Constitutional Law

Appeals court rejects comptroller's attempt to label bikini-latex clubs as 'sexually oriented businesses'

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Bikini-latex clubs in Texas were handed a win Thursday, after a Houston court rejected an appeal arguing that latex-clad entertainers are considered nude under the law.

Justice Peter Kelly, writing for a three-judge panel of Texas’ First District Court of Appeals, rejected Texas Comptroller Glenn Hegar’s attempt to classify the clubs as “sexually oriented businesses” and collect a $5-per-patron tax from them.

The Austin American-Statesman has coverage.

The Texas state legislature passed a law requiring collection of the tax from businesses that offer live nude entertainment and allow the consumption of alcohol on their premises, according to the opinion. The “pole tax,” as it is commonly known, took effect in 2014, once legal challenges were resolved, the Houston Chronicle previously reported.

Hegar’s office issued a rule in 2017 that defined “clothing” as “a garment used to cover the body, or a part of the body, typically consisting of cloth or a cloth-like material.” The rule also said “paint, latex, wax, gel, foam, film, coatings and other substances applied to the body in a liquid or semi-liquid state are not clothing.”

Texas BLC, an association that represents several bikini-latex clubs, sued to block the rule, contending that its entertainers are not nude, since they wear bikini bottoms and cover their breasts with multiple coats of liquid latex that hardens into an opaque shell, the Austin American-Statesman reports.

Judge Karin Crump of the 250th Civil District Court in Austin agreed with the clubs in 2018, and Hegar appealed.

The First District Court of Appeals did not weigh in on whether latex should be considered clothing but instead said the appeal was moot since a federal judge in San Antonio had held in February 2019 that the rule regarding latex was unconstitutional, according to the Austin American-Statesman.

Kelly wrote in the opinion that even if the court was to conclude that the comptroller’s rule was consistent with the statute, he could not collect the tax from the “bikini-latex bars that are members of Texas BLC because the federal district court order prevents it from doing so.”

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