NO. 07-06-0291-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL B

OCTOBER 23, 2007 ______________________________

KENNETH D. SMARTT, JR., ELIZABETH JIMENEZ, XOTICAS-LAREDO, L.P., XOTICAS-LAREDO, INC., K. SMARTT INVESTMENTS, INC. D/B/A XOTICAS,

Appellants

v.

THE CITY OF LAREDO, TEXAS,

Appellee

_________________________________

FROM THE 111^TH DISTRICT COURT OF WEBB COUNTY;

NO. 2003-CVQ-001570-D2; HON. RAUL VASQUEZ, PRESIDING _______________________________

Opinion _______________________________

Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.

This is an appeal from a permanent injunction enjoining Kenneth D. Smartt, Jr., Elizabeth Jimenez, Xoticas-Laredo, L.P., Xoticas-Laredo, Inc., K. Smartt Investments, Inc. d/b/a Xoticas (collectively referred to as Smartt) from operating a sexually oriented business in the City of Laredo (Laredo), Texas. Smartt contends that the trial court erred in granting the injunction because 1) the business does not "fit" the definition of "establishment" as used in the ordinance, 2) the ordinance is unconstitutional and 3) Laredo had an adequate remedy at law. We affirm.

Background

In June of 1995, Smartt began operating a business involving nude dancers (Xoticas) outside the city limits of Laredo. In 1998, Laredo annexed the property. Four years later, Laredo amended a previously existing ordinance to require those operating sexually oriented businesses to obtain a license and to refrain from conducting operations within 1000 feet of a residential area. Laredo sued for an injunction seeking to stop Smartt from operating his business because it purportedly violated the 1000 foot restriction. A hearing was held, and the trial court granted the relief requested. It suspended the injunction, however, pending appeal.

Standard of Review   

Whether to grant a permanent injunction lies within the discretion of the trial court; so, on appeal, we are limited to determining whether that discretion was abused. Priest v. Tex. Animal Health Comm'n, 780 S.W.2d 874, 875 (Tex. App.-Dallas 1989, no writ).

Issue One - Definition of Establishment

Smartt initially argues that the ordinance in question is not applicable because 1) his business is "grandfathered" and 2) its operation does not fall within the meaning of "establishment." We overrule the issue.

As for the business being "grandfathered," we read the argument as suggesting that because the business was in operation before the area was annexed and subject to the zoning ordinance, it can continue to operate freely. No authority is cited in support of the argument, however. Moreover, our own Supreme Court has held that under reasonable conditions, zoning ordinances may be applied to end previously existing nonconforming uses. City of University Park v. Benners, 485 S.W.2d 773, 778 (Tex. 1972); see also Baird v. City of Melissa, 170 S.W.3d 921, 926-27 (Tex. App.-Dallas 2005, pet. denied) (recognizing the continued existence of the rule). So, simply because Xoticas may have been in operation before the zoning ordinances were implemented does not mean that it is ipso facto immune from those ordinances.

As for the argument about the business not falling within the definition of an "establishment," we note that the ordinance makes it illegal "for any person to operate a sexually oriented business without a valid sexually oriented business license . . . ." Laredo, Tex., Land Development Code ch. 18A, §4(a). The ordinance similarly prohibits a "person [from] operat[ing] or caus[ing] to be operated a sexually oriented business within one thousand (1000) feet of . . . a church . . . [a] public or private . . . school . . . [a] boundary of any residential district . . . [a] public park . . ." and various other locations. Id. §13(b). Moreover, the word "person" encompasses "an individual, proprietorship, partnership, corporation, association, or other legal entity." Id. §2(q). In none of these several provisions appears the term "establishment." Instead, they purport to regulate "persons" and Smartt falls within the definition of a "person."

To the extent that Smartt somehow relies on the word "establishment" to exclude Xoticas from the scope of a sexually oriented business, we note that the latter is defined as, among other things, an "adult cabaret" and "sexual encounter center." The former includes "a nightclub, bar, restaurant, or similar establishment whose major business is  . . . offering . . . live entertainment . . . intended to provide sexual stimulation or sexual gratification . . . ." Id. §2(c). A "sexual encounter center" encompasses, among other things, "a business or commercial enterprise that . . . offers for any form of consideration . . . activities between male and female persons . . . when one or more of the persons is in a state of nudity or is semi-nude . . . ." Id. §2(s). According to the record, Xoticas is "a nightclub which features . . . female performers" dancing topless but with "covered nipples" (while the other portions of the breast remain uncovered) and "bikini bottoms." Those indicia depict both live entertainment intended to provide sexual stimulation and activities between males and females with one being semi-nude. Consequently, evidence exists supporting the trial court's determination that Xoticas is a sexually oriented business, irrespective of the definition of "establishment."

Issue Two - Constitutionality

In his second issue, Smartt asserts that the ordinance is unconstitutional because 1) its predecessor was found unconstitutional by another court and 2) it abridges First Amendment protections. We again overrule the issue.

Regarding the purported unconstitutionality of the current ordinance due to the unconstitutionality of its predecessor, we deem the argument illogical. Simply put, the two differ. Being different, it does not logically follow that because the first was bad, the second is also bad. More importantly, Smartt merely glosses over, rather than explains, why he believes the new law suffers from the same defects as the old. This alone is fatal to the argument because he is obligated to explain his contention. He cannot leave it up to us to develop it. Double Ace, Inc. v. Pope, 190 S.W.3d 18, 29 (Tex. App.-Amarillo 2005, no pet.).

Regarding the purported violation of his First Amendment rights, he believes not only that the ordinance is an invalid attempt at regulating the time, place, and manner of sexually oriented businesses but also that it is not content neutral. We address the latter contention first and conclude that the ordinance is content neutral, as that term has come to be defined. Both state and federal precedent has deigned to place a "content neutral" moniker on such laws when they can be deemed as simply regulating the time, place, and manner of the speech or activity. See e.g., City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 47, 106 S. Ct. 925, 928, 89 L. Ed. 2d 29 (1986); Smith v. State, 866 S.W.2d 760, 763-64 (Tex. App.-Houston [1^st Dist.] 1993, pet. ref'd). So in cases involving the zoning of sexually oriented businesses, the focus lies not upon the nature of the activity but on the government's interest in regulating the secondary effects emanating from the activity and the time, place and manner of the restrictions implemented. Smith v. State, 866 S.W.2d at 763-64. With that said, we turn to the other aspect of Smartt's contention.

That a municipality has a substantial interest in preserving the quality of urban life is beyond dispute. Smith v. State, 866 S.W.2d at 764. Regulating the location of sexually oriented businesses serves that interest. Id. Next, the manner in which the ordinance regulates the activity is acceptable for it does not ban the activity in its entirety. It simply regulates the location at which it can be conducted. And, restrictions limiting the location to distances 1000 feet from churches and areas zoned residential have been held constitutional. See SWZ, Inc. v. Board of Adjustment, 985 S.W.2d 268, 270-71 (Tex. App.-Fort Worth 1999, pet. denied) (1000 feet); Lindsay v. Papageorgiou, 751 S.W.2d 544, 550 (Tex. App.-Houston [1^st Dist.] 1988, writ denied) (1500 feet).

Finally, Smartt believes aspects of the ordinance are "overly broad" and therefore unconstitutional. The provision at issue is that referring to a "commercial enterprise," and Smartt suggests that the constitutionality of the provision was "specifically questioned in" a prior opinion rendered by the Fourth Court of Appeals in a case involving Smartt and various Webb County officials. See K. Smartt Invs., Inc. v. Martinez, No.04-01-00482-CV, 2002 Tex. App. Lexis 9234 (Tex. App.-San Antonio December 31, 2002, no pet.). Yet, we find nothing in the opinion suggesting that the phrase was unconstitutionally broad. Rather, the court mentioned it only in assessing whether the activities occurring within the establishment fell within the definition of an "adult cabaret." It said nothing about the words being overly broad or unconstitutional. So, to the extent that the argument now urged is founded upon what the San Antonio Court of Appeals wrote in its Smartt opinion, we find his contention is baseless.

Issue Three - Adequate Remedy at Law

Lastly, Smartt contends in his third issue that Laredo was not entitled to an injunction since Laredo had an adequate legal remedy, namely the ability to criminally prosecute and fine offenders. We overrule the issue for the reason that both statute, Tex. Local Gov. Code Ann. §243.010(a) (Vernon 2005) and caselaw, Schleuter v. City of Fort Worth, 947 S.W.2d 920, 932 (Tex. App.-Fort Worth 1997, writ denied), permit cities to seek injunctions to stop sexually oriented businesses from violating ordinances like those at bar. So, the issue is overruled.

The issues raised by Smartt do not evince an abuse of discretion on the part of the trial court. Accordingly, we affirm the judgment.

Brian Quinn

Chief Justice

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NO. 07-10-0271-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL C

JUNE 3, 2011

______________________________

TEXAS DEPARTMENT OF PUBLIC SAFETY, APPELLANT

V.

RUEBEN P. ALLEN, APPELLEE

_________________________________

FROM THE COUNTY COURT AT LAW OF WISE COUNTY;

NO. CV-4750; HONORABLE MELTON D. CUDE, JUDGE

_______________________________

Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.

MEMORANDUM OPINION

            Following a hearing before the State Office of Administrative Hearings, the driver's license of Appellee, Rueben P. Allen, was suspended for 180 days.[1]  Allen appealed to the County Court at Law,[2] which found that the decision of the Administrative Law Judge (ALJ) was not supported by substantial evidence.  The administrative decision was reversed and the Texas Department of Public Safety appealed that decision to this Court.[3]  Presenting a sole issue, the Department questions whether the trial court erred when it reversed the ALJ's finding that the arresting officer had probable cause to believe Allen was operating a motor vehicle in a public place while intoxicated.[4]  We reverse the trial court's judgment and render judgment affirming the administrative decision to suspend Allen's driver's license for 180 days.

Background Facts

            The scant facts are derived from the record at the administrative hearing held on February 17, 2010.  According to the record, in the early evening on December 7, 2009, Department of Public Safety Trooper Chris Markin was dispatched to the scene of an accident occurring on FM 730 South, where it was reported that a pickup had rear-ended another vehicle.  Although the pickup left the scene of the accident, it left behind a license plate near the point of impact.  The license plate found at the scene was matched to a Dodge pickup which was later found abandoned with front end damage.  Allen was identified as the owner of that pickup.

            Allen's wife gave a statement that he had called her to pick him up near the site of the abandoned pickup.  She convinced him to turn himself in, and she drove him to the Wise County Sheriff's Office.  Officers at the sheriff's office personally observed Allen and detected an odor of an alcoholic beverage on him.  Allen denied having consumed any alcoholic beverages that evening.  

Allen was arrested on a finding of probable cause to believe that he had been driving while intoxicated.  He was issued a written statutory warning requesting a blood specimen, which he refused to sign.  He was then taken to Wise County Regional Hospital for a mandatory blood draw.  His refusal to voluntarily give a blood specimen triggered an automatic 180-day suspension of his driver's license.  Tex. Transp. Code Ann. § 724.035(a)(1) (West 2011).  Upon notification of the suspension of his license, Allen timely requested a hearing before the State Office of Administrative Hearings under section 724.041 of the Code to contest that suspension.

No witnesses testified at the hearing but the Department did introduce two exhibits: (1) a four-page Peace Officer's Sworn Report completed by Trooper Markin; and (2) an unsigned Statutory Warning in which a blood specimen was requested from Allen.  Following the hearing, the ALJ issued an affirmative finding suspending Allen's driver's license.  Allen's appeal to the County Court at Law resulted in a reversal of the ALJ's decision and the Department now challenges that decision. 

Standard of Review

            Administrative license decisions are reviewed under the substantial evidence standard.  Tex. Dep't of Pub. Safety v. Alford, 209 S.W.3d 101, 103 (Tex. 2006).  Under that standard, the reviewing court cannot substitute its judgment for the judgment of the ALJ.  Mireles v. Tex. Dep't of Pub. Safety, 9 S.W.3d 128, 131 (Tex. 1999).  If the ALJ's decision is supported by more than a scintilla of evidence, that decision must be upheld.  Tex. Dep't of Pub. Safety v. Gilfeather, 293 S.W.3d 875, 878 (Tex.App.--Fort Worth 2009, no pet.).  However, a trial court may reverse an ALJ's determination under certain circumstances.[5] 

            A court of appeals reviews the trial court's substantial evidence decision de novo. Id.  The issue for the reviewing court is not whether the ALJ's decision was correct but only whether the record demonstrates some reasonable basis for the ALJ's decision. Id.  The burden for overturning an agency ruling is formidable.  Tex. Dep't of Pub. Safety v. Pucek, 22 S.W.3d 63, 67 (Tex.App.--Corpus Christi 2000, no pet.). 

Analysis

Allen's refusal to voluntarily submit a blood specimen implicated section 724.042 of the Texas Transportation Code.  Under that section, the Department was required to prove by a preponderance of the evidence that:

(1) reasonable suspicion or probable cause existed to stop or arrest the person;

(2) probable cause existed to believe that the person was:

(A) operating a motor vehicle in a public place while intoxicated; or

* * *

(3) the person was placed under arrest by the officer and was requested to submit to the taking of a specimen; and

(4) the person refused to submit to the taking of a specimen on request of the officer.

See Tex. Transp. Code Ann. § 724.042 (West 2011).  See also Texas Dep't of Pub. Safety v. Torres, 54 S.W.3d 438, 441 (Tex.App.--Fort Worth 2001, no pet.).

            By its sole issue, the Department maintains the trial court erred in reversing the ALJ's administrative decision.  We agree.  In support of its contention, the Department argues that only probable cause to believe Allen was operating a motor vehicle in a public place while intoxicated was necessary.  As a corollary to that argument the Department further contends that it was not required to prove Allen was actually driving while intoxicated.  See Partee v. Tex. Dep't of Pub. Safety, 249 S.W.3d 495, 499 (Tex.App.--Amarillo 2007, no pet.).  By its Reply Brief, the Department explains that the determination whether a driver did in fact operate a motor vehicle in a public place while intoxicated is a criminal matter with a great burden of proof, while a license suspension is a civil matter requiring only probable cause to believe the driver was driving while intoxicated.  See, e.g., Kuciemba v. State, 310 S.W.3d 460, 462 (Tex.Crim.App. 2010) (noting that for evidence to be sufficient to support a conviction for driving while intoxicated, there must be a temporal link between the intoxication and the driving but, circumstantial evidence alone can support the conviction).  But see Church v. State, 942 S.W.2d 139, 140 (Tex.App.--Houston [1st Dist.] 1997, pet. ref'd) (pointing out that it was beyond the authority of an ALJ to decide the ultimate issue of whether the appellant was actually operating a motor vehicle while intoxicated). 

            The issue before this Court is whether it was reasonable for the ALJ to conclude that Trooper Markin had probable cause to believe that Allen was operating his motor vehicle in a public place while intoxicated when it was involved in an accident on FM 730 South. Probable cause exists when an officer has reasonably trustworthy information to warrant a reasonable person to believe that a particular person has committed an offense.  Tex. Dep't of Pub. Safety v. Butler, 110 S.W.3d 673, 675 (Tex.App.--Houston [14th Dist.] 2003, no pet.). 

            Witnesses at the scene reported to officers that they had observed a pickup rear-end another vehicle and drive away.  A license plate left at the scene was matched to a pickup owned by Allen.  That pickup was later found abandoned.  The abandoned pickup showed front end damage.  According to Allen's wife, Allen called her to pick him up near the site of the abandoned pickup.  She convinced him to turn himself in and drove him to the sheriff's office.  While at the sheriff's office, Trooper Markin and others observed Allen and detected an odor of an alcoholic beverage on his breath.[6]  These facts sufficiently establish probable cause to believe that Allen was operating a motor vehicle in a public place while intoxicated.

            Allen strongly urges us to uphold the County Court at Law's decision reversing his license suspension by arguing the Department's failure to show a temporal link between the accident and his interaction with law enforcement when an odor of alcohol was first detected.  See Butler, 110 S.W.3d at 674-76.  He contends a "substantial and significant period of time" passed between the time of the accident and his contact with law enforcement.[7]  We disagree with Allen's position. 

All that the Department was required to prove at the license suspension hearing was probable cause to believe Allen was driving while intoxicated.  The Department was not required to prove Allen was intoxicated while operating his pickup at the time of the accident.  Under the substantial evidence standard, we find there was more than a scintilla of evidence to support a finding of probable cause. We sustain the Department's sole issue.

Conclusion

            The trial court's judgment is reversed and judgment is rendered upholding the administrative decision to suspend Allen's driver's license for 180 days.

                                                                                    Patrick A. Pirtle

                                                                                          Justice

---

[1]Tex. Transp. Code Ann. § 724.035(a)(1) (West 2011).

[2]Tex. Transp. Code Ann. § 524.041(b) (West 2007).

[3]A court of appeals has jurisdiction over decisions from county courts at law involving driver's license suspensions.  See State Dep't of Pub. Safety v. Barlow, 48 S.W.3d 174, 175 (Tex. 2001).  But see Tex. Transp. Code Ann. § 524.041(b) (West 2007); Tex. Dep't of Pub. Safety v. Jenkins, 262 S.W.3d 811, 813 (Tex.App.--Eastland 2008, no pet.).

[4]Originally appealed to the Second Court of Appeals, this appeal was transferred to this Court by the Texas Supreme Court pursuant to its docket equalization efforts.  Tex. Gov=t Code Ann. ' 73.001 (West 2005).  We are unaware of any conflict between precedent of the Second Court of Appeals and that of this Court on any relevant issue.  Tex. R. App. P. 41.3.

[5]The administrative decision may not be reversed unless it prejudices the substantial rights of an appellant because the administrative findings, inferences, conclusions, or decisions are:

(A) in violation of a constitutional or statutory provision;

(B) in excess of the agency=s statutory authority;

(C) made through unlawful procedure;

(D) affected by other error of law;

(E) not reasonably supported by substantial evidence considering the reliable and probative evidence in the record as a whole; or

(F) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.

Tex. Gov't Code Ann. § 2001.174(2) (West 2008)

[6]During the license suspension hearing, Allen objected to statements contained in Trooper Markin's sworn report as being inadmissible hearsay.  However, hearsay statements may be used to show probable cause.  See Wilkerson v. State, 726 S.W.2d 542, 545 (Tex.Crim.App. 1986).

[7]The record reflects that Trooper Markin was dispatched to the accident scene at 5:45 p.m.  Allen's arrival at the sheriff's office occurred "a short time later."