Attorney threatens class-action lawsuit if topless bar appeal denied

BROWNSVILLE — During a rare evidentiary hearing in Cameron County Commissioners Court on Monday, attorney Larry Mark Polsky threatened to file a class-action takings lawsuit if commissioners didn’t reverse the denial of his application for a topless bar just north of Beach Access 6 on South Padre Island.

The evidentiary hearing is regarding Cameron County Sheriff Omar Lucio’s decision to deny Polsky’s application for a sexually oriented business because he failed to notify all of the adjacent landowners of his intentions and because the Cameron County Commissioners Court found that the public beach is basically a public park. No sexually oriented businesses are allowed within 1,500 feet of a public park in Cameron County.

The more than two-hour-long meeting was new ground for commissioners as the court was still trying to determine Monday what legal authority it had regarding subpoenas Polsky issued. Witnesses stood at the lectern in the courtroom at the Dancy Building while commissioners Sofia C. Benavides, David A. Garza, Alex Dominguez and Judge Eddie Treviño Jr. listened to testimony and accepted evidence while ruling on objections. Commissioner Gus Ruiz was absent.

During the hearing, Polsky called himself to the stand to lay out his case, but left the hearing when commissioners went into executive session and did not return.

During the hearing, Polsky argued that he neglected to notify one person but that through word of mouth, all the property owners were notified in time for a public hearing required for his application for the topless bar. He also challenged Cameron County Commissioners Court declaration that the public beach is a public park because the court made that ruling after he filed his application.

“I want to point out to each and every one of you, when I applied on June 3, 2017, for my sexually oriented business license there was no finding by Cameron County Commissioners that the beach, within 1,500 feet of Larry Mark Polsky’s property, is a public park,” Polsky told commissioners. “In other words, you created a fiction after I applied that didn’t exist before I applied. You created a public park within 1,500 feet of my property to squash my application.”

Cameron County Chief Legal Counsel Juan Gonzalez said that determination was made for the purposes of sexually oriented businesses only.

Cameron County Appraisal District Chief Administrator Richard Molina, who was subpoenaed by Polsky, testified that property owners in that area do pay property taxes and that there are no deed documents specifying that those property owners turned their titles over to the county for the purposes of creating a public park.

Gonzalez, citing case law, said the courts have found that public beaches are used for activities like fishing, swimming and camping and that Commissioners Court has legislative discretion to call it a public park in connection to regulations governing sexually oriented businesses.

“The suggestion that we’ve taken Mr. Polsky’s property is inaccurate,” Gonzalez said.

While testifying, Polsky said that if they don’t let him build his topless bar he is going to file a class-action lawsuit claiming that the county has taken away property from private ownership because it declared a public beach to be a public park.

“If you win you lose,” Polsky said. “If you grant me my license you win because you are stuck with one topless bar, one and one alone, and no takings case.”

Garza said he considered that assertion a threat, which, if he were a judge, would disturb him.

“I was not threatening you,” Polsky said. “I told you I already have the lawsuit on my desk. It’s not a threat. I’m telling you that you are being sued.”

Gonzalez said after the hearing that he believes Polsky won’t meet the threshold for the number of people needed to file a class-action lawsuit and that he can’t represent himself in such a case because he would be one of the plaintiffs.

After a brief hearing in executive session, and with Polsky nowhere to be found, Treviño ordered both parties to submit findings and recommendations by Jan. 18 and then commissioners will take his appeal up and make a ruling during a regular meeting.

Gonzalez told Treviño he would make sure that information was passed on to Polsky, who said he expects his appeal to be denied and when that happens, he’ll file an appeal with a state District Court.