X

Thank you for sharing!

Your article was successfully shared with the contacts you provided.
Click here for the full text of this decision The city 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. FACTS: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 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. 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 The court of appeals decided in an unpublished decision that the evidence supported a finding that appellant was acting as an “on-site manager” which was included within the definition of “manager” under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. HOLDING:Affirmed. Section 28-251 of the ordinance defines “on-site manager” as: “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.” 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.” Lacour v. State, 8 S.W.3d 670 (Tex.Cr.App. 2000). 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. Appellant nevertheless claims that this renders the definition of “employee” in the ordinance meaningless, thus violating the rule of statutory construction that the court must presume the legislative body intended the entire ordinance to be effective. The court agrees 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. OPINION:Hervey, J.; Keller, PJ., Meyers, Price, Womack, Keasler, Holcomb and Cochran, JJ., join. CONCURRENCE:Keller, P.J.; Price, Holcomb and Cochran, JJ., join. “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.” CONCURRENCE:Johnson, J. “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: “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.’ . . . “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.”

Want to continue reading?
Become a Free ALM Digital Reader.

Benefits of a Digital Membership:

  • Free access to 1 article* every 30 days
  • Access to the entire ALM network of websites
  • Unlimited access to the ALM suite of newsletters
  • Build custom alerts on any search topic of your choosing
  • Search by a wide range of topics

*May exclude premium content
Already have an account?

 
 

ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2021 ALM Media Properties, LLC. All Rights Reserved.