date of commencement of
employment or contractual relationship with the
sexually oriented business.
(9) Original color photograph with a
full face view that accurately depicts the employee's
appearance at the time the employee commenced an
(c) The licensee shall maintain a separate
file on each designated operator (other than the
licensee or the licensee's spouse) and on each adult
cabaret entertainer, which contains, in addition to
the information and documentation required in
Subsection (b), the person's current official Texas
criminal history report with a fingerprint card issued
within the preceding 12 months.
(d) Not later than 90 days after employing or
contracting with a designated operator or an adult
cabaret entertainer, the licensee shall include in the
file a current official criminal history report from
any state other than Texas in which the designated
operator or adult cabaret entertainer resided during
the 12-month period preceding commencement of the
(e ) A licensee commits an offense if he allows

a designated operator to operate a sexually oriented
business without having on file, and available for

inspection by representatives of the police
department, all records and information required by
this section for the designated operator.
weight.
(6) Current residence address and
telephone number, and, for designated operators and
adult cabaret entertainers, all residence addresses
during the 12~month period preceding commencement
of an employment or contractual relationship with
the sexually oriented business.
(f) A licensee or an operator commits an

offense if he allows an ad ult cabaret entertainer to
perform adult cabaret entertainment at a sexually
oriented business without having on file, and
available for inspection by representatives of the
police department, all records and information
required by this section for the adult cabaret
entertainer.
(g)
(7) Legible copy of a valid driver's

license or other government-issued personal
identification card containing the employee's
photograph and date of birth.
All records maintained on an employee in
compliance with this section must be retained at the

sexually oriented business for at least 90 days
following the date of any voluntary or involuntary
termination of the employee's employment or contract
with the sexually oriented business.
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(h) A person who operates a sexually oriented

business or the person's agent or employee shall allow
immediate access to these records by representatives
of the police department. (Ord. Nos. 24440; 24699;
27139)
41AI0
(b) The chief of police shall revoke a license

if the chief of police determines that one or more of
the following is true:
(1) A licensee gave false or misleading
information in the material submitted to the chief 'of
police during the application process.
EXPIRATION OF LICENSE.
Each license expires one year from the date of
issuance, except that a license issued pursuant to an
exemption to a locational restriction expires on the
date the exemption expires. A license may be
renewed only by making application as provided in
Section 41A-4. Application for renewal should be
made at least 30 days before the expiration date, and
when made' less than 30 days before the expiration
date, the expiration of the license will not be
affected by the pendency of the application. (Ord.
Nos. 19196; 205S2;21838; 24440; 24699; 27139)
SEC. 41A-9.
SUSPENSION.
(1) violated or is not in compliance with

Section 41A-4(h), 41A-7, 41A-7.1, 41A-13, 41A-14.1,
41A-14.2, 41A-15, 41A-16, 41A-17, 41A-1B, 41A-1B.l,
41A-19, or 41A-20 of this chapter;
(2) refused to allow an inspection of the
sexually oriented business premises as authorized by
this chapter; or
(3) knowingly permitted gambling by
any person on the sexually oriented business premises.
(Ord. Nos. 19196; 24440; 24699; 27139)
(a)
(3) A licensee or an operator has

knowingly allowed prostitution on the premises.
(4) A licensee or an operator knowingly
operated the sexually oriented business during a
period of time when the licensee's license was
suspended.
(5) A licensee or designated operator

has been convicted of an offense listed in Section 41A
5{a)(B)(A) for which the time period required in
Section 41A-5(a)(8)(B) has not elapsed.
,
,
The chief of police shall suspend a license for a
Veriod not to exceed 30 days if the chief of police
determines that a licensee, an operator, or an
employee has:
SEC. 41A-I0.

knowingly allowed possession, use, or sale of
controlled substances on the premises.
REVOCA TION.
The chief of police shall revoke a license
(6) On two or more occasions within a

12-month period, a person or persons committed an
offense occurring in or on the sexually oriented
business premises of a crime listed in Section 41A
5(a)(8)(A) for which a conviction has been obtained,
and the person or persons were employees of the
licensee or the sexually oriented business at the time
the offenses were committed.
knowingly allowed any act of sexual intercourse,
sodomy, oral copulation, masturbation, or sexual
contact to occur in or on the sexually oriented business
premises. The term "sexual contact" shall have the
same meaning as it is defined in Section 21.01, Texas
Penal Code.
(8) A licensee is delinquent in payment
to the city for hotel occupancy taxes, ad valorem
taxes, or sales taxes related to the sexually oriented
business.
if a cause of suspension in Section 41A-9 occurs and the
license has been suspended within the preceding 12

months.

violated Section 41A-12 of this chapter.
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41A-IO

violated Section 41A-20.1(a) of this chapter.
(c) The fact that a conviction is being
appealed has no effect on the revocation of the
license.
(d) Subsection (b)(7) does not apply to adult
motels as a ground for revoking the license unless the
licensee or employee knowingly allowed the act of
sexual intercourse, sodomy, oral copulation,
masturbation, or sexual contact to occur in a public
place or within public view.
(e) When the chief of police revokes a
license, the revocation will continue for one year, and
the licensee, for one year after the date revocation
becomes effective, shall not apply for or be issued a
sexually oriented business license for the same
location for which the license was revoked. If,
subsequent to revocation, the chief of police finds
that the basis for the revocation has been corrected or
abated, the applicant may apply for and be granted a
license if at least 90 days have elapsed since the date
the revocation became effective. If the license was
revoked under Subsection (b)(5), an applicant may not
apply for or be granted another license until the
appropriate number of years required under Section
41A-5(a)(8)(B) has elapsed. (Ord. Nos. 19196; 19377;
21629;24206;24440;24699;27139)
SEC. 41A-IO.l. DENIAL, SUSPENSION,
REVOCATION, OR DENIAL OF
RENEWAL OF A LICENSE FOR
CRIMINAL CONVICTIONS.
(a) In determining whether a sexually

oriented business license should be denied, suspended,
revoked, or denied for renewal based on criminal
convictions of an applicant or licensee of a sexually
oriented business, or on convictions of an operator or
employee of the applicant, the licensee, or the
sexually oriented business, all convictions for offenses
occurring within a designated time period will be
counted, regardless of whether the offenses occurred
during the current license period, a prior license
period, or an unlicensed period.
(b) Notwithstanding Subsection (a), a
conviction for an offense committed during a prior
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41A-IO.2
license period or an unlicensed period will not be

counted against a current applicant or licensee of a
sexually oriented business if no person who is deemed
a current applicant or licensee was an applicant,
licensee, owner, or operator of the sexually oriented
business during the prior license period or unlicensed
period in which the offense was committed. (Ord.
Nos. 24699; 27139)
SEC. 41A-IO.2. NOTICE OF DENIAL OF
ISSUANCE OR RENEWAL OF
LICENSE OR SUSPENSION OR
REVOCATION OF LICENSEi
SURRENDER OF LICENSE.
(a) If the chief of police denies the issuance or

renewal of a sexually oriented business license or
suspends or revokes a sexually oriented business
license, the chief of police shall deliver to the
applicant or licensee, either by hand delivery or by
certified mail, return receipt requested, written notice
of the action, the basis of the action, and the right to
an appeal.
(b) If the chief of police suspends or revokes a
license or denies renewal of a license that was valid
on the date the application for renewal was
submitted, the chief of police may not enforce such
action before the 11th day after the date the written
notice required by Subsection (a) is delivered to the
applicant or licensee.
(c) Mter suspension or revocation of a license

or denial of renewal of a license that was valid on
the date the application for renewal was submitted,
the applicant or licensee shall discontinue operating
the sexually oriented business and surrender the
license to the chief of police by 11:59 p.m. of the 10th
day after the date:
(1) notice required by Subsection (a) is
delivered to the applicant or licensee, if no appeal is
filed under Section 41A-11 of this chapter; or
(2) a final decision is issued by the
permit and license appeal board upholding the action
of the chief of police, if an appeal is filed under
Section 41A-ll of this chapter.
(d) For purposes of this chapter, written
notice is deemed to be delivered:
Dallas City Code

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41AI0.2
(.;.
(1) on the date the notice is hand

delivered to the applicant or licensee; or
(2) three days after the date the notice

is placed in the United Stales mail with proper
postage and properly addressed to the applicant or
licensee at the address provided for the applicant or
licensee in the most recent license application. (Ord.
41A13
denial of renewal of a license that was valid on the

date the application for renewal was submitted,
pending a judicial determination of the appeal by the
trial court. (Ord. Nos. 19196; 20552; 21838; 24440;
24699; 27139)
SEC. 4IA12.
TRA~SFER
OF LICENSE.
~os.24440i24699;27139)
SEC. 4IA1l.
APPEAL.
(a) Upon delivery of written notice of the

denial, suspension, or revocation of a sexually
oriented business license as required by Section 41A
10.2, the applicant or licensee whose application for
a license or license renewal has been denied or whose
license has been suspended or revoked has the right
to appeal to either the permit and license appeal
board or the state district court.
(b) An appeal to the permit and license
appeal board must be in accordance with Section 2-96
f this code, 'except that an appeal from the denial of
initial sexually oriented business license must be
ard and decided by the board within 30 days after
the applicant files a written request for an appeal
hearing.
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(c) The filing of an appeal under this section

stays the action of the chief of police in suspending or
revoking a license, or in denying renewal of a license
that was valid on the date the application for
renewal was submitted, until a final decision is made
by the permit and license appeal board. A suspension
or revocation of a license, or a denial of renewal of a
license that was valid on the date the application
for renewal was submitted, that is upheld by the
board takes effect at 11:59 p.m. on the 10th day after
the board issues its decision.
(d) An appeal to the state district court must
be filed within 30 days after notice of the decision of
the chief of police is delivered to the applicant or
licensee as required by Section 41A-1O.2 or a final
decision is issued by the permit and license appeal
board upholding the decision of the chief of police.
The applicant or licensee shall bear the burden of
proof in court. The filing of an appeal to state district
court stays a suspension or revocation of the license, or
A licensee shall not transfer his license to

another, nor shall a licensee operate a sexually
oriented business under the authority of a license at
any place other than the address designated in the
application. (Ord. Nos. 19196; 24440; 24699)
SEC. 41A-13.
LOCATION OF SEXUALLY
ORIENTED BUSINESSES.
(a) A person commits an offense if he causes or

permits the operation, establishment, substantial
enlargement, or transfer of ownership or control of a
sexually oriented business within 1,000 feet of:
(1)
a church;
(2) a public or private elementary or

secondary school;
(3) a boundary of a residential or
historic district as defined in this chapter;
(4)
a public park;
(5) the property line of a lot devoted to

a residential use as defined in this chapter;
(6)
a hospital; or
(7)
a child-care facility.
(b) A person commits an offense if he causes or

permits the operation, establishment, substantial
enlargement, or transfer of ownership or control of a
sexually oriented business within 1,000 feet of
another sexually oriented business.
(c) A person commits an offense if he causes or
permits the operation, establishment, or maintenance
of more than one sexually oriented business in the
same building, structure, or portion of a building or
Dallas City Code

12
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structure, or the increase of floor area of any sexually

oriented business in any building, structure, or portion
of a building or structure containing another sexually
oriented business.
(d) For the purposes of Subsection (a),
measurement must be made in a straight line, without
regard to intervening structures or objects, from the
nearest portion of the building or structure used as a
part of the premises where a sexually oriented
business is conducted, to the nearest property line of
the premises of a church, public or private
elementary or secondary school, hospital, or child
care facility or to the nearest boundary of an affected
public park, residential district, historic district, or
residential lot.
(e) For purposes of Subsection (b) of this
section, the distance between any two sexually
oriented businesses must be measured in a straight
line, without regard to intervening structures or
objects, from the closest exterior wall of the structure
in which each business is located.
(f) Any sexually oriented business lawfully
operating on May 28, 1997 that is in violation of
Subsections (a), (b), or (c) of this section is a
nonconforming use. The nonconforming use will be
permitted to continue for a period not to exceed six
months" unless sooner terminated for any reason or
voluntarily discontinued for a period of 30 days or
more. The nonconforming use may not be increased,
enlarged, extended, or altered, except that the use
may be changed to a conforming use. If two or more
sexually oriented businesses are within 1,000 feet of
one another and otherwise in a permissible location,
the sexually oriented business that was first
established and continually operating at a particular
location is the conforming use and the later
established business is nonconforming.
(g) An owner of a nonconforming sexually

oriented business who cannot recoup actual
investments in the use by November 29, 1997 may
request an extension of the compliance date from the
board of adjustment. The request must be in writing
and filed with the city building official on or before
October 29, 1997. No application for an extension
41A-13
that is received by the building official after October

29, 1997 may be considered.
(h) The board of adjustment shall conduct a
hearing on the request for extension in accordance
with applicable procedures set forth in Section
51A-4.703 of the Dallas Development Code. If the
board of adjustment determines that the owner of the
nonconforming sexually oriented business cannot
recoup actual investments in the use by November 29,
1997, it may by written order provide a new
compliance date to the owner. The board of
adjustment shall consider the factors listed in Section
51A-4.704(a)(1)(D) of the Dallas Development Code
in determining whether to grant the request for
extension. Any extension granted by the board of
adjustment must specify a date certain for closure of
the sexually oriented business and is not valid for
operation of the business at any other location.
(i) The board of adjustment's decision on a
request for an extended compliance date is final unless
appealed to the district court within 10 days in
accordance with Chapter 211 of the Texas Local
Government Code.
(j)
A sexually oriented business that remains
in operation pursuant to an extension granted under
this section is not considered as having a license for
purposes of measuring distances between a sexually
oriented business and a church, a public or private
elementary or secondary school" a boundary of a
residential or historic district, a public park, the
property line of a lot devoted to a residential use, a
hospital, a child-care facility, or another sexually
oriented business, as required in Section 41A-13.
(k) A sexually oriented business lawfully

operating as a conforming use is not rendered a
nonconforming use by the location, subsequent to the
grant or renewal of the sexually oriented business
license, of a church, public or private elementary or
secondary school, public park" residential district,
historic district, residential lot, hospital, or child
care facility within 1,000 feet of the sexually
oriented business. This provision applies only to the
renewal of a valid license, and does not apply when
an application for a license is submitted after a
license has expired or has been revoked.
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41A13
(.;
(1) Requirements for posting an intent to

locate a sexually oriented business.
(1) Whenever a sign is posted at an

intended location of a sexually oriented business in
compliance with Section 243.0075 of the Texas Local
Government Code, as amended, and the intended
location of the sexually oriented business is not in
violation of the locational restrictions of this section
at the time the sign is posted, the sexually oriented
business will qualify as a conforming use and will not
be rendered nonconforming by any location, subsequent
to the posting of the sign, of a church, public or
private elementary or secondary school, public park,
residential district, historic district, residential lot,
hospital, or child-care facility within 1,000 feet of
the posted location of the sexually oriented business.
(2) The operator of a proposed sexually

oriented business shall notify the chief of police, by
either certified mail or hand delivery, whenever a
sign is posted at the intended location of the business
in compliance with Section 243.0075 of the Texas
Local Government Code, as amended. The notification
'TIust be in the form of a sworn statement indicating
e location of the sign and the date it was posted
d must be received by the chief of police within
five days after the date of the sign's posting.
(3)
sexually oriented business establishment is in

violation of Section 41A-13 of this chapter, then the
applicant may, not later than 10 calendar days after
receiving notice of the denial, file with the city
secretary a written request for an exemption from the
locational restrictions of Section 41A-13.
(b) If the written request is filed with the
city secretary within the 10-day limit, a permit and
license appeal board, selected in accordance with
Section 2-95 of this code, shall consider the request.
The city secretary shall set a date for the hearing
within 60 days from the date the written request is
received.
(c) A hearing by the board may proceed if a
quorum of the board is present. The board shall hear
and consider evidence offered by any interested
person. The formal rules of evidence do not apply.
(d) The permit and license appeal board may,
in its discretion, grant an exemption from the
locational restrictions of Section 41A13 if it makes
the following findings:
(1) that the location of the proposed
sexually oriented business will not have a
detrimental effect on nearby properties or be contrary
to the public safety or welfare;
Paragraph (1) of this subsection does
not apply if:

(A) a compl eted license
application for the proposed sexually oriented
business is not filed with the chief of police within 20
days after the expiration of the 60-day posting
requirement of Section 243.0075 of the Texas Local
Government Code, as amended; or
(B) the notification requirements
of Paragraph (2) of this subsection are not met. (Ord.
Nos. 19196; 19377; 20291; 21629; 23137; 24440; 24699;
25092)
SEC. 41A-14.
41A-14
EXEMYI10N FROM LOCATION
RESTRICTIONS.
(a) H the chief of police denies the issuance of
a license to an applicant because the location of the

sexually oriented business will not downgrade the
property values or quality of life in the adjacent
areas or encourage the development of urban blight;
sexually oriented business in the area will not be
contrary to any program of neighborhood conservation
nor will it interfere with any efforts of urban renewal
or restoration; and
(4) that all other applicable provisions
of this chapter will be observed.
(e) The board shaH grant or deny the

exemption by a majority vote. Failure to reach a
majority vote shall result in denial of the exemption.
Disputes of fact shall be decided on the basis of a
preponderance of the evidence. The decision of the
permit and license appeal board is final.
Dallas City Code
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41A-14
(f) If the board grants the exemption, the

exemption is valid for one year from the date of the
board's action. Upon the expiration of an exemption,
the sexually oriented business is in violation of the
Iocational restrictions of Section 41A-13 until the
applicant applies for and receives another
exemption.
(g) If the board denies the exemption, the
applicant may not re-apply for an exemption until at
least 12 months have elapsed since the date of the
board's action.
(h) The grant of an exemption does not exempt
the applicant from any other provisions of this
chapter other than the locational restrictions of
Section 41A-13. The grant of an exemption does not
exempt the applicant from the provisions of Section
41A-13 prohibiting substantial enlargement of a
sexually oriented business. (Ord. Nos. 19196; 24440;
24699; 25002)
SEC. 41A-14.1. EXTERIOR PORTIONS OF
SEXUALLY ORIENTED
BUSINESSES.
(a) An owner or operator of a sexually
oriented business commits an offense if he allows:
(1) the merchandise or activities of the
establishment to be visible from any point outside the
establishment;
incJuding the exterior portions of the establishment,

are painted the same color as one another or are
painted in such a way as to be a component of the
overall architectural style or pattern of the
commercial multi-unit center.
(b) Nothing in this section requires the
painting of an otherwise unpainted exterior portion of
a sexually oriented business.
(c) The exterior of any sexually oriented
business lawfully operating on May 28, 1997 is not
required to comply with Subsections (a)(2) and (a)(3)
of this section until alterations, repairs, remodeling,
and repainting that cumulatively affect more than 50
percent of the exterior are performed on the sexually
oriented business during any 12-month period. (Ord.
Nos. 23137;24440; 24699)
SEC. 41A14.2. SIGN REQUIREMENTS.
(a) Notwithstanding any provision of the

Dallas Development Code or any other city
ordinance, code, or regulation to the contrary, the
owner or operator of any sexually oriented business or
any other person commits an offense if he erects,
constructs, or maintains any sign for the
establishment other than one primary sign and one
secondary sign, as provided in this section.
(b) A primary sign may have no more than
two display surfaces. Each display surface must:
(2) the exterior portions of the

establishment to have flashing lights, or any words,
lettering, photographs, silhouettes, drawings, or
pictorial representations of any manner except to the
extent permitted by this chapter; or
(3) the exterior portions of the
establishment to be painted any color other than a
single achromatic color, except that this paragraph
does not apply to an establishment if the following
conditions are met:
41A-14.2
(1)
not contain any flashing lights;
(2)
be a flat plane, rectangular in shape;
(3)
not exceed 75 square feet in area; and
(4)
not exceed 10 feet in height or 10 feet
in length.
(c) A secondary sign may have only one
display surface. The display surface must:
(A) the establishment is a part of a

commercial multi-unit center; and
the exterior portions of each
individual unit in the commercial multi-unit center,
(1)
not contain any flashing lights;
(2)
be a flat plane, rectangular in shape;
(3)
not exceed 20 square feet in areai
(B)
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<..."
4IA-14_2
4IA-16
Sexually Oriented B"';nesses
(4) not exceed five feet in height or four

feet in width; and
(5) be affixed or attached to a wall or
door of the establishment.
(d) A primary or secondary sign must contain
no photographs, silhouettes, drawings, or pictorial
representations of any manner, and may contain only:
(1)
(1) the sign is intentionally removed or

destroyed by the owner or operator of the sexually
oriented business or abandoned by the owner or
operator of the sexually oriented business; or
(2) the city requires removal,
relocation, or reconstruction of the sign in accordance
with applicable state law. (Ord. Nos. 23137; 24440;
24699; 25296)
the name of the establishment;

SEC. 41A-15.
and/or
(2)
ADDITIONAL REGULATIONS
FOR ESCORT AGENCIES.
one or more of the following phrases:

A person commits an offense if the person acts as
an escort or agrees to act as an escort for a minor.
(Ord.Nos.19196;24440i 24699;27139)
(A) "Adult arcade."

(B)
"Adult bookstore or adult
video store."
SEC. 41A-16.
(C) "Adult cabaret."
(D) "Adult mote!."
(E)
"Adult
(F)
"Escort agency."
(G)
"Nude model studio."
motion
(a)
picture
(e) In addition to the phrases listed in

Subsection (d)(2) of this section, a primary sign for an
adult motion picture theater may contain the phrase,
"Movie Titles Posted on Premises," and a primary
sign for an adult bookstore or adult video store may
contain the word "OYO's".
(f) Each letter forming a word on a primary or
secondary sign must be of a solid color, and each letter
must be the same print-type, size, and color. The
background behind the lettering on the display
surface of a primary or secondary sign must be of a
uniform and solid color.
(g) Notwithstanding the sign requirements of
this section and Section 41A-14.1, any sign lawfully
existing on the premises of a lawfully operating
sexually oriented business on May 28, 1997 may
continue to be maintained on the premises, until:
FOR NUDE MODEL STUDIOS.
Reserved.
(b) A minor commits an offense if the minor

appears in a state of nudity in or on the premises of a
nude model studio.
(c) A person commits an offense if the person
appears in a state of nudity or knowingly allows
another to appear in a state of nudity in an area of a
nude model studio premises that can be viewed from
the public right-of-way.
(d) A nude model studio shall not place or
permit a bed, sofa, or mattress in any room on the
premises, except that a sofa may be placed in a
reception room open to the public.
(e) An employee of a nude model studio,
while exposing any specified anatomical areas,
commits an offense if the employee touches a customer
or the clothing of a customer.
(f) A customer at a nude model studio commits
an offense if the customer touches an employee who is
exposing any specified anatomical areas or touches
the clothing of the employee.
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16
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41A-16
(g) A licensee, an operator, or an employee of

a nude model studio commits an offense if he pennits
any customer access to an area of the premises not
visible from the manager's station or not visible by a
walk through of the premises without entering a
closed area, excluding a restroom. (Ord. Nos. 19196;
23137;24440;24699;27139)
SEC 41A-17.
FOR ADULT MOTION PICIURE
THEATERS.
(a) A person commits an offense if he

knowingly allows a minor to appear in a state of
nudity in or on the premises of an adult motion picture
theater.
(b) A minor commits an offense if the minor
knowingly appears in a state of nudity in or on the
premises of an adult motion picture theater. (Ord.
Nos. 19196;21838;24440;24699;27139)
SEC 41A-18.
ADDmONAL REGULATIONS
FOR ADULT MOTELS.
(a) Evidence that a sleeping room in a hotel,

motel, or similar commercial establishment has been
rented and vacated two or more times in a period of
time that is less than 10 hours creates a rebuttable
presumption that the establishment is an adult motel
as that term is defined in this chapter.
(b) A person commits an offense if, as the
person in control of a sleeping room in a hotel, motel,
or similar commercial establishment that does not
have a sexually oriented business license, he rents or
sub rents a sleeping room to a person and, within 10
hours from the time the room is rented, he rents or
subrents the same sleeping room again.
(c) For purposes of Subsection (b) of this
section, the terms "rent" or "subrent" mean the act of
permitting a room to be occupied for any form of
consideration. (Ord. Nos. 19196; 24440; 24699)
41A-18.1
SEC. 41A-18.1. ADDmONAL REGULATIONS

FOR ADULT CABARETS.
(a) A licensee or an operator of an adult
cabaret commits an offense if he employs, contracts
with, or otherwise allows a person to act as an adult
cabaret entertainer if the person has been convicted of
an offense listed in Section 41A-5(a)(8)(A) for which
the time period required in Section 41A-5(a)(8)(B)
has not elapsed.
(b) An employee of an adult cabaret, while
exposing any specified anatomical areas, commits an
offense if the employee touches a customer or the
clothing of a customer.
(c) A customer at an adult cabaret commits an

offense if the customer touches an employee who is
exposing any specified anatomical areas or touches
the clothing of the employee.
(d) An adult cabaret may not contain any VIP
rooms, except that any VIP room contained in a
lawfully operating adult cabaret on April 21, 2008
may continue in existence until April 21, 2009,
provided that no adult cabaret entertainment occurs
in the VIP room.
(e) Except for a restroom or an area of which
the entire interior is clearly and completely visible
from the exterior of the area, no area of an adult
cabaret that is accessible to a customer may be
separated from any other customer-accessible area by
a door, wall, curtain, drape, partition, or room
divider of any kind. Nothing in this subsection
precludes the installation or maintenance of any wall
or column that is essential to the structural integrity
of the building.
Any adult cabaret lawfully
operating on April 21, 2008 must comply with the
requirements of thls subsection not later than April
21,2009.
(f) A licensee, an operator, or an employee of
an adult cabaret commits an offense if he permits any
customer access to an area of the premises:
(1) not visible from the manager's
station or not visible by a walk through of the
premises without entering a closed area, excluding a
restroom; or
Dallas City Code
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~'lA'18.1

(2)
not regularly open to all customers of
the business.
(g) Adult cabaret entertainment must occur
only in the presence of, and be visually observable by,
an employee who is not an adult cabaret entertainer.
A licensee or operator commits an offense if he
knowingly allows adult cabaret entertainment to be
performed in violation of this subsection.
(h) The purpose of Subsections (d), (e), (f), and
(g) of this section is to reduce the opportunity for
unlawful activity such as indecent exposure,
solicitation for prostitution, and prostitution that
occurs in VIP rooms and other areas of adult cabarets
that are not open to the view of management
personnel, law enforcement officers, and customers. By
prohibiting VIP rooms and requiring adult
entertainment to be performed in more open and
visible surroundings, unlawful activity will be
deterred because it will be more readily observable
by management personnel, law enforcement officers,
and customers. (Ord. Nos. 23137; 24440; 24699; 27139)
(..;EC. 41A-19.
REGULATIONS PERTAINING TO
EXHIBITION OF SEXUALLY
EXPLICIT FILMS OR VIDEOS.
(a) A person who operates or causes to be

operated a sexually oriented business, other than an
adult motel, which exhibits on the premises in a
viewing room of less than 150 square feet of floor
space, a film, video cassette, or other video
reproduction that depicts specified sexual activities
or specified anatomical areas, shall comply with the
following requirements:
(1) Upon application for a sexually
oriented business license, the application must be
accompanied by a diagram of the premises showing a
plan thereof specifying the location of one or more
manager's stations and the location of all overhead
lighting fixtures and designating any portion of the
premises in which patrons will not be permitted. A
manager's station may not exceed 32 square feet of
floor area. The diagram must also designate the
place at which the permit will be conspicuously
posted, if granted. A professionally prepared
diagram in the nature of an engineer's or architect's
blueprint is not required; however, each diagram
l:hOUld be oriented to the north or to some designated
41A-19
street or object and should be drawn to a designated

scale or with marked dimensions sufficient to show
the various internal dimensions of all areas of the
interior of the premises to an accuracy of plus or minus
six inches. The chief of police may waive the
foregoing diagram for renewal applications if the
applicant adopts a diagram that was preViously
submitted and certifies that the configuration of the
premises has not been altered since it was prepared.
(2) The application must be sworn to be
true and correct by the applicant.
(3) No alteration in the configuration or
location of a manager's station Dlay be made without
the prior approval of the chief of police or the
chief's designee.
(4) It is the duty of the owners and
operator of the premises to ensure that at least one
employee is on duty and situated in each manager's
station at all times that any patron is present inside
the premises.
(5) The interior of the premises must be
configured in such a manner that there is an
unobstructed view from a manager's station of every
area of the premises to which any patron is
permitted access for any purpose excluding restrooms.
Restrooms may not contain video reproduction
equipment. H the premises has two or more manager's
stations designated, thtm the interior of the premises
must be configured in such a manner that there is an
unobstructed view of each area of the premises to
which any patron is permitted access for any purpose
from at least one of the manager's stations. The view
required in this subsection must be by direct line of
sight from the manager's station.
(6) It shall be the duty of the owners
and operator, and it shall also be the duty of any
agents and employees present in the premises, to
ensure that the view area specified in Paragraph (5)
of this subsection remains unobstructed by any doors,
walls, merchandise, display racks, or other
materials at all times that any patron is present in
the premises and to ensure that no patron is permitted
access to any area of the premises that has been
designated as an area in which patrons will not be
permitted in the application filed pursuant to
Paragraph (1) of this subsection.
Dallas City Code
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41A-19
(7) The premises must be equipped with

overhead lighting fixtures of sufficient intensity to
illuminate every place to which patrons are
p~rmitted access at an illumination of not less than
one (1.0) footcandle as measured at the floor level.
(8) It shall be the duty of the owners
and operator, and it shall also be the duty of any
agents and employees present in the premises, to
ensure that the illumination described in Paragraph
(7) of this subsection is maintained at all times that
any patron is present in the premises.
(b) A person having a duty under Paragraphs
(1) through (8) of Subsection (a) commits an offense if
he knowingly fails to fulfill that duty. (Ord. Nos.
19196;24440;24699)
SEC. 41A-20.
DISPLAY OF SEXUALLY EXPLICIT

MATERIAL TO MINORS.
(a) A person commits an offense if, in a

business establishment open to minors, the person
displays a book, pamphlet, newspaper, magazine,
film, or video cassette, the cover of which depicts, in
a manner calculated to arouse sexual lust or passion
for commercial gain or to exploit sexual lust or
perversion for commercial gain, any of the following:
(1) human
masturbation, or sodomy;
sexual
41A21
(2) the cover or outside packaging on the
item is visible to members of the general public.
(Ord. Nos. 19196; 24440; 24699; 27139)
SEC. 41A-20.1. PROHIBITIONS AGAINST
MINORS IN SEXUALLY
ORIENTED BUSINESSES.
(a) A licensee or an operator commits an
offense if he knowingly:
(1) allows a minor'to enter the interior
premises of a sexually oriented business;
(2) employs, contracts with, or
otherwise engages or allows a minor to perform adult
cabaret entertainment; or
(3) employs a minor in a sexually
oriented business.
(b) Knowledge on the part of the licensee or
operator is presumed under Paragraph (2) or (3) of
Subsection (a) if identification records were not kept
in accordance with the requirements of Section 41A

7.1, and properly kept records would have infonned
the licensee or operator of the minor's age.
(c) An employee commits an offense if the
intercourse,
employee knowingly:
(2) fondling or other erotic touching of

human genitals, pubic region, buttocks, or female
breasts;
(3) less than completely and opaquely
covered human genitals, buttocks, or that portion of
the female breast below the top of the areola; or
(4) human male genitals in a discernibly
turgid state, whether covered or uncovered.
(1) allows a minor to enter the interior
premises of a sexually oriented business;
(2) employs, contracts with, or

otherwise engages or allows a minor to perfonn adult
cabaret entertainment; or
(3) employs a minor in a sexually
oriented business.
(d) A minor commits an offense if the minor
knowingly enters the interior premises of a sexually
oriented business. (Ord.27139)
(b) In this section "display" means to locate

an item in such a manner that, without obtaining
assistance from an employee of the business
establishment:
SEC. 41A-21.
(1) it is available to the general public

for handling and inspection; or
(a) Whenever a person does an act that is

forbidden, fails to perform an act that is required, or
ENFORCEMENT.
I
!
Dallas City Code
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I
f
t:
'lA2'
41A-23
Sexually Oriented Bu,m.....
commits an act that is made an offense by any

provision of this chapter, the violation is punishable
as provided by Section 243.010(b) of the Texas Local
Government Code, as amended. A person violating a
provision of this chapter is guilty of a separate
offense for each day or part of a day during which
the violation is committed, continued, or permitted.
(b) Except where otherwise specified, a
culpable mental state is not required for the
commission of an offense under this chapter.
(c) It is a defense to prosecution under Section
41A-4(a), 41A-13, or 41A-16(d) that a person
appearing in a state of nudity did so in a modeling
class operated:
SEC. 41A-22.
INJUNCTION.
A person who operates or causes to be operated a

sexually oriented business without a valid license or
in violation of Section 41A-13 of this chapter is
subject to a suit for injunction as well as prosecution for
criminal violations. (Ord. ~os. 19196; 24440; 24699)
SEC. 41A-23.
AMENDMENT OF THIS CHAPTER.
Sections 41A-13 and 41A-14 of this chapter may

be amended only after compliance with the procedure
required to amend a zoning ordinance. Other sections
of this chapter may be amended by vote of the city
council. (Ord. ~os. 19196; 24440; 24699)
(1) by a proprietary school licensed by

the state of Texas; a college, junior college, or
university supported entirely or partly by taxation;
(2) by a private college or university
that maintains and operates educational programs in
which credits are transferrable to a college, junior
'~lle~e, or university supported entirely or partly by
,
~xation; or
(3)
in a structure:
(A) that has no sign visible from

the exterior of the structure and no other advertising
that indicates a nude person is available for viewing;
and
(B) where in order to participate
in a class a student must enroll at least three days in
advance of the class; and
(C) where no more than one nude

model is on the premises at anyone time.
(d) It is a defense to prosecution under Section

41A-4(a) or Section 41A-13 that each item of
descriptive, printed, film, or video material offered
for sale or rental, taken as a whole, contains serious
literary, artistic, political, or scientific value. (Ord.
~os.19196;19963;20552;24440;24699)
Dallas City Code
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EXHIBIT "B"
"
City of Dallas
December t t, 2014
Via Certified Mail #7013 2250 0002 3632 5045

and hand delivery
JOC Dallas, LLC

Bryan Foster, Sole MemberlManager
11327 Reeder Road
Dallas, Texas 75229
RE: Revocation of Sexually Oriented Business License
Jaguars - Dallas
1 1327 Reeder Road
Dear Mr. Foster,
The records of the Dallas Police Department indicate that Jaguars - Dallas currently holds
a valid Sexually Oriented Business License at 11327 Reeder Road.
Under Chapter 41A, Sexually Oriented Businesses, of the Dallas City Code, this letter
serves as notice that your Sexually Oriented Business License is hereby revoked.
Section 41A-1O, of the Dallas City Code states, in pertinent part:
(b) The chief of police shall revoke a license if the chief of police determines
that:
(2) A licensee or an operator has knowingly allowed possession, use, or
sale of controlled substances on the premises.
Your sexually oriented business license was revoked because you or an operator
knowingly allowed the possession, use, or sale of controlled substances on the premises
of Jaguars - Dallas, 11327 Reeder Road.
DALLAS POUCE DEPARlMENT
JACK EVANS POLICE HEADQUARTERS
1400 S. lAMAR STREET
DALLAS. TEXAS 75215
,/
.'
Page 2
Bryan Foster
December 11, 2014
Pursuant to the Dallas City Code, this revocation may be appealed to the Pennit and
License Appeal Board or a state district court. An appeal to the Pennit and License
Appeal Board must be made within 10 calendar days after the receipt of this notice or it
becomes finaL An appeal to the state district court must be filed within 30 days after the
receipt of this notice.
Any questions concerning the ordinance or the appeal process should be directed to the
Dallas City Secretary's Office at 214-670-3738.
Sincerely.
DAVID O. BROWN
CHIEF OF POLICE
~~
Deputy Chief of Police
Narcotics Division
Investigations Bureau
Dallas Police Department
EXHIBIT "C"
Case 3:01-cv-00857-G Document 61 Filed 02/21/02
Page 1 of 18 PagelD 263
IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT IOF I'EXi\S"
DALLAS DIVISION
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MILLENNIUM RESTAURANTS
GROUP, INC., d/b/a CABARET
ROYALE, ET AL.,
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Plaintiffs,
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CIVIL ACTION NO.
)
)
AND
3:01-CV-0857-G
)
)
CLUBCO MGMT., INC. d/b/a DALLAS

GENTLEMEN'S CLUB, ET AL.,
)
)
)
Intervenors,
)
)
~.
CITY OF DALLAS, TEXAS, ET AL.,
)
)
Defendants.
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-~-.-- ~-
MEMORANDUM ORDER
Before the court is the motion of plaintiffs Millennium Restaurants Group,

Inc. d/b/a Cabaret Royale ("Millennium") and Steven Craft ("Craft") (collectively,
"Millennium") for summary judgment on their claim for a permanent injunction
against the City of Dallas ("the City") and against Dallas Chief of Police Terrell
Bolton ("Bolton").l For the reasons discussed below, the motion for summary
judgment is granted.
I. BACKGROUND2
Millennium is an existing licensed adult cabaret operating in a conforming

location under Chapter 41A of the Dallas City Code, the provision which governs
"Sexually Oriented Businesses" ("Chapter 41A"). Plaintiffs' Brief in Support of
Motion for Summary Judgment and Permanent Injunction ("MS]") at 3; Plaintiffs'
and Intervenors' Appendix in Support of Findings of Fact and Conclusions of Law
and Brief in Support of Preliminary Injunction ("Plaintiffs' Appendix") at 40, 43.
Millennium or its predecessors have operated a licensed adult cabaret since 1988.
MSJ at 3; Plaintiffs' Appendix at 41. Millennium does business as Cabaret Royale,
located at 10723 Composite Drive, Dallas, Texas. MSJ at 3; Plaintiffs' Appendix at
40-41, 43. Craft, an officer of Millennium, holds the license under which
Millennium operates as an adult cabaret. MSJ at 3; Plaintiffs' Appendix at 40,43.
On or about April 17, 2001, the City issued a letter to Cabaret Royale
revoking its license under Chapter 41A to operate as a sexually oriented business.
Although Millennium styled its motion a "Motion for Summary

Judgment and Permanent Injunction," it is actually a motion for summary judgment
on Millennium's claim for a permanent injunction.
2
The defendants do not include a factual summary in their response to
Millennium's motion for summary judgment. The court has therefore relied heavily
on Millennium's statement of the case.
-2
MSJ at 4; Chapter 41A, 41A-IO.l, Plaintiffs' Appendix at 44-45. The revocation

would have become effective on May 17, 2001 if a temporary restraining order
prohibiting revocation had not issued in this case. MSJ at 4; Plaintiffs' Appendix at
14,44-45. The revocation letter cited Chapter 41A, 41A-I0 as the basis for
revocation of the license, specifically referring to the convictions of four entertainers
at Cabaret Royale for public lewdness on the premises. MSJ at 4; Plaintiffs'
Appendix at 44-45.
An "adult cabaret" is defined in Chapter 41A, 41A-2( 4) as
a commercial establishment that regularly features the
offering to customers of live entertainment that:
(A) is intended to provide sexual stimulation

or sexual gratification to such customers; and
(B) is distinguished by or characterized by an
emphasis on matter depicting, simulating,
describing, or relating to "specified
anatomical areas" or "specified sexual
activities. ,,3
Id. Plaintiffs' Appendix at 2; MSJ at 4.

t
Millennium offers performances of erotic dancing to its customers. MSJ at 4;

Plaintiffs' Appendix at 40-41, 61. The female performers dance topless and wear Gstrings. MSJ at 4; Plaintiffs' Appendix at 40, 61.
Both "specified anatomical areas" and "specified sexual activities" are

terms defined by Chapter 41A. See Chapter 41A, 41A-2(29) and (30), Plaintiffs'
Appendix at 5-6.
3
-3
Based on an ostensible concern for the effect that a sexually oriented business
such as the one operated by Millennium can have on surrounding neighborhoods,
Chapter 41A imposes significant obstacles to the opening of adult cabarets and other
establishments featuring erotic entertainment and expression. MSJ at 4; Plaintiffs'
Appendix at 7, 8, IS. There are, among other things, restrictions on lawful locations
for such businesses (Sec. 41A-13), special licensing requirements (Sec. 41A-4), and
limitations on the individuals who may hold licenses (Sec. 41A-5). MSJ at 4-5;
Chapter 41 A, Plaintiffs' Appendix at 15, 7, and 7-10, respectively. Millennium has
met all of the statutory requirements for the presentation of erotic dance to the
public and it has done so continually and lawfully for years. MSJ at 5; Plaintiffs'
Appendix at 61-62.
The City proposes to revoke Millennium's license on the basis of 41A
1O(b) (6) of Chapter 41A, a provision of the Sexually Oriented Business Ordinance
which states:
(b) The chief of police shall revoke a license if the chief of
police determines that one or more of the following is true:
***
(6) On two or more occasions within a 12-month period, a
person or persons committed an offense occurring in or on
the licensed premises of a crime listed in Section 41A
-4
Case 3:01-cv-00857-G Document 61 Filed 02/21102
5(a)(8)(A)4 for which a conviction has been obtained, and

the person or persons were employees of the sexually
oriented business at the time the offenses were committed.
MSJ at 5; Plaintiffs' Appendix at 12-13.
This section, under which the City has acted, does not require that the license
holder have knowledge of an employee's violation of the law. Section 41A-21(b)
provides that" [e]xcept where otherwise specified, a culpable mental state is not
required for the commission of an offense under this chapter." MSJ at 5, n.4;
Plaintiffs' Appendix at 24. Nor does the section require that the licensee have been
negligent in failing to adequately instruct or supervise employees in avoiding lewd
conduct as part of their erotic dance. MSJ at 5-6; Plaintiffs' Appendix at 13, 24.
Rather, the ordinance calls for the automatic revocation of the license without
permitting any inquiry into the culpability of the licensee for the unlawful conduct.
MSJ at 6; Plaintiffs' Appendix at 12-13,24. Whether the licensee used efforts to
train the dancers or prevent violations is not to be considered by the chief of police.
MSJ at 6; Plaintiffs' Appendix at 12-13, 24. Chapter 41A confers no discretion on
the chief of police; rather, it orders him to revoke the license after two violations.
MSJ at 6; Plaintiffs' Appendix at 12-13,24.
4
Section 41A-5(a)(8)(A)(ii)(aa) defines public lewdness as an actionable
offense. MSJ at 5, n.3; Plaintiffs' Appendix at 8-9.
-5
This statutory indifference to the culpability of the licensee is carried over into
the operation of the ordinance in practice. MSJ at 6; Plaintiffs' Appendix at 13,24,
57-58. A dancer who has accused of violating the ordinance is sent a notice by mail
of a misdemeanor violation. MSJ at 6; Plaintiffs' Appendix at 58. The license holder
is not given notice of the first, or of any subsequent, citation. MSJ at 6; Plaintiffs'
Appendix at 57-58. Once two convictions have been obtained, the chief of police
must revoke the license. MSJ at 5; Chapter 41A, 41A-IO(b)(6), Plaintiffs' Appendix
at 12-13.
All of the convictions for public lewdness on which the City proposed to
revoke the license at issue here were based on conduct occurring during the course of
a dance performance. MSJ at 7; Plaintiffs' Appendix at 61. The conduct involved
was protected expression which at some point crossed the line from lawful to
unlawful.
II. ANALYSIS
A. Evidentiary Burdens on Motion for Summary Judgment
Summary judgment is proper when the pleadings and evidence on file show
that no genuine issue exists as to any material fact and that the moving parties are
entitled to judgment as a matter of law.
FED.
R. CIV. P. 56(c).5 U[T]he substantive
5
The disposition of a case through summary judgment "reinforces the
purpose of the Rules, to achieve the just, speedy, and inexpensive determination of
(continued... )
-6
law will identify which facts are material." Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986). A genuine issue of material fact exists "if the evidence is such that
a reasonable jury could return a verdict for the nonmoving part[ies]." Id. The
movants make such a showing by informing the court of the basis of their motion and
by identifying the portions of the record which reveal there are no genuine material
fact issues. Celotex Corporation v. Catrett, 477 U.S. 317, 323 (1986). The pleadings,
depositions, admissions, and affidavits, if any, must demonstrate that no genuine
issue of material fact exists. FED. R. CIv. P. 56(c).
Once the movants make this showing, the nonmovants must then direct the
court's attention
to
evidence in the record sufficient to establish that there is a
genuine issue of material fact for trial. Celotex, 477 U.S. at 32324. To carry this
burden, the "opponent[s] must do more than simply show ... some metaphysical
doubt as to the material facts." Matsushita Electric Industrial Company, Ltd. v. Zenith
&dio Corporation, 475 U.S. 574, 586 (1986). Instead, the nonmovants must show
that the evidence is sufficient to support a resolution of the factual issue in their
favor. Anderson, 477 U.S. at 249.
5( ... continued)
actions, and, when appropriate, affords a merciful end to litigation that would
otherwise be lengthy and expensive." Fontenot v. Upjohn Company, 780 F.2d 1190,
1197 (5th Cir. 1986).
-7
Case 3:01-cv-008S7-G Document 61 Filed 02/21102
While all of the evidence must be viewed in a light most favorable to the
motion's opponents, Anderson, 477 U.S. at 255 (citing Adickes v. S.H. /Cress &
Company, 398 U.S. 144, 158-59 (1970)), neither conclusory allegations nor
unsubstantiated assertions will satisfy the non-movants' summary judgment burden.
Little v. Liquid Air Corporation, 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc);
Topalian v. Ehrman, 954 F.2d 1125, 1131 (5th Cir.), cert. denied, 506 U.S. 825 (1992).
1. The Cifj1's Attempt to Revoke Millennium's License Constitutes an
Unconstitutional Prior Restraint of First Amendment Rights

Millennium contends, as it did in its motion for preliminary injunction, that
4IA-l O(b)( 6) of Chapter 41A must be declared unconstitutional because the
attempt by the City to revoke Millennium's license, based on past performances by

entertainers, is an unconstitutional prior restraint on freedom of expression. MSJ at
7.
In Universal Amusement Company, Inc. v. Vance, 587 F.2d 159 (5th Cir. 1978)
(en bane), aJfd, 445 U.S. 308 (I980), the Fifth Circuit noted that "[a] prior restraint
of expression comes before [theJ court with 'a heavy presumption against its
constitutional validity.'" Id. at 165, citing Bantam Books, Inc. v. Sullivan, 372 U.S. 58,
70 (1963). In Vance, the Fifth Circuit considered an effort by Texas authorities to
close an adult theater for one year as a public nuisance on the basis of its showing of
legally obscene, and therefore unprotected, material. The court, in language directly
-8
applicable to the present situation, found that the use of the nuisance statutes to
accomplish this end would be unconstitutional, holding that:
Read together, Articles 4666 and 4667 clearly create a
prior restraint. The statutes allow the state to close, for
one year, a theatre that has exhibited obscene films.
Unless a bond from $1,000 to $5,000 is posted, the
showing of any motion picture is punishable by contempt
of court. Thus, future conduct that may fall within the
purview of the first amendment is absolutely prohibited
after a finding of unprotected present conduct. It was
precisely this practice that was condemned by the Supreme
Court in the landmark case of Near v. Minnesota, 283 U.S.
697 (1931). Moreover, although a theater operator may
post the bond and show films, he forfeits that bond if one
of the films he has selected is deemed obscene. This
statutory scheme obviously encourages a theater operator
to steer wide of the danger zone by avoiding borderline
films that are nonetheless protected under the first
amendment. The line between obscenity and protected
speech is "dim and uncertain," Bantam Books, supra, 372
U.S. at 66, and difficulty in locating that line leads to self
censorship, a particularly subtle and most insidious form of
the malady.
Vance, 587 F.2d at 16566 (emphasis in original) (footnote omitted).

The court agrees with Millennium's assertion that the license revocation
procedure at issue here brings it within the ambit of Vance. As in Vance, the City
proposes to prevent a business operator's full exercise of First Amendment freedoms
going forward, on the basis of past instances in which expression offered by the
business has crossed the line from lawful to unlawfu1. 6 Plaintiffs' and Intervenors'
Brief in Support of Motion for Preliminary Injunction ("PI Motion") at 11; see also
GayeO' Theatres, Inc. v. CiO' ojMiami, 719 F.2d 1550, 1552 (11th Cir. 1983) (holding
that a city could not use past conduct to enjoin future protected speech).
The City argues that Vance does not apply to this situation and points out that
the "owner or operator remains free to open another business and still engage in
protected activity." Brief in Support of Defendant's Response to Plaintiffs' Motion
for Summary Judgment and for Permanent Injunction ("MSJ Response") at 7.
Contrary to the City's assertion, however, Section 41A-10(e) prOvides:
When the chief of police revokes a license, the revocation
vvill continue for one year, and the licensee shall not apply
for or be issued a sexually oriented business license for one
year after the date the revocation became effective.
Id.; Plaintiffs' Appendix at 14.

Millennium has also shown that the license revocation at issue here is not
justified under United States v. O'Brien, 391 U.S. 367, 377 (1968). PI Motion at 14.
The continuing validity of the Fifth Circuit's decision in Vance and its
relevance to erotic dancing was expressly acknowledged last year in Chief Judge
Buchmeyer's opinion in LLEH, Inc. v. Wichita CounO', Texas, 121 F. Supp.2d 513
(N.D. Tex. 2000), which strudc down an injunction provision in a local ordinance
governing erotic dancing on the authority of Vance, on the ground that it would
constitute "an unconstitutional prior restraint of free expression entitled to protection
under the First Amendment." 121 F. Supp.2d at 527.
6
- 10
Case 3:01-cv-008S7-G Document 61 Filed 02/21/02
Content neutral regulations burdening expressive activity, such as the ordinance at

issue, must be judged under the four-factor test of O'Brien.
The O'Brien test states that a content neutral ordinance survives constitutional
challenge, despite its adverse impact on the exercise of First Amendment rights, when
(1) it is within the constitutional power of the government; (2) it furthers an
important or substantial governmental interest; (3) the asserted governmental
interest is unrelated to the suppression of free expression; and (4) the incidental
restrictions on alleged First Amendment freedoms is no greater than is essential to the
furtherance of that interest. 391 U.S. at 377. Millennium contends that the use of
employee convictions to revoke a sexually oriented business license violates the
principles of O'Brien, because no shovving of knowledge, culpable state of mind, or
even negligence on the part of the licensee is required before suspension or revocation
of the license. PI Motion at 15.
While Millennium concedes that the City has the authority to license sexually
oriented businesses, it argues that the City'S regulations in this case do not pass
muster under the third and fourth prongs of O'Brien. The third prong of O'Brien is
violated when the governmental interest is related to the suppression of free
expression. 391 U.S. at 377. The court finds that the strict liability feature of the
ordinance is constitutionally suspect because it does not relate to or further the
governmental interest of assuring law abiding licensees.
- 11
The fourth prong of O'Brien is likewise violated because the regulation in

question is not narrowly tailored to do only what is necessary to achieve a substantial
governmental interest. ld. Revocation of a business license based on two convictions
of employees for public lewdness over a one year period, without requiring any
knowledge on the part of management, is a greater restriction on free expression than
is essential to furtherance of the governmental interest because the predicate offenses
do not tend to show that management is careless, rec1dess, or incompetent.
In its response to Millennium's motion for summary judgment, the City does
not offer any evidence that was not available to the court when analyzing
Millennium's motion for preliminary injunction. The City reiterates the position it
took in response to the motion for preliminary injunction, which the court did not
then, and does not now, find persuasive. 7 Therefore the court finds that the City's
proposed revocation of Millennium's license operates as an unconstitutional prior
restraint on First Amendment rights.
2. Respondeat Superior Liability

Additionally, the City defends the license revocation scheme at issue here as a
system of justified punishment under a theory of respondeat superior. MSJ Response at
The City reiterates its objection to various pieces of evidence relied on

by Millennium and adds further objections to other evidence. The court has
reviewed the City's objections, along with all of the available evidence, and finds that
the allegedly objectionable evidence need not be considered in deciding this motion.
7
- 12
16. The City argues that Millennium and others whose licenses are procured through
the ordinance should be held strictly liable through a theory of respondeat superior
because the ordinance violations are public welfare crimes. Id. The City urges that
respondeat superior liability is a familiar concept in the context of "public welfare"

crimes -- those that pose a special risk to public health or safety. Id. Criminal
liability based on respondeat superior is acceptable, according to the City (Id.), if the
defendant is in a "'responsible relation' to the unlawful conduct or omission, but only
if the penalty does not involve imprisonment." Lady f. Lingerie, Inc. v. Ciry oj
Jacksonville, 176 F.3d 1358, 1367 (11 th Cir. 1999), cert. denied, 529 U.S. 1053
(2000). To support this assertion, the City relies on United States v. Park, 421 U.S.
658 (1975), and Ladyf. Lingerie, Inc. v. CttyofJacksonville, 176 F.3d 1358, 1367 (11th
Cir. 1999), cert. denied, 529 U.S. 1053 (2000). Neither of these cases, however,
involved judicial approval of restrictions on the future exercise of First Amendment
rights. Respondeat superior has never been applied, so far as the court can determine,
in the context the City urges. Furthermore, Section 41A-I O(b) (6) does not involve
criminal sanctions. The court declines to create new law that would hold license
holders liable under a theory of respondeat superior.
3. Liabiliry of the Chief oj Police

Second, the City asserts that because Bolton's qualified immunity defense has
not been overcome, Millennium has failed to state a claim upon which relief can be
- 13
granted. MSJ Response at 18. The City, however, misapprehends the doctrine of
qualified immunity. "[QJualified immunity is not a defense
to
[a plaintiffs] claims
for declaratory and injunctive relief[.]" See Yates v. Stalder, 217 F.3d 332, 333, n.2
(5th Cir. 2000). Furthermore, Bolton is being sued in his official capacity, not as an
individual,
to
enjoin him from acting as directed by a Dallas City ordinance. In
actions against public officials in their official capacities, the doctrine of qualified
immunity plays no part, prohibiting neither the grant of injunctive relief, nor the
award of attorney's fees. See Jackson v. Galan, 868 F.2d 165,168 (5th Cir. 1989)
(holding that attorney's fees may be awarded against a public official even when the
official is immune from money damages); see also Monell v. Department ofSocial
Services if City if New York, 436 U.S. 658, 700 (1978) ("Indeed, municipalities simply
cannot 'arrange their affairs' on an assumption that they can violate constitutional
rights indefinitely since injunctive suits against local officials under 1983 would
prohibit any such arrangement.") Therefore, for the reasons discussed, Bolton's
assertion of qualified immunity is inapplicable.
B. Millennium's Motion for Permanent Injunction
The standard for a permanent injunction is "essentially the same" as for a
preliminary injunction, in that the plaintiff must show (I) the existence of a
substantial threat of irreparable harm that outweighs any harm the relief would
accord to the defendants, (2) that there is no adequate remedy at law, and (3) that
- 14
granting the injunction will not disserve the public interest. See Calmes v. United
States oj America, 926 F.Supp. 582, 590 (N.D. Tex. 1996). To justify a permanent
injunction, however, the plaintiff must demonstrate actual success on the merits,
rather than a likelihood of success. Id. at 591. As discussed above, Millennium has
demonstrated actual success on the legal merits with respect to its First Amendment
challenges to Chapter 41A.
A'l for irreparable injury to Millennium, the court reiterates the position it
stated in granting Millennium's motion for preliminary injunction. "[O]nly those

injuries that cannot be redressed by the application of a judicial remedy after a
hearing on the merits can properly justify a preliminary injunction." Canal Authority
of State oj Florida v. Callaway, 489 F.2d 567, 573 (5th Cir. 1974). Millennium claims
it would suffer irreparable injury to its constitutional rights if the injunction is not
granted. The court agrees with Millennium's assertion that the topless dancing
featured at their cabarets is expressive conduct "within the outer ambit of the First
Amendment's Protection." City oj Erie v. Pap's A.M., 529 U.S. 277, 289 (2000);
Barnes v. Glen Theatre, Inc., 501 U.S. 560, 566 (1991). Further, when a case involves
infringement of First Amendment rights, there is a strong presumption that the

plaintiff will be irreparably injured if an injunction is not issued. Elrod v. Burns, 427
U.S. 347, 373 (1976) ("The loss of First Amendment freedoms, for even minimal
periods of time, unquestionably constitutes irreparable injury. "). Thus, the court
- 15
finds that Millennium has shown that it would suffer irreparable injury if the
injunction were not granted. Millennium has further shown that the threatened
harm to it -- the closing of its business and infringement upon its First Amendment
rights -- outweighs the harm to the City. The City alleges that there will be potential
secondary effects from the granting of an injunction, such as a rise in criminal public
lewdness and prostitution. The court, however, agrees with Millennium, MSJ at 17,
that a halt to the license revocations would pose a minimal threat to the City. Just as
the City has amended Chapter 41A in the past, so it may amend the ordinance again
to comply with the First Amendment. Furthermore, the City has police power to
help control the secondary effects of adult establishments. The injunction granted
herein does not, for example, prohibit the City from arresting entertainers or anyone
else who violates the city ordinance prohibiting "lewd conduct" or violates any other
law in or on Millennium's premises.
Finally, the court finds that Millennium has shown that granting the
injunction will not disserve the public interest. The City argues that the public
interest will be disserved because the City has an important governmental interest in
ensuring that sexual criminal conduct does not occur on the premises of a sexually
oriented business, and that if this injunction is granted, the owners and operators of
sexually oriented businesses would be free to permit this conduct to occur on their
premises without any threat of losing their license to operate. MSJ Response at 22.
- 16
The court disagrees. As discussed above, the granting of a permanent injunction does
not prevent the police from arresting those who violate the City Code or state law by
engaging in criminal activity at the establishments owned and/or operated by
Millennium. Nor does the granting of an injunction prevent the City from amending
Chapter 41A to comply with the First Amendment.
III. CONCLUSION
For the reasons discussed above, Millennium's motion for summary judgment
on its claim for permanent injunction against the City and Bolton is GRANTED.
Within fifteen days of this date, counsel for the plaintiff shall submit a proposed
form of judgment in conformity with this memorandum order.
Funhermore, Millennium is entitled to attorneys' fees under 42 U.S.c.
1983 and 1988. Counsel shall confer to see if agreement on the amount of such
fees can be reached. If agreement is possible, counsel shall submit, within fifteen
days of this date, an agreed order requiring payment by the City in the amount
agreed upon. If agreement is not possible, counsel for Millennium shall submit,
within fifteen days of this date, a motion for the award of such fees, supponed by
affidavit and any necessary documentation. The timing of any response or reply will
be governed by the local rules of this coun.
- 17
SO ORDERED.
February ~, 2002.
A JO FIS
Chief Judge
- 18

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FILED

IN THE DISTRICT COURT

DALLAS COUNTY, TEXAS

95TH JUDICIAL DISTRICT

DEFENDANTS= COUNTERCLAIM INCLUSIVE OF

TO THE HONORABLE JUDGE OF SAID COURT:

Pursuant to T.R.C.P. Rule 190.3, this suit will be governed in accordance

with the Discovery Control Plan Level 2.

Finally, the City has consented to

Counter-Plaintiff JGC Dallas, L.L.C. d/b/a Jaguars (AJGC@ or in

DEFENDANTS COUNTERCLAIM INCLUSIVE OF THIRD PARTY ACTIONS Page 2

City of Dallas, Texas

Jaguars is an existing adult cabaret. It holds a sexually oriented business

(ASOB@) license to feature Alive entertainment that is intended to provide sexual

declared, in part, unconstitutional both facially and as applied.

The Chief of Police shall revoke a license if

DEFENDANTS= ORIGINAL ANSWER INCLUSIVE OF AFFIRMATIVE DEFENSES AND COUNTERCLAIM - Page 3

the following is true:

a licensee or an operator1 has

(a) the actual Licensee2 (in this case

DEFENDANTS= ORIGINAL ANSWER INCLUSIVE OF AFFIRMATIVE DEFENSES AND COUNTERCLAIM - Page 4

The Ordinance, as applied by the City, is unconstitutional as it denies

DEFENDANTS= ORIGINAL ANSWER INCLUSIVE OF AFFIRMATIVE DEFENSES AND COUNTERCLAIM - Page 5

There is absolutely no evidence or allegation that the Licensee, that being

DEFENDANTS= ORIGINAL ANSWER INCLUSIVE OF AFFIRMATIVE DEFENSES AND COUNTERCLAIM - Page 6

DEFENDANTS= ORIGINAL ANSWER INCLUSIVE OF AFFIRMATIVE DEFENSES AND COUNTERCLAIM - Page 7

DEFENDANTS= ORIGINAL ANSWER INCLUSIVE OF AFFIRMATIVE DEFENSES AND COUNTERCLAIM - Page 8

irreparable injury exists in threatened infringement on First Amendment rights,

JGC will also lose

Upon hearing, a temporary injunction be issued to preclude the revocation

'41A-10(b)(2) Dallas City Code, unconstitutional both facially and as applied in

DEFENDANTS= ORIGINAL ANSWER INCLUSIVE OF AFFIRMATIVE DEFENSES AND COUNTERCLAIM - Page 10

Article 1, Sections 3 and 8 of the Texas Constitution as same operates as a prior

An Order declaring Chapter 41, Section 41A-10(b)(2) unconstitutional as

For reasonable and necessary attorneys fees pursuant to C.P.R.C. Section

For costs of Court; and

DEFENDANTS= ORIGINAL ANSWER INCLUSIVE OF AFFIRMATIVE DEFENSES AND COUNTERCLAIM - Page 11

/s Roger Albright ______________________

DEFENDANTS= ORIGINAL ANSWER INCLUSIVE OF AFFIRMATIVE DEFENSES AND COUNTERCLAIM - Page 12

SEXUALLY ORIENTED BUSINESSES

Sexually Oriented Businesses

Purpose and intent.

Ucense and designated operator

Denial, suspension, revocation, or

denial of renewal of a license for

Notice of denial of issuance or

renewal of license or suspension or

revocation of license; surrender of

Additional regulations for adult

Regulations pertaining to exhibition

of sexually explicit films or videos.

Display of sexually explicit

Prohibitions against minors in

sexually oriented businesses.

Amendment of this chapter.

PURPOSE AND INTENT.

(a) It is the purpose of this chapter to

Sexually Oriented Businesses

and where the images so displayed are distinguished

(3) ADULT BOOKSTORE or ADULT

(5) ADULT CABARET ENTERTAINER

(A) is intended to provide sexual

by the depiction or description of "specified sexual

(A) a person in whose name a

(C) each individual who is an

(7) ADULT MOTEL means a hotel,