Judge strips Texas of its ‘pole tax’ on erotic dancing

HOUSTON —  Texas was forced by federal law to end its poll tax on voters four decades ago, and now another levy has put the Lone Star State in constitutionally murky waters: the “pole tax.”

Texas lawmakers last year imposed a $5-per-patron fee on strip joints to raise more than $40 million annually for anti-sexual-assault programs and healthcare for the uninsured.

The fee, which took effect Jan. 1, infuriated the owners of Texas’ 162 strip clubs, who said politicians were cynically taxing a population they knew would not fight back. After all, critics reasoned, men who make a habit of drinking and stuffing currency in the attire of scantily clad women are usually not eager to tell the world about it at legislative hearings.

“It’s not like Al Sharpton is going to show up and protest that we’re being discriminated against,” said a man who identified himself only as Dave, as he exited the Penthouse Club in Houston.

On March 28, however, Texas strip club devotees found a powerful ally: An Austin judge declared the pole tax unconstitutional, saying it infringed on expression protected by the 1st Amendment.

Travis County District Judge Scott H. Jenkins said in his ruling that laws limiting such expression had to pass strict constitutional tests and that the pole tax didn’t because, among other things, indigent healthcare had no connection to strip joints.

“There is no evidence that combining alcohol with nude erotic dancing causes dancers to be uninsured,” he wrote.

A spokesman for Texas Atty. Gen. Greg Abbott said Abbott would “vigorously appeal” the decision. And state Rep. Ellen Cohen of Houston, the former head of a women’s shelter, said she was prepared to write a narrower measure.

“We need more funding for sexual assault victims, to get the word out and to educate people,” the Democrat said of her law, which had bipartisan support. “That’s what this is all about, and there is general agreement that it is a good thing.”

Stewart Whitehead, an attorney for the Texas Entertainment Assn., which challenged the law along with an Amarillo topless bar called Players, stressed that adult businesses supported rape crisis centers and other programs Cohen wanted to beef up. However, he said, strip clubs do not want to be singled out for taxation.

“We hope this sends a message nationally that these establishments are protected by the 1st Amendment and you can’t impose an unfair tax on them just because they are an easy political target,” Whitehead said.

Texas lawmakers tried to pass a fee on strip clubs in 2004 to finance education, but the levy, derogatorily dubbed “tassels for tots,” failed.

When lawmakers debated the new fee last year, supporters did not claim a link between strip clubs and sex assaults, only that a business that hired women would benefit from programs women used.

But after the law wound up in court, lawyers for the state argued that it was really a regulation, and summoned witnesses who said strip clubs contributed to sexual violence.

“Our customers are not happy about that. They find that very insulting,” said Dawn Rizos, co-owner of the Lodge, a lavish club near the Dallas Cowboys stadium that has a VIP room inspired by the movie “Casablanca.” “We obviously don’t feel there is any correlation between what we do and [sexual] assault.”

Rizos said some club owners thought Texas should fine sex offenders to pay for the programs, a model already used to raise revenue from drunk drivers. Hoping to avert a long and costly legal battle, she said some would also accept being part of a solution -- as long as others were taxed.

“I’m in the minority here, but I would not mind partnering with the state to do something like this that would help a lot of people and put a positive face on our industry,” she said.

Texas, generally conservative, has a tradition of tolerance toward topless bars. But the moral tide has turned against the clubs over the last decade, and many are facing stricter regulations. In Houston, the clubs recently lost an 11-year fight to overturn a city ordinance that bars them from being within 1,500 feet of day-care centers, schools or churches. Some owners say they’ll conceal dancers’ nipples to barely skirt the law.

Owners have already raised cover charges and drink prices to generate the extra $5 per customer for the pole tax, which strip clubs were supposed to pay the state in quarterly installments starting this month. Smaller clubs could go out of business, owners say.

But experts say that at the dozens of larger, more upscale clubs, $5 is nothing compared with the sums tucked into G-strings.

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miguel.bustillo@latimes.com