Is Solidified Pour-On Liquid Latex "Clothing"?

A Texas agency could concluded that it is not, says the Texas Court of Appeals.

|The Volokh Conspiracy |

From Hegar v. Texas BLC, Inc., decided Tuesday (written by Justice Peter Kelly and joined by Justices Hightower and Countiss):

Texas BLC, Inc. is an association of "bikini/latex clubs"—businesses that authorize consumption of alcohol on their premises but deny that their entertainers are topless because they cover themselves with opaque latex applied in a liquid or semi-liquid state.

The Comptroller of Public Accounts adopted a rule that set forth its interpretation of "clothing" for the purpose of determining which businesses are sexually oriented and subject to the statutory fee. Under this rule, Texas BLC's members' businesses would be considered sexually oriented businesses and liable to pay the fee. Texas BLC sought a declaratory judgment under the Administrative Procedures Act ("APA") to declare the Comptroller's rule invalid. It argued that the rule does not comport with and imposes burdens in excess of the sexually oriented business fee statute. The trial court held that the rule was invalid, and the Comptroller appealed, challenging that ruling in a single issue….

We reverse the trial court's declaratory judgment and render judgment that the Comptroller's rule is valid under the [Administrative Procedure Act]….

The facts in this case are not in dispute. The parties agree that the entertainers in Texas BLC's member businesses wear "opaque latex cover-up that covers" their "breasts below the top of the areola (and the dancers' buttocks to the extent not completely covered up by the bikini bathing suit bottoms)." …

An "agency's interpretation of a statute is entitled to 'serious consideration.'" But we defer to the agency's construction of a statute "only when the statutory language is ambiguous." If the statute is unambiguous, agency deference "has no place." …

The [Sexually Oriented Business Fee] statute defines "nude" as "(A) entirely unclothed" or "(B) clothed in a manner that leaves uncovered or visible through less than fully opaque clothing any portion of the breasts below the top of the areola of the breasts, if the person is female, or any portion of the genitals or buttocks." Neither party argues that the statute is ambiguous. We likewise do not find that the statutory language yields "more than one reasonable interpretation."

Instead the parties dispute the meaning of the undefined terms "unclothed," "clothed," "uncovered," and "clothing," to which we accord their ordinary meanings. "Clothe" means "to cover with or as if with cloth or clothing: dress" or "to provide with clothes." "Clothing" means "garments in general; also: COVERING." "Uncovered" means "not covered" or "not supplied with a covering." "Covering" is defined as "something that covers or conceals."

Although the dictionary definition of clothing includes the word "covering," our interpretation of the SOBF statute must take into consideration the context in which the words are used and must not render any word meaningless. The statute requires specified body parts to be covered by "fully opaque clothing" for the business to escape payment of the SOB fee. Construing "clothing" to mean any "covering" would ignore the Legislature's semantic choice, which we must presume is intentional….

Our task in this appeal, however, is not to formulate a precise definition of clothing but to determine whether the Comptroller's rule contravenes the statute. The challenged SOBF Rule 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." This is consistent with the SOBF statute. The second sentence states the Comptroller's interpretation of what is not clothing: "Paint, latex, wax, gel, foam, film, coatings, and other substances applied to the body in a liquid or semi-liquid state are not clothing." This is also consistent with the SOBF statute, which requires entertainers to be covered by clothing, such as a tangible garment or an item designed and used to cover the body and commonly regarded as an article of dress….

Texas BLC argues that the SOBF statute is about the visibility of certain body parts and that the test for whether a business is subject to the SOB fee is "whether certain body areas are sufficiently covered." But that formulation of the test ignores the statute's requirement that the entertainer be covered by clothing….

Texas BLC … argues that liquid latex is more modest than clothing, which can be pulled or brushed aside. It therefore contends that liquid latex use better effectuates the purpose of the SOBF Rule. Our task, however, is to construe the language in the statute. That language does not concern whether the covering is modest or demure, rather it requires that the entertainers be covered by clothing. {Moreover, although the entertainers' bodies may be covered by latex, liquid latex can be used to cover an entertainer's body in a manner that simulates nudity, which would not necessarily further the objective of the SOBF statute.}

NEXT: Today in Supreme Court History: August 23, 2007

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  1. Is leather a cloth-like material, or are leather clothes not clothes? What about vinyl? Where does the line get drawn between form-fitting cloth and not-clothing, or between non-cloth-like polymers and cloth-like but non-traditional polymers? Are opaque raincoats clothing?

    The note at the end also suggests motivated reasoning; screen printing and other techniques also allow traditional clothing materials to “not necessarily further the objective of the SOBF statute” in similar fashion.

    1. There are some textiles and cloth-like materials which are so thin that they leave little to the imagination, opaqueness notwithstanding.

      Much ado over almost nothing.

      1. “There are some textiles and cloth-like materials which are so thin that they leave little to the imagination, opaqueness notwithstanding.”

        There are some imaginations that can overcome any amount of oqaqueness.

    2. I agree.

  2. Well, it’s only one material, so it passes the Leviticus test. What’s the problem?

  3. Doncha love the law.

    1. The should put of a few cameras, and just say they are filming a porn movie, then it would all be legal, eh?

  4. We can’t know for sure without photographs.

  5. Public money is being used to pay for arguments like this? This is why Texans pay taxes – so people can argue about nothing? What does Texas law say about the number of angels that can dance on the head of pin? Do people really spend the time and money to go to law school to end up wasting their lives over this kind of nonsense? Attention Texas: We’re all naked under our clothes, however you define “clothes”. Some people shouldn’t be seen naked, some should. Why am I wasting my time typing this?

    1. With this sort of regulation, soon there won’t be any Texans.

  6. Makes for an interesting Google Image search, I’ll grant you that….

  7. If there were ever a time for Potter Stewart’s maxim…

  8. Missing is an analysis under disability discrimination law. Strippers who are allergic to latex are excluded from this employment by virtue of their disability. Must the employer offer an accommodation? What would it be?

    1. “Strippers who are allergic to latex are excluded from this employment by virtue of their disability.”

      Or would be, if there were no artificial latex substitutes.

  9. Once again we have this false conflation that nudity is sex-oriented.

  10. The [Sexually Oriented Business Fee] statute defines “nude” as “(A) entirely unclothed” or “(B) clothed in a manner that leaves uncovered or visible through less than fully opaque clothing any portion of the breasts below the top of the areola of the breasts, if the person is female, or any portion of the genitals or buttocks.”

    ANY PORTION of the buttocks???? Really?
    So, anyone wearing a string bikini is legally considered nude? Anyone wearing even mildly skimpy bathing suit bottoms is nude? That simply cannot be, our sense of logic tells u. But that seems to be what this law is clearly forbidding. How does this not make the law fatally overbroad?

    1. “So, anyone wearing a string bikini is legally considered nude?”

      No, only people WORKING in a string bikini is working effectively nude in a sexually-oriented business.

      I wonder who’s doing enforcement during this work-from-home pandemic where only the clothes visible in the Zoom feed are required.

    2. Forbidden? No, taxed. The case is about whether a state fee has to be charged.

      There is stuff that’s forbidden but it’s a few square inches beyond what’s in contention here.

  11. With all that latex the guys won’t need a condom. I think you’re blind to the real subterfuge here.

    1. Condoms are used in sexual acts.
      This whole suit is because the business says there is no sex involved. (from a tax standpoint, at least)

      1. There seems to be some justification to this claim.

  12. ” clothed in a manner that leaves uncovered or visible through less than fully opaque clothing any portion of the breasts below the top of the areola of the breasts, if the person is female, ”

    The last five words are now constitutionally suspect. It seems that Texas is treating a ‘female’ (whatever that is this week) differently from a ‘male’ (whatever that is this week), which has been determined to be unconstitutional discrimination.

  13. I think you should add some of the pics as well !!
    Recommend the best Wholesale Jewelry in USA.

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