(CNN) -- The highest court in Texas has upheld a special "sin tax" imposed on "sexually oriented" businesses, which the state openly says it hopes will discourage "secondary behaviors" allegedly associated with those going to watch unclothed dancers.
The Texas Supreme Court on Friday said the $5-per-patron fee was constitutional and did not violate the free speech rights of club owners.
"The fee in this case is clearly directed not at expression in nude dancing but at the secondary effects of nude dancing when alcohol is being consumed," said Justice Nathan Hecht. "An adult entertainment business can avoid the fee altogether simply by not allowing alcohol to be consumed."
The state-imposed fee was passed by the Legislature four years ago, and was designed to deter "negative secondary effects" of nude entertainment, particularly at establishments where alcohol is served. Such "social ills" were identified by the state as rape, sexual assault, prostitution and disorderly conduct.
At issue is whether the fee amounted to a "content-based" tax -- directed at the "constitutionally protected expression in nude dancing." The state equated the fee to a zoning ordinance.
An Amarillo strip club and the Texas Entertainment Association -- a trade group for the exotic dancing industry -- had sued the state. Chandra Brown, owner of Players nightclub in the western part of the state, argued the statutory fee was in reality a tax, a distinction the state court concluded really made no difference.
Brown had testified the fee unfairly and directly targeted her dancers, and that the added cost of the fee would drive away customers, who must also pay a $4 cover charge.
The state justices rejected that argument.
"The $5 fee is a minimal restriction on the businesses, so small that (the clubs) argue it is ineffective. And the business that seeks to avoid the fee need only offer nude entertainment without allowing alcohol to be consumed," Hecht wrote.
Officials estimate there are 169 strip clubs and bars statewide.
The state said most of the money from the patron fee would go to help sexual assault victims and provide health benefits for low-income residents. Distribution of that money had been held up pending resolution of the case.
"Today's decision is a victory for the State of Texas and, more importantly, victims of sexual assault," said Jerry Strickland, spokesman for the Texas Attorney General. "The Texas Supreme Court confirmed what we've said all along: the sexually oriented business fee is constitutional."
The club owners have the option of taking their case to the U.S. Supreme Court.
"We're disappointed in the results," said Stewart Whitehead, an attorney for the Texas Entertainment Association, over their loss. "We are now trying to assess our options."
