Sexually Disoriented

Politics -- not logic -- drove Council to enact the new jury-rigged SOB ordinance

Like many of Houston's topless clubs, the Ritz Cabaret tries hard to offer its patrons a taste of glamour. In contrast to the fast-food restaurants that share its strip of the Gulf Freeway feeder road, the Ritz's entrance is groomed with finicky precision, garnished with lush vegetation and uniformed valets. Half a block away is a cross street, Clarewood. On the other side of Clarewood is a field, and on the far side of the field is the Easthaven Baptist Church.

Until last week, the city considered the Ritz to be a legal distance -- 750 feet -- away from Easthaven. In fact, Ritz owner Steve Fontinopoulos chose the location because the city said it was suitable under its ordinance regulating sexually oriented businesses. But the new SOB ordinance that City Council unanimously approved on January 15 doubles the minimum legal distance between SOBs and churches, schools, daycares and parks, thus rendering the Ritz's present site "non-conforming"--in other words, illegal.

Though the councilmembers primarily responsible for the stricter ordinance swore up and down they weren't trying to put Houston's 144 licensed SOBs out of business, a report by the city's Planning and Development Department estimates that all but 16 will be forced to close as a result of the new distance requirement -- equal in length to five football fields.

SOB owners, gearing up for what promises to be a costly courtroom battle, argue that the ordinance will eliminate thousands of jobs and cost the city millions in revenue -- and that the Council hasn't even addressed the real problem: how to get rid of unlicensed businesses and prostitution fronts.

"There's only one agenda here," says Gino Barone, owner of Video X Hits. "Wipe us out."

Last May, when homeowners in affluent Boulevard Oaks and Southampton found that a planned new location for Rick's Cabaret was too close for comfort, they joined a chorus of neighborhood groups complaining about SOBs. Councilwoman Helen Huey took on their cause with almost religious zeal, promising to build "the nation's strongest, most enforceable" SOB ordinance. She and Councilman Jew Don Boney were appointed co-chairs of a committee that would, they said, try to protect neighborhoods and clean up seedier SOBs -- the "tanning salons" and "modeling studios."

But the committee quickly became distracted by the city's most visible and lucrative SOBs -- topless clubs-- taking its direction from the clubs' time-honored enemy: Houston Police Department vice officers, who told the councilmembers what new rules would enable them to make more arrests. Club owners say they received assurances from committee members that their businesses would be protected from the new laws. But when the first draft of the new ordinance was released on December 6, it did not include a grandfather clause or other protections for existing SOBs.

"That's when we knew all was lost," says SOB lobbyist Jim Short.
To many SOB owners, the planning department report proves Huey and Boney always intended to put them out of business. Though the report is dated December 20, it was never submitted to the SOB committee. On January 10, two days after the proposed ordinance first came before Council for approval, the report was released to all councilmembers in response to repeated requests. According to Huey staffer Peter Boerner, the report is moot because a computer run by the planning department pinpointed more than 7,000 eligible spots for SOBs -- plenty to ensure the industry's survival. But those locations may not necessarily be available -- they could be office buildings, shopping malls or ten-acre lots. The city does not plan to issue a list of the available addresses.

Distance is not the only provision affecting location. There's also the beefed up "residential test" that prohibits any location that has 75 percent residential tracts within a 1,500-foot radius (formerly 1,000 feet). Under the new ordinance, some undeveloped tracts can be counted residential. Apartment complexes, once counted as a single tract, will now be counted as eight residences per acre, and if any portion of the property falls within the circle, the entire property will be counted.

As for the predicament of the $2.5 million Ritz, owner Fontinopoulos wants to know what's changed in the decade since the city forced the club out of its first location, on Antoine at Highway 290, because it violated the then-new 750-foot rule.

Fontinopoulos says the new regulation proves that SOBs are never safe. In 1983, Houston passed its first SOB ordinance, setting the required distance from churches, schools and daycares at 750 feet. In 1986, that ordinance was expanded to include establishments where alcohol was served. Twenty-three topless bars sued the city and lost. During the litigation, the city had to prove that alternate sites existed for SOBs, and one of its suggestions became the Ritz's present location.

Boney says there's no need for grandfathering this time around, either, because businesses will simply move again.

"It's going to inconvenience them," he says. "But that doesn't bother me, because they've been inconveniencing the public and families and children for a long time."

In a strange twist, the ordinance outlaws the current location of Rick's, but spares the new one that prompted the council's action in the first place, according to Short.

"That just gives testament and proof to the fact that this was not targeted to any specific business," Boney says.

But it also raises an interesting issue: The new ordinance, like the old, has no room for variance based on neighborhood concerns. At a January 6 public hearing, Fontinopoulos told the committee his club has co-existed peaceably with his neighbors for years.

"What do I do?" he wanted to know.
Huey suggested he present his concerns to the hearing officer who will decide how long each business gets to stay in place to recoup its initial investment. But neighborhood peace is not on the list of deciding factors -- either the Ritz is in compliance with the land use rule or it's not.

Though they may be an "inconvenience" to the city, Houston's 40 or so topless clubs have also been something of a cash cow. The Ritz, a midsize club, has 65 employees, 200 dancers, and pays $24,000 a month in sales and liquor taxes. Its 1996 property taxes, Fontinopoulos says, totaled $54,000. But Boney says the committee did not study the economic impact of the ordinance, adding, "We don't want Houston to be known as a mecca for topless clubs."

Clearly, the committee didn't think it was too late to change the city's long-standing reputation. To do so, it was willing to go after more than just the clubs themselves. The new ordinance directly affects the 4,000 (by one club owner's estimate) "independent contractors" who work at the clubs: the dancers. It not only requires that dancers be licensed, but they must also conspicuously display those licenses on their person -- a measure no other city has tried (Harris County's similar display requirement is not yet in effect).

While licensing dancers doesn't do much to protect neighborhoods, it's one of several provisions HPD's vice squad wanted included. Licensing, says Captain R.B. Chandler, would enable officers to clearly identify the dancers they wish to arrest without interrupting a club's business. Rokki Ford Roberts, an attorney who has represented hundreds of dancers in court, says there are plenty of other ways a vice officer can avoid wrongful arrests: They can use the pictures many clubs keep on file, or they can simply ask club managers to bring a dancer outside to be identified by an undercover officer inside a van.

The licensing requirement promises to drive some dancers out of the business. For one thing, it prevents people convicted of sex-related crimes, including public lewdness, from working in clubs. When dancers are charged with public lewdness, they are often offered deferred adjudication because the crime is so hard to prove in court. HPD counts deferred adjudication as a conviction. Furthermore, the ordinance leaves it up to the vice squad and the city Legal Department to decide exactly what information will appear on the license. After dancers protested at the January 6 hearing that revealing their names and addresses would put them at risk, Huey assured the committee that only a stage name and number would be on the license (but didn't attempt to amend the ordinance accordingly).

Even so, under Texas state law all government license application information is available to the public. And how would nude dancers wear their licenses? At the last committee meeting, Chandler had no answer for that one.

Cami Berginides says she'll quit dancing rather than put herself in harm's way by being licensed.

"Most of the guys are normal, but you get some freaks in there and they think they have some kind of relation with you," she says. The 29-year-old Berginides is not only a photography student at Houston Community College -- she's a licensed handgun carrier who doesn't go to work without a weapon because customers have sometimes tried to follow her home. She doesn't doubt that a particularly unbalanced patron would take the trouble to obtain her name and address.

Chandler disagrees: "I don't think you're talking about a significant danger," though he added that the department is looking for ways to keep the information off the books.

Dr. Bruce Prescott, the pastor of Easthaven Baptist Church, insists he's no prude. As he shakes hands with his mostly elderly congregates one Sunday morning, he proudly notes that he spoke out against Baylor University when administrators forbade nude models in art classes, and that he's a member of the Americans United for the Separation of Church and State.

But Prescott does not look kindly on topless clubs in his neighborhood. He says he has even traveled to Austin to tell the TABC about alleged drug deals and prostitution in the Ritz parking lot. As a former police officer, he thinks he ought to know a crime when he sees one, and he doesn't want his kids to get an eyeful of vice from the Whataburger next door. But club owners complain that the city, in particular the police department, has failed to prove that SOBs lead to increased crime and depressed property values.

Though the vice squad provided the SOB committee with detailed crime stat reports, it didn't include data from other businesses for comparison. One report by vice lists the Colorado Bar & Grill, a southwest Houston topless bar, as being the site of eight arrests and 32 calls for police service in a 22-month period (the club with the most arrests had 50). Chandler says the figures given to Council reflect only calls for service related to sex crimes.

Other HPD records show a total number of 45 calls for all service at the Colorado during the same time period plus two months. By contrast, a nearby Target had 322 calls, the City Streets multiplex of bars had 176, and the Richmond Strip nightclub Peter's Wildlife had 521.

Colorado president Bob Furey and other club owners complain that it's easier for vice officers to party in topless clubs than make arrests in low-rent SOBs. They're right: From July 1995 to June 1996, 332 out of 517 SOB arrests were in topless clubs. A vice squad report indicates that officers spent $33,665 to make those 332 cases, 255 of which were for public lewdness. (Roberts says officers have testified to spending as much as $800 to make a single case. Nelson Hensley, another SOB lawyer, disputes the $33,665 figure as ridiculously low.)

Twenty of the 517 arrests were for prostitution. The vice squad says that 59 percent of dancer arrests lead to convictions, but that figure includes deferred adjudications, where the case never goes to trial. Of the cases brought to trial, only one in five leads to a conviction, Furey says. The report did not list the number of drug-related cases, though vice officers told the committee that there were rampant drug problems in SOBs -- one even said some clubs sold cocaine to customers.

"Either we believe the police, or we don't believe the police," said Boney, who in the late 1980s claimed he was the victim of an HPD frame-up after he was arrested for cocaine possession at a southeast-side doughnut shop.

Statistics aside, the city has been able to convince the courts that SOBs are detrimental to neighborhoods by using studies done in other cities, studies which may not apply to staunchly upscale Texas clubs. Pastor Prescott admits that the Ritz's proximity hasn't adversely affected his church, school or daycare. Boulevard Oaks resident and anti-SOB activist Karen Payne, who found that after-hours dance club Tantra had more complaints than its neighbor Rick's (both are owned by Robert Watters), says a nightclub in her neighborhood would upset her nearly as much as an SOB. But, Payne, who describes herself as "just a mom," feels confident the new ordinance will do its job.

If so, it won't be until the courts get through with it. The first thing the SOBs will do is seek an injunction, and they're likely to get it. In fact, the city's previous SOB ordinance is the subject of a six-year legal contest currently awaiting a federal judge's ruling. After the ordinance was last revised in 1991, 25 bookstores challenged the ordinance on the grounds that it imposed zoning in a non-zoning city and violated First Amendment rights.

"Any reasonable lawmaker would have waited to see if the current law could stand up," says Roberts.

The city, however, believes the new ordinance is airtight.
"We will not lose," city attorney Gene Locke assured a concerned Council prior to its approval of the ordinance.

Instead of waiting to see how the judge rules, the city has hedged its bets: Since the 1991 ordinance grandfathered existing businesses with respect to their distance from one another, the current ordinance includes the same provision. (New SOBs have to be 1,000 feet from one another, thus preventing the formation of a red-light district.) Not that Huey could be persuaded to wait. To the discomfort of several of her colleagues, Huey was intent on ramrodding the legislation through before the January 18 referendum on a city charter change requiring voter approval of tax and fee increases. If Council had waited, and the tax-limit proposition had been approved, the new fees in the ordinance -- which in some cases are more than triple what they were -- would have had to be okayed by voters.

Bob Furey has the grayish complexion of a man who spends too much time indoors. The week before the ordinance passed, Furey was looking out the window of the Colorado lobby, watching a serviceman test five different types of red light bulbs in its 51-foot, $150,000, Las Vegas-style sign to see which will weather best. (The sign, which was left by the building's former occupants and improved by the Colorado, will be illegal in less than 120 days.)

Furey is waiting with a borrowed light meter to demonstrate how the club's light levels change from inch to inch, making it very difficult to get a consistent overall measurement. If Furey seems preoccupied with minute detail, it's because the SOB committee spent much of its final, daylong meeting niggling over items such as a new minimum lighting requirement of one foot-candle (the brightness of a candle from one foot away) and a so-called "three-foot rule" that would prohibit dancers from getting within three feet of their clients while in a state of undress.

Calling these provisions "attorney relief ordinances" because of the difficulty of proving them in court, Councilman Ray Driscoll proposed two amendments that would be the first and last of the day: eliminate them. The lighting stricture stayed in; the three-foot rule was jettisoned by a 4-3 vote. At the full Council meeting the next day, Councilwoman Martha Wong, who did not serve on the committee, promptly tried to reinstate it, warning in dire tones that without the provision "a woman is allowed to get within one quarter-inch of a male body!"

Councilman Judson Robinson, citing his bachelor party experience, protested on the grounds that a moving dancer cannot maintain a set distance from a customer. "Oh, come on, you've been to those places," he chided his colleagues. Rob Todd weighed in with the suggestion that there be two different violations: a three-foot and a six-foot. Eventually, the Council voted 8-to-7 to include the provision. "We really don't want sexual stimulation in these sexually oriented businesses," Boney said eloquently.

Or is it that they don't want sexually oriented businesses at all? After all, no politician wants to be seen as anti-neighborhood or anti-family, especially with the 1997 campaign season about to get under way.

Councilman John Castillo, who said that any law that would take someone's business away seemed "un-American," knew approval of the ordinance was a foregone conclusion. Retiring to the hallway after the debate over the three-foot limit, Castillo gave a clue as to why the ordinance is so drastic. Shaking his head in dismay, he said to Short, "Everybody's running for something. Helen's running for mayor. Lloyd [Kelley]'s running for mayor. Jew Don's trying to be white."

Asked if he thought anyone would move to include a grandfather clause before the vote, Castillo nodded toward the Council chambers and said, in an are-you-kidding tone, "Not in there.

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