A state appeals court has overturned its own ruling and decided “bikini latex clubs” are sexually oriented businesses that are subject to a $5-per-patron state tax.
The Houston-based 1st Texas Court of Appeals ruled Tuesday in a 21-page opinion that latex-clad dancers at such clubs are nude under state law and therefore the state can tax each patron. In so doing, it vacated its own January ruling that dismissed a lawsuit brought by Texas Comptroller Glenn Hegar.
State law requires specific body parts to be covered by “fully opaque clothing” for a club to avoid the levy on sexually oriented businesses. An association of club owners contends the owners are exempt from what has become known as the “pole tax” because their dancers wear bikini bottoms and cover their breasts in liquid latex that turns opaque when it hardens.
Hegar contends the dancers are nude because latex does not meet the law’s definition of clothing, which he said requires the use of cloth or cloth-like material.
The state is still blocked from collecting the tax by a federal judge’s ruling earlier this year that it would be unconstitutional, the Austin American-Statesman reported. The state has asked Senior U.S. District Judge David Ezra to reconsider his ruling. If he doesn’t, the state plans to appeal to the 5th U.S. Circuit Court of Appeals.