Preview
Filed 10 August6 A11:57
Loren J ackson - District Clerk
Harri c
ED101) 015899724
By: Wanda Chambers
NO. 2007-29734
HEREWEAREGAIN, INC. d/b/a JN THE DISTRICT COURT OF
THE PENTHOUSE CLUB ffk/a
CALIGULA XXI
Plaintiff,
VS. HARRIS COUNTY, TEXAS
CITY OF HOUSTON 15157 JUDICIAL DISTRICT
Defendant.
THE CITY OF HOUSTON IN THE DISTRICT COURT OF
VS.
VINCENT CABELLA, AND THE HARRIS COUNTY, TEXAS
PREMISES LOCATED AT 2618
WINROCK BLVD., HOUSTON,
HARRIS COUNTY, TEXAS, KNOWN
AS THE PENTHOUSE CLUB 1518? JUDICIAL DISTRICT
MOTION FOR CONTEMPT AND TO SHOW CAUSE FOR VIOLATION OF
PERMANENT INJUNCTION
The City of Houston (“the City”), movant, Counter Plaintiff and Third Party Plaintiff in
the above referenced action, files this motion in order to obtain enforcement of a permanent
injunction issued by the Court in this proceeding. The respondents, Herewearagain, Inc.,
Vincent Cabella, and the Premises located at 2618 Winrock Blvd., Houston, Harris County,
Texas known as the Penthouse Club, (hereinafter referred to as "the Premises”), were the
Counter Defendant and Third Party Defendants in this cause and may be served at their place of
business, 2618 Winrock Blvd., Houston, Harris County.
I, The Permanent Injunction
On December 31, 2008, this Court signed, rendered and caused to be entered a Final
Judgment which, among other relief, granted a permanent injunction as follows:
ORDERED, ADJUDGED AND DECREED that Hereweareagain,
Inc., Vincent Cabella and the Premises and their respective agents,
employees, representatives and all persons acting in concert with
any one or more of them be and hereby at; permanently enjoined
and commanded to desist and refrain from operating or allowing to
operate any enterprise at the Premises, as the term “enterprise” is
defined in Section 28-121 of the Code of Ordinances of the City of
Houston.
(A true and correct copy of this Final Judgment is attached to this motion as Exhibit A and is
incorporated herein by reference.) The term “enterprise” in Section 28-121 of the Code of
Ordinances of the City of Houston means:
An adult bookstore, adult cabaret, adult encounter parlor, adult
lounge, adult modeling studio, adult movie theatre or any
establishment whose primary business is the offering of a service
or the selling, renting or exhibiting of services or any other items
intended to provide sexual stimulation or sexual gratification to its
customers, and which is distinguished by or characterized by an
emphasis on matter depicting, describing or relating to specified
sexual activities or specified anatomical areas.
Sections 28-121 and 28-251. (A true and correct copy of Sections 28-121 through 28-259 of the
Code of Ordinances of the City of Houston is attached to this motion as Exhibit B and is
incorporated herein by reference.) “Specified anatomical areas” are defined in Sections 28-121
and 28-251 as
a) Less than completely and opaquely covered:
a. Human genitals, pubic region or pubic hair; or
b Buttock; or
Female breast or breasts or any portion thereof that
is situated below a point immediately above the top
of the areola; or
d Any combination of the foregoing; or,
2) Human male genitals in a discernibly erect state, even if
completely and opaquely covered.
Id. “Specified sexual activities” are defined in Sections 28-121 and 28-251 as
(1) Human genitals in a discernible state of sexual stimulation
or arousal; or
2) Acts of human masturbation, sexual intercourse or sodomy;
or
(3) Fondling or other erotic touching of human genitals, pubic
region or pubic hair, buttock or female breast or breasts; or
(4) Any combination of the foregoing.
Id, Section 28-121.
Any of the foregoing conduct in the presence of a customer is defined as “entertainment.”
Jd, Sections 28-121 and 28-251. Any employee of an enterprise who performs or engages in
entertainment is defined as an “entertainer.” Jd, Section 28-251. An employee is defined as any
person who provides any services to the customers on an enterprise. /d., Section 28-251.
The Final Judgment included a declaration that the premises are not eligible for a permit
to operate an enterprise, as that term is defined in Section 28-121 of the Houston Code of
Ordinances. The location is not eligible for an enterprise permit because it does not satisfy the
locational requirements found in Section 28-125(b)(1), (2), and (3) of the Houston Code of
Ordinances. Specifically, the premises are within 1500 feet of two churches, one school and are
in an area that is more than 75% residential. The City of Houston can require an enterprise,
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whether a topless club or any other sexually oriented business, to be located away from
churches, schools and residential areas because of the well documented negative effects of
sexually oriented businesses. These include psychological damage to children, increased rates of
crime, danger to public health and lower property values. For these reasons, the foregoing
provisions of the Houston Code of Ordinances have been upheld against constitutional
challenge.
Respondents Herewearagain, Inc., Vincent Cabella, and the Premises were fully aware of
the permanent injunction contained in the final judgment of this Court, and of its specific terms,
because they unsuccessfully sought relief from the final judgment in a motion for new trial filed
on January 9, 2009. A true and correct copy of the Final Judgment was attached to their motion
for new trial as Exhibit F. The City requests that the Court take judicial notice of the contents of
its own file, as permitted by Rule 201 of the Texas Rules of Evidence.
Il. Respondents Have Violated The Permanent Injunction
Officers of the Houston Police Department have conducted two undercover visits to The
Penthouse Club. On both occasions, the managers and entertainers violated the permanent
injunction contained in the December 31, 2008 Final Judgment.
A. The December 2009 Investigation
On December 2, 2009, undercover officers of the Houston Police Department visited The
Penthouse Club between approximately 10:00 p.m. and 11:00 p.m. The officers observed the
following:
“Suspect No. 1”
“Suspect No. 1” asked an undercover officer if he would like to go to a more private area
in the Penthouse Club. After walking to a dark area nearby, “Suspect No. 1” performed two
dances for the officer. “Suspect No. 1” then agreed to engage in prostitution.
“Suspect No. 2”
While an undercover officer was seated on an elevated portion of the Penthouse Club,
just north of the main stage, “Suspect No. 2” displayed specified anatomical areas, specifically
definition (1)(b), and engaged in specified sexual activities, specifically definition (3). This
entertainment was intended to provide sexual stimulation or sexual gratification to the customer.
In addition, “Suspect No. 2” acted as an entertainer without an entertainer’s permit, in violation
of Section 28-253 of the Houston Code of Ordinances. “Suspect No. 2” also violated Section
28-258(a) by touching a customer and the clothing of a customer while engaging in
entertainment, exposing specified anatomical areas, and engaging in specified sexual activities.
“Suspect No. 2” also violated Section 28-258(b) by engaging in entertainment, exposing
specified anatomical areas, and engaging in specified sexual activities while closer than three
feet to the customer.
“Suspect No. 3”
“Suspect No. 3” escorted an undercover officer to a “VIP” area, a separate area within
the Penthouse Club to which entry or access is blocked or obscured by barriers separating entry
to such area from other areas of the Penthouse Club. There, she engaged in “entertainment” by
displaying specified anatomical areas, specifically definition (1)(b), and specified sexual
activities, specifically definition (3). This entertainment was intended to provide sexual
stimulation or sexual gratification to the customer. “Suspect No. 3” escorted a different
undercover officer to a “VIP” room, where she engaged in specified sexual activities,
specifically definition (3). This entertainment was intended to provide sexual stimulation or
sexual gratification to the customer. On both occasions, “Suspect No. 3” acted as an entertainer
without an entertainer’s permit, in violation of Section 28-253 of the Houston Code of
Ordinances. “Suspect No. 3” also violated Section 28-258(a) by touching a customer and the
clothing of a customer while engaging in entertainment, exposing specified anatomical areas,
and engaging in specified sexual activities. “Suspect No. 3” also violated Section 28-258(b) by
engaging in entertainment, exposing specified anatomical areas, and engaging in specified sexual
activities while closer than three feet to the customer. “Suspect No. 3” also violated Section 28-
258(c) by engaging in entertainment, exposing specified anatomical areas, and engaging in
specified sexual activities in the “VIP” room. “Suspect No, 3” also agreed to engage in
prostitution.
“Suspect No. 4”
“Suspect No. 4” invited an undercover officer to a “VIP” area for what she promised to
be a “special dance.” There, she also displayed specified anatomical areas, specifically
definition (1)(b), and specified sexual activities, specifically definition (3). This entertainment
was intended to provide sexual stimulation or sexual gratification to the customer. “Suspect No.
4” escorted a different undercover officer to a “VIP” room, where she engaged in specified
sexual activities, specifically definition (3). This entertainment was intended to provide sexual
stimulation or sexual gratification to the customer. On both occasions, “Suspect No. 4” acted as
an entertainer without an entertainer’s permit, in violation of Section 28-253 of the Houston
Code of Ordinances. “Suspect No. 4” also violated Section 28-258(a) by engaging in
entertainment, exposing specified anatomical areas, and engaging in specified sexual activities.
“Suspect No. 4” also violated Section 28-258(b) by engaging in entertainment, exposing
specified anatomical areas, and engaging in specified sexual activities while closer than three
feet to the customer. “Suspect No. 4” also violated Section 28-258(c) by engaging in
entertainment, exposing specified anatomical areas, and engaging in specified sexual activities in
the “VIP” room.
“Suspect No, 5”
“Suspect No. 5” took an undercover officer to a booth in a lounge area behind the bar of
the Penthouse Club. “Suspect No. 5” engaged in specified sexual activities, specifically
definition (3). This entertainment was intended to provide sexual stimulation or sexual
gratification to the customer. In addition, “Suspect No. 5” acted as an entertainer without an
entertainer’s permit, in violation of Section 28-253 of the Houston Code of Ordinances.
“Suspect No. 5” also violated Section 28-258(a) by touching a customer and the clothing of a
customer while engaging in entertainment and engaging in specified sexual activities. “Suspect
No. 5” also violated Section 28-258(b) by engaging in entertainment and engaging in specified
sexual activities while closer than three feet to the customer. “Suspect No. 5” also agreed to
engage in prostitution.
“Suspect No. 6”
While the undercover officer was seated in the common area of the Penthouse Club next
to the main stage, “Suspect No. 6” engaged in specified sexual activities, specifically definition
(3). This entertainment was intended to provide sexual stimulation or sexual gratification to the
customer. In addition, “Suspect No. 6” acted as an entertainer without an entertainer’s permit, in
violation of Section 28-253 of the Houston Code of Ordinances. “Suspect No. 6” also violated
Section 28-258(a) by touching a customer and the clothing of a customer while engaging in
entertainment and engaging in specified sexual activities. “Suspect No. 6” also violated Section
28-258(b) by engaging in entertainment and engaging in specified sexual activities while closer
than three feet to the customer.
“Suspect No. 7”
While on the main stage of the Penthouse Club, “Suspect No. 7” engaged in
“entertainment” by displaying specified anatomical areas, specifically definition (1)(b), and
specified sexual activities, specifically definition (3). This entertainment was intended to
provide sexual stimulation or sexual gratification to the customer. “Suspect No. 7” then moved
to a smaller stage, where she again engaged in “entertainment” by displaying specified
anatomical areas, specifically definition (1)(b), and specified sexual activities, specifically
definition (3). This entertainment was intended to provide sexual stimulation or sexual
gratification to the customer. On both occasions, “Suspect No. 7” acted as an entertainer without
an entertainer’s permit, in violation of Section 28-253 of the Houston Code of Ordinances.
“Suspect No. 7” also violated Section 28-258(a) by touching a customer and the clothing of a
customer while engaging in entertainment, exposing specified anatomical areas, and engaging in
specified sexual activities. “Suspect No. 7” also violated Section 28-258(b) by engaging in
entertainment, exposing specified anatomical areas, and engaging in specified sexual activities
while closer than three feet to the customer.
“Suspect No. 8”
While the foregoing activity occurred in The Penthouse Club, “Suspect No. 8” was acting
as the manager. “Suspect No. 8” violated Section 28-122(a) by operating an enterprise without
an enterprise permit.
B. The February 2010 Investigation
On February 27, 2010, undercover officers of the Houston Police Department visited The
Penthouse Club between approximately 10:30 p.m. and 12:30 am. The officers observed the
following:
“Suspect No. 2”
“Suspect No. 2” escorted an undercover officer to the “champagne room”, a separate area
within the Penthouse Club to which entry or access is blocked or obscured by barriers separating
entry to such area from other areas of the Penthouse Club. There, she engaged in
“entertainment” by displaying specified anatomical areas, specifically definition (1)(a), and
specified sexual activities, specifically definitions (2), (3) and (4). This entertainment was
intended to provide sexual stimulation or sexual gratification to the customer. “Suspect No, 2”
acted as an entertainer without an entertainer’s permit, in violation of Section 28-253 of the
Houston Code of Ordinances. “Suspect No. 2” also violated Section 28-258(a) by touching a
customer and the clothing of a customer while engaging in entertainment, exposing specified
anatomical areas, and engaging in specified sexual activities. “Suspect No. 2” also violated
Section 28-258(b) by engaging in entertainment, exposing specified anatomical areas, and
engaging in specified sexual activities while closer than three fect to the customer. “Suspect No.
2” also violated Section 28-258(c) by engaging in entertainment, exposing specified anatomical
areas, and engaging in specified sexual activities in the “champagne room.” “Suspect No. 2”
also agreed to engage in prostitution.
“Suspect No. 5”
While on the main stage of the Penthouse Club, “Suspect No. 5” engaged in
“entertainment” by displaying specified anatomical areas, specifically definition (1)(a) and (c),
and specified sexual activities, specifically definition (3). This entertainment was intended to
provide sexual stimulation or sexual gratification to the customer. “Suspect No. 5” acted as an
entertainer without an entertainer’s permit, in violation of Section 28-253 of the Houston Code
of Ordinances. “Suspect No. 5” also violated Section 28-258(a) by touching a customer and the
clothing of a customer while engaging in entertainment, exposing specified anatomical areas,
and engaging in specified sexual activities. “Suspect No. 5” also violated Section 28-258(b) by
engaging in entertainment, exposing specified anatomical areas, and engaging in specified sexual
activities while closer than three feet to the customer.
“Suspect No. 6”
“Suspect No. 6” invited an undercover officer to a room for what she promised to be a
“table dance.” There, she engaged in specified sexual activities, specifically definition (3). This
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entertainment was intended to provide sexual stimulation or sexual gratification to the customer.
“Suspect No. 6” acted as an entertainer without an entertainer’s permit, in violation of Section
28-253 of the Houston Code of Ordinances. “Suspect No. 6” also violated Section 28-258(a) by
touching a customer and the clothing of a customer while engaging in entertainment and
engaging in specified sexual activities. “Suspect No. 6” also violated Section 28-258(b) by
engaging in entertainment and engaging in specified sexual activities while closer than three feet
to the customer. “Suspect No. 6" also agreed to engage in prostitution.
“Suspect No, 7”
While on the main stage of the Penthouse Club, “Suspect No. 7” engaged in
“entertainment” by displaying specified anatomical areas, specifically definition (1c), and
specified sexual activities, specifically definition (3). This entertainment was intended to
provide sexual stimulation or sexual gratification to the customer. “Suspect No. 7” took an
undercover officer to a booth in a lounge area behind the bar of the Penthouse Club. “Suspect
No. 7” again displayed specified anatomical areas and engaged in specified sexual activities.
This entertainment was intended to provide sexual stimulation or sexual gratification to the
customer. On both occasions, “Suspect No. 7” acted as an entertainer without an entertainer’s
permit, in violation of Section 28-253 of the Houston Code of Ordinances. “Suspect No. 7” also
violated Section 28-258(a) by touching customers and the clothing of customers while engaging
in entertainment, exposing specified anatomical areas, and engaging in specified sexual
activities. “Suspect No. 7” also violated Section 28-258(b) by engaging in entertainment,
exposing specified anatomical areas, and engaging in specified sexual activities while closer than
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three feet to customers.
“Suspect Lana”
“Suspect Lana” invited an undercover officer to a “champagne room” for what she
promised to be a “special dance.” “Suspect Lana” agreed to engage in prostitution.
“Suspect No. 1”
While the foregoing activity occurred in The Penthouse Club, “Suspect No. 1” was acting
as the manager. “Suspect No. 1” violated Section 28-122(a) by operating an enterprise without
an enterprise permit.
C. The July 2016 Investigation
On July 22, 2010, undercover officers of the Houston Police Department visited The
Penthouse Club between midnight and 2:00 a.m. The officers observed most of the entertainers
displaying specified anatomical areas and engaging in specified sexual activities, and touching
the customers. The customers in the Penthouse Club on that occasion were primarily viewing
the live entertainment and interacting with the entertainers, and were not watching the television
screens or only eating at the buffet. In particular, the officers observed the following:
“Suspect No. 1”
While an undercover officer was seated in an area where personal “table dances” were
performed, “Suspect No. 1” displayed specified anatomical areas, specifically definitions (1)(b)
and (c), and engaged in specified sexual activities, specifically definition (3). This entertainment
was intended to provide sexual stimulation or sexual gratification to the customer. In addition,
“Suspect No. 1” acted as an entertainer without an entertainer’s permit, in violation of Section
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28-253 of the Houston Code of Ordinances. “Suspect No. 1” also violated Section 28-258(a) by
touching a customer and the clothing of a customer while engaging in entertainment, exposing
specified anatomical areas, and engaging in specified sexual activities. “Suspect No. 1” also
violated Section 28-258(b) by engaging in entertainment, exposing specified anatomical areas,
and engaging in specified sexual activities while closer than three feet to the customer.
“Suspect No. 2”
“Suspect No. 2” escorted an undercover officer to an area where personal “table dances”
were performed. There, she engaged in “entertainment” by displaying specified anatomical
areas, specifically definition (1)(b), and specified sexual activities, specifically definition (3).
This entertainment was intended to provide sexual stimulation or sexual gratification to the
customer. “Suspect No. 2” acted as an entertainer without an entertainer’s permit, in violation of
Section 28-253 of the Houston Code of Ordinances. “Suspect No. 2” also violated Section 28-
258(a) by touching a customer and the clothing of a customer while engaging in entertainment,
exposing specified anatomical areas, and engaging in specified sexual activities. “Suspect No.
2” also violated Section 28-258(b) by engaging in entertainment, exposing specified anatomical
areas, and engaging in specified sexual activities while closer than three feet to the customer.
“Suspect No. 2” also violated Section 28-258(c) by engaging in entertainment, exposing
specified anatomical areas, and engaging in specified sexual activities in the “VIP” room.
“Suspect No. 3”
While the undercover officer was seated in an area of the Penthouse Club where personal
“table dances” were performed, “Suspect No. 3” displayed specified anatomical areas,
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specifically definition (1)(c). This entertainment was intended to provide sexual stimulation or
sexual gratification to the customer. In addition, “Suspect No. 3” acted as an entertainer without
an entertainer’s permit, in violation of Section 28-253 of the Houston Code of Ordinances.
“Suspect No. 3” also violated Section 28-258(a) by touching a customer and the clothing of a
customer while engaging in entertainment and engaging in specified sexual activities. “Suspect
No. 6” also violated Section 28-258(b) by engaging in entertainment and engaging in specified
sexual activities while closer than three feet to the customer. “Suspect No. 3” also agreed to
engage in prostitution.
“Suspect No. 4”
“Suspect No. 4” invited an undercover officer to an area where personal “table dances”
were performed. There, she also displayed specified anatomical areas, specifically definition
(1)(c), and engaged in specified sexual activities, specifically definition (3). This entertainment
was intended to provide sexual stimulation or sexual gratification to the customer. “Suspect No.
4” acted as an entertainer without an entertainer’s permit, in violation of Section 28-253 of the
Houston Code of Ordinances. “Suspect No. 4” also violated Section 28-258(a) by touching a
customer and the clothing of a customer while engaging in entertainment, exposing specified
anatomical areas, and engaging in specified sexual activities. “Suspect No. 4” also violated
Section 28-258(b) by engaging in entertainment, exposing specified anatomical areas, and
engaging in specified sexual activities while closer than three feet to the customer.
i4
Ill. Contemptuous Nature Of Respondents’ Acts
The City of Houston would show that the foregoing conduct constituted “entertainment”
as that term is defined in Section 28-121 of the Houston Code of Ordinances. Respondents
Hereweareagain, Inc., Vincent Cabella, and the Premises are operating an “enterprise” as defined
in Section 28-121 of the Houston Code of Ordinances. This conduct is specifically prohibited by
the permanent injunction contained in this Court’s December 31, 2008 Final Judgment. The
quantity of illegal activity documented by the Houston Police Department on only two
undercover visits to the Penthouse Club, all within the view of club management, demonstrates
the willful nature of the respondents’ violation of the permanent injunction. Respondents are
therefore in contempt of this Court.
TV. Contempt Of Court
A court may punish for contempt of its orders. Tex. Gov’t Code § 21.002(a). The
punishment for contempt of a court order, including the foregoing permanent injunction, is a fine
of not more than $500, confinement in the county jail for not more than six months, or both such
a fine and a confinement in jail Tex. Gov’t Code § 21.002(b). The City therefore moves and
prays that respondent Hereweareagain, Inc. be assessed a fine of $500 for the violation of the
permanent injunction on December 3, 2009. The City further moves and prays that any
individual agent, employee, representative, or other person acting in concert with
Hereweareagain, Inc., Vincent Cabella, and/or the Premises in connection with the violation of
the permanent injunction on December 3, 2009, be assessed a fine of $500 and sentenced to
confinement in the county jail for six months.
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The City further moves and prays that respondents should be ordered to appear and show
cause why they are not in continued and ongoing violation of the permanent injunction. Upon
hearing and a finding that they are in civil contempt of court, the City moves and prays that the
Court exercise its inherent power to compel respondents, and their respective agents, employees,
representatives and all persons acting in concert with anyone or more of them, to obey the
permanent injunction. This inherent power can include confinement of any individuals until
they comply with the permanent injunction. Tex. Gov’t Code § 21.002(e).
Because of the nature of the business of the Penthouse Club, it should not be necessary to
conduct undercover investigations in order to obtain evidence of whether or not the permanent
injunction is being violated. Under these special circumstances, where evidence of compliance
is within the contro! of respondents and their respective agents, employees, representatives and
all persons acting in concert with anyone or more of them, the City respectfully requests that
compliance with the permanent injunction will only be effectively obtained if the Court exercises
it inherent power and appoints a receiver to take control of the Penthouse Club so that it is
operated in a manner that does not violate the permanent injunction.
WHEREFORE, PREMISES CONSIDERED, movant City of Houston requests that the
Court order Hereweareagain, Inc., Vincent Cabella, and the Premises to appear at a time and
place to be set by the Court, and that, on hearing, the Court find that they should be held in
contempt of court and punished accordingly. Movant further requests that the Court exercise its
inherent power to order Hereweareagain, Inc., Vincent Cabella, and the Premises to be further
confined in the Harris County jail by order of the Court until the Court is satisfied that The
16
Penthouse Club will no longer be operated as an enterprise, as that term is defined in Section 28-
121 of the Houston Code of Ordinances.
Respectfully submitted,
DAVID M. FELDMAN
City Attorney
LYNETTE K. FONS
First Assistant City Attorney for Litigation
DONNA L. EDMUNDSON
Chief Neighborhood Services
By:_
Patrick Zumi
A
State Bar No. 293450
3900 Essex Lane, Suite 800
Houston, Texas 77027
(713) 651-0590 TEL.
(713) 651-0597 FAX
Nirja S. Aiyer
Sr. Assistant City Attorney I
State Bar No. 00795048
900 Bagby, 3" Floor
Houston, Texas 77002
(832) 393-6283 TEL.
(832) 393-6259 FAX
ATTORNEYS FOR
CITY OF HOUSTON
17
Certificate of Service
Thereby certify that on August 6, 2010, a true and correct copy of the foregoing was sent
to the following counsel via facsimile, hand delivery and/or certified mail, return receipt
requested.
Ronald A. Monshaugen
Albert T. Van Huff
Monshaugen & Van Huff, P.C.
1225 North Loop West, Suite 640
Houston, Texas 77008
(713) 880-2992
(713) 880-5297 (Fax)
Patrick Zu 10
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(8/3/2010) Scott Boyce - Verification of Charles Simon.doc _ Page 1
Verification
STATE OF TEXAS §
&
COUNTY OF HARRIS §
Before me, the undersigned notary public, on this day personally appeared Charles
Simon, who being by me duly sworn on his oath deposed and said that he is an officer of the
Houston Police Department, that he was responsible for reporting the facts concerning the
investigation that are the subject of the foregoing motion, that he has read the foregoing motion
for contempt, and that the factual statements describing the investigations in December 2009,
A
Charles Simon
rm
SWORN AND SUBSCRIBED TO BEFORE ME on the day of
~\
AVG UST » 2010,
Af
ATH - etn
Notary Public in and for
The State of Texas
Dewitt Terry Satter, IT
NOTARY PUBLIC
STATE oF TEXAS
MY COMI ISSION EXPIRES
1028/2013
Preview
Filed 10 August6 A11:57 Loren J ackson - District Clerk Harri c ED101) 015899724 By: Wanda Chambers NO. 2007-29734 HEREWEAREGAIN, INC. d/b/a JN THE DISTRICT COURT OF THE PENTHOUSE CLUB ffk/a CALIGULA XXI Plaintiff, VS. HARRIS COUNTY, TEXAS CITY OF HOUSTON 15157 JUDICIAL DISTRICT Defendant. THE CITY OF HOUSTON IN THE DISTRICT COURT OF VS. VINCENT CABELLA, AND THE HARRIS COUNTY, TEXAS PREMISES LOCATED AT 2618 WINROCK BLVD., HOUSTON, HARRIS COUNTY, TEXAS, KNOWN AS THE PENTHOUSE CLUB 1518? JUDICIAL DISTRICT MOTION FOR CONTEMPT AND TO SHOW CAUSE FOR VIOLATION OF PERMANENT INJUNCTION The City of Houston (“the City”), movant, Counter Plaintiff and Third Party Plaintiff in the above referenced action, files this motion in order to obtain enforcement of a permanent injunction issued by the Court in this proceeding. The respondents, Herewearagain, Inc., Vincent Cabella, and the Premises located at 2618 Winrock Blvd., Houston, Harris County, Texas known as the Penthouse Club, (hereinafter referred to as "the Premises”), were the Counter Defendant and Third Party Defendants in this cause and may be served at their place of business, 2618 Winrock Blvd., Houston, Harris County. I, The Permanent Injunction On December 31, 2008, this Court signed, rendered and caused to be entered a Final Judgment which, among other relief, granted a permanent injunction as follows: ORDERED, ADJUDGED AND DECREED that Hereweareagain, Inc., Vincent Cabella and the Premises and their respective agents, employees, representatives and all persons acting in concert with any one or more of them be and hereby at; permanently enjoined and commanded to desist and refrain from operating or allowing to operate any enterprise at the Premises, as the term “enterprise” is defined in Section 28-121 of the Code of Ordinances of the City of Houston. (A true and correct copy of this Final Judgment is attached to this motion as Exhibit A and is incorporated herein by reference.) The term “enterprise” in Section 28-121 of the Code of Ordinances of the City of Houston means: An adult bookstore, adult cabaret, adult encounter parlor, adult lounge, adult modeling studio, adult movie theatre or any establishment whose primary business is the offering of a service or the selling, renting or exhibiting of services or any other items intended to provide sexual stimulation or sexual gratification to its customers, and which is distinguished by or characterized by an emphasis on matter depicting, describing or relating to specified sexual activities or specified anatomical areas. Sections 28-121 and 28-251. (A true and correct copy of Sections 28-121 through 28-259 of the Code of Ordinances of the City of Houston is attached to this motion as Exhibit B and is incorporated herein by reference.) “Specified anatomical areas” are defined in Sections 28-121 and 28-251 as a) Less than completely and opaquely covered: a. Human genitals, pubic region or pubic hair; or b Buttock; or Female breast or breasts or any portion thereof that is situated below a point immediately above the top of the areola; or d Any combination of the foregoing; or, 2) Human male genitals in a discernibly erect state, even if completely and opaquely covered. Id. “Specified sexual activities” are defined in Sections 28-121 and 28-251 as (1) Human genitals in a discernible state of sexual stimulation or arousal; or 2) Acts of human masturbation, sexual intercourse or sodomy; or (3) Fondling or other erotic touching of human genitals, pubic region or pubic hair, buttock or female breast or breasts; or (4) Any combination of the foregoing. Id, Section 28-121. Any of the foregoing conduct in the presence of a customer is defined as “entertainment.” Jd, Sections 28-121 and 28-251. Any employee of an enterprise who performs or engages in entertainment is defined as an “entertainer.” Jd, Section 28-251. An employee is defined as any person who provides any services to the customers on an enterprise. /d., Section 28-251. The Final Judgment included a declaration that the premises are not eligible for a permit to operate an enterprise, as that term is defined in Section 28-121 of the Houston Code of Ordinances. The location is not eligible for an enterprise permit because it does not satisfy the locational requirements found in Section 28-125(b)(1), (2), and (3) of the Houston Code of Ordinances. Specifically, the premises are within 1500 feet of two churches, one school and are in an area that is more than 75% residential. The City of Houston can require an enterprise, 3 whether a topless club or any other sexually oriented business, to be located away from churches, schools and residential areas because of the well documented negative effects of sexually oriented businesses. These include psychological damage to children, increased rates of crime, danger to public health and lower property values. For these reasons, the foregoing provisions of the Houston Code of Ordinances have been upheld against constitutional challenge. Respondents Herewearagain, Inc., Vincent Cabella, and the Premises were fully aware of the permanent injunction contained in the final judgment of this Court, and of its specific terms, because they unsuccessfully sought relief from the final judgment in a motion for new trial filed on January 9, 2009. A true and correct copy of the Final Judgment was attached to their motion for new trial as Exhibit F. The City requests that the Court take judicial notice of the contents of its own file, as permitted by Rule 201 of the Texas Rules of Evidence. Il. Respondents Have Violated The Permanent Injunction Officers of the Houston Police Department have conducted two undercover visits to The Penthouse Club. On both occasions, the managers and entertainers violated the permanent injunction contained in the December 31, 2008 Final Judgment. A. The December 2009 Investigation On December 2, 2009, undercover officers of the Houston Police Department visited The Penthouse Club between approximately 10:00 p.m. and 11:00 p.m. The officers observed the following: “Suspect No. 1” “Suspect No. 1” asked an undercover officer if he would like to go to a more private area in the Penthouse Club. After walking to a dark area nearby, “Suspect No. 1” performed two dances for the officer. “Suspect No. 1” then agreed to engage in prostitution. “Suspect No. 2” While an undercover officer was seated on an elevated portion of the Penthouse Club, just north of the main stage, “Suspect No. 2” displayed specified anatomical areas, specifically definition (1)(b), and engaged in specified sexual activities, specifically definition (3). This entertainment was intended to provide sexual stimulation or sexual gratification to the customer. In addition, “Suspect No. 2” acted as an entertainer without an entertainer’s permit, in violation of Section 28-253 of the Houston Code of Ordinances. “Suspect No. 2” also violated Section 28-258(a) by touching a customer and the clothing of a customer while engaging in entertainment, exposing specified anatomical areas, and engaging in specified sexual activities. “Suspect No. 2” also violated Section 28-258(b) by engaging in entertainment, exposing specified anatomical areas, and engaging in specified sexual activities while closer than three feet to the customer. “Suspect No. 3” “Suspect No. 3” escorted an undercover officer to a “VIP” area, a separate area within the Penthouse Club to which entry or access is blocked or obscured by barriers separating entry to such area from other areas of the Penthouse Club. There, she engaged in “entertainment” by displaying specified anatomical areas, specifically definition (1)(b), and specified sexual activities, specifically definition (3). This entertainment was intended to provide sexual stimulation or sexual gratification to the customer. “Suspect No. 3” escorted a different undercover officer to a “VIP” room, where she engaged in specified sexual activities, specifically definition (3). This entertainment was intended to provide sexual stimulation or sexual gratification to the customer. On both occasions, “Suspect No. 3” acted as an entertainer without an entertainer’s permit, in violation of Section 28-253 of the Houston Code of Ordinances. “Suspect No. 3” also violated Section 28-258(a) by touching a customer and the clothing of a customer while engaging in entertainment, exposing specified anatomical areas, and engaging in specified sexual activities. “Suspect No. 3” also violated Section 28-258(b) by engaging in entertainment, exposing specified anatomical areas, and engaging in specified sexual activities while closer than three feet to the customer. “Suspect No. 3” also violated Section 28- 258(c) by engaging in entertainment, exposing specified anatomical areas, and engaging in specified sexual activities in the “VIP” room. “Suspect No, 3” also agreed to engage in prostitution. “Suspect No. 4” “Suspect No. 4” invited an undercover officer to a “VIP” area for what she promised to be a “special dance.” There, she also displayed specified anatomical areas, specifically definition (1)(b), and specified sexual activities, specifically definition (3). This entertainment was intended to provide sexual stimulation or sexual gratification to the customer. “Suspect No. 4” escorted a different undercover officer to a “VIP” room, where she engaged in specified sexual activities, specifically definition (3). This entertainment was intended to provide sexual stimulation or sexual gratification to the customer. On both occasions, “Suspect No. 4” acted as an entertainer without an entertainer’s permit, in violation of Section 28-253 of the Houston Code of Ordinances. “Suspect No. 4” also violated Section 28-258(a) by engaging in entertainment, exposing specified anatomical areas, and engaging in specified sexual activities. “Suspect No. 4” also violated Section 28-258(b) by engaging in entertainment, exposing specified anatomical areas, and engaging in specified sexual activities while closer than three feet to the customer. “Suspect No. 4” also violated Section 28-258(c) by engaging in entertainment, exposing specified anatomical areas, and engaging in specified sexual activities in the “VIP” room. “Suspect No, 5” “Suspect No. 5” took an undercover officer to a booth in a lounge area behind the bar of the Penthouse Club. “Suspect No. 5” engaged in specified sexual activities, specifically definition (3). This entertainment was intended to provide sexual stimulation or sexual gratification to the customer. In addition, “Suspect No. 5” acted as an entertainer without an entertainer’s permit, in violation of Section 28-253 of the Houston Code of Ordinances. “Suspect No. 5” also violated Section 28-258(a) by touching a customer and the clothing of a customer while engaging in entertainment and engaging in specified sexual activities. “Suspect No. 5” also violated Section 28-258(b) by engaging in entertainment and engaging in specified sexual activities while closer than three feet to the customer. “Suspect No. 5” also agreed to engage in prostitution. “Suspect No. 6” While the undercover officer was seated in the common area of the Penthouse Club next to the main stage, “Suspect No. 6” engaged in specified sexual activities, specifically definition (3). This entertainment was intended to provide sexual stimulation or sexual gratification to the customer. In addition, “Suspect No. 6” acted as an entertainer without an entertainer’s permit, in violation of Section 28-253 of the Houston Code of Ordinances. “Suspect No. 6” also violated Section 28-258(a) by touching a customer and the clothing of a customer while engaging in entertainment and engaging in specified sexual activities. “Suspect No. 6” also violated Section 28-258(b) by engaging in entertainment and engaging in specified sexual activities while closer than three feet to the customer. “Suspect No. 7” While on the main stage of the Penthouse Club, “Suspect No. 7” engaged in “entertainment” by displaying specified anatomical areas, specifically definition (1)(b), and specified sexual activities, specifically definition (3). This entertainment was intended to provide sexual stimulation or sexual gratification to the customer. “Suspect No. 7” then moved to a smaller stage, where she again engaged in “entertainment” by displaying specified anatomical areas, specifically definition (1)(b), and specified sexual activities, specifically definition (3). This entertainment was intended to provide sexual stimulation or sexual gratification to the customer. On both occasions, “Suspect No. 7” acted as an entertainer without an entertainer’s permit, in violation of Section 28-253 of the Houston Code of Ordinances. “Suspect No. 7” also violated Section 28-258(a) by touching a customer and the clothing of a customer while engaging in entertainment, exposing specified anatomical areas, and engaging in specified sexual activities. “Suspect No. 7” also violated Section 28-258(b) by engaging in entertainment, exposing specified anatomical areas, and engaging in specified sexual activities while closer than three feet to the customer. “Suspect No. 8” While the foregoing activity occurred in The Penthouse Club, “Suspect No. 8” was acting as the manager. “Suspect No. 8” violated Section 28-122(a) by operating an enterprise without an enterprise permit. B. The February 2010 Investigation On February 27, 2010, undercover officers of the Houston Police Department visited The Penthouse Club between approximately 10:30 p.m. and 12:30 am. The officers observed the following: “Suspect No. 2” “Suspect No. 2” escorted an undercover officer to the “champagne room”, a separate area within the Penthouse Club to which entry or access is blocked or obscured by barriers separating entry to such area from other areas of the Penthouse Club. There, she engaged in “entertainment” by displaying specified anatomical areas, specifically definition (1)(a), and specified sexual activities, specifically definitions (2), (3) and (4). This entertainment was intended to provide sexual stimulation or sexual gratification to the customer. “Suspect No, 2” acted as an entertainer without an entertainer’s permit, in violation of Section 28-253 of the Houston Code of Ordinances. “Suspect No. 2” also violated Section 28-258(a) by touching a customer and the clothing of a customer while engaging in entertainment, exposing specified anatomical areas, and engaging in specified sexual activities. “Suspect No. 2” also violated Section 28-258(b) by engaging in entertainment, exposing specified anatomical areas, and engaging in specified sexual activities while closer than three fect to the customer. “Suspect No. 2” also violated Section 28-258(c) by engaging in entertainment, exposing specified anatomical areas, and engaging in specified sexual activities in the “champagne room.” “Suspect No. 2” also agreed to engage in prostitution. “Suspect No. 5” While on the main stage of the Penthouse Club, “Suspect No. 5” engaged in “entertainment” by displaying specified anatomical areas, specifically definition (1)(a) and (c), and specified sexual activities, specifically definition (3). This entertainment was intended to provide sexual stimulation or sexual gratification to the customer. “Suspect No. 5” acted as an entertainer without an entertainer’s permit, in violation of Section 28-253 of the Houston Code of Ordinances. “Suspect No. 5” also violated Section 28-258(a) by touching a customer and the clothing of a customer while engaging in entertainment, exposing specified anatomical areas, and engaging in specified sexual activities. “Suspect No. 5” also violated Section 28-258(b) by engaging in entertainment, exposing specified anatomical areas, and engaging in specified sexual activities while closer than three feet to the customer. “Suspect No. 6” “Suspect No. 6” invited an undercover officer to a room for what she promised to be a “table dance.” There, she engaged in specified sexual activities, specifically definition (3). This 10 entertainment was intended to provide sexual stimulation or sexual gratification to the customer. “Suspect No. 6” acted as an entertainer without an entertainer’s permit, in violation of Section 28-253 of the Houston Code of Ordinances. “Suspect No. 6” also violated Section 28-258(a) by touching a customer and the clothing of a customer while engaging in entertainment and engaging in specified sexual activities. “Suspect No. 6” also violated Section 28-258(b) by engaging in entertainment and engaging in specified sexual activities while closer than three feet to the customer. “Suspect No. 6" also agreed to engage in prostitution. “Suspect No, 7” While on the main stage of the Penthouse Club, “Suspect No. 7” engaged in “entertainment” by displaying specified anatomical areas, specifically definition (1c), and specified sexual activities, specifically definition (3). This entertainment was intended to provide sexual stimulation or sexual gratification to the customer. “Suspect No. 7” took an undercover officer to a booth in a lounge area behind the bar of the Penthouse Club. “Suspect No. 7” again displayed specified anatomical areas and engaged in specified sexual activities. This entertainment was intended to provide sexual stimulation or sexual gratification to the customer. On both occasions, “Suspect No. 7” acted as an entertainer without an entertainer’s permit, in violation of Section 28-253 of the Houston Code of Ordinances. “Suspect No. 7” also violated Section 28-258(a) by touching customers and the clothing of customers while engaging in entertainment, exposing specified anatomical areas, and engaging in specified sexual activities. “Suspect No. 7” also violated Section 28-258(b) by engaging in entertainment, exposing specified anatomical areas, and engaging in specified sexual activities while closer than 11 three feet to customers. “Suspect Lana” “Suspect Lana” invited an undercover officer to a “champagne room” for what she promised to be a “special dance.” “Suspect Lana” agreed to engage in prostitution. “Suspect No. 1” While the foregoing activity occurred in The Penthouse Club, “Suspect No. 1” was acting as the manager. “Suspect No. 1” violated Section 28-122(a) by operating an enterprise without an enterprise permit. C. The July 2016 Investigation On July 22, 2010, undercover officers of the Houston Police Department visited The Penthouse Club between midnight and 2:00 a.m. The officers observed most of the entertainers displaying specified anatomical areas and engaging in specified sexual activities, and touching the customers. The customers in the Penthouse Club on that occasion were primarily viewing the live entertainment and interacting with the entertainers, and were not watching the television screens or only eating at the buffet. In particular, the officers observed the following: “Suspect No. 1” While an undercover officer was seated in an area where personal “table dances” were performed, “Suspect No. 1” displayed specified anatomical areas, specifically definitions (1)(b) and (c), and engaged in specified sexual activities, specifically definition (3). This entertainment was intended to provide sexual stimulation or sexual gratification to the customer. In addition, “Suspect No. 1” acted as an entertainer without an entertainer’s permit, in violation of Section 12 28-253 of the Houston Code of Ordinances. “Suspect No. 1” also violated Section 28-258(a) by touching a customer and the clothing of a customer while engaging in entertainment, exposing specified anatomical areas, and engaging in specified sexual activities. “Suspect No. 1” also violated Section 28-258(b) by engaging in entertainment, exposing specified anatomical areas, and engaging in specified sexual activities while closer than three feet to the customer. “Suspect No. 2” “Suspect No. 2” escorted an undercover officer to an area where personal “table dances” were performed. There, she engaged in “entertainment” by displaying specified anatomical areas, specifically definition (1)(b), and specified sexual activities, specifically definition (3). This entertainment was intended to provide sexual stimulation or sexual gratification to the customer. “Suspect No. 2” acted as an entertainer without an entertainer’s permit, in violation of Section 28-253 of the Houston Code of Ordinances. “Suspect No. 2” also violated Section 28- 258(a) by touching a customer and the clothing of a customer while engaging in entertainment, exposing specified anatomical areas, and engaging in specified sexual activities. “Suspect No. 2” also violated Section 28-258(b) by engaging in entertainment, exposing specified anatomical areas, and engaging in specified sexual activities while closer than three feet to the customer. “Suspect No. 2” also violated Section 28-258(c) by engaging in entertainment, exposing specified anatomical areas, and engaging in specified sexual activities in the “VIP” room. “Suspect No. 3” While the undercover officer was seated in an area of the Penthouse Club where personal “table dances” were performed, “Suspect No. 3” displayed specified anatomical areas, 13 specifically definition (1)(c). This entertainment was intended to provide sexual stimulation or sexual gratification to the customer. In addition, “Suspect No. 3” acted as an entertainer without an entertainer’s permit, in violation of Section 28-253 of the Houston Code of Ordinances. “Suspect No. 3” also violated Section 28-258(a) by touching a customer and the clothing of a customer while engaging in entertainment and engaging in specified sexual activities. “Suspect No. 6” also violated Section 28-258(b) by engaging in entertainment and engaging in specified sexual activities while closer than three feet to the customer. “Suspect No. 3” also agreed to engage in prostitution. “Suspect No. 4” “Suspect No. 4” invited an undercover officer to an area where personal “table dances” were performed. There, she also displayed specified anatomical areas, specifically definition (1)(c), and engaged in specified sexual activities, specifically definition (3). This entertainment was intended to provide sexual stimulation or sexual gratification to the customer. “Suspect No. 4” acted as an entertainer without an entertainer’s permit, in violation of Section 28-253 of the Houston Code of Ordinances. “Suspect No. 4” also violated Section 28-258(a) by touching a customer and the clothing of a customer while engaging in entertainment, exposing specified anatomical areas, and engaging in specified sexual activities. “Suspect No. 4” also violated Section 28-258(b) by engaging in entertainment, exposing specified anatomical areas, and engaging in specified sexual activities while closer than three feet to the customer. i4 Ill. Contemptuous Nature Of Respondents’ Acts The City of Houston would show that the foregoing conduct constituted “entertainment” as that term is defined in Section 28-121 of the Houston Code of Ordinances. Respondents Hereweareagain, Inc., Vincent Cabella, and the Premises are operating an “enterprise” as defined in Section 28-121 of the Houston Code of Ordinances. This conduct is specifically prohibited by the permanent injunction contained in this Court’s December 31, 2008 Final Judgment. The quantity of illegal activity documented by the Houston Police Department on only two undercover visits to the Penthouse Club, all within the view of club management, demonstrates the willful nature of the respondents’ violation of the permanent injunction. Respondents are therefore in contempt of this Court. TV. Contempt Of Court A court may punish for contempt of its orders. Tex. Gov’t Code § 21.002(a). The punishment for contempt of a court order, including the foregoing permanent injunction, is a fine of not more than $500, confinement in the county jail for not more than six months, or both such a fine and a confinement in jail Tex. Gov’t Code § 21.002(b). The City therefore moves and prays that respondent Hereweareagain, Inc. be assessed a fine of $500 for the violation of the permanent injunction on December 3, 2009. The City further moves and prays that any individual agent, employee, representative, or other person acting in concert with Hereweareagain, Inc., Vincent Cabella, and/or the Premises in connection with the violation of the permanent injunction on December 3, 2009, be assessed a fine of $500 and sentenced to confinement in the county jail for six months. 15 The City further moves and prays that respondents should be ordered to appear and show cause why they are not in continued and ongoing violation of the permanent injunction. Upon hearing and a finding that they are in civil contempt of court, the City moves and prays that the Court exercise its inherent power to compel respondents, and their respective agents, employees, representatives and all persons acting in concert with anyone or more of them, to obey the permanent injunction. This inherent power can include confinement of any individuals until they comply with the permanent injunction. Tex. Gov’t Code § 21.002(e). Because of the nature of the business of the Penthouse Club, it should not be necessary to conduct undercover investigations in order to obtain evidence of whether or not the permanent injunction is being violated. Under these special circumstances, where evidence of compliance is within the contro! of respondents and their respective agents, employees, representatives and all persons acting in concert with anyone or more of them, the City respectfully requests that compliance with the permanent injunction will only be effectively obtained if the Court exercises it inherent power and appoints a receiver to take control of the Penthouse Club so that it is operated in a manner that does not violate the permanent injunction. WHEREFORE, PREMISES CONSIDERED, movant City of Houston requests that the Court order Hereweareagain, Inc., Vincent Cabella, and the Premises to appear at a time and place to be set by the Court, and that, on hearing, the Court find that they should be held in contempt of court and punished accordingly. Movant further requests that the Court exercise its inherent power to order Hereweareagain, Inc., Vincent Cabella, and the Premises to be further confined in the Harris County jail by order of the Court until the Court is satisfied that The 16 Penthouse Club will no longer be operated as an enterprise, as that term is defined in Section 28- 121 of the Houston Code of Ordinances. Respectfully submitted, DAVID M. FELDMAN City Attorney LYNETTE K. FONS First Assistant City Attorney for Litigation DONNA L. EDMUNDSON Chief Neighborhood Services By:_ Patrick Zumi A State Bar No. 293450 3900 Essex Lane, Suite 800 Houston, Texas 77027 (713) 651-0590 TEL. (713) 651-0597 FAX Nirja S. Aiyer Sr. Assistant City Attorney I State Bar No. 00795048 900 Bagby, 3" Floor Houston, Texas 77002 (832) 393-6283 TEL. (832) 393-6259 FAX ATTORNEYS FOR CITY OF HOUSTON 17 Certificate of Service Thereby certify that on August 6, 2010, a true and correct copy of the foregoing was sent to the following counsel via facsimile, hand delivery and/or certified mail, return receipt requested. Ronald A. Monshaugen Albert T. Van Huff Monshaugen & Van Huff, P.C. 1225 North Loop West, Suite 640 Houston, Texas 77008 (713) 880-2992 (713) 880-5297 (Fax) Patrick Zu 10 18 (8/3/2010) Scott Boyce - Verification of Charles Simon.doc _ Page 1 Verification STATE OF TEXAS § & COUNTY OF HARRIS § Before me, the undersigned notary public, on this day personally appeared Charles Simon, who being by me duly sworn on his oath deposed and said that he is an officer of the Houston Police Department, that he was responsible for reporting the facts concerning the investigation that are the subject of the foregoing motion, that he has read the foregoing motion for contempt, and that the factual statements describing the investigations in December 2009, A Charles Simon rm SWORN AND SUBSCRIBED TO BEFORE ME on the day of ~\ AVG UST » 2010, Af ATH - etn Notary Public in and for The State of Texas Dewitt Terry Satter, IT NOTARY PUBLIC STATE oF TEXAS MY COMI ISSION EXPIRES 1028/2013