from www.courthousenews.com – FORT WORTH (CN) – Three strip clubs challenge the constitutionality of a Fort Worth law that demands that sexually oriented businesses be painted in a single “achromatic” color with a single “achromatic” trim, “both colors consisting of a neutral earth tone color only.” The strip clubs say there’s “no rational basis” for the law, which has been enforced against only one man – more than 50 times – each citation costing up to $2,000.
Walt W. Duncan has received all of the citations for violations of the earth-tone sex-club law, according to the complaint in Tarrant County Court. The complaint does not state just who Walt Duncan is, but he presumably is the owner or operator of plaintiffs BT Cabaret, Main Stage Cabaret and Illusions Gentleman’s Club.
Mr. Duncan cannot say he was not given fair warning. According to the complaint, Fort Worth enacted the ordinance in 2004 and gave sex clubs 5 years to comply with it.
“Nothing is this section requires the painting of an otherwise unpainted exterior portion of a sexually oriented business,” the ordinance states. But if it is painted, it has to be “a single achromatic color with a single achromatic color trim, both colors consisting of a neutral earth tone color only,” according to the ordinance.
The sex clubs claim the ordinance is unconstitutionally vague because “the term ‘achromatic’ is vague and ambiguous and the attempted definition provides no guidance as to colors which might violate the ordinance.”
That seems a bit overboard, though, as the ordinance states: “For the purpose of Chapter 5, Article 2, Sexually Oriented Businesses, achromatic is colorless or lacking in saturation or hue. The term includes, but is not limited to, grays, tans, and earth tones. The term does not include black or any bold coloration that attracts attention.”
Violations are punishable by a fine of up to $2,000 per day.
The sex clubs claim there is “no rational basis between the business’ exterior color and the activities made the subject of the ordinance.” That violates the Constitution’s due process and equal protection clauses, the clubs say.
They also say that the punishment is penal in nature, and that the colors of the sex clubs “would necessarily have to rise to a level of public nuisance to justify regulation by ordinance.”
The clubs want enforcement of the ordinance enjoined, and say that unless the court orders Fort Worth to stop citing then and fining them $2,000 a day, “plaintiff’s good name and credibility in Texas will be destroyed.”
The clubs seek an injunction, damages and costs. They are represented by John Gamboa with Acuff & Gamboa.