A $5 entrance fee to Texas strip clubs is constitutional and not an improper restriction on nude dancing, the Texas Supreme Court ruled Friday. Lower courts had called the so-called "pole tax" an improper burden on the free expression of nude dancing and a violation of the First Amendment.
The fee has been imposed on clubs that allow nude dancing and serve alcohol since 2007 to raise money for sexual assault prevention programs and health care for the uninsured.
The all-Republican Supreme Court, which ruled unanimously, said the fee is too small to be considered a burden on free expression, and the state has a legitimate interest in trying to curb the secondary effects of potential violence associated with adult entertainment and alcohol.
To avoid paying the fee, strip clubs could simply not serve alcohol, Justice Nathan Hecht wrote for the court.
"Remove the alcohol, avoid the fee. Today's ruling is a big win for victims of sexual assault," said attorney James Ho, former Texas solicitor general who argued the case for the state attorney general's office and is now in private practice.
Stewart Whitehead, attorney for the Texas Entertainment Association, said the strip club group may appeal to the U.S. Supreme Court on the free speech issue, or go back to the trial court to challenge the fee as an improper occupations tax under the Texas Constitution.
Texas requires 25 percent of an occupations tax to go to public education, which does not happen with the strip club fee, Whitehead said..
The state comptroller's office has been collecting the fee since the law first went into effect, holding about $15 million in a state account, pending the outcome of the legal challenges. Some clubs, however, have not been paying. The fee was projected to raise $44 million over the first two years if all clubs paid.
The comptroller has warned clubs that if the state prevails, officials will try to collect all unpaid fees and clubs that haven't paid could also be fined.
A ruling on the case has been pending since the Texas Supreme Court first heard oral arguments in March 2010.
The Texas Association Against Sexual Assault, which supports the fee, contends there is a proven link between live, nude entertainment, consumption of alcohol and sexual violence.
Annette Burrhus-Clay, executive director of TAASA, said the fee could help sexual assault survivor organizations facing cuts in state and federal grants.
"A lot of programs are losing staff or will be losing staff," she said. "This could go a long way to keeping boots on the ground."