By Amy Monsivais
Assistant County Attorney in El Paso County
A while ago, our elected County Attorney, Jo Anne Bernal, received a complaint about several bars that were operating as strip clubs without the required Sexually Oriented Business city permits. There were also allegations of narcotics sales and use, money laundering by a street gang with links to a cartel, and prostitution, and there had been many calls to law enforcement, causing a drain on resources. Neighbors who lived near the bars were concerned and did not feel safe.
In addition to bars like this, there may be a local hotel where law enforcement responds to drug-overdosed people in the parking lot, aggravated assaults, shootings, prostitution, human trafficking, and the like. Maybe your county has a venue for “raves” with underage drinking and fights from Thursday to Sunday, or “after hours” clubs that are open after 2 a.m. and operate as a “BYOB” business. Perhaps you are aware of a massage parlor in a strip mall, where all of the windows are covered so no one can see inside, and the women who work there don’t ever appear to leave and speak little or no English. It seems like the only customers are men, and the business is always open.
Any of this sound familiar? These businesses are often a blight, and although there may be all sorts of problems coming out of these places and many offenders are arrested, these businesses remain open for more criminal conduct. Some are criminal enterprises that should be shut down. Others can be salvaged and can even become partners with law enforcement with a little work and willingness—and the power of civil enforcement. If you have had the chance to read past articles published in this journal about the wonders of Chapter 125 of the Civil Practice and Remedies Code (CPRC) or you’ve filed such a case yourself, then you know civil enforcement is a powerful tool.
Most prosecutors want to hold the “bad guy” responsible for his offenses, and that is not a bad perspective when prosecuting criminal cases, but using civil tools to fight crime may require a shift in perspective. Using civil tools, the goal is not always to go after a single person because the result can be more global, making a direct impact on the community. Determining the best way that criminal activity can be stopped at a property is not a punishment-driven analysis. Even when lawsuits are filed against a business owner or property, the goal focuses on the outcome, not the amount collected in fines.
Overview of CPRC Chapter 125
The CPRC allows prosecutors from the Attorney General’s Office; a city, county, or district attorney’s office; and individuals,[1] to file for injunctive relief on businesses with habitual criminal activity. Not just any activity works for this petition. The 28 relevant criminal acts are listed in §125.0015, and they basically cover crimes related to vices (drugs, gambling, and strip clubs), gangs (engaging in organized criminal activity, graffiti, etc.) and violence (murder, aggravated assault, trafficking, etc.).
One of the great things about the CPRC is that it can be used against the business owners and managers, property owner, business in rem, and property in rem. The beauty of suing a property or business in rem is that court orders apply to the physical property or business; a judgment may order the place where the nuisance exists shut down for one year.[2] This civil process is generally used to get a temporary injunction (TI), with a hearing set in 14 days. If the State shows that prosecutors are likely to succeed on the merits of the case at a permanent injunction (to be set within 90 days of the temporary injunction hearing), the judge will grant the TI.
Once the TI is granted, the court may allow the business to re-open under conditions of a bond (in the amount of $5,000–$10,000). The conditions, known as “reasonable restrictions,” are business- or property-specific and are meant to stop or reduce criminal activity at a place. If the business is an illicit operation, it is not likely to survive the conditions of the bond.[3] If the conditions are violated, a suit on bond or civil contempt can be pursued, and if the State shows a violation of those conditions, the judge can shut down the business for a year (the maximum time period allowed by law).[4]
This is how to abate a “common nuisance” as described by the CPRC. Actions can also be taken against properties that are a “public nuisance,” which involve gang-related criminal activity.[5] The list of criminal activity for a common and public nuisance overlaps, so prosecutors have options when deciding how to apply the code.[6]
A lawsuit may not be necessary
If the property appears to be a legitimate business, the best practice may be to meet with owners and discuss what remedies may stop the activity. Motels and hotels fall into this category more often than not, partly because the remedy can be tricky. Some motels serve as a residence for people with low or fixed incomes or who suffer from mental illness, and closing down such a motel could make these residents homeless. The code allows for a receivership, and if that option is available in your situation, a receivership is one course of action.[7] A receiver is a person or entity that the court may appoint for up to one year that manages a business as necessary to abate the nuisance. It may collect rent, make repairs, purchase materials, renew contracts, and exercise all authority an owner of the property would have, except for selling the property. However, a receiver may prove difficult to find.
Instead, we have had success meeting with motel owners and asking that they apply the following suggestions:
• require valid picture ID to register and retain a photocopy
• do not rent rooms at hourly or very low rates
• make it clear that only registered guests are allowed in the motel or hotel rooms
• anyone visiting a registered guest must check in with the front desk and provide a valid ID that is photocopied and retained
• warn that unregistered persons are considered trespassers, and call the police to enforce trespassing
• issue parking passes to registered guests, and tow any cars parked in the lot without the pass
• evict occupants who are engaging in criminal activity
• install security cameras and allow law enforcement to view recordings upon request
• install LED lights for common areas
The feedback from law enforcement and owners after implementing these suggestions has been positive, and, so far, hotels have abated criminal activity without a lawsuit.
Other actions
The drawback of the TI is that the business may still be open and operate for at least 14 days pending the TI hearing. But there is another powerful option: the temporary restraining order (TRO). Like a TI, a TRO allows for a hearing ex parte (but check your local rules).[8] Procedurally, after the ex parte hearing, when citations issue and are served, the business is shut down immediately until the TI hearing. In practice, at least in El Paso, soon after the petitions are served, we get phone calls from defendants or attorneys wanting to know what they can do to re-open and/or avoid litigation. We use TROs against bars under the authority of Chapter 101 of the Alcoholic Beverages Code (TABC) and against illicit spas under Chapter 455 of the Occupations Code (OCC).[9] Doing so moves things along quite nicely.
Just like a TI, should the business want to re-open after a TRO, we have lists of reasonable restrictions that must be met before it can, and the business must post a bond whose amount can be negotiated. We are sure to tell defense attorneys that these are the same conditions we would ask the court to impose should we go to a TI hearing. Reasonable restrictions we’ve negotiated after obtaining a TRO in the past against a bar include:
• requiring all staff to complete and pass the TABC seller and server certification class, and producing the certificate upon law enforcement’s request
• hiring security guards or a security company licensed and bonded under Chapter 1702 of the Texas Occupations Code for peak hours or days
• installing and identifying the location of security cameras, preserving recordings for at least 30 days, and allowing law enforcement access to view them
• having a door counter and not exceeding the room’s occupancy limit
• notifying customers engaged in assault that they are considered trespassers on the property and are not allowed back again
• purchasing a decibel reader and placing it at the nearest public entrance for employees and law enforcement to monitor, and agreeing to maintain inside noise levels that comply with the city’s noise ordinance
• not allowing patrons to wear known gang or 1% insignia (usually worn as a diamond patch by members of outlaw motorcycle gangs and referencing outlaw status) inside the bar
When faced with a TRO, bars have agreed to reasonable restrictions, or in the alternative, to totally shut down. For example, a licensed bar in downtown El Paso had 450-plus calls for law enforcement service in less than three years. Forty-four of the calls involved minors, and emergency services were called out at least six times. These cases showed a pattern of serving alcohol to minors (promotions on social media for 18-and-over “college night” provided helpful evidence as such) and over-serving (proof of other promotions for $2 and $3 shots were also helpful). After the bar was shut down with a TRO, the owners wanted to meet and discuss what they could do to re-open. The above list of reasonable restrictions was discussed, along with allowing only patrons 21 and over inside the bar. This did not fit with their business model, so they decided to close instead and agreed to do so without a hearing.
Similar results have been achieved through agreed judgments or default judgments without a contested hearing. The examples above reflect restrictions for businesses where we obtained a TRO first. The threshold of these lawsuits is reactive rather than proactive, so a place where there is obvious habitual criminal activity and lots of arrests and convictions make it easier to prove up the elements for injunctive action.
Illicit massage businesses
But what about the places where crimes committed on their premises do not generate numerous calls for service, as they do in a bad bar? I am talking about illicit spas, where a vulnerable population is exploited. An illicit massage business (IMB), like the one described at the beginning of this article, is often populated with women from small rural towns in China and Korea. The women in IMBs are victims of labor trafficking (at the least), often working off huge debts for long hours and living at the business like indentured servants. The women can make more money if they sell their bodies (or they are forced to), so IMBs are really storefront brothels where the workers are bought for sex.[10]
The crimes happening in IMBs are not usually reported to law enforcement; there is not gang violence or shots fired at these businesses. Instead, there are sexual assaults and commercial sex acts from which others profit. If prosecutors are lucky, local law enforcement can make cases for prostitution; let’s also hope cases from IMBs are not limited to arresting the women for prostitution, but also includes looking farther up the chain for a promotion of prostitution charge.[11] Even if you have ample law enforcement to investigate criminal charges, to make an impact, the business must go. For an injunctive action, the law requires habitual violations[12]—does that mean prosecutors need three undercover cases for prostitution? Four?
Luckily, the CPRC gives prosecutors other options when it comes to IMBs. Section 125.0015 (18) lists “massage therapy or other massage services in violation of Chapter 455” of the Occupations Code (OCC) as a nuisance crime. There are all sorts of requirements in the Occupations Code that message therapists and establishments must follow, and the OCC has its own injunctive relief.[13] These mundane requirements are pretty easy to check, such as:
• the business’s license and licenses of all therapists with photographs attached must be displayed,
• the human trafficking poster from the Texas Department of Licensing and Regulation (TDLR) must be posted,
• client initial consultation documents must be kept, and
• therapists cannot wear clothes designed to arouse or gratify the sexual desire of an individual, to name a few.[14]
The OCC says any licensed peace officer can conduct an inspection of a business holding itself out as a massage establishment. Massage businesses expect these inspections, and such inspections are a great tool to gather evidence and identify the women in an IMB.
A typical investigation
In El Paso, we first identify an IMB, often by indicators such as totally blocked windows, stock posters with photos of a rolled-up white towel next to a candle or stones on a woman’s back, and a neon “open” sign. Once we find a suspected place, we check sites that advertise IMBs, such as RubMaps or Craigslist, to see if the business provides sexual services. Next, our investigator surveils the place, watching lights turning on and doors opening without anyone going in, which is evidence of people living there, and seeing only men go inside for 30 to 45 minutes at a time. We research licensing information from the TDLR website to see if the business is licensed as a massage parlor. Soon after, our investigator and a TDLR inspector will conduct a routine inspection, keeping an eye out for administrative violations and evidence of trafficking. They take pictures of any violations and of the women inside. There may be one person with a license who will explain that the other women at the spa are just “cleaning” or “visiting.” Of course, from our previous surveillance and research, we know the women work there and do not leave, but they lie about it because they are unlicensed and know they cannot admit to working. Finally, once the women are identified and we verify they do not have licenses, we enlist local law enforcement to make an undercover purchase of—a massage!
If the goal is to make criminal cases (for labor trafficking, money laundering, promotion of prostitution, etc.), then of course prosecutors need something other than a deal for a massage with an unlicensed therapist, but for civil enforcement, this is enough. Habitual administrative OCC violations get prosecutors to a lawsuit. Advertisements from Craigslist or websites known to offer “erotic” services (often with pictures of a young Asian woman in a bikini) are suspicious for a legitimate massage establishment, right? Does a legitimate therapist need to be “beautiful and sweet?” These ads, combined with evidence noted above (all male customers, the women do not leave, etc.), paint a clear picture of what occurs in that IMB.
After at least three “deals” for a massage from an unlicensed therapist, we initiate an application for a TRO, TI, and permanent injunction pursuant to both the CPRC and the OCC. So far, once we’ve initiated a lawsuit, the IMBs agree to not operate, associate, advertise, promote, own, or have a financial or managerial interest in a massage establishment for one year (the statutory limit) from the date of the order, or open or work in another establishment with the same business name or any variation of that name.
Let’s not forget landlords who turn a blind eye to such illicit businesses while also reaching out their hands to accept rent. Jurisdictions have different ways of dealing with landlords, from suing them right off the bat to ignoring them. We recently won a default judgment against an out-of-town landlord who allowed a second IMB to open after one was already shut down via lawsuit and who failed to respond to our office once it was brought to his attention (again). He ignored the lawsuit, and the court awarded a default judgment of $10,000 and a one-year closure of the space.
Conclusion
Texas has all sorts of codes and resources on the books that regulate businesses and how they should operate in our communities. Many civil codes have both injunctive and criminal remedies included. For example, the OCC’s regulations on the many professions it regulates often include injunctive relief in addition to outlining criminal conduct that can be filed by most prosecutors. Avail yourself of the sources of jurisdiction and creative avenues, like those mentioned here, in your fight against nuisance properties and blight in your neighborhoods. I’m sure there are prosecutors reading this now who have used Texas law in a clever way to meet the need of their communities. When an officer or someone from the community says, “Someone needs to shut that place down!” you may be just the person to do it.
Endnotes
[1] Tex. Civ. Prac. and Rem. Code §125.002(b) allows a suit to be brought in the name of an individual if that individual is a private citizen.
[2] See Tex. Civ. Prac. and Rem. Code §§125.002(b) and (e).
[3] Of course, this overview only scratches the surface of Tex. Civ. Prac. and Rem. Code Chapter 125, as there are elements that must be proved, procedures to follow, and more.
[4] Tex. Civ. Prac. and Rem. Code §§125.002(e), and 125.003(a).
[5] See Tex. Civ. Prac. and Rem. Code, Chapter 125, Subchapter D.
[6] This article focuses on applying the common nuisance statute.
[7] Tex. Civ. Prac. and Rem. Code §125.046.
[8] For instance, the El Paso Council of Judges requires applicants for TROs to state in the petition if the opposing party is represented by counsel (if known), and if so, the name of counsel and whether counsel was apprised of the application for ex parte relief.
[9] Jurisdiction under TABC does not include city or municipal attorneys.
[10] There is much more to unpack when it comes to issues at an illicit spa—there are week-long trainings on this subject. Think about how many massage parlors and nail salons are in your town and the people who work there. Do you see them out in the community? If you do not, where are they, do you think?
[11] Even so, consider whether it is right to arrest a manager. Often the managers of IMBs are women who started as victims and were “promoted” to the front. If you were paying off debts with sex, would you take the opportunity to work at the front instead? Again—there are entire workshops that exist on this issue.
[12] Tex. Civ. Prac. and Rem. Code §125.0015 (a).
[13] Tex. Occ. Code §455.351.
[14] Tex. Occ. Code §§455.204(a), (b) and (b-1), 455.207(a), 455.202(c)(1) and (b)(5).