IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 94-10959

 

HANG ON, INC., d/b/a Hardbody's

of Arlington,

Plaintiff-Appellant,

versus

CITY OF ARLINGTON,

Defendant-Appellee.

 

Appeals from the United States District Court

for the Northern District of Texas

 

( September 20, 1995 )

Before REYNALDO G. GARZA, KING, AND HIGGINBOTHAM, Circuit Judges.

HIGGINBOTHAM, Circuit Judge:

Hang On, Inc. appeals from the judgment of the United States

District Court dismissing Hang On's federal constitutional, state

constitutional, and state law challenges to the City of Arlington's

Adult Entertainment Ordinance No. 92-117.

I.

After amassing studies describing noxious secondary effects of

adult entertainment establishments, the Arlington city council

passed Ordinance No. 92-117 on November 17, 1992. The Ordinance's

stated purpose was "to regulate Adult Entertainment Establishments

to promote the health, safety, morals and general welfare of the

citizens of the City." The Ordinance expressly disclaimed intent
2

to "restrict or deny access by adults to sexually oriented

materials protected by the First Amendment or to deny access by the

distributors and exhibitors of sexually oriented entertainment to

their intended market."

The Ordinance created a comprehensive regulatory scheme for

adult entertainment establishments in the City of Arlington. Among

its provisions, the Ordinance provided:

Section 5.01 Additional Regulations for Adult Cabaret

A. An employee of an adult cabaret, while appearing in

a state of nudity, commits an offense if he touches

a customer or the clothing of a customer.

B. A customer at an adult cabaret commits an offense

if he touches an employee appearing in a state of

nudity or clothing of the employee.

The Ordinance defined a "state of nudity" as a state of dress that

fails to opaquely cover a human buttock, anus, male genitals,

female genitals, or female breast.

On December 17, 1993, Hang On, which operates a topless bar in

Arlington, filed suit against Arlington in Texas state court

pursuant to 42 U.S.C. § 1983, alleging that the Ordinance violates

the First, Fourth, and Fourteenth Amendments to the United States

Constitution. In particular, Hang On charged that the Ordinance's

"no touch" provision is unconstitutionally overbroad because it

criminalizes casual or inadvertent touching and unconstitutionally

vague because it does not define "touches". In addition, Hang On

argued that Arlington's enforcement of the Ordinance had been

conducted in a harassing and discriminatory manner. Finally, Hang

On alleged that the Ordinance's exclusion of male breasts from the
3

definition of nudity violates the Equal Rights Amendment of the

Texas Constitution, Tex. Const. art. I, § 3A, and that the

Ordinance violates the Texas Alcoholic Beverage Code by

discriminating against business with alcoholic beverage licenses.

Tex. Alco. Bev. Code Ann. § 109.57.

Arlington removed the case to the United States District Court

for the Northern District of Texas. On September 21, 1994, the

district court granted summary judgment for Arlington on all of

Hang On's claims and awarded costs and attorney's fees to

Arlington. Hang On has timely appealed, and we now affirm the

judgment of the district court.

II.

We first examine whether Hang On has standing to bring these

claims. "The federal courts are under an independent obligation to

examine their own jurisdiction, and standing 'is perhaps the most

important of [the jurisdictional] doctrines." United States v.

Hays, 115 S.Ct. 2431, 2435, 132 L.Ed.2d 635 (1995) (quoting FW/PBS,

Inc. v. City of Dallas, 493 U.S. 215, 231, 110 S.Ct. 596, 607, 107

L.Ed.2d 603 (1990) (citations omitted)).

A party seeking to enlist the court's jurisdiction "must

assert his own legal rights and interests, and cannot rest his

claim to relief on the legal rights or interests of third parties."

Warth v. Seldin, 422 U.S. 490, 499, 95 S.Ct. 2197, 45 L.Ed.2d 343

(1975). Hang On asserts that the intrusive searches by the

Arlington police have violated its own right to be free from

unreasonable searches. Similarly, Hang On asserts its own rights
4

when it claims that Arlington's ordinance violates the Texas

Alcoholic Beverage Code. Its standing to assert these two claims

is plain.

Hang On's claim that the "no touch" provision violates the

First Amendment implicates the general requirement that a litigant

assert its own rights. Hang On does not claim any denial of its

own First Amendment rights. The specific prohibition of the

ordinance at issue in this case is part of a general regulation of

adult cabarets, including Hang On, but the "no touch" provision

regulates dancers and customers, not the bar itself. 

Assuming that the case or controversy requirements of Article

III are met, the Constitution does not universally forbid a party

from asserting the rights of others. Rather, the general rule

prohibiting such surrogate claims is prudential. Whitmore v.

Arkansas, 495 U.S. 149, 161 n.2, 110 S.Ct. 1717, 109 L.Ed.2d 135

(1990). Accordingly, we examine exceptions to this general rule.

One exception allows a litigant to assert the rights of individuals

with whom she has a close relationship. See Pierce v. Society of

the Sisters, 268 U.S. 510, 535, 45 S.Ct. 571, 69 L.Ed. 1070 (1925)

(holding that organization's interest in preserving its own

business permitted it to assert rights of patrons). The history of

this exception is checkered. Compare McGowan v. Maryland, 366 U.S.

420, 429-30, 81 S.Ct. 1101, 6 L.Ed.2d 393 (1961) with Craig v.

Boren, 429 U.S. 190, 97 S.Ct. 451, 50 L.Ed.2d 397 (1976) and

Secretary of State of Md. v. Joseph H. Munson Co., Inc., 467 U.S.

947, 954-58, 104 S.Ct. 2839, 81 L.Ed.2d 786 (1984). Ordinarily, a
5

business like Hang On may properly assert its employees' or

customers' First Amendment rights where the violation of those

rights adversely affects the financial interests or patronage of

the business. That Hang On's employees and customers could

encounter practical difficulties in asserting their own rights may

place this case within a distinct exception; at minimum, this fact

reinforces the close relationship prerequisite to surrogate

standing here. See Spiegel v. City of Houston, 636 F.2d 997, 1001

(5th Cir. Unit A Feb. 1981); Gajon Bar & Grill, Inc. v. Kelly, 508

F.2d 1317, 1322 (2d Cir. 1974) (upholding standing of corporation

to assert First Amendment rights of its employees and patrons);

Black Jack Distributors, Inc. v. Beame, 433 F.Supp. 1297, 1303

(S.D.N.Y. 1977) (upholding vendor's standing to assert First

Amendment right of patrons' to purchase sexually explicit

material). We are persuaded that this exception is applicable and

that Hang On has standing to challenge the "no touch" provision as

violative of the First Amendment rights of its employees and

customers.

We are also persuaded that Hang On may assert its employees'

rights under the Texas Equal Rights Amendment. Tex. Const. art. I,

§ 3A. We are cognizant of our holding in MD II Entertainment, Inc.

v. City of Dallas, Tex., 28 F.3d 492, 497 (5th Cir. 1994), that a

dance hall did not have standing to raise its employees' rights

under the Texas Equal Rights Amendment to challenge a municipal

ordinance that excluded male breasts from its definition of "seminudity" and "simulated nudity". In MD II, we distinguished SDJ,
6

Inc. v. City of Houston, 837 F.2d 1268 (5th Cir.), reh'g denied,

841 F.2d 107 (5th Cir. 1988), cert. denied, 489 U.S. 1052, 109

S.Ct. 1310, 103 L.Ed.2d 579 (1989), on the ground that SDJ did not

purport to hold that club owners "must be allowed to raise their

dancer's rights." MD II, 28 F.3d at 498 (emphasis added).

Prudential considerations such as the failure of MD II to explain

the absence of its dancers from the litigation led us in MD II to

conclude that "[g]ranting standing to MD II may, however, result in

the unnecessary litigation of a question those parties most

immediately affected may not dispute." Id. at 497.

Here, unlike in MD II, there is no suggestion that Hang On's

dancers do not wish this litigation to go forward, and there is no

indication that Hang On's interest in this litigation diverges from

that of its dancers. See 13 Wright, Miller & Cooper, Federal

Practice and Procedure: Jurisdiction 2d § 3531.9, at 579 (arguing

that employers may assert rights of their employees where there is

"a congruence rather than conflict of interests"); see also Craig

v. Boren, 429 U.S. at 195 (noting "vendors and those in like

positions have been uniformly permitted to resist efforts at

restricting their operations by acting as advocates of the rights

of third parties who seek access to their market or function").

Significantly, Arlington cannot dispute that its ordinance has a

direct financial impact on Hang On, as well as Hang On's employees.

Injury is essential to meeting the threshold case or controversy

requirement of Article III, and injury of this type is usually a
7

component of a relationship sufficiently "close" to meet prudential

standing requirements.

By contrast, the causal link between the injury to the club

owners in MD II and the Dallas ordinance's exclusion of male

breasts from its definition of semi-nudity was attenuated at best.

It was difficult to see any injury to MD II from the underinclusive

character of the challenged regulations. The asserted defect was

a failure to regulate the exposure of male breasts. We are

persuaded that Hang On has standing to assert its dancers' First

Amendment and state constitutional rights.

There is much to be said for shifting the analysis from

judicial justifications for asserting the rights of others to a

direct inquiry into the rights of the plaintiffs in those

relationships, but we do not reach those questions today. See

Henry P. Monaghan, "Third Party Standing," 84 Colum. L. Rev. 277,

299 (1984).

III.

Hang On urges that summary judgment was inappropriate because

facial constitutional challenges "require a review of the

application of a statute to the conduct of the party before the

court" and this review "is a fact question for the trier of fact to

evaluate at time of trial." We disagree.

We note that claims that an ordinance is facially invalid are

better candidates for summary disposition than claims that an

ordinance was unconstitutionally applied. Claims of facial

invalidity do not depend upon the development of a "complex and
8

voluminous" factual record. Keystone Bituminous Coal Ass'n v.

DeBenedictis, 480 U.S. 470, 493, 107 S.Ct. 1232, 94 L.Ed.2d 472

(1987). The essence of a facial challenge usually is that the

statute on its face -- without regard to how it affects the

particular litigants -- violates the law. See, e.g., Johnson v.

American Credit Co. of Georgia, 581 F.2d 526, 533 (5th Cir. 1978).

Likewise, Hang On's argument that further discovery and trial

are necessary to permit it to develop its claims of facial

invalidity misses the mark. Claims of statutory overbreadth like

that alleged by Hang On do not present fact disputes regarding the

effects of an allegedly overbroad statute on a plaintiff. See

Village of Schaumburg v. Citizens for a Better Environment, 444

U.S. 620, 634, 100 S.Ct. 826, 63 L.Ed.2d 73 (1980) (affirming

summary judgment on overbreadth challenge while noting that such a

challenge was "a question of law that involved no dispute about the

characteristics of [the plaintiff]"). Hang On does not tell us how

further time and proceedings are necessary to the adjudication of

its facial challenges.

A.

Hang On argues that the "no touch" provision is

unconstitutionally overbroad in violation of the First Amendment.

Barnes v. Glen Theatre, Inc., 501 U.S. 560, 111 S.Ct. 2456, 2460,

115 L.Ed.2d 504 (1991), held that nude dancing itself "is

expressive conduct within the outer perimeters of the First

Amendment." It does not inevitably follow, however, that touching

between a nude performer and a customer is protected expression.
9

We recognize that the theater of expressive dancing may be

limited only by the art and creativity of the performers. "It is

possible to find some kernel of expression in almost every activity

a person undertakes . . . but such a kernel is not sufficient to

bring the activity within the protection of the First Amendment."

City of Dallas v. Stanglin, 490 U.S. 19, 25, 109 S.Ct. 1591, 104

L.Ed.2d 18 (1989). This said, intentional contact between a nude

dancer and a bar patron is conduct beyond the expressive scope of

the dancing itself. The conduct at that point has overwhelmed any

expressive strains it may contain. That the physical contact

occurs while in the course of protected activity does not bring it

within the scope of the First Amendment. Cf. Barnes, 111 S.Ct. at

2466 (Scalia, J., concurring in the judgment) (noting that the

Court has "never invalidated the application of a general law

simply because the conduct that it reached was being engaged in for

expressive purposes").

Similarly, patrons have no First Amendment right to touch a

nude dancer. Cf. Geaneas v. Willets, 911 F.2d 579, 586 (11th Cir.

1990) (holding that bar patrons have no First Amendment right to

wear revealing clothing), cert. denied, 499 U.S. 955, 111 S.Ct.

1431, 113 L.Ed.2d 484 (1991); Dodger's Bar & Grill, Inc. v. Johnson

Cty. Bd. of Comm'rs, 32 F.3d 1436, 1443 (10th Cir. 1994) (same).

Hang On's argument that the "no touch" provision is overbroad

because it applies to all employees in a state of nudity, not just

dancers, is without merit. It is true that dancers possess First

Amendment rights, and we have discussed their limits. Non-
10

performing nude employees, however, cannot claim First Amendment

protection solely by virtue of their nudity. Rather, "nudity is

protected as speech only when combined with some mode of expression

which itself is entitled to first amendment protection." South

Florida Free Beaches, Inc. v. City of Miami, Fla., 734 F.2d 608,

610 (11th Cir. 1984) (alteration and internal quotes omitted).

Since employees not engaged in expressive conduct such as dancing

have no First Amendment right to appear in the nude, applying the

"no touch" provision to non-performing nude employees does not make

it overbroad.

Even if intentional contact between a topless dancer and a

customer is not inevitably and always beyond the umbrella of the

First Amendment, Arlington's "no touch" provision is not facially

overbroad. The First Amendment "does not guarantee the right to

[engage in protected expression] at all times and places or in any

manner that may be desired." Heffron v. International Soc'y for

Krishna Consciousness, Inc., 452 U.S. 640, 647, 101 S.Ct. 2559, 69

L.Ed.2d 298 (1981). The Court held in Barnes that content-neutral

regulations of time, place, or manner are permissible where the

regulations satisfy the four-part test announced in United States

v. O'Brien, 391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968).

The regulation is valid "if it is within the constitutional power

of the Government; if it furthers an important or substantial

governmental interest; if the governmental interest is unrelated to

the suppression of free expression; and if the incidental

restriction on alleged First Amendment freedoms is no greater than
11

is essential to the furtherance of that interest." O'Brien, 391

U.S. at 377.

Hang On does not dispute nor is there any doubt that Arlington

possessed the authority to enact the "no touch" provision as part

of its adult entertainment ordinance. See MJR's Fare of Dallas,

Inc. v. City of Dallas, 792 S.W.2d 569, 576 (Tex. App.--Dallas

1990, writ denied) (holding municipality's police power encompassed

authority to enact ordinance regulating sexually oriented

businesses). Similarly, there is no dispute that the "no touch"

provision furthers a substantial governmental interest and is

unrelated to the suppression of free expression. Although the

Arlington city council did not make specific legislative findings

regarding the "no touch" provision, it now suggests that the

Ordinance serves to prevent prostitution, drug dealing and assault.

These justifications were offered for a similar "no touch"

provision upheld in Kev, Inc. v. Kitsap County, 793 F.2d 1053 (9th

Cir. 1986), and Hang On does not suggest that any alternative,

content-oriented interest motivated Arlington. To the contrary,

the Ordinance disclaims any intent to infringe upon protected

expression.

The essence of Hang On's overbreadth claim appears to be that

Arlington's "no touch" provision is unconstitutionally overbroad

because the ordinance criminalizes accidental or inadvertent

touching and, therefore, burdens more protected expression than is

necessary to further the city's interest in preventing

prostitution, drug dealing, and assault. This argument rests on a
12

premise that we reject, namely that Arlington's "no touch"

provision criminalizes any contact between nude employees and

customers. The State of Texas has provided that "[i]f the

definition of an offense does not prescribe a culpable mental

state, a culpable mental state is nevertheless required unless the

definition plainly dispenses with any mental element." Tex. Penal

Code Ann. § 6.02(b). Texas law further provides that "[i]f the

definition of an offense does not prescribe a culpable mental state

but one is nevertheless required [under the foregoing provision],

intent, knowledge, or recklessness suffices to establish criminal

responsibility." Tex. Penal Code Ann. § 6.02(c). The Arlington

ordinance does not specify a requisite mental state, but the

Ordinance does not dispense with any mental element. Under Texas

law, the Ordinance requires a culpable mental state and, therefore,

does not criminalize inadvertent or negligent touching. See

Pollard v. State, 687 S.W.2d 373, 374 (Tex. App.--Dallas 1985, writ

ref'd) (applying § 6.02 to city ordinance that did not specify a

required mental state). No evidence suggests that the City of

Arlington has sought to enforce the Ordinance against persons

unintentionally touching one another.
 

1 We express no opinion on the constitutionality of an

ordinance prohibiting all touching between patrons and nude

dancers. We do not offer narrowing interpretations of a state

regulation. That is the task of the state courts. See Gooding v.

Wilson, 405 U.S. 518, 520, 92 S.Ct. 1103, 31 L.Ed.2d 408 (1972);

United States v. Thirty-seven Photographs, 402 U.S. 363, 369, 91

S.Ct. 1400, 28 L.Ed.2d 822 (1971). We parse no words or otherwise

engage in the interpretive enterprise. Rather, we simply apply all

the relevant statutes. See also City of Houston, Tex. v. Hill, 482

U.S. 451, 462 n.10, 468, 107 S.Ct. 2502, 96 L.Ed.2d 398 (1987)

(holding, without prior state court decisions for guidance, that

provision of state criminal code preempts parts of city ordinance).

 

2 In Ward v. Rock Against Racism, 491 U.S. 781, 798-99, 109

S.Ct. 2746, 105 L.Ed.2d 661 (1989), the Court noted that a time,

place, or manner restriction "need not be the least restrictive or

least intrusive means" of serving the government's interest.

Rather, the restriction is no greater than essential where the

governmental interest "would be achieved less effectively absent

the regulation." Id. at 799 (internal quotation marks omitted).

13

Given the limiting construction imposed by Texas law,1 we

conclude that Arlington's "no touch" provision does not burden more

protected expression than is essential to further substantial

governmental interests.2 We perceive no material difference

between Arlington's "no touch" provision and the "no touch"

provision upheld against a similar attack in Kev, Inc. v. Kitsap

County, 793 F.2d 1053 (9th Cir. 1986). In Kitsap County, the Ninth

Circuit upheld an ordinance that, in addition to prohibiting

topless dancers and customers from fondling or caressing one

another, required dancers to remain at least ten feet from the

customers and prohibited patrons from tipping dancers. Referring

to the "no touch" provision, the court concluded that "because of

the County's legitimate and substantial interest in preventing the

demonstrated likelihood of prostitution occurring in erotic dance

studios, the County may prevent dancers and patrons from sexually
14

touching each other while the dancers are acting in the scope of

their employment." Id. at 1061 n.11. Arlington's "no touch"

provision does not criminalize more conduct than Kitsap County's.

We are persuaded that Arlington's ordinance burdens no more

protected expression than is essential to further Arlington's

interest in preventing prostitution, drug dealing, and assault.

B.

Hang On's contention that Arlington's "no touch" provision is

void for vagueness is without merit. Hang On has not specified

which terms in Arlington's ordinance are vague. Hang On appears to

claim that Arlington's ordinance is unconstitutionally vague

because it fails to define "dancer", which the Kitsap County

ordinance did define. The significance of this allegation eludes

us, particularly given that Arlington's ordinance criminalizes

touching between a customer and an "employee", which includes

dancers.

C.

Hang On argues that Arlington's decision to criminalize

touching in adult cabarets but not in other adult entertainment

establishments renders the ordinance unconstitutional on its face.

Hang On does not specify whether this feature of the ordinance

violates state or federal law.

To the extent that Hang On relies upon equal protection rights

guaranteed by the state constitution, its argument is without

merit. The Texas Court of Appeals in 2300, Inc. v. City of

Arlington, Tex., 888 S.W.2d 123, 129 (Tex. App.--Fort Worth 1994,
15

no writ), held that Arlington's decision to apply the "no touch"

provision only to adult cabarets did not violate the cabarets'

equal protection rights guaranteed by the state constitution. Tex.

Const. art. I, § 3.

The district court did not address the merits of this argument

because Hang On failed to include it in its complaint and raised

this claim for the first time in its response to Arlington's motion

for summary judgment. Although Hang On renews this allegation on

appeal, we agree with the district court that, because Hang On did

not raise the state constitutional claim in its complaint nor

provide any authority for its allegation, we should not address its

merits.

To the extent that Hang On asserts a violation of the

Fourteenth Amendment, it has failed to demonstrate that Arlington's

decision to apply the "no touch" provision only to adult cabarets

is an invidious classification or burdens a fundamental right.

Here, Arlington could rationally conclude that adult cabarets,

which typically serve alcohol and attract large crowds, are a more

likely venue than nude modeling studios for the evils of

prostitution, drug dealing, and sexual violence that the "no touch"

provision seeks to eliminate.

Nor does the Equal Protection Clause require Arlington to

prohibit touching between nude employees and customers in every

field in which it occurs. Cf. SDJ, Inc. v. City of Houston, 837

F.2d 1268, 1279 (5th Cir.) (rejecting similar underinclusive

argument), reh'g denied, 841 F.2d 107 (5th Cir. 1988), cert.
 

3 "Equality under the law shall not be denied or abridged

because of sex, race, color, creed, or national origin." Tex.

Const. art. I, § 3A.

16

denied, 489 U.S. 1052, 109 S.Ct. 1310, 103 L.Ed.2d 579 (1989).

Rather, "reform may take one step at a time, addressing itself to

the phase of the problem which seems most acute to the legislative

mind." Williamson v. Lee Optical of Oklahoma, Inc., 348 U.S. 483,

489, 75 S.Ct. 461, 99 L.Ed. 563 (1955). 

IV.

A.

Hang On contends that excluding male breasts from the

ordinance's definition of nudity violates the Equal Rights

Amendment of the Texas Constitution.3 Under Texas law, we must

first determine whether the ordinance discriminates against one sex

"simply on the basis of gender." Williams v. City of Fort Worth,

782 S.W.2d 290, 296 (Tex. App.--Fort Worth 1989, writ denied).

In MJR's Fare of Dallas v. City of Dallas, 792 S.W.2d 569, 575

(Tex. App.--Dallas 1990, writ denied), the Texas Court of Appeals

held that the exclusion of male breasts from the definition of

nudity did not constitute discrimination against women "solely on

the basis of gender." The court noted that the city introduced

evidence showing that physiological and sexual distinctions exist

between male and female breasts; that female breasts differ

internally and externally from male breasts; and that the female

breast, unlike the male breast, is a mammary gland. Id. The court

concluded that the definition of nudity excluded male breasts on

grounds other than simply gender.
17

Similarly, Arlington presented evidence to the district court

showing that the Arlington city council considered the

physiological and sexual distinctions between the female and male

breasts. In sworn testimony presented to the city council, Dr. J.

Douglas Crowder concluded that distinguishing between male and

female breasts in defining nudity is "certainly consistent with

what we know medically about human sexual response." Moreover, the

preamble of the Ordinance itself proclaimed that the city council

reviewed "[c]onvincing documented evidence regarding the

physiological and sexual distinctions between male and female

breasts." By contrast, Hang On presented no evidence to the

district court that Arlington's ordinance discriminated against

women solely on the basis of gender.

Hang On relies heavily on the Texas Court of Appeals' holding

in Williams that the exclusion of male breasts from the definition

of nudity discriminated against women solely on the basis of

gender. In Williams the court of appeals noted that the plaintiff

successfully carried its burden of proof to show that the

definition discriminated against women solely on account of gender

because the city offered "no evidence about the differences in

physical characteristics or how such differences relate to the

ordinance's goal of preventing secondary neighborhood effects."

782 S.W.2d at 296 n.2. Hang On's failure to offer any evidence

regarding Arlington's decision to exclude male breasts from the

definition of nudity, coupled with Arlington's introduction of
18

evidence showing that Arlington's decision was not motivated by

gender animus, distinguishes this case from Williams.

We cannot let pass without comment the energy expended in the

"trial" of such issues. Courts need no evidence to prove selfevident truths about the human condition -- such as water is wet.

Nor should they tarry long with such foolishness and, in the

process, trivialize constitutional values intrinsic to our society.

The district court correctly concluded that Arlington's definition

of nudity did not discriminate against women solely on the basis of

gender.

B.

Hang On also claims that the application of the "no touch"

provision to adult cabarets violates § 109.57 of the Texas

Alcoholic Beverage Code because Arlington's "no touch" provision

applies to adult cabarets, which normally have alcoholic beverage

licenses, but does not apply to nude modeling studios, which do not

have such licenses. Holding that Hang On never presented evidence

to substantiate its claim, the district court granted summary

judgment to Arlington on this issue. We agree that Arlington is

entitled to summary judgment, not because Hang On failed to produce

any evidence indicating a genuine issue of material fact, but

because Hang On's legal theory is without merit.

In Dallas Merchant's & Concessionaire's Ass'n v. City of

Dallas, 852 S.W.2d 489, 492 (Tex. 1993), the Texas Supreme Court

held that § 109.57 preempted a municipal ordinance prohibiting the

sale of alcoholic beverages within 300 feet of a residential area.
19

The court was quick to point out that municipalities retained the

power to regulate businesses with alcoholic beverage licenses as

long as those regulations did not discriminate against such

businesses. The court explained:

[A]n ordinance requiring all businesses with the same

kind of premises to have a fire extinguisher on their

premises would not violate section 109.57(a). On the

other hand, an ordinance requiring an alcohol related

business to have two fire extinguishers and only

requiring a non-alcohol related business with the same

kind of premises to have one fire extinguisher would

violate section 109.57(a).

Id. at 492 n.5.

Arlington's "no touch" provision does not run afoul of

§ 109.57(a) because, unlike the fire extinguisher example from

Dallas Merchants, its coverage of the set of businesses with

alcoholic beverage licenses is both underinclusive and

overinclusive. Application of Arlington's "no touch" provision to

adult cabarets is underinclusive in that there are many businesses

with alcoholic beverage licenses that do not qualify as adult

cabarets and, therefore, are not subject to the "no touch"

provision. The scope of Arlington's "no touch" regulation is also

overinclusive in that adult cabarets not required to have alcoholic

beverage licenses are still subject to Arlington's "no touch"

provision. This loose fit between the regulatory scope of the "no

touch" provision and businesses serving alcohol leads us to

conclude that Arlington's ordinance does not impose stricter

standards on alcohol-related businesses than it does on non-alcohol

related businesses. Indeed, this loose fit is a far cry from the

Dallas ordinance invalidated in Dallas Merchants, which regulated
 

4 Arlington's reliance on § 109.57(d) is unavailing since

that provision only permits a municipality to regulate the location

of a sexually oriented business. It does not purport to permit the

regulation of the manner in which a sexually oriented business

operates.

20

businesses if and only if they were in the business of selling

alcohol. Arlington's decision to limit the application of the "no

touch" provision to adult cabarets does not violate § 109.57(a) of

the Texas Alcoholic Beverage Code.4

V.

Finally, Hang On argues that Arlington's enforcement of the

Ordinance has been conducted in a harassing and offensive manner in

violation of its Fourth Amendment rights. The district court

rejected Hang On's claim, holding that Hang On presented no

evidence that it was the policy of Arlington to enforce the

Ordinance in a manner that violates Hang On's constitutional

rights. We review the district court's grant of summary judgment

de novo, viewing the evidence in the light most favorable to Hang

On. Richardson v. Oldham, 12 F.3d 1373, 1376 (5th Cir. 1994).

Hang On does not claim that it is the official policy of

Arlington to harass adult cabarets and their patrons. Indeed,

Arlington's ordinance expresses the exact opposite policy. "[I]t

is not the intent nor effect of this Chapter to restrict or deny

access by adults to sexually oriented materials protected by the

First Amendment or to deny access by the distributors and

exhibitors of sexually oriented entertainment to their intended

market." Instead, Hang On claims that Arlington's policy may be
 

5 The district court did not rule on Arlington's numerous

objections to the Anderson affidavit. On appeal, Arlington renews

its objections. Given our disposition of the matter, we do not

reach the issue whether the district court abused its discretion in

considering the Anderson affidavit.

21

inferred from the police officers' repeated visits on a nightly

basis.

Although the district court found that Hang On had presented

evidence of a pattern or practice by Arlington of conducting the

allegedly unconstitutional searches, the court correctly concluded

that Hang On failed to present any evidence that policy-making

officials in Arlington had any knowledge, actual or constructive,

of the police officers actions during the investigative searches of

Hang On's cabaret. The only evidence presented by Hang On to rebut

Arlington's motion for summary judgment was the affidavit of Andy

Anderson, alleging that "defendant's agents" have entered its

business "on multiple occasions" and that the officers' manners and

actions became "more disruptive and abusive".5 Mr. Anderson's

affidavit noticeably omits any allegation that the principal of the

"defendant's agents," i.e., the City of Arlington, had any

knowledge of the action and behavior of its "agents". We find no

record evidence that Arlington knew of and was deliberately

indifferent to its police officers' conduct.

Hang On responds that the district court's grant of summary

judgment to Arlington dismissing Hang On's harassment claim was

erroneously based on the heightened pleading requirement

invalidated in Leatherman v. Tarrant County Narcotics Unit, 113

S.Ct. 1160, 122 L.Ed.2d 517 (1993). Hang On fails to grasp the
22

difference between a motion to dismiss and a motion for summary

judgment.

VI.

We agree with the district court that Hang On's facial

challenges to Arlington's "no touch" provision are without merit

and that there was no genuine issue of material fact. We AFFIRM

the judgment of the district court, including its award of costs

and attorney's fees to Arlington.