A memorandum opinion issued on the Larry Mark Polsky’s case to build a sexually oriented business (SOB) north of Beach Access No. 6 on the Island has been remanded to the district court.
(Photo credit: Taken by author) What happened: A memorandum opinion (decision of the court and the basic reasons for it) from the Court of Appeals released as of the 24th of September 2020 on local attorney, Larry Mark Polsky’s, case to build a sexually oriented business (SOB) north of Beach Access No. 6 on the Island has been remanded to the district court. Why it matters: According to the memorandum opinion, in 2016, Polsky applied to Sheriff Lucio for permission to build a topless bar on his property and appealed his previous denial from the Commissioners Court. Sheriff Lucio denied the application. The issue is whether the property owned by Larry Mark Polsky is within 1,500 feet of a 'public park' as the term is defined by Cameron County's SOB regulations. In the memorandum opinion Justice Perkes wrote, “The Cameron County Commissioners Court held a public hearing on Polsky's application after receiving objections from property owners and City of South Padre Island officials.” The findings of this hearing by the Commissioners Court was, “Mr. Polsky’s property is a public park.” Polsky contended, as noted in the opinion that, "His application should have been granted because the public beach within 1,500 feet of his property is not a 'public park,' and requested judicial review in district court on the grounds that the Commissioners Court abused its discretion. The memorandum from the Court of Appeals expresses the meaning of abuse of discretion as not following the appropriate system. "The…District Court should review the Commissioners Court's findings for an 'abuse of discretion.'” That means that the Commissioner’s Court must have acted arbitrarily, without guiding principles, or that they otherwise violated the law or a regulation. What now: The memorandum states that the court "should have reviewed the evidentiary record to determine if substantial evidence supported the Commissioners Court's finding that the public beach within 1,500 feet of Polsky's property is a ‘public park’ as that term is defined by the County's SOB regulations. Polsky argued that the substantial evidence rule (evidence that is of ponderable legal significance and it must be substantial proof of the essentials that the law requires in a particular case) is the proper standard. Under these circumstances Justice Perkes stated, "When a reviewing court applies the wrong legal standard, the judgment should be reserved." The court's judgment has since been remanded to the district court for considerations under the correct legal standard. Click here to view the memorandum Click here to view KVEO's video news report from 2018.