Summary
stating there is nothing “unusual” in overlap between the terms “manager” and “employee”
Summary of this case from Rabb v. StateOpinion
No. 1665-02
Delivered: October 8, 2003.
On Appellant's Petition for Discretionary Review from the First Court of Appeals Harris County.
Attorneys for Appellant: Gerald Hopkins, Langtry.
Attorneys for State: Dan McCrory, Asst. D.A., Houston.
HERVEY, J., delivered the opinion of the Court in which KELLER, PJ., MEYERS, PRICE, WOMACK, KEASLER, HOLCOMB and COCHRAN, JJ., joined. KELLER, PJ., filed a concurring opinion in which PRICE, HOLCOMB and COCHRAN, JJ., joined. JOHNSON, J., filed a concurring opinion.
OPINION
Appellant was convicted of acting as a manager of a sexually-oriented enterprise without a permit in violation of Houston, Tex., Code of Ordinances No. 97-75, § 28-253(a), ("the ordinance"). The evidence shows that appellant was the only one conducting business and operating the cash register in the enterprise when the police arrived there and discovered that appellant had no manager's permit.
Section 28-253(a) states that "[i]t shall be unlawful for any person who does not hold a permit to act as an entertainer or a manager of or in an enterprise."
Whether the enterprise was a sexually-oriented enterprise is not before the Court in this proceeding. We note that Section 28-251 of the ordinance, in relevant part, defines "enterprise" as ". . . any establishment whose primary business is the offering . . . of . . . any . . . items intended to provide sexual stimulation or sexual gratification to its customers. . . ." We also note that the evidence in this case showed that the enterprise contained an area where adult videos and magazines were sold. The enterprise also contained an adult arcade with 20 booths, each with a video monitor that showed adult and nonadult videos. The police were initially on the premises investigating whether "glory holes" in the adult arcade booths had been covered. "Glory holes" are predrilled holes in the partitions that customers use for sexual stimulation and gratification.
Appellant claimed on direct appeal (through a sufficiency of the evidence challenge) that this evidence showed that he did not fall within the definition of "manager" but that he fell within the definition of "employee" who did not need a permit under the ordinance. The Court of Appeals decided in an unpublished decision that the evidence supported a finding that appellant was acting as an "on-site manager" which was included within the definition of "manager" under the ordinance. See Taylor v. State, No. 01-01-00505-CR, slip op. at 10 (Tex.App.-Houston [1st Dist], delivered July 25, 2002) (unpublished) (evidence legally sufficient to support appellant's conviction for managing sexually-oriented business without permit because appellant conducted its business as an on-site manager by operating a cash register and delivering a service to the customers).
Appellant argues on discretionary review that the evidence shows that he "was not a manager but [an employee] as defined in the Ordinance." The Court of Appeals, however, decided that the evidence was sufficient to support a finding that appellant was acting as an "on-site manager" which was included within the definition of "manager" under the ordinance. See Taylor, slip op. at 10. Section 28-251 of the ordinance defines "on-site manager" as:
Section 28-251 of the ordinance defines "manager" as:
Any person who supervises, directs or manages any employee of an enterprise or any other person who conducts any business in an enterprise with respect to any activity conducted on the premises of the enterprise, including any `on-site manager.'
A person charged by an owner or operator of an enterprise with the responsibility for direct supervision of the operation of the enterprise and with monitoring and observing all areas of the enterprise to which customers are admitted at all times during which the enterprise is open for business or customers are on the premises of the enterprise.
Our duty is to construe this provision according to its "plain" textual meaning without resort to extratextual sources. See Boykin v. State, 818 S.W.2d 782, 785 (Tex.Cr.App. 1991); Rosenblatt v. City of Houston, 31 S.W.3d 399, 403 (Tex.App.-Corpus Christi 2000, pet. denied), cert. denied, 121 S.Ct. 2218 (2001) (statutory rules of construction also apply to construing city ordinances). We will, however, also resort to extratextual sources to construe this provision if we decide that its is ambiguous or that construing it according to its "plain" textual meaning will lead to "absurd consequences." See Jordan v. State, 36 S.W.3d 871, 873 (Tex.Cr.App. 2001). The cardinal rule is to discern and give effect to the intent of the legislative body that enacted this provision. See Boykin, 818 S.W.2d at 785; Rosenblatt, 31 S.W.3d at 403.
The evidence that appellant was the only one conducting the business of the enterprise by operating the cash register and delivering a service to the customers reasonably supports an inference that appellant had been entrusted "with the responsibility for direct supervision of the operation of the enterprise and with monitoring and observing all areas of the enterprise to which customers are admitted at all times during which the enterprise is open for business." See Lacour v. State, 8 S.W.3d 670, 671 (Tex.Cr.App. 2000) (evidentiary legal sufficiency standard meant to give full play to the factfinder's responsibility fairly to draw reasonable inferences from basic facts to ultimate facts). This brings appellant within the "plain" meaning of the definition of "on-site manager" in the ordinance. And, applying the "plain" meaning of this definition of "on-site manager" to appellant is not absurd. See Boykin, 818 S.W.2d at 785.
Appellant nevertheless claims that this renders the definition of "employee" in the ordinance meaningless, thus violating the rule of statutory construction that we must presume the legislative body intended the entire ordinance to be effective. See Tex. Gov't Code Ann., § 311.021(2) (in enacting a statute, it is presumed that the entire statute is intended to be effective). We agree that there may be some overlap between the two terms. But, there is nothing unusual or absurd for an on-site manager of an organization to also be considered an employee of the organization as well. Also, the ordinance's definition of "employee" is much broader than the definition of "on-site manager" meaning that a person can meet the definition of the former but still not meet the definition of the latter.
Section 28-251 of the ordinance defines "employee" as:
Any person who renders any service whatsoever to the customers of an enterprise, works in or about an enterprise or who conducts any business in an enterprise and who receives or has the expectation of receiving any compensation from the operator, or customers of the enterprise. By way of example, rather than limitation, the term includes the operator and other management personnel, clerks, dancers, models and other entertainers, food and beverage preparation and service personnel, door persons, bouncers, and cashiers. It is expressly intended that this definition cover not only conventional employer-employee relationships but also independent contractor relationships, agency relationships, and other scheme or system whereby the `employee' has an expectation of receiving compensation, tips, or other benefits from the enterprise or its customers in exchange for services performed.
The judgment of the Court of Appeals is affirmed.
CONCURRING OPINION
I join the Court's opinion. My understanding of the ordinance at issue, however, differs from that of the Court of Appeals. I'll explain.
The ordinance's definition of "manager" is ambiguous. The ordinance could be read to mean that a manager is one of three different kinds of employees: (1) a person who supervises, directs or manages any employee of an enterprise, (2) any other person who conducts any business in an enterprise with respect to any activity conducted on the premises of the enterprise, or (3) any on-site manager.
Or it could be read to mean that a manager is a person who supervises two different types of employees. A manager supervises, directs or manages: (1) any employee of an enterprise or (2) any other person who conducts any business in an enterprise with respect to any activity conducted on the premises of the enterprises, including any on-site manager.
Or it could be that a manager supervises two kinds of employees, and also includes an on-site manager. A manager supervises, directs or manages: (1) any employee of an enterprise or (2) any other person who conducts any business in an enterprise with respect to any activity conducted on the premises of the enterprises; "manager" includes any on-site manager.
There is at least one other construction, but it is grammatically unsound so I will assume it is not right.
I think the third construction is correct. The first makes everyone who conducts business in an enterprise a manager. Under the ordinance's definition of "conduct any business in an enterprise," that would make, for instance, the door attendant, the waitress, the cashier, and the dancer all managers at the same time.
The second construction would mean that an on-site manager is not a manager, but is one type of "any other person who conducts business in an enterprise." But the definition of "conduct any business in an enterprise" does not include "on-site manager." So "on-site manager" must stand alone.
Unlike the Court of Appeals, I would say that a manager does not include "any person who conducts any business in an enterprise" but instead includes a person who supervises, directs, or manages any person who conducts any such business.
CONCURRING OPINION
This case presents the question of whether, for want of a comma, the plain meaning was lost. Should the ordinance definition of "manager" be read as:
Houston, Tex., Code of Ordinances No. 97-75, § 28-251.
Any person who supervises, directs or manages any employee of an enterprise or any other person who conducts any business in an enterprise with respect to any activity conducted on the premises of the enterprise, including any "on-site manager."
Or is a manager:
Any person who supervises, directs or manages any employee of an enterprise[,]
OR
any other person who conducts any business in an enterprise with respect to any activity conducted on the premises of the enterprise, including any "on-site manager."
If we apply the first reading, then the position of manager is defined exclusively by that person's hierarchical relationship to others; a manager is one who "supervises, directs, or manages any employee . . . or any other person. . . ." Under that reading, an "on-site manager" is not a "manager," as a "manager" is one who supervises, directs or manages "any other person . . ., including any `on-site manager.'" Further, such a reading purports to gives the manager authority over any person who "conducts any business in an enterprise with respect to any activity conducted on the premises of the enterprise." This could include the delivery-truck driver who brings new merchandise and stocks the shelves or the vending machine.
If we apply the second reading, then a manager may be a person who supervises employees of the enterprise, OR any other person who conducts business on behalf of the enterprise. Under this reading, an "on-site manager" is a "manager." The ordinance is susceptible to two reasonable interpretations; it is therefore ambiguous.
Because the ordinance is ambiguous, we cannot rely on "plain meaning." We are free to examine the legislative history and to consider whether an particular interpretation would produce "absurd results." Jordan v. State, 36 S.W.3d 871, 873 (Tex.Crim.App. 2001). Our goal is to give effect to the wishes of the governmental body which promulgated the law or ordinance. Boykin v. State, 818 S.W.2d 782, 785 (Tex.Crim.App. 1991). We must also prefer an interpretation which gives effect to all applicable individual sections, if possible. "Statutes should be read as a whole and construed to give meaning to every part." Ex parte Crouch, 838 S.W.2d 252, 254 (Tex.Crim.App. 1992). See also Tex. Gov't Code § 311.021, "In enacting a statute, it is presumed that: . . . (2) the entire statute is intended to be effective[.]"
Cities generally want to exercise reasonable control over sexually oriented businesses. Monitoring who works in such businesses is one means of exercising such control. The City of Houston demonstrated, by requiring managers of sexually oriented businesses to obtain a permit, that it wished to know who was controlling the daily operations of such businesses. A permit process allows the entity that grants the permit to weed out applicants who may be unqualified in some way. For example, governmental bodies may require licenses for plumbers, electricians, and persons who operate daycare centers, and may examine the backgrounds of the applicants for criminal activity and preparatory training. A city may formulate similar means of verifying qualifications for a specific occupation, as Houston has done here.
Because the permit requirement indicates that the City of Houston desires to know who is controlling the daily operations of sexually oriented businesses, I would find that the second reading more nearly fulfills that goal. Also, another part of the ordinance defines "on-site manager" as:
A person charged by the owner or operator of an enterprise with the responsibility for direct supervision of the operation of the enterprise and with monitoring and observing all areas of the enterprise to which customers are admitted at all times during which the enterprise is open for business or customers are on the premises of the enterprise.
The language of this definition echoes, in different words, the second part of the ordinance in question: "any other person who conducts any business ["direct supervision of the operation of the enterprise"] in an enterprise with respect to any activity conducted on the premises of the enterprise. . . ." It also parallels the ordinary definition of "manager": "a person charged with the control or direction of an institution, business, or the like." Webster's Encyclopedic Dictionary, Gramercy Books, 1989. It does not speak of "manager" in terms of relationship to other persons, but in relationship to the business. This fits with the second reading.
Further, the second reading gives effect to both portions of the ordinance, the definition of manager and the definition of "on-site manager." If we choose the first reading, then an "on-site manager" is not a manager, that is, not a person charged with control or direction of a business. This reading renders the definition of "on-site manager" ineffectual. Our rules of statutory construction urge us to avoid such an interpretation.
Because I would find that the ordinance is ambiguous but that the proper interpretation of the ordinance dictates that the court of appeals be affirmed, I concur in the judgment of the Court.