SOUTH PADRE ISLAND — An appeals court has reversed a decision against an application for an Island topless bar and remanded the case back to a lower court.
For years, attorney Larry Mark Polsky has been in pursuit of building a topless bar on the outskirts of the Island.
In early 2018, the Cameron County Commissioners Court denied Polsky’s application to build the business just north of Beach Access No. 6 on the Island. Previously, his application was denied by the Sheriff’s Department.
A memorandum opinion was filed on Thursday from the Court of Appeals 13th District of Texas.
The document states that appellant Polsky appeals from the denial of his application for a sexually oriented business (SOB) permit.
“He contends that his application should have been granted because the beach within 1,500 feet of his property is not a ‘public park’ as the term defined by appellee Cameron County’s SOB regulations,” the memorandum states. “Polsky also challenges the district court’s implied finding in the judgment that appellee Sheriff Omar Lucio was not a proper party.”
According to the memorandum, the parties dispute whether it was appropriate for the district court to review the Cameron County Commissioners Court’s decision for an abuse of discretion.
“Because we agree with Polsky that the substantial evidence rule is the correct legal standard, we reverse and remand to the district court to consider Polsky’s appeal under the appropriate standard of review,” the memorandum states.
According to county regulations, a SOB must be 1,500 feet away from any child care facility, school, dwelling, hospital, public building, place of religious worship or public park.
According to the memorandum, public parks are defined by the regulations as any tract of land dedicated for public use and accessible to the general public for recreational purposes.
The memorandum states that Polsky purchased three lots in the unincorporated area of the county on the Island.
“It is undisputed that Polsky’s property is within 1,500 feet of a public beach that crosses four privately owned lots and borders on the Gulf of Mexico,” the memorandum states.
According to the memorandum, in 2016, Polsky filed an application with Lucio to operate a topless bar on his property. The document states that Cameron County Commissioners Court held a public hearing on Polsky’s application after receiving objections from property owners and SPI city officials.
The memorandum states that based on the Commissioners Court’s findings, the public beach, which is within 1,500 feet of Polsky’s property, is a public park.
It states that the property is not owned by Cameron County, but is dedicated to public use by dedication and implication and used for recreation, swimming, fishing, sunbathing and family uses since time immemorial.
The memorandum further states that Lucio denied Polsky’s application. In response, Polsky appealed the decision to the Commissioners Court.
“After presiding over a contested evidentiary hearing between Polsky and Sheriff Lucio, the Commissioners Court upheld the denial of Polsky’s application on the same ground,” the memorandum states.
According to the memorandum, the Court of Appeals agrees with Polsky that the district court made a mistake to dismiss Lucio as an improper party.
The document states that the conclusion of the memorandum is that the judgment is reversed, and the case is remanded to the district court.