February 12, 2009
Strip club fee back in court

You may recall that in the last legislative session, a bill (HB1751) was passed that imposed a $5 per customer fee on strip clubs, with the revenue going to a sex assault prevention fund, among other things. That fee was ruled unconstitutional by a Travis County judge in March. Now everyone involved is back in court for the first round of appeals.

In arguments before the state Third Court of Appeals, Texas Solicitor General James Ho said the government should be allowed to collect the fee in part because it can already regulate nude dancing as well as sales of alcohol.

The law specifically applies to strip clubs that sell alcohol. By putting those two elements together, "a small and modest fee should be permissible," said Ho, the top appeals attorney for state Attorney General Greg Abbott.

The fee is not a tax on constitutionally protected free speech, Ho said.

"Remove the alcohol, remove the fee," he said.

The Texas Entertainment Association, which represents strip clubs across the state, strenuously disagreed.

"It is a tax on speech," said the group's lawyer, Craig Enoch, a former Texas Supreme Court justice. He said the fee is only charged at bars and clubs that have nude dancing.

"This is a tax that is assessed if you are entertaining in the nude," Enoch said.

The state's argument that the sale of alcohol is the key component would open other First Amendment issues, Enoch said.

"If this statute is not a tax on speech, the state could tax the Catholic church because it serves alcohol at communion," Enoch said.

I thought the strip clubs' argument was weak the first time around, but they prevailed, so who knows. The one thing that is certain is that this will be in the courts for a lot longer, which is making some proponents of the law consider other options.

Annette Burrhus-Clay, executive director of [the Texas Association Against Sexual Assault], said the group will work with lawmakers during the current legislative session to draft a new bill that protects free speech and provides a dedicated source of money.

I'll keep an eye out for that. A statement from Rep. Ellen Cohen, the sponsor of HB1751, is beneath the fold.

I would like to extend my appreciation to the Attorney General's Office for their continued efforts in this litigation. I believe now, more than ever, that funding sexual assault programs by placing a fee on these sexual oriented businesses is the most appropriate way to raise much needed funds.

In the end the focus must remain on the victim survivors and providing them with the resources they need. As a Legislator, I will continue to work with members of both parties to bring support to those who need it most. I am confident that my fellow Representatives will, as always, vote with their districts in mind and support the thousands of women, children and men who are survivors of sexual assault."

Posted by Charles Kuffner on February 12, 2009 to That's our Lege

I am one of those "puritans" who believes despite supposed "expert" research to the contrary that pornography, including live pornography, is linked to sexual assualt and rape.

So while it may appear this "tax" is addressing a problem in fact it may be promoting a cause of the problem. It legitimizes an industry that some believe should not be legitimized. We have laws restricting where these clubs can be located. This seems to contradict the intent behind those laws.

The real solution to the problem, which Ellen Cohen knows, is increased prosecution of sexual assault cases. As it stands, most prosecutors really just dismiss most cases on the basis of "boys being boys and just having a little fun" and nothing more. And yes, there are still prosecutors who wonder why the woman who was raped wasn't wearing a bra.

The education programs of TAASA and other organizations are supposed to be about teaching men to respect women.

There is something odd about funding those programs through a tax on those who obviously do not respect women.

Posted by: Baby Snooks on February 12, 2009 9:09 AM

If a $5 charge is added to strip club entrance charges then isn't it logical to add a $5 charge to all porn magazines, books and videos, plus an additional fee for access to all porn internet sites. Also there is the additional charge on movie tickets and music cds with degrading content. And last but not least a fee on cable bills for those who watch certain content at home. This will be the most well funded program in America and it will have better cash flow than the U.S. Treasury. Then we can see if there is a difference in the amount violence against women in Texas.

Posted by: cb on February 12, 2009 12:07 PM

Please. Don't be putting ideas into Ellen Cohen's head. This was bad enough.

I'd rather see a $5,000 fine imposed and an increase in rates of prosecution for sexual assault. That would probably add a lot more money for various programs and also take care of the problem.

The problem is the lack of prosecution.

And while we're at it, why not impose a similar fine with regard to domestic violence. And double the fine if it involves a law enforcement officer. Many of whom don't have a problem with a man "putting the woman in her place" simply because he does the same thing.

And who on earth dreamed up this "throw them both in jail" idea? That is real encouraging to women who are hesitant to file complaints.

Texas is truly scary at times.

Posted by: Baby Snooks on February 12, 2009 2:19 PM

To dreg up ancient blog history a (and to be a tad self referential) the argument I think the clubs are making is similar to what you discussed in "Taxing Science Fiction"


Here the fee is targeted at a particular type of bar distinguished by erotic dancing, which is a form of speech. The fact that they sell alcohol appears to me to be irrelevant. The fee is not content neutral.

By the states rational it could put a fee on bars that have rock bands but not on bars with country bands. I don't buy it.

Posted by: Kyle Giacco on February 12, 2009 4:10 PM

Wow, more BS.

You know, as someone who has worked on this for 2 years, working for a boss who has worked on this for 20 years, the problem with sexual assault is absolutely not prosecution, and only someone completely unfamiliar with the problem would say that.

The problem is with victim services and the motivation for women (and some men) to report the crime in the first place.

And as Ellen has stated from the beginning, our link has always been the combination of live nude dancing and alcohol, which lead to an increase in sexual violence.

Arguing with Ellen Cohen about sexual assault, or her motives, is my definition of a non-starter, bs.

Posted by: Bill on February 12, 2009 11:51 PM

Replying to Bill's comments. If the problem is services for victims should not the state of Texas provided the funding. Or does the state reps who are pushing this bill not have the influence to get this done the right way through state budget appropriations. It would be interesting to see the statistics that link the combination of live nude dancing and alcohol to sexual assault. I would think alcohol alone by itself has a greater contributing role than the combo of alcohol and nude dancing. Attach the additional fee to alcohol sales. Won't be done, because the alcoholic beverages industry is a heck of a lot more influential than the strip club industry. I have no interest in this debate, I don't go to nude clubs and I don't assault people. My problem is that this is a cheap easy political stunt, to target this small group of businesses who have no clout and who get steam rolled by politicians. If sexual assault is such a high priority then the state should ponying up money to provide services for the victims and air public service announcements. The state won't provide the funding that is necessary to help the victims because by golly we are not california! Texas has and always will do as little as fiscally possible for the downtrodden and victims in our great Lone Star state.

Posted by: cb on February 13, 2009 2:40 PM

There are any number of sources of federal funding, both direct and indirect through the states, primarily the VAWA funding and if the VAWA funding is not adequate, then Ellen Cohen and others concerned with funding for public education, as well as outreach programs for victims of domestic abuse/violence, sexual assault and stalking, should be petitioning Congress for increased funding levels.

"My problem is that this is a cheap easy political stunt.."

Quite a few agree with you. But it may not be cheap. How much is it costing the taxpayers to defend this in court?

Posted by: Baby Snooks on February 14, 2009 3:42 PM
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