This summary was computer-generated without any editorial revision. It is not official, has not been checked for accuracy, and is NOT citable.
Facts
The case involves TBCH, Inc., a nightclub operating under the name T.D.'s Showclub, which features female dancers. The City of Albuquerque classified the nightclub as an adult entertainment establishment under its Zoning Code, requiring it to relocate. The dispute arose over whether the dancers' use of heavy theatrical makeup and plastic nipple covers constituted "completely and opaquely covered" female breasts as required by the Zoning Code (paras 2-3).
Procedural History
- Zoning Manager, July 1991: Determined that TBCH's dancers' breasts were not "completely and opaquely covered" and ordered compliance or relocation (para 3).
- Environmental Planning Commission, October 1991: Upheld the Zoning Manager's ruling and adopted it as official policy (para 4).
- City Council, January 1992: Denied TBCH's appeal, affirming that "completely and opaquely covered" required clothing, not makeup (para 5).
- District Court, (N/A): Dismissed TBCH's appeal with prejudice and quashed the writ of certiorari (para 6).
Parties' Submissions
- Appellant (TBCH, Inc.): Argued that its dancers complied with the Zoning Code's plain language, that the City's interpretation was unconstitutionally vague, arbitrary, and discriminatory, and that the Zoning Code violated the New Mexico Equal Rights Amendment (para 1).
- Respondent (City of Albuquerque): Contended that the Zoning Code required clothing to "completely and opaquely cover" the specified anatomical areas and that makeup did not meet this requirement (paras 5, 7).
Legal Issues
- Whether TBCH's use of theatrical makeup and nipple covers satisfies the Zoning Code's requirement for "completely and opaquely covered" female breasts.
- Whether the City's interpretation of the Zoning Code is unconstitutionally vague, arbitrary, or discriminatory.
- Whether the Zoning Code violates the New Mexico Equal Rights Amendment.
Disposition
- The Court of Appeals reversed the district court's dismissal, holding that TBCH complied with the Zoning Code's plain language (para 13).
Reasons
Per Pickard J. (Alarid J. concurring):
The Court found the Zoning Code's language unambiguous, interpreting "completely and opaquely covered" to include the use of heavy theatrical makeup and nipple covers. The Court relied on dictionary definitions of "cover," which do not exclusively require clothing, and noted that the City's acceptance of skin-tight spandex for other anatomical areas undermined its argument (paras 7-9). The Court rejected the City's claim that the interpretation was absurd or contrary to legislative intent, emphasizing that the ordinance's language did not explicitly exclude makeup (paras 9-10). The Court also declined to give weight to the City's post-enactment interpretation, as it was inconsistent and not long-standing (paras 11-12).
Per Hartz J., dissenting:
Hartz J. disagreed with the majority, finding the term "completely and opaquely covered" ambiguous. He argued that in the context of the Zoning Code, "cover" implied clothing, as the intent was to reduce the erotic message conveyed by the dancers. Hartz J. emphasized the need to defer to the City's interpretation of its own ordinance, which he found reasonable and consistent with its purpose (paras 16-21).