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UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION

DALLAS BELLAGIO PARTNERS LLC, §

HAI C. VU, d/b/a BLUE STAR, §
SANGWAN ANUSAN, d/b/a ALOHA §
SPA AND d/b/a CLEOPATRA DAY SPA, §
SOON D. YOON, d/b/a HAWAII SPA, §
ANTONIO FLORES, d/b/a JASMINE, §
PHAIBOON PROMNIANG, d/b/a §
MOON NIGHT, §
REGINALD VILLAVIDENDIO, d/b/a §
THE PASSION, § Cause No. 3:09-CV-2369-K
§
SOK UN NG, d/b/a 333 BODYWORKS, §
LARRY KELLER, d/b/a 7TH HEAVEN, §
Complainants, §
§
vs. §
§
CITY OF DALLAS, TEXAS, §
Defendant. §

COMPLAINANTS’ MOTION FOR REHEARING AND SUPPORTING BRIEF

Now come Complainants (collectively, “Complainants”) through counsel, and, respectfully file

this Motion for Rehearing and Brief asking the Court to consider citations to applicable law and

arguments in Complainants’ January 14, 2010 Brief that are not addressed in this Court’s March 25,

2010 Memorandum Opinion and Order (the “Opinion”), and would show the Court as follows:

I.
DISMISSAL BASED UPON RES JUDICATA IS IMPROPER BECAUSE CITY WAS
ACTING OUTSIDE ITS SCOPE OF AUTHORITY, RENDERING CITY’S ORDINANCE
AND “ADMINISTRATIVE” DECISIONS AT ISSUE VOID AND THUS NOT ACCORDED
“FINAL JUDGMENT” STATUS FOR PURPOSES OF A RES JUDICATA ANALYSIS

1. With the utmost respect, this Court’s Opinion ignores Section I.C. in Complainants’

Brief that “[b]ecause City was acting outside its scope of authority, City’s Ordinance and

‘administrative’ decisions at issue are void and thus are not accorded ‘final judgment’ status for

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purposes of a res judicata analysis. The City Ordinance and City’s letters to Complainants: (1) violate

Complainants’ due process rights; (2) exceed the statutory limitations upon cities’ authority to regulate

Complainants enacted by the Texas Legislature; and (3) are void for vagueness.

2. Void judgments are not given res judicata effect. Berry v. Berry, 786 S.W.2d 672, 673

(Tex. 1990) (citing Segrest v. Segrest, 649 S.W.2d 610, 613 (Tex. 1983).) (“Because the final

judgment is voidable as opposed to void, the rule of res judicata would apply.”) A judgment is void

“when it is apparent that the court rendering judgment ‘had no jurisdiction of the parties, no

jurisdiction of the subject matter, no jurisdiction to enter the judgment, or no capacity to act as a

court.’” Cook v. Cameron, 733 S.W.2d 137, 140 (Tex. 1987) (cit. omitted).

3. The City of Dallas is a home-rule municipal corporation. Lowenberg, v. City of Dallas,

261 S.W.3d 54, 58 (Tex. 2008); Nelson v. City of Dallas, 278 S.W.3d 90, 94 (Tex. App.--Dallas 2009,

pet. denied). “Home-rule cities have broad discretionary powers, provided that no ordinance ‘shall

contain any provision inconsistent with the Constitution of the State, or of the general laws enacted by

the Legislature of this State.’” Lowenberg, 278 S.W.3d at 95. (quoting TEX. CONST. art. XI, § 5.).

City’s Ordinance and Revocations of the Certificates of Occupancy are Violations of Due
Process Rights.

4. The Texas Constitution contains two separate due process provisions, and a statute or

ordinance that violates constitutional due process requirements is void. Sax v. Votteler, 648 S.W.2d

661, 665 (Tex. 1983). Similarly, “[w]here a statute necessarily invades the rights of a party by virtue

of the provisions of a void statute, such a statute must be considered as never having been enacted and

a decision that is based thereon as being void.” Sanders v. State Dep't of Public Welfare, 472 S.W.2d

179, 181 (Tex. Civ. App.--Corpus Christi 1971, writ dism’d, w.o.j.). Also, in a tax dispute, the

revocation of exempt status by an appraisal official, without notice and a hearing, was “a void act that

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could be challenged anywhere and anytime.” Inwood Dad's Club v. Aldine Indep. Sch. Dist., 882

S.W.2d 532, 538 (Tex. App.--Houston [1st Dist.] 1994, no pet.) (cit. omitted).

5. On its face, and as admitted by the City on page 9 of City’s Brief, the City ordinance

(see City’s Brief App. pp. 7-8, sec. 306.13), states the certificate of occupancy may be revoked,

without benefit of notice or a hearing, if the building official makes certain determinations.

6. Thus, the City’s ordinance is void because it violates the Texas Constitution, and cannot

be given res judicata effect.

7. Further, on their face, the City’s letters revoke the certificates of occupancy and order

that use of the premises cease immediately. (App. pp. 6-231) Without the constitutionally mandated

due process requirements of notice and an opportunity to be heard, City’s actions revoking the

certificates of occupancy, as stated in City’s letters, is also void, and thus will not support a res

judicata defense.

City’s Ordinance Violates the Legislature’s Limitation That Municipal Ordinances May
Not Enact More Restrictive Ordinances Regarding Massage Therapists and Massage
Establishments.

8. Complainants are spas and do not concede that Complainants offer massage services to

customers. Nonetheless, even if Complainants were “massage establishments, section 455.005(c) of

the Texas Occupations Code states that “a political subdivision may not adopt a regulation of the type

described by Subsection (b) (a zoning or similar regulation of land use) that is more restrictive for

massage therapists or massage establishments than for other health care professionals or

establishments.” City’s Regulation violates section 455.005(c) of the Texas Local Government Code

because it is more restrictive for massage therapists or massage establishments than for other health

care professionals or establishments.

1
References to “App.” are to the Appendix to Complainants’ January 14, 2010 Brief.

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9. Section 25A-6 requires a massage establishment to pay an annual “license fee.” (App. p.

1) Further, section 25A-10 states “no such establishment shall be operated or conducted in connection

either directly or indirectly, with any place used for living or sleeping quarters.” (App. p. 4) Section

25A-13 states “[i]t shall be unlawful for any massage establishment to be operated in any section of the

city which is zoned for residential purposes.” (App. pp. 4-5)

10. Complainants have been unable to locate identical provisions relating to “other health

care professionals or establishments” in the City of Dallas Codes, rendering these sections of chapter

25-A an unauthorized, “more restrictive regulation that is prohibited by section 455.005(c) of the

Texas Occupations Code.

11. City ordinances and city actions that exceed the city’s authority are void ab initio. City

of Northlake v. East Justin Joint Venture, 873 S.W.2d 413, 417 (Tex. App.--Fort Worth 1994, writ

denied) (annexation ordinance exceeded municipal authority and held void).

12. Thus, the City’s ordinance is void because it exceeds the City’s authority, and therefore

violates the Texas Constitution. As a result, the City’s revocation of the certificates of occupancy and

determinations by the City’s Board of Adjustment will not support a res judicata defense.

The City’s Ordinance is Void for Vagueness.

13. Vagueness may invalidate a law for either of two independent reasons: “First, the law

may fail to provide the kind of notice that will enable ordinary people to understand what conduct it

prohibits; second, it may authorize and even encourage arbitrary and discriminatory enforcement.”

State v. Holcombe, 145 S.W.3d 246, 253 (Tex. App.--Fort Worth 2004), aff’d, 187 S.W.3d 496, cert.

denied, 549 U.S. 824 (2006) (cit. omitted).

14. City Code Section 25A-1 (App. p. 2) contains the following “Definitions” that are the

basis for the enforcement of the provisions of chapter 25A:

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(c) MASSAGE means any process consisting of kneading, rubbing, or otherwise

manipulating the skin of the body of a human being, either with the hand or by means
of electrical instruments or apparatus, or other special apparatus, but shall not include
massage by duly licensed physicians and chiropractors, and registered physical
therapists who treat only patients recommended by a licensed physician and who
operate only under such physician's direction, nor massage of the face practiced by
beauty parlors or barbershops duly licensed under the penal code of the state.

(d) MASSAGE ESTABLISHMENT means any building, room, place or

establishment, other than a regularly licensed hospital, where manipulated massage or
manipulated exercises are practiced upon the human body by anyone not a duly
licensed physician or chiropractor whether with or without the use of mechanical,
therapeutic or bathing devices, and shall include Turkish bathhouses. This term shall
not include, however, duly licensed beauty parlors or barbershops or a place wherein
registered physical therapists treat only patients recommended by a licensed physician
and operate only under such physician's direction. (Ord. Nos. 13752; 15526; 17226)

15. Both definitions, and thus City’s Regulation, are facially overbroad and vague. These

definitions would, for example, include the activities of all personal trainers/assistants at gyms that

assist customers with the use of the gym’s equipment, yoga or similar instructors, or even a clerk

assisting a customer with a shoehorn while trying on a pair of shoes. Further, the definition of

“massage” found in City Code section 25A-1(c) illegally includes, and thus illegally regulates, every

electric dryer in every public restroom because the hand dryers are included in the definition of

“massage” as written. Similarly, this definition includes every public shower, whirlpool and hot tub.

16. Again, Complainants are spas and do not concede that Complainants offer massage

services to customers. City’s ordinance authorizes and even encourages arbitrary and discriminatory

enforcement. Accordingly, it is void for vagueness. Because the City’s ordinance is void because it

exceeds the City’s authority, and therefore violates the Texas Constitution. As a result, the City’s

revocation of the certificates of occupancy and determinations by the City’s Board of Adjustment will

not support a res judicata defense.

Because City is not an “Administrative Agency,” the appellate opinions cited in the
Court’s Opinion are inapplicable.

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17. On page 8 of the Court’s Opinion, the Court cites to Texas, Fifth Circuit and United

States Supreme Court opinions containing holdings in support of the proposition that Texas and federal

courts generally apply res judicata principles to the findings of administrative agencies. These

opinions apply to administrative agencies created by the legislature and the administrative processes,

also created by the legislature, regarding the res judicata effect of such administrative decisions. Thus,

these opinions are concerned solely with administrative agencies created by the legislature, and are not

relevant to the municipal actions (an unconstitutional municipal ordinance and unconstitutional acts

purportedly based upon such ordinance) that are at issue in the present dispute.

II.
ABSTENTION BASED UPON THE YOUNGER DOCTRINE IS IMPROPER BECAUSE
THIS DISPUTE INVOLVES ISSUES THAT CANNOT BE RAISED AS A DEFENSE IN
THE NORMAL COURSE OF THE PENDING STATE JUDICIAL PROCEEDINGS

18. With the utmost respect, this Court’s Opinion wholly ignores the argument in Section

II.C. of Complainants’ Brief (located at page 13) that abstention is improper because the third prong of

the Younger abstention test is not met. Complainants state: “because ‘this issue cannot be raised as a

defense in the normal course of the pending judicial proceeding, abstention would be inappropriate.’

Moore, 442 U.S. at 431 (citing Gerstein v. Pugh, 420 U.S. 103, 108 n. 9 . . . (1975).).”

19. Under Younger and its progeny, the policies of comity and federalism, which require

federal courts to maintain “a proper respect for state functions,” permit a federal court to decline to

hear a case in which: (1) a federal court is called upon to enjoin an ongoing noncriminal state judicial

proceeding; (2) the proceeding implicates vital state interests; and (3) the proceeding provides an

adequate opportunity to raise constitutional challenges. See Middlesex County Ethics Committee v.

Garden State Bar Association, 457 U.S. 423, 432 (1982).

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20. As stated by the Moore Court:

[Gerstein] involved a challenge to pretrial restraint on the basis of a prosecutor's

information alone, without the benefit of a determination of probable cause by a judicial
officer. This Court held that the District Court properly found that the action was not
barred by Younger because the injunction was not addressed to a state proceeding and
therefore would not interfere with the criminal prosecutions themselves. "The order to
hold preliminary hearings could not prejudice the conduct of the trial on the merits."
Gerstein v. Pugh, 420 U.S. 103, 108 n. 9 (1975).

Moore, 442 U.S. at 431.

21. Notably, Complainants included arguments that the City’s revocation of their

certificates of occupancy and order to cease use of the premises, without benefit of notice and a

hearing. This is an issue that “cannot be raised as a defense in the normal course of the pending

judicial proceeding.” As a result, “abstention would be inappropriate.” Moore, 442 U.S. at 431.

REQUEST FOR RELIEF

WHEREFORE, Complainants respectfully request relief as follows:

1. For entry of judgment declaring that Dallas City Code chapter 25A is an

unconstitutional violation of the United States Constitution and Texas Constitution, both facially and

as applied to Complainants;

2. For entry of preliminary and permanent injunctions against the Defendant prohibiting

the enforcement of City’s Regulation;

3. For actual damages for the violation of Complainants’ constitutional property rights

and/or nominal damages of $1 for the violation of Complainants’ constitutional rights;

4. For an award of attorneys' fees, costs, and expenses in this action pursuant to Texas and

federal law, including but not limited to 42 U.S.C. § 1988; and

5. For such further legal and equitable relief as the Court may deem just and proper.

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Respectfully submitted,

/s/ William A. Bratton, III _______________

William A. Bratton, III, Esq.
Texas Bar No. 02916300
One Quadrangle Tower
2828 Routh Street, Suite 850
Dallas, Texas 75201
(214) 871-1133
(214) 871-0620 FAX
ATTORNEY FOR COMPLAINANTS

CERTIFICATE OF FILING AND SERVICE

I certify that on April 5, 2010, I electronically filed the foregoing document with the clerk of

court for the United States District Court for the Northern District of Texas using the electronic filing

system of the Court. The electronic case filing system sent a “Notice of Electronic Filing” to all

counsel of record who have consented in writing to accept this Notice as service of this document by

electronic means.

/s/ William A. Bratton, III _______________

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