Wednesday, December 5, 2007
AUSTIN – Lawyers for Texas' adult entertainment industry are asking a judge to block a state-mandated $5 cover charge at strip clubs – money that, starting Jan. 1, will be collected to fund sexual assault prevention and health care for the uninsured.
The suit, filed Wednesday in Travis County, alleges that lawmakers violated club operators' constitutional right to free speech when they approved the surcharge last spring. Owners of topless bars have argued that the fee, designed to help victims of sexual assault, imposes a discriminatory tax on their businesses and unfairly links their patrons to rape.
And though officials from the Texas attorney general's office vowed to do whatever it takes to uphold the adult entertainment fee, government insiders acknowledged quietly that they may face an uphill battle.
A similar strip club fee endorsed by Gov. Rick Perry in 2004 – one that would've raised money for education – never made it into law after legislators voiced concerns that it was an inappropriate and unseemly stretch.
The bill's authors say they're not suggesting that people who go to strip clubs or adult-video stores walk out and commit sex crimes; they're simply seeking revenue for underfunded programs.
"Clearly we're disappointed by the lawsuit; we were really hoping this industry would see this as an opportunity to do something positive for the communities they're in," said Annette Burrhus-Clay, executive director of the Texas Association Against Sexual Assault. "We're going to fight it because we believe in the merits of our position."
The fee lawmakers passed this spring is expected to raise about $40 million each year, more than half of which would go toward sexual assault services. The rest would be used to provide health assistance to Texas' poorest residents.
But in the suit, filed against Texas Attorney General Greg Abbott and Comptroller Susan Combs, advocates for the adult entertainment industry argue the fee would amount to an unconstitutional tax on nude dancing, a form of expression protected by the First Amendment.
And they say the measure singles out strip clubs by not applying to all sexually oriented businesses. Nude modeling studios and adult video arcades aren't affected, they say.
"Exotic nude dancing is protected speech under the First Amendment," the lawsuit states. "It [the fee] singles out income derived from protected speech for a burden the state places on no other income."
A lawyer for the plaintiffs – the Texas Entertainment Association, which represents more than half of the topless clubs in the state, and Karpod, Inc., which operates a club in Amarillo – declined to comment on the suit.
Lawmakers who endorsed the bill fired back against the adult entertainment industry this week, demanding to know where these "opponents" were when they crafted the legislation early this year.
"I didn't hear from them then," said Rep. Ellen Cohen, the Houston Democrat and women's center president who championed the bill last session. "If this money gets held up, it's very detrimental to what we're trying to do."
But neither did state officials appear overly optimistic about their chances of fighting the legal challenge.
"Any time you get in a courtroom, there's a 50 percent chance you'll win, a 50 percent chance you'll lose," said Sen. Royce West, D-Dallas, an attorney. "If we didn't do it right this time, that will tell us what we've got to do to get it right next time."
While it's unclear how soon a judge will hear the case, the plaintiffs hope it's before Jan. 1.
"At this point, the law is the law," said Ms. Burrhus-Clay, the victims rights advocate. "They can't just take it back."
But the money, which isn't due to the comptroller's office until April, could potentially be held by the agency and not dispersed to sexual assault or indigent health organizations until the case is resolved.
It's unknown how many businesses will be affected by the adult entertainment fee. There's no tally of strip clubs in Texas, though the comptroller's office keeps records on 151 sexually oriented businesses that serve alcohol.
By law, strip clubs aren't required to pass along the fee to their customers, as long as the requisite funds make it to the state.
