The state's so-called strip club pole tax is not a violation of free speech, the Texas Supreme Court said today, sending the ongoing legal challenge of the fee back to the trial court on state constitutional issues.
Then-freshman Houston Representative Ellen Cohen navigated the rough waters of a Republican-heavy House to get the strip club fee passed in 2007. It was, in fact, a recycled idea proposed by Governor Rick Perry back in 2005 to pay for school finance, which led to its rather unfortunate "tits for tots" nickname. Nix that. Revised and resurrected two years later, the fee's largesse, once passed, was to support survivors of sexual assault.
And pass it did. The fee, however, has been in limbo ever since its implementation in 2008, marginally collected and completely unused, as the sexually oriented business industry pursued its legal challenge. Today, Cohen, who lost her House seat in 2009 and is running for City Council this fall, said it was a legal victory.
"I am so thrilled with the decision," Cohen, who heard the news as she left a meeting this morning, told Hair Balls. "I am not an attorney, but the way I looked at it was, how can we best serve survivors? What are we doing to improve the quality of life for anyone affected by sexual assault? This fee is going to do that."
Let's face it. There's nothing like waking up on a Friday morning to a somewhat titillating 20-page exposé in which Justice Nathan Hecht and his rather prim Republican colleagues on the Texas Supreme Court argue the relative value of pasties and g-strings usage when it comes to the merits of free speech expression.
You have to wonder what kind of water cooler chat that produced amongst the nine justices over at the Supreme Court Building. Awk-ward.
Actually, from a legal standpoint, this is still a rather dry case. This was a challenge by sexually oriented business club owners about whether a $5 entrance fee -- actually a tax, agreed the court -- curtailed the expression of free speech. About 18 pages of the brief primarily focused on two cases where strip clubs were curtailed: a challenge to a city ordinance forcing dancers to wear pasties and g-strings (Shout out to Kandyland in Erie, Pennsylvania!) and another that challenged Los Angeles's right to stop sexually oriented businesses from co-habitating in the same building.
Ironically, those are the same types of challenges that have dogged the City of Houston's sexually oriented business regulations. Distance requirements between sexually oriented businesses and schools went into effect in Houston in 1983. (Shout out to the former Thirteen Coins in Spring Branch!) New iterations of the Houston ordinance have added subsequent curtailments: licensing dancers; increased distance requirements; and the so-called "three-foot rule" to allegedly stop lap dances.
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Legal challenges from clubs or patrons have failed to forestall most of it.
As to the pole tax, the Texas Supreme Court found it did not violate free expression, mainly because the fee was a "minimal restriction" on the clubs and a club could choose to forgo selling alcohol and avoid the fee. Of course, as it is now, the only sexually oriented clubs in Houston that fail to serve alcohol are of the BYOB all-nude variety.
The pole tax case was remanded back to trial court to consider state constitutional issues such as equitable taxation and occupational tax arguments.
The court's decision came on the same day as a University of Texas study that found "significant gaps in services for sexual assault victims" and called for additional funding to attack the problem.