N W Enterprises Inc v. The City of Houston ( 2003 )

United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT November 25, 2003
_______________________
Charles R. Fulbruge III
No. 98-20255 Clerk
_______________________
N.W. ENTERPRISES INCORPORATED; AMETHYST ENTERPRISES INC;
CAMPUS INVESTMENTS INCORPORATED; 1431 WEST 18TH, INC.,
Plaintiffs - Appellees,
FTU INC.; DAJO INC.; ICE EMBASSY INC.;
TEXAS RICHMOND CORPORATION; ANDREA STAFFORD; FRANK I. KENT;
NAOMI L. PARRISH; ANN MARIE HASSELBACH; JEANNE L GRIGSBY;
SUSAN BOYLE; DANA LYNN THOMAS; KIMBERLY ANN DUSHMAN;
MICHELLE HADLEY; COLLEEN CLOER; LEAH MARIE WILSON;
CARLA K. EATON; CHERYL THOMPSON; ROBERT G. FUREY; HFR
ENTERPRISES, INC.; ANDREA HILL; GINA OLIVER; HEATHER WELDIN;
CHARISMA BARRY; DONNA SOTO; ANDREA ALLBRIGHT MARCO; AHD HOUSTON
INC., a Texas Corporation d/b/a Centerfolds; DNW HOUSTON, INC;
PARABAR CO, doing business as Paradise Club;
JANE DOE ONE, Applicants; JANE DOE TWO, Applicants;
DEE & DEE ENTERPRISES, INC.; 9924 I-45 NORTH, INC.;
HI-HOUSTON, INC.; CHARLES WESLEY, INC.; CHIL SOUNG, INC.,
doing business as BJ's 24 Hour Newsstand; DARIS, INC., doing
business as Riveria Cabaret; GNCD, INC., doing business as
Fantasy South; RUDE DOG II, INC., doing business as Scores
Cabaret; LONE STARR MULTI THEATRES, INC., doing business as
Cinema West; AVW, INC., doing business as Adult Video Megaplexxx;
CLMS, INC., doing business as 24 Hour Video & News; C-SNAP, INC.,
doing business as Interludes; EAST BAY, INC., doing business as
East Tex 24 Hour News & Video, doing business as Hempstead Adult
Bookstore, none, doing business as XTC Cabaret Center; TNT
SERVICES, INC., doing business as Xcalibur; 9834 JENSEN, INC.,
doing business as Harlem Knights; 8503 NORTH FREEWAY, INC.,
doing business as Fantasy Cabaret; CORPORATE CLUBS OF TEXAS,
INC., doing business as Fantasia I XTC; US CLUBS, INC.,
doing business as Fantasia III XTC; XTC CABARET, INC., doing
business as XTC; DHL INC., doing business as Executive XTC;
CHERIE FELDMAN, doing business as Executive Playmates;
EVE ENTERPRISES, INC., doing business as Club Royale;
LONG TRAN, doing business as Ellington Newsstand;
NIEN X. NGUYEN, doing business as DT Video; WMF INVESTMENTS,
INC., doing business as Chesapeake Bay; AKM, INC., doing
business as Gigi's Cabaret; DHR, INC., doing business as Hi-10
Cabaret; PANAH, INC., doing business as Mirage Cabaret;
R & R ENTERTAINMENT, INC., doing business as Moments Cabaret;
SSD ENTERPRISES, INC., doing business as Ritz Cabaret;
HHE, INC., doing business as Passion Cabaret; F & R CLUB, INC.
doing business as Silk Bar & Grill Cabaret; ATCOMM SERVICES,
INC., doing business as Broadsteets; HOUMAN SHAGHAGI,
doing business as Foxxy's Cabaret; SOUTHEAST TEXAS VENTURES,
A TEXAS JOINT VENTURE, doing business as The Trophy Club; KMRC,
INC., doing business as LaChatte; ARIS MYLONAS, doing business as
Baby Dolls Saloon; MK CLUB & RESTAURANTS, INC., doing business as
Moulin Rouge; 10128 TDC 1, INC., doing business as Texas Dolls
Cabaret; SOUTHWEST CLUBCO, INC., doing business as Playmates;
DUNCAN BURCH, INC., doing business as Michael's International;
OBSESSION CABARET, INC., doing business as Obession Cabaret;
NORMAN R. GLENN, doing business as West Mt. Houston Newsstand,
doing businessas Far West News, doing business as Highway 6
Newsstand; JAMES DREW, doing business as Gold Touch Stress
Clinic and Velvet Touch Stress Clinic; PETE CASERLY,
doing business as Northwest News; A TO X VIDEO,
doing business as Pacific Management Enterprises;
HUGHES & ST. CLAIR, INC., doing business as
Pacific Management Enterprises; QUASAR INTERNATIONAL, INC.,
doing business as Pacific Management Enterprises;
VIDEO NEWS, INC., doing business as Pacific Management
Enterprises; CHUCK WESLEY, doing business as Pacific Management
Enterprises; CHUCK WESLEY, INC., doing business as Northwest
News; JACOB BORENSTEIN, doing business as Northwest News;
12851-59 WESTHEIMER, INC.; 608 WEST MT. HOUSTON, INC.;
GINO A. BARONE, doing business as Ban Management Co.,
also known as Consolidated Video, doing business as
Hillcroft News & Video, doing business as
Telephone Road News & Video; HEAVEN VIDEO & NEWS;
AIRLINE VIDEO AND THAI COMPANY; CITY WIDE GROUP, INC.,
doing business as Studz News; ANS, INC. DBA LONE STAR NEWS,
doing business as Lone Star News, NORTHSTAR, INC. DBA
NORTH FREEWAY NEWS; NORTHEAST, INC. DBA GULF FREEWAY NEWS,
doing business as Gulf Freeway News; EASTEX 24-HOUR NEWSSTAND;
G. W. ROGERS; R. GLASS; G. HUMPHREY; D. L. STONEHAM;
L. J. PUTTERMAN; M. ROBERTS; V. L. AUZSTON; J. J. LANGEN;
H. PEREZ; A. LUCKE; Y. HINOJOSA; A. N. MCMILLEN; B. WEBB;
R. STERNES; S. MONGONIA; K. MARTIN; N. ROBERTS; V. GOBEA;
D. QUICK; K. WARREN; R. SANCHEZ; S. JUREK; N. ESPINOZA;
C. EMERY; K. MARTIN; C. COMBS; J. DAMPIER; W. KALINOWSKI;
J. CRENSHAW; L. M. BATES; H. MACTAVISH; T. DOVE; E. CASTILLO;
K. K. HANNAN; C. J. SHARPE; A. A. COOK; N. BAILEY; T. R. KING;
L. B. MEAGHER; N. HENRY; A. BAILEY; D. DODSON; J. SUAREZ;
A. N. MCMILLAN; K. ROSENBERRY; C. GARCIA; M. FISHER;
D. M. MUENZLER; T. J. OAKLEY; D. CARSWELL; A. KELLY;
2
T. WESTERN; K. A. RADAR; L. PHILLIPS; T. JONES;
A. GIBSON; G. PIERCE; N. NEUENFELDT; T. ALLEN;
S. L. WHITTNEBURG; P. A. BUFFIN; C. VAUGHN; T. L. ALDAPE;
S. Y. NORENO; L. TAUAREZ; T. DARDAS; N. BARRY; T. STANDRIDE;
J. D. BURDEN; S. S. SALAZAR; H. L. LOCOCO; S. BRADY; S. NNOLI;
E. I. STREET; D. JORGENSON; D. G. LEWIS; P. Z. GERMAN;
J. M. ROGERS, J.R.; B. TEMPLEMIRE; R. DUNCAN; J. EASTERWOOD;
J. C. ACRES; W. TEMPLEMIRE, JR.; TRUMPS, INC.,
doing business as Rick's Cabaret, A Texas Corporation;
ANDREW SEFIA, doing business as Rumors, and others similarly
situated; D. HOUSTON, INC., doing business as Treasures,
a Texas Corporation S.E. MANAGEMENT, INC., doing business as
Northshore Video and News, JEANA WILEY, Operator of Southeastern
Management; NORMAN S. HARRISION,
Intervenor Plaintiffs - Appellees-Cross-Appellants,
ELGIN INVESTMENT COMPANY, LTD, doing business as French Quarter
Theater; KQ INVESTMENTS, doing business as Amenity Caberet;
MARK THAI DO; doing business as Dong Kyong Modeling Studio;
DSSS ARIA MERICA, INC., doing business as Solid Platinum,
a Texas Corporation; MARKETING ORGANIZATION OF AMERICA, INC.,
doing business as Exclusive Tanning, a Texas Corporation;
BUDGET DISTRIBUTORS, INC., doing business as Franc's of Beverly
Hills, a Texas Corporation; MICHAEL D'S RESTAURANT, INC.,
doing business as Houston Salon & Fitness Center,
doing business as Texas Health Salon, a Texas Corporation;
LE CRAZYHORSE CABARET ASTRODOME, INC., doing business as
Malibu Resorts, doing business as Sensational Impressions,
a Texas Corporation; EPZ TRADING COMPANY,
doing business as Texas Health Salon, a Texas Corporation;
DEUX SOEUR ENTERPRISES, INC., doing business as Native Tan,
a Texas Corporation; LIMERICK, INC., doing business as Video
Specials, a Texas Corporation; YOU’RE A TO X VIDEO OUTLET,
INC., a Texas Corporation,
Intervenor Plaintiffs - Appellees,
v.
CITY OF HOUSTON,
Defendant - Appellant-Cross-Appellee.
_______________________
3
No. 98-20885
_______________________
N. W. ENTERPRISES INCORPORATED; AMETHYST ENTERPRISES, INC.;
CAMPUS INVESTMENTS INCORPORATED; 1431 WEST 18TH, INC.;
Plaintiffs - Appellees-Cross-Appellants,
FTU INC.; DAJO, INC.; ICE EMBASSY, INC.; TEXAS RICHMOND
CORPORATION; ANDREA STAFFORD; FRANK I KENT; AHD HOUSTON, INC.,
a Texas Corporation d/b/a Centerfolds; DNW HOUSTON, INC.;
PARABAR CO, doing business as Paradise Club; JANE DOE ONE,
Applicants; JANE DOE TWO, Applicants; DEE & DEE ENTERPRISES,
INC.; 9924 I-45 NORTH, INC.; HI-HOUSTON, INC.; CHARLES WESLEY,
INC.; D HOUSTON, INC., doing business as Treasures, a Texas
Corporation; HFR ENTERPRISES, INC.; ANDREA ALLBRIGHT MARCO;
NAOMI L. PARRISH; ANN MARIE HASSELBACH; JEANNE L. GRIGSBY;
SUSAN BOYLE; DANA LYNN THOMAS; KIMBERLY ANN DUSHMAN;
MICHELLE HADLEY; COLLEEN CLOER; LEAH MARIE WILSON;
CARLA K. EATON; ANDREA HILL; GINA OLIVER; HEATHER WELDIN;
CHARISMA BARRY; DONNA SOTO; CHERYL THOMPSON; ROBERT FUREY,
Intervenor Plaintiffs - Appellees-Cross-Appellants,
and
CHIL SOUNG, INC., doing business as BJ's 24 Hour Newsstand;
ET AL (referred to as Chil Soung Appellants),
Intervenor Plaintiffs - Appellees-Cross-Appellants,
KQ INVESTMENTS, doing business as Amenity Cabaret;
MARK THAI DO, doing business as Dong Kyong Modeling Studio;
NORMAN S. HARRISON; DSSS ARIA MERICA, INC., doing business as
Solid Platinum, a Texas Corporation;
MARKETING ORGANIZATION OF AMERICA, INC., doing business as
Exclusive Tanning, a Texas Corporation;
BUDGET DISTRIBUTORS, INC., doing business as Franc's of Beverly
Hills, a Texas Corporation; MICHAEL D'S RESTAURANT, INC.,
doing business as Houston Salon & Fitness Center,
doing business as Texas Health Salon, a Texas Corporation;
LE CRAZYHORSE CABARET ASTRODOME, INC., doing business as
Malibu Resorts, doing business as Sensational Impressions,
a Texas Corporation; EPZ TRADING COMPANY, doing business as
Texas Health Salon, a Texas Corporation;
DEUX SOEUR ENTERPRISES, INC., doing business as Native Tan,
4
a Texas Corporation;
LIMERICK, INC., doing business as Video Specials, a Texas
Corporation; YOUR A TO X VIDEO OUTLET, INC., a Texas Corporation;
ELGIN INVESTMENT COMPANY, LTD,
doing business as French Quarter Theater,
Intervenor Plaintiffs - Appellees,
v.
CITY OF HOUSTON,
Defendant - Appellant-Cross-Appellee.
Appeals from the United States District Court
for the Southern District of Texas
Before GARWOOD, JONES, and STEWART, Circuit Judges.
EDITH H. JONES, Circuit Judge:
These appeals and cross-appeals by the City of Houston and
regulated entities arise out of an action brought by 105 individuals
and 88 adult entertainment establishments challenging the City of
Houston’s 1997 amendments to its ordinances governing sexually
oriented businesses (SOBs). We overrule the district court’s
determination that certain provisions of the amendments should be
treated as content-based and thus subject to strict scrutiny.
Instead, all of the provisions of City Ordinance 97-75 challenged
on First Amendment grounds should be subjected to intermediate
scrutiny. We reverse and remand the court’s holding that
invalidated the provisions of the amendments that extended the
distance regulations for SOBs. We dismiss for lack of appellate
5
jurisdiction the court’s partial rulings on the provisions that
included public parks and redefined multi-family dwellings for
purposes of establishing buffer zones between SOBs and protected
land uses. We affirm the district court’s judgment in nearly all
other respects.
BACKGROUND
City Ordinance 97-75 is the most recent in a long line of
ordinances enacted by the City of Houston to regulate SOBs.1 In
1977, the City enacted Ordinances 77-1259 and 77-1260, which
prohibited the operation of adult commercial establishments within
2,000 feet of any church, school, or other educational or charitable
institution. N.W. Enters., Inc., 27 F. Supp. 2d at 770. This
ordinance was struck down by a federal district court on First and
Fourteenth Amendment grounds; on appeal this court did not reach the
constitutional issues. Id.
The City of Houston enacted new ordinances in 1983, 1985,
1986, 1991, and 1997. Under the 1985 version of the ordinance (as
amended in 1986), SOBs were prohibited from operating within 750
feet of a school, church or place of worship, or daycare center; or
within 1,000 feet of any other SOB, or on any other tract of land
for which seventy-five percent or more of the tracts within a 1,000-
foot radius were residential. Id. The 1985/1986 ordinance also
1
For a more detailed recounting of the history of the City of
Houston’s regulation of SOBs, see N.W. Enters., Inc. v. City of Houston, 27 F.
Supp. 2d 754, 770-72 (S.D. Tex. 1998).
6
regulated the exterior decor and signage of SOBs. Id. These
regulations were upheld against various constitutional challenges
in SDJ, Inc. v. City of Houston, 837 F.2d 1268 (5th Cir. 1988),
cert. denied sub nom., M.E.F. Enters., Inc. v. City of Houston, 489
U.S. 1052 (1989).
Ordinance 97-75 was enacted on January 15, 1997. It
significantly amended Houston’s ordinances governing SOBs. Several
aspects of 97-75 are challenged in this case: (1) the increase in
the minimum distance from 750 feet to 1,500 feet between an SOB and
protected land uses; (2) the addition of public parks to the list
of protected land uses; (3) the increased importance of multi-family
dwellings in determining whether an area is at least seventy-five
percent residential; (4) regulations of “adult mini-theatres”; (5)
delayed implementation and amortization provisions; (6) added
restrictions on exterior signs; (7) added requirements regarding
interior lighting, design and layout; and (8) licensing of managers
and entertainers.
The appellees filed suit a week after the ordinance was
enacted. In 1998, the district court granted summary judgment on
most of the issues in the case.2 The district court held that the
portion of the ordinance increasing the distance requirements was
2
The district court issued three separate opinions: (1) Amended
Memorandum Opinion and Order of June 9, 1998, N.W. Enters., Inc., 27 F. Supp. 2d
at 754; (2) Supplemental Memorandum Opinion and Order of June 11, 1998, N.W.
Enters., Inc., 27 F. Supp. 2d at 860; and (3) Amended Memorandum Opinion and
Order Regarding Conspicuous Display Requirement of August 10, 1998, N.W. Enters.,
Inc., 27 F. Supp. 2d at 913.
7
an unconstitutional content-based regulation that must be reviewed
with strict scrutiny under the First Amendment. The court denied
summary judgment on whether it was constitutional to add public
parks to the list of protected uses and on the modification of the
treatment of multi-family dwellings, finding genuine issues of
material fact as to whether there would be sufficient alternative
avenues of communication for the SOBs if these modifications were
upheld. The court upheld nearly all of the provisions of the
ordinance related to exterior and interior appearance, implementa-
tion and amortization, finding that they were content-neutral
regulations that survive intermediate scrutiny. The court subjected
the signage provision’s application to § 216 of the Texas Local
Government Code. The court upheld the regulations pertaining to
adult mini-theatres. The court upheld the permit requirements for
entertainers and managers under intermediate scrutiny but enjoined
the City of Houston from requiring on individuals’ applications the
disclosure of personal phone numbers, home addresses, and criminal
record information beyond what the Ordinance uses in granting or
denying a permit. The court also enjoined the City from requiring
managers to conspicuously display personal identification cards
while working in SOBs, as it found this requirement a content-based
regulation that does not withstand strict scrutiny.
STANDARD OF REVIEW
8
We review a district court’s grant of summary judgment de
novo. Hodges v. Delta Airlines, Inc., 44 F.3d 334, 335 (5th Cir.
1995) (en banc). Summary judgment is appropriate when, viewing the
evidence and all justifiable inferences in the light most favorable
to the non-moving party, there is no genuine issue of material fact
and the moving party is entitled to judgment as a matter of law.
Hunt v. Cromartie, 526 U.S. 541, 552 (1999); see also FED. R. CIV. P.
56(c). If the moving party meets its burden, the non-movant must
designate specific facts showing there is a genuine issue for trial.
Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en
banc). We review questions of statutory interpretation de novo.
Ott v. Johnson, 192 F.3d 510, 513 (5th Cir. 1999).
DISCUSSION
Several dozen issues are raised on appeal by the parties.
Overarching the discussion are the questions whether strict or
intermediate scrutiny governs the constitutional analysis of the
Ordinance and whether the Ordinance generally violates state
constitutional or statutory provisions. We will discuss these
issues first. Next we will address 97-75's provisions that limit
the location of SOBs. The interpretation and constitutionality of
amended regulations for the physical structure and exterior signage
of SOBs comprise the third section of the opinion. Finally, we
consider issues surrounding the licensing of SOB employees.
I. General Issues
9
A. Strict or Intermediate Scrutiny
While no sea change occurred in the constitutional status
of SOBs during the pendency of this case on appeal, the Supreme
Court refined the Renton test3 in the interim, see City of Los
Angeles v. Alameda Books, Inc., 535 U.S. 425, 122 S.Ct. 1728 (2002),
and partially superseded the district court’s analysis. In Alameda
Books, the Court majority (including Justice Kennedy in a separate
concurrence) reaffirmed the three-part Renton test, which considers
(a) whether a sexually oriented business zoning ordinance is a time,
place and manner regulation; (b) whether the ordinance is aimed at
the content of sexually-oriented speech (content-based) or the
“speech’s” secondary effects on the community (content-neutral); and
after passing those tests, (c) whether the ordinance is designed to
serve a substantial governmental interest and leaves open reasonable
alternative avenues of communication. See Alameda Books, 535 U.S.
at 433-34, 122 S.Ct. at 1733-34, citing City of Renton, 475 U.S. at
47, 106 S.Ct. at 930.
In that opinion, the Court expressly distinguished between
the second and third parts of the Renton test, explaining that:
The former requires courts to verify that the
“predominate concerns” motivating the ordinance “were
with the secondary effects of adult [speech], and not
with the content of adult [speech].” The latter inquiry
goes one step further and asks whether the municipality
can demonstrate a connection between the speech regulated
by the Ordinance and the secondary effects that motivated
3
City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 50, 106 S.Ct.
925, 930 (1986).
10
the adoption of the Ordinance. Only at this stage did
Renton contemplate that courts would examine evidence
concerning regulated speech and secondary effects.
Id. at 440-41, 122 S.Ct. 1728 (quoting Renton, 475 U.S. at 47,
106 S.Ct. 925) (alterations in original). According to the
majority, intermediate scrutiny applies to SOB regulations whenever
the governmental entity was predominantly concerned with regulating
secondary effects of adult speech. Justice Kennedy agreed that “the
central holding of Renton is sound: a zoning restriction that is
designed to decrease secondary effects and not speech should be
subject to intermediate rather than strict scrutiny.” Alameda
Books, 535 U.S. at 448, 122 S.Ct. 1728 (Kennedy, J., concurring).
Consequently, while Justice Kennedy takes issue with the plurality’s
use of the content-based/content-neutral dichotomy in these cases,
he, too, would apply the intermediate scrutiny standard to regulate
secondary effects of adult speech so long as a municipal regulation
does not ban the protected speech.
The district court intermingled the second and third
prongs of the Renton test in a way rejected by the Alameda Books
majority. To determine the City’s “predominant concern,” the
district court felt it should ascertain “whether the City Council
relied on evidence in the legislative record from which it could
have determined that negative secondary effects associated with
adult businesses actually exist and that the proposed regulations
would in some way address these effects.” N.W. Enters., Inc., 27
F. Supp. 2d at 776 (emphasis added). The district court required
11
this double proof before assessing the standard of review (strict
or intermediate scrutiny) applicable to each provision of 97-75.
For example, in discussing whether the provision that increased from
750 to 1,500 feet the distance an SOB must be located from certain
land uses was content-neutral or content-based, the court repeatedly
stated that there was no evidence in the record before the City
Council that SOBs caused secondary effects more than 750 feet but
less than 1,500 feet away. N.W. Enters., Inc., 27 F. Supp. 2d at
805, 870, 875. Alameda Books forecloses this approach.
The standard of constitutional scrutiny, after Alameda
Books, and taking into account Justice Kennedy’s concurrence, is
simply whether Ordinance 97-75 addressed secondary effects of adult
speech, as demonstrated by the legislative record submitted by the
City. Even before Alameda Books, however, neither the Supreme Court
nor this court required proof of the efficacy of an ordinance in
order to determine the constitutional review standard. This court
has invariably analyzed ordinances regulating SOBs as content-
neutral time, place, and manner restrictions where the legislative
record demonstrated that the municipality’s predominant concern was
to regulate secondary effects of SOBs and not to censor the
expression itself.4 Thus, in SDJ, Inc., as in other cases, this
4
See, e.g., Encore Videos, Inc. v. City of San Antonio, 330 F.3d 288,
291 (5th Cir. 2003)(treating ordinance as content-neutral where this court had
previously found that the city had specific evidence of secondary effects); LLEH,
Inc. v. Wichita County, Tex., 289 F.3d 358, 368 (5th Cir. 2002) (finding adequate
evidence that county’s predominant concern was reducing secondary effects where
legislature gathered evidence of secondary effects related to SOBs and the
measures taken by other legislatures); Lakeland Lounge of Jackson, Inc. v. City
12
court treated the ordinance at issue as a content-neutral regulation
where “the findings of the Houston council as to the secondary
effects of sexually oriented businesses satisfy [the court] . . .
that the city’s predominant concern was with secondary effects and
not the content of expression itself.” 837 F.2d at 1273 (emphasis
added).5 This line of case fulfills Renton, which, while
reiterating that legislators’ subjective motivations alone cannot
condemn an otherwise constitutional statute, cited as sufficient the
purpose of the city’s ordinance. Renton, 475 U.S. at 48, 106 S.Ct.
at 929, quoting United States v. O’Brien, 391 U.S. 367, 383-84, 88
S.Ct. 1673, 1683 (1968). Because that ordinance’s expressed purpose
was to “‘protec[t] and preserv[e] the quality of [the city’s]
neighborhoods, commercial districts, and the quality of urban life,’
not to suppress the expression of unpopular views,” id., the Court
deemed it content-neutral.
Further, the City need not demonstrate that the City
Council actually relied upon evidence of negative secondary effects
when it enacted 97-75. A local government can justify a challenged
ordinance based both on evidence developed prior to the ordinance’s
of Jackson, 973 F.2d 1255, 1258-59 (5th Cir. 1992) (analyzing SOB ordinance as
content-neutral where the city council made findings supported by evidence that
SOBs have harmful effects on the community).
5
The district court appears to have misread SDJ, as it cited two
paragraphs of that opinion dealing with the third Renton inquiry, transposing an
inapposite discussion to Renton’s content-based/content-neutral second inquiry.
See N.W. Enters., Inc., 27 F. Supp.2d at 777 (citing SDJ, 837 F.2d at 1274). SDJ
applied across-the-board intermediate scrutiny to Houston’s ordinance without
proof of efficacy under Renton’s second prong. See 837 F.2d at 1273.
13
enactment and that adduced at trial. J & B Entm’t, Inc. v. City of
Jackson, Miss., 152 F.3d 362, 371-72 (5th Cir. 1998) (citing Barnes
v. Glen Theatre, Inc., 501 U.S. 560, 582, 111 S.Ct. 2456, 2469
(1991) (Souter, J., concurring)). This is because the “appropriate
focus is not an empirical inquiry into the actual intent of the
enacting legislature, but rather the existence or not of a current
governmental interest in the service of which the challenged
application of the statute may be constitutional.”6 Barnes, 501
U.S. at 582, 111 S.Ct. 2469 (Souter, J., concurring).
To require the legislature to show evidence of negative
secondary effects and of the new regulations’ efficacy requires too
much of the City at this stage in the inquiry. Disputes over the
effectiveness of the proposed regulations are properly reserved for
the final prong of the Renton analysis. See, Alameda Books, supra.The Houston City Council made express findings of adverse
secondary effects related to SOBs and the City’s interest in
ameliorating those effects. The preamble to 97-75 states:
WHEREAS, the City Council finds that sexually oriented
businesses can exert dehumanizing influences on churches,
schools, and day care centers, can have negative effects
on property values, [and] can contribute to increased
criminal activities in the surrounding areas . . . and
. . .
6
As Justice Souter further noted: “At least as to the regulation of
expressive conduct, ‘we decline to void [a statute] essentially on the ground
that it is unwise legislation which [the legislator] had the undoubted power to
enact and which could be reenacted in its exact form if the same or another
legislator had made a ‘wiser’ speech about it.’” Barnes, 501 U.S. at 582, 111
S.Ct. 2469 (Souter, J., concurring) (quoting United States v. O’Brien, 391 U.S.
367, 384 (1968)).
14
WHEREAS, the City Council finds that comprehensive new
land use studies by the Department of Planning and
Development demonstrate that increasing such distances to
1,500 feet would not unduly impact the availability of
conforming sites for sexually oriented businesses; and
WHEREAS, the City Council finds that increasing such
distances to 1,500 feet would provide additional and
needed protection to the community from the adverse
effects of sexually oriented businesses without depriving
such businesses of adequate opportunities to locate
within the City; and
WHEREAS, the City Council finds that Article III of
Chapter 28 of the Code of Ordinances should be amended to
enhance provisions regarding signage, configuration,
conduct of entertainment, age of admission and related
matters to reduce the secondary effects of sexually
oriented businesses upon the community and further
protect the health, safety and welfare of the public; and
WHEREAS, the City Council finds that sexually oriented
businesses provide enhanced opportunities for employee
participation in various forms of criminal activities,
including prostitution, lewd conduct, indecent exposure,
obscenity law violations and related crimes that are
associated with sexual conduct or sexually-oriented
materials; and
WHEREAS, the City has a substantial public concern that
its residents be protected from criminal activity and be
protected from casual sexual activity that facilitates
the spread of sexually transmitted diseases . . . .
Preamble to Ordinance 97-75, at 2, 4.7 Further, as part of its
summary judgment materials, the City introduced sections of the
legislative record supporting its current and former SOB ordinances.
7
An eight-member committee of the Houston City Council that proposed
97-75 specifically described its increased distance regulations as a means “to
protect such land uses from the adverse secondary effects of SOBs,” “without
unduly restricting availability of conforming locations for sexually oriented
businesses to operate.” The Committee report systematically explains the need
for the regulations effected by 97-75 in terms of the adverse secondary effects
of SOBs, including increased crime, illicit sexual conduct, and narcotics
violations.
15
See N.W. Enters., Inc., 27 F. Supp. 2d at 803 n.103. That
legislative record was held sufficient by this court to justify
characterizing Houston’s prior SOB ordinance as content-neutral.
See SDJ, Inc., 837 F.2d at 1273.
Together, these materials justify the conclusion that the
City’s predominate concern was to regulate the secondary effects of
SOBs. Under either the plurality opinion or Justice Kennedy’s
concurrence in Alameda Books, intermediate scrutiny applies. The
City need not relitigate this issue every time its SOB ordinances
are challenged. As Justice Souter observed: “Given our recognition
that ‘society’s interest in protecting this type of expression is
wholly different, and of lesser, magnitude, than the interest in
untrammeled political debate,’ I do not believe that a State is
required affirmatively to undertake to litigate this issue in every
case.” Barnes, 501 U.S. at 584-85, 111 S.Ct. 2470 (Souter, J.,
concurring); see also City of Erie v. Pap’s A.M., 529 U.S. 277, 296-
98 (2000) (O’Connor, J., opinion joined by Rehnquist, C.J., Kennedy
and Breyer, JJ.) (city can rely on the evidentiary foundation found
in other Supreme Court cases regarding secondary effects); Encore
Videos, Inc., 330 F.3d 288, at 291 (5th Cir. 2003) (opinion on reh.)
(where a predecessor ordinance was sufficiently supported to apply
content-neutral review, same findings were sufficient to consider
a subsequent ordinance content-neutral); BGHA LLC v. City of
Universal City, Texas, 340 F.3d 295 (5th Cir. 2003).
16
Because the constitutional standard of review depends only
upon the City’s predominate legislative concern, not its pre-
enactment proof that the ordinance would work, there is no reason
to parse each provision of the ordinance separately to determine the
standard of review. The district court’s conscientious methodology,
bred by its misapplication of the second prong of Renton, was flawed
in this respect. In fact, all parties seem to recognize the court’s
error; although differing in which level of scrutiny they advocate,
they urge us to apply one level consistently to the Ordinance. The
purpose and scope of the entire Ordinance are reflected in the
above-quoted preamble, which summarizes City Council’s concern about
multiple effects of SOBs. That all of such effects are targeted by
the Ordinance’s various provisions is clear, as it is also clear
that none of the provisions directly censors adult speech. Thus,
the Preamble, together with the legislative record, provides
sufficient evidence to justify an intermediate scrutiny standard of
review to the entirety of 97-75, as a content-neutral enactment.
B. The “Shell Game” Argument
Appellees argue that it is unconstitutional for a city to
change the rules repeatedly, with retroactive impact, and to affect
drastically the overwhelming majority of existing adult businesses
each time. The district court rejected what the SOBs describe as
a “shell game” argument, observing that the City “has the preroga-
tive of experimenting with different possible solutions to municipal
17
problems even when dealing with First Amendment interests.”8 N.W.
Enters., Inc., 27 F. Supp. 2d at 882 (citing City of Renton, 475
U.S. at 52). The district court further noted that the plaintiffs
“cited no authority for the proposition that enacting a significant
change of rules for adult businesses, even for a second time, in and
of itself violates the First Amendment.” Id.On appeal, no relevant legal authority has been cited in
support of the “shell game” argument.9 Moreover, the SOBs have not
attempted factually to support their contention that the City’s
course of amendments has successively put SOBs out of business.
Their argument also fails, because, as stated by the district court,
it conflicts with the authority expressly reserved to cities in City
of Renton, and reaffirmed in Alameda Books, to experiment with
different possible solutions to municipal problems. Renton, 475
U.S. at 52, 106 S.Ct. at 931; see also Alameda Books, 535 U.S. at
434, 122 S.Ct. at 1736-37. Appellees’ broad argument, if accepted,
would hobble municipalities.
C. Article I, Section 8 of the Texas Constitution
8
The district court explained however, that each change to the
ordinance must satisfy “the requisite constitutional test.” Id.9
FTU does cite some cases only for the purpose of declaring them
inapplicable. Moreover, in its opening brief, FTU cites Gammon v. City of
Anaheim, 73 Cal. App. 4th 186, 86 Cal. Rptr. 2d 194 (Cal. Ct. App. 1999) in
support of its shell game argument. In Gammon, the court held that the City of
Anaheim could not deny a permit to a sexually-oriented business that met all the
requirements to obtain a permit on the basis that the City may plan to
“redevelop” the area in the future. Id. at 199. FTU makes no effort to explain
why this analysis should apply in the instant case.
18
AHD contends that Article I, Section 8 of the Texas
Constitution affords broader free speech rights to those involved
in sexually oriented businesses than does the federal Constitution.
This argument is foreclosed by Fifth Circuit precedent. Woodall v.
City of El Paso, 49 F.3d 1120, 1127-28 (5th Cir. 1995). Since
Woodall was written, neither the Texas Supreme Court nor lower state
courts have issued any rulings undermining its conclusion.
D. 97-75's Status as a Texas “Zoning Regulation”
AHD argues that Ordinance 97-75 is a “zoning regulation”
that was not validly enacted. In Texas, the passage of zoning
regulations requires compliance with special procedural rules. But
AHD’s premise is invalid. This ordinance is no zoning regulation.
The district court thoroughly and completely rejected this argument.
N.W. Enters., Inc., 27 F. Supp. 2d at 795-98.
First, while the Texas Supreme Court characterized certain
ordinances, which restricted the permissible locations of mobile
homes, as “hav[ing] the effect of a zoning regulation,” the court
also held that the regulations were not “zoning regulations.” City
of Brookside Village v. Comeau, 633 S.W.2d 790, 793 n.4 (Tex. 1982).
Second, AHD cites no authority to support its argument that
prohibiting adult businesses from locating within 1,500 feet of
churches, schools, day care centers, parks, and residential areas
would produce hundreds of 162-acre regulated areas and would
effectively comprise a comprehensive land use plan tantamount to
19
zoning.
Finally, AHD observes that this and other courts have
described regulations similar to those in 97-75 as zoning
ordinances. For example, this court described the predecessor to
97-75 as “a detailed ordinance imposing licensing and zoning
restrictions upon sexually oriented businesses” and described the
ordinance adjudicated in City of Renton as “a city zoning provision
similar to the Houston ordinance.” SDJ, 837 F.2d at 1271, 1273.
The use of generic terminology in federal court opinions is a far
cry from a legal holding that the Houston ordinance amounts to
zoning under Texas law.
II. 97-75's Provisions Regarding the Location of SOBs and the
Treatment of Multi-family Dwellings and Public Parks as
Protected Uses
The district court split the amended locational
restrictions on SOBs into three parts: the expansion from 750 to
1,500 feet of the buffer zone between SOBs and protected land uses;
the addition of public parks to protected land uses; and the extra
weight afforded multi-family residences in the buffer zone
calculation.10 The court then separately determined the constitu-
tional standard of scrutiny for each part of the restrictions
10
Section 28-125(b)(1) of 97-75 states that an SOB cannot receive a
permit to operate if the SOB is within 1,500 feet of any school, church, public
park, or licensed day-care center. Further, Section 28-125(b)(3) of 97-75
prohibits issuance of an SOB permit if seventy-five percent of the tracts in an
area within 1,500 feet of the SOBs location are residential in character.
Section 28-125(b)(3) also counts a multi-family tract equivalent to eight
residential tracts.
20
according to the methodology we have previously found in error.
Additional procedural and substantive complications flow from the
court’s final complex ruling on locational restrictions.
Ultimately, however, the locational restrictions lack only one
qualification for being instantly upheld.
First, although the court no doubt acted with the best
intentions, it should not have trifurcated the locational
restrictions. The court cited no authority to explain why separate
constitutional analysis of the components of a buffer zone formula
is required, meaningful or practical. That a city may choose to
insulate public parks and multi-family residences from SOBs because
of the likely presence of children at the protected locations is
just as obvious, and done for the same reasons, as the choice of
insulating schools, churches, single-family homes and day-care
centers.11 (Houston’s ordinance already protected these other land
uses.) The material constitutional questions, posed by Renton’s
third prong, are whether the buffer zone in toto addresses
substantial governmental interests and leaves sufficient alternative
avenues of communication. Thus, the City was required to justify
its buffer zone in light of all the protected uses it might define.
The City’s burden is substantial even without its having to foresee,
and separately map out, the possibilities that would arise from a
11
Even under its flawed methodology, the district court expressly held
that the public parks and multi-family residence components serve a substantial
governmental interest.
21
court’s picking and choosing among each individual protected use.
Here, for instance, the court was requiring the City to provide
information on the separate impacts of public parks and the
recalculated multi-family residence formula on the number of
alternative sites available for SOBs. Given such facially
legitimate protected land uses, however, the court should have
analyzed the locational restrictions adopted by the City rather than
hypothetical variations it created by deconstructing the buffer zone
rule.
Second, the court’s trifurcation creates a question of
appellate jurisdiction, which we consider sua sponte. The court
certified for review under FED. R. CIV. PROC. 54(b) its decision that
the 1,500-foot buffer zone, increased from 750 feet, is “content
based” and unconstitutional under a strict scrutiny standard. The
court also certified as a “final” judgment under Rule 54(b) its
partial approval of the public parks and multi-family residence
components of the buffer zone, but, finding fact issues extant, it
expressly declined to complete the analysis of those components.12
The latter certifications are flawed, because Rule 54(b) allows a
district court to enter final judgment “as to one or more but fewer
than all of the claims or parties only upon an express determination
that there is no just reason for delay . . . .” Eldredge v. Martin
12
The court held that factfinding was required to determine whether the
parks and multi-family residence provisions left sufficient alternative avenues
of communication to satisfy Renton’s third prong. See N.W. Enters., Inc., 27 F.
Supp. 2d at 911-12.
22
Marietta Corp., 207 F.3d 737, 740 (5th Cir. 2000) (quoting Rule
54(b)). At best, the court certified only elements of what it
viewed as separate claims concerning the public parks and multi-
family residence components. The certifications satisfy neither the
“final judgment” nor “separate claim” requirements of Rule 54(b).
Consequently, we lack Rule 54(b) appellate jurisdiction over the
public parks and multi-family residence provisions.
The issue thus correctly before us is the constitu-
tionality of the City’s amended 1,500-foot locational restriction
without considering the public parks and multi-family residence
amendments. See City of Renton, 475 U.S. at 53-54, 106 S.Ct. at
932. The amended restriction is reviewed under intermediate
scrutiny, as was previously explained.13 Under the Renton test, the
remaining questions are whether the increased locational restriction
addresses substantial governmental interests and allows reasonable
alternative avenues of communication.
In Alameda Books, the Court determined to “clarify the
standard for determining whether an ordinance serves a substantial
governmental interest.” 533 U.S. at 430, 122 S.Ct. at 1731. The
plurality began with a recapitulation of Renton, noting that the
city there had met its burden of proving that an ordinance
prohibiting the location of any SOB within 1,000 feet of protected
land uses served a substantial governmental interest. The city had
13
Because the district court erroneously applied strict scrutiny
review, its invalidation of this part of 97-75 cannot be sustained.
23
relied on other cities’ studies of the secondary effects of SOBs.
With regard to the different type of SOB dispersal ordinance at
issue before it in Alameda Books, the Court rejected the Ninth
Circuit’s requiring Los Angeles to prove that the amelioration of
secondary effects postulated by its ordinance “is a necessary
consequence of” Los Angeles’s independent study. Id. at 437, 122
S.Ct. at 1735. The Court added that it would not require localities
to disprove other possible implications of the legislative materials
at their disposal, because Renton “specifically refused to set such
a high bar for municipalities that want to address merely the
secondary effects of protected speech.” Id. at 438, 122 S.Ct. at
1736.14 Nor would municipalities be required to prove, not merely
by common sense, but empirically, that SOB ordinances will
successfully reduce crime, as this would undermine Renton’s
allowance of local experimentation in responding to secondary
effects. Id. at 439, 122 S.Ct. at 1736.
The Court explained its deference to the legislative
evidentiary judgment as born of competing policies: that of
protecting constitutional speech and that of respecting local
legislators’ superior understanding of local problems. Id. at 440,
122 S.Ct. at 1737. The point of deference is this: legislators
cannot act, and cannot be required to act, only on judicial
standards of proof. Legislative zoning decisions are generally
14
Justice Kennedy’s concurrence approves the Court’s treatment of the
evidentiary questions. 535 U.S. at 451, 122 S.Ct. at 1742-43.
24
upheld on a rational basis standard. Imposing a level of inter-
mediate scrutiny, in cases like this, requires more conviction of
the connection between legislative ends and means than does the
rational basis standard, but only in the sense of “evidence . . .
[that] is reasonably believed to be relevant” to the secondary
effects in question. Alameda Books, 535 U.S. at 442, quoting
Renton, 475 U.S. at 51-52, 106 S.Ct. at 931.
Viewed from the perspective of Alameda Books, the City of
Houston has proven that its strengthened distance regulation
furthers substantial governmental interests. The challengers did
not demonstrate that the evidence fails to support the City’s
rationale or that the City’s factual findings are wrong. Alameda,
535 U.S. at 439, 122 S.Ct. at 1736 (municipality “cannot get away
with shoddy data or reasoning.”) Hypothesizing, as the City of
Houston did here, that the adverse secondary effects of SOBs, such
as increased crime, auto theft, opportunities for prostitution and
transmission of sexual diseases, neighborhood blight, and reduced
property values would be decreased by dispersing SOBs further from
protected land uses, is hardly a new concept. Consequently, after
relying on the judgments, both legislative and judicial, that
supported its previous SOB distance regulations and after conducting
public hearings (with a mailing list of over 1,000 names), receiving
25
hundreds of written submissions,15 and receiving copious materials
from its Planning, Police and Legal Departments, the City concluded
that (a) adverse secondary effects of SOBs remain a problem16 and
(b) increasing the distance restriction to as much as 1,500 feet is
necessary to restrain those effects.17 On similar evidence, this
court recently found that a Texas city’s SOB zoning ordinance
fulfilled the “substantial government interest” prong of Renton.
See BGHA, LLC v. City of Universal City, Texas, supra.
The district court alternatively held that the City failed
to prove its amended buffer zone is “narrowly tailored” at 1,500
15
It is not unreasonable to expect a local government to be responsive
to the concerns of its citizens as expressed through various community
institutions. In this case, the support for substantive regulation of SOBs came
from organizations that represent homeowners throughout the City of Houston, from
the wealthiest to the poorer neighborhoods. The democratic legitimacy that such
support affords a legislature is an important consideration for courts to keep
in mind when according the legislature the appropriate measure of deference it
deserves. See, e.g., R. Doc. 81, Ex. 22B at 16 (Downtown Historic District,
Inc.); id. at 32 (Southeast Neighborhood Coalition); id. at 48 (East Montrose
Civic Association); id. at 71 (Greater Hobby Area Partnership); id. at 79 (Gulf
Freeway Oaks Club); id. at 80 (Boulevard Oaks Civic Association); id. at 114-16
(Houston Heights Association); id. at 193 (Midtown Tax Increment Reinvestment
Zone No. 2); id. at 223 (Upper Kirby District Association); id. at 244
(Southeast Neighborhood Coalition); id. at 250 (South Main Center Association);
id. at 261 (Sharpstown Civic Association); id. at 265 (Boulevard Oaks Civic
Association and Southampton Civic Club); id. at 266 (Richmond/Westheimer
Residents Association, Inc.); id. at 274 (Neartown Association). The civic
associations uniformly supported more rigorous locational restrictions, and
several noted that SOBs, by their attraction of crime and undesirable clientele,
were hindering efforts to renovate rundown or disadvantaged neighborhoods.
16
The number of SOBs in Houston has increased substantially since the
City enacted its distance regulations in 1983.
17
There is evidence in the legislative record that increasing the
distance to 1,500 feet from redefined residential tracts may actually yield more
permissible locations for SOBs, or at the very least does not appreciably reduce
the permissible locations, as it increases the circle within which residences may
be counted. As a result, the residential component of the larger circle may
decrease. Dee & Dee’s brief and the district court acknowledge this effect. See
N.W. Enters., 27 F. Supp. 2d at 880. The district court will of course explore
this possibility further on remand.
26
feet, but in light of Renton, as explained by Alameda Books,
requiring proof to this degree of exactitude set the bar too high.
The City is entitled to experiment with distance regulations. See
also, SDJ, Inc., supra at 1276 (courts will not challenge city’s
legislative decision on the most appropriate distance). Courts
should not second-guess such restrictions as long as they are not
designed as a subterfuge for banning the protected speech. Here,
the hearings, Legal Department advice, SOB Ordinance Revision
Committee’s Legislative Report, and the Preamble to 97-75 all
disclaim any such goal.
The district court’s concern with the City’s doubling of
its buffer zone from 750 to 1,500 feet between SOBs and protected
land uses is better placed with Renton’s last inquiry, which
concerns whether the regulation leaves available sufficient
alternative sites for the protected speech. Justice Kennedy’s
concurrence in Alameda Books, a vote necessary to the Court’s
judgment,18 emphasizes that the City may not use its regulation to
eliminate businesses as a means to reduce their secondary effects.
Alameda Books, Id. at 451, 122 S.Ct. 1728. Before enacting 97-75,
the City’s SOB Ordinance Revision Committee took extensive testimony
from Joseph Chow, the Planning Department’s executive responsible
for determining the practical effect of each of the municipal SOB
distance ordinances for the last 20 years. Chow discussed at length
18
See Marks v. United States, 430 U.S. 188, 193, 97 S.Ct. 990 (1976)
(rationale of deciding vote on Supreme Court is critical).
27
in a legislative hearing how the Planning Department, aided by new
computer techniques, calculated the availability of potential SOB
sites under all of 97-75's locational restrictions.19 Even with the
1,500-foot requirement, strengthened by the addition of public parks
and recalculation of multi-family residences, Chow estimated
conservatively that the City offers thousands of potential SOB
sites. After litigation commenced, the City offered the two-page
affidavit of a Police Vice Division Officer, Steven Andrews, who
asserted that 97-75 affords at least 1,362 actual conforming SOB
sites and 183 sites that can be operated consistently with the
minimum distance between adult businesses. Since there were at most
128 SOBs in Houston when 97-75 was enacted, under any of these
estimates it would seem that the City could support its contention
that sufficient alternative avenues of communication have been
provided.20
Like many other issues in this case, however, the path to
resolving the question of reasonable alternative sites is not
straight. To begin with, the City bears the burden of proving the
19
Chow’s estimates in this regard have been accepted by courts that
turned down two previous challenges to Houston’s SOB ordinances. SDJ, Inc.,
supra; 4330 Richmond, Inc. v. City of Houston, C.A. No. 91-0665 (S.D. Tex. 1997),
aff’d per curiam, No. 97-20798 (5th Cir. 1998) (unpub’d).
20
This court has held that the provision of just one more site than the
existing number of SOBs satisfies a city’s obligation to provide alternative
avenues of communication. Woodall v. City of El Paso, 49 F.3d 1120, 1127 (5th
Cir. 1995); see also Lakeland Lounge v. City of Jackson, Miss., 973 F.2d 1255,
1259-60 (5th Cir. 1992) (nine sites for six businesses; Renton does not require
a specific proportion of a municipality be open to adult businesses or a certain
number of sites); Grand Brittain, Inc. v. The City of Amarillo, 27 F.3d 1068, 69
(5th Cir. 1994).
28
existence of reasonable alternative sites. See SDJ, Inc., 837 F.2d
at 1273 (“Applying [the Renton] test requires the City to prove that
the Ordinance...leaves open alternative channels of
communication.”). See also Alameda Books, 535 U.S. at 434(plurality opinion states that the ordinance in Renton “would be
upheld so long as the City of Renton showed . . . that reasonable
alternative avenues of communication remained available”); Lim v.
City of Long Beach, 217 F.3d 1050, 1054 (9th Cir. 2000); Phillips
v. Borough of Keyport, 107 F.3d 164, 177 (3d Cir. 1997) (en banc).
But cf. Woodall v. City of El Paso, 49 F.3d 1120, 1126 (5th Cir.
1995) (“The Adult Businesses had the burden of proving that the
ordinances . . . fail[ed] to provide reasonable alternative avenues
of communication.”)
The City did not meet its burden for two technical
reasons. First, Chow’s testimony to the SOB Ordinance Revision
Committee was neither offered by the City nor admitted by the
district court for the truth of its contents in the summary judgment
proceedings.21 The district court specifically noted this failing,
N.W. Enters., Inc., 27 F. Supp. 2d at 877. Second, and somewhat
inconsistently, the court also held that the different estimates of
reasonable alternative sites made by Chow and Officer Andrews, both
21
The district court would have been correct to receive Chow’s
statements in proper evidentiary form, as against some of the SOB’s objections
on appeal that he was unqualified to give “expert” testimony. His testimony on
Houston’s SOB zoning ordinances has been approved twice before in federal courts.
See SDJ, Inc., supra; 4330 Richmond, Inc., supra.
29
of which well exceed the total number of SOBs affected by 97-75,
created a genuine, material fact issue on which it declined to rule.
N.W. Enters., Inc., 27 F. Supp. 2d at 880-81. We agree with the
district court and with the SOBs, however, that Andrews’ affidavit
is too conclusory to be probative for summary judgment purposes. 22
In its one-and-a-half pages, there is neither any explanation of
Andrews’ methodology nor is a map or other device incorporated by
which his conclusion may be verified. The City cannot sustain its
burden at this point solely based on Officer Andrews’ affidavit.
On remand, further proceedings will be necessary to
determine whether there exists any basis for the fear, expressed by
Justice Kennedy in Alameda Books, supra, that the ordinance seeks
to reduce secondary effects by depriving SOBs of reasonable avenues
of communication. If Chow’s legislative testimony is properly
admitted, and the City supports Andrews’ testimony adequately, and
if the SOBs decline, as they did before, to offer controverting
evidence, the remaining doubts as to the ordinance’s constitu-
tionality in its entirety may be easily dispelled on further summary
judgment proceedings.23
22
The SOBs objected to the affidavit below on this basis. See N.W.
Enters., Inc., 27 F. Supp 2d at 880-81.
23
Chow’s legislative testimony and Andrews’ affidavit both estimated
the number of potential SOB sites considering the entirety of 97-75: the 1,500-
foot distance regulation and defining public parks and redefined multi-family
residences as protected land uses. Since the district court has already upheld
parts of the public parks and multi-family residence provisions, the remaining
issue concerning alternative avenues of communication should be addressed as to
the entirety of the buffer zone regulations on remand.
30
III. SOB Regulatory Issues
A. Applying 97-75 to Adult Arcades and Mini-Theatres24
1. Applicability of 97-75 Article III to the arcades and
mini-theatres regulated by Article II
In two footnotes, the district court noted that, while 97-
75 Article II applies only to “adult arcades and adult mini-
theatres,” Article III “applies to all sexually oriented business
enterprises, including adult arcades and mini-theatres.” N.W.
Enters., Inc., 27 F. Supp. 2d at 772 n.35 (emphasis in original);
see also id. at 791 n.81. N.W. Enterprises argues instead that the
ordinance, if properly construed, regulates adult arcades and mini-
theatres under Article II alone, while Article III regulates all
other SOB’s that are not adult arcades or mini-theatres. We
disagree.
Article II of 97-75 governs adult arcades and adult mini-
theatres. For purposes of Article II, “adult arcade” and “adult
mini-theatre” are defined as “any premises that are subject to
regulation under Chapter 243 of the Texas Local Government Code” and
as premises where people are permitted to use “arcade devices” or
24
N.W. Enterprises argues perfunctorily that the district court erred
in granting summary judgment to the City on whether the definition of “mini-
theatre” in 97-75 § 2:28-81 conflicts with the definition of “adult movie
theatre” in § 3:28-121. The district court refused to address this question,
holding that it was “not ripe for resolution.” N.W. Enters., Inc., 27 F. Supp.
2d at 910. In lieu of reasoned analysis, N.W. Enterprises merely states in a
wholly unsupported argument that its claim is ripe. A litigant’s failure to
provide legal or factual analysis results in waiver. United States. v. Green,
964 F.2d 365, 371 (5th Cir. 1992). Because N.W. Enterprises failed to brief this
issue adequately, the point is waived.
31
“mini-theatre devices,” respectively.25 See 97-75: § 2:28-81. N.W.
Enterprises acknowledges that, by incorporating Chapter 243's multi-
entity definition of “sexually oriented business,” Article II
explicitly includes “adult video arcades” and “adult movie arcades”
in its scope. It contends, however, that Article III separately
regulates “sexually oriented businesses” that fall within the
definition of “enterprise” found in § 28-121 of 97-75. Because the
Article III definition of “enterprise” does not specifically list
25
Chapter 243 of the TEXAS LOCAL GOVERNMENT CODE regulates “sexually
oriented business[es]” as defined in § 243.002 of that chapter. Section 243.002
states “‘sexually oriented business’ means a sex parlor, nude studio, modeling
studio, love parlor, adult bookstore, adult movie theatre, adult video arcade,
adult movie arcade, adult video store, adult motel, or other commercial
enterprise the primary business of which is the offering of a service or the
selling, renting, or exhibiting of devices or any other items intended to provide
sexual stimulation or sexual gratification to the customer.” TEX. LOC. GOV’T CODE
ANN. § 243.002 (Vernon 1999).
32
these two businesses,26 N.W. Enterprises argues the distance
regulations do not apply to adult arcades and adult mini-theatres.
This argument is flawed for three reasons. First, the
list of “enterprises” in § 28-121 of Article III is on its face
nonexclusive. After identifying specific businesses within its
definition, the ordinance adds the following catch-all phrase: “or
any establishment whose primary business is the offering of a
service or the selling, renting or exhibiting of devices or any
other items to provide sexual stimulation or sexual gratification
to its customers . . . .” 97-75, § 3:28-121. Adult arcades and
mini-theatres certainly fall within this catch-all provision.
Second, adult arcades and mini-theatres are not among the businesses
explicitly excluded from the enterprise definition. Third, § 28-83
26
The Article III definition of “enterprise” reads as follows:
Enterprise. An adult bookstore, adult cabaret, adult encounter
parlor, adult lounge, adult modeling studio, adult movie theatre or
any establishment whose primary business is the offering of a
service or the selling, renting or exhibiting of devices or any
other items intended to provide sexual stimulation or sexual
gratification to its customers, and which is distinguished by or
characterized by an emphasis on matter depicting, describing or
relating to specified sexual activities or specified anatomical
areas. The term ‘enterprise’ shall not be construed to include:
(1) Any business operated by or employing licensed
psychologists, licensed physical therapists, licensed athletic
trainers, licensed cosmetologists, or licensed barbers performing
functions authorized under the licenses held;
(2) Any business operated by or employing licensed physicians
or licensed chiropractors engaged in practicing the healing arts; or
(3) Any retail establishment whose major business is the
offering of wearing apparel for sale to customers.
97-75 § 3:28-121 (emphasis added).
33
of Article II states that its provisions “are supplemental and shall
be cumulative with all other laws and ordinances applicable in any
manner to an adult arcade or adult mini-theatre or to any owner or
operator thereof.” 97-75 § 2:28-83. The district court correctly
held that adult arcades and adult mini-theatres are subject to the
provisions of Article III of 97-75.
2. The Extension of 97-75 Article II to Cover Mini-Theatres
The City previously regulated only adult arcades, placing
licensing and architectural requirements upon them to discourage
illicit sexual conduct. Adult arcades are defined as businesses
that provide adult entertainment through machine-operated devices
intended for viewing by five or fewer people in the same room.
Article II of 97-75, however, extends this coverage to adult mini-
theatres, businesses that provide adult entertainment through
machine-operated devices intended for viewing by more than five, but
less than 100, people in the same room. The district court held
that the expansion of Article II to cover adult mini-theatres was
content-neutral, and that it was narrowly tailored to achieve a
substantial governmental interest and allowed operators of adult
mini-theatres sufficient alternative avenues of communication. N.W.
Enters., Inc., 27 F. Supp. 2d at 792; see also 826-27.
N.W. Enterprises appeals this holding on two grounds. We
reject its initial contention that this amendment was content-based
rather than content-neutral and as such is subject to strict
34
scrutiny. As discussed, supra, 97-75 is properly analyzed in its
entirety as a content-neutral regulation.
N.W. Enterprises also challenges the district court’s
holding that the inclusion of adult mini-theatres in Article II
allows sufficient alternative avenues of communication. We find no
error. To the extent that N.W. Enterprises rests upon the
locational issues concerning Article III’s provisions regarding
public parks and multi-family dwellings, it is misguided.
Article II requires permits and controls the structural design of
adult arcades and adult mini-theatres but has nothing to do with
their geographic location. Thus, whether 97-75's locational
restrictions facilitate sufficient alternative avenues of communica-
tion does not affect whether Article II’s inclusion of mini-theatres
leaves open sufficient communicative outlets. In any event, Article
II affords adult mini-theatres ample alternative means to convey
their erotic message. See J&B Entm’t, Inc., 152 F.3d at 378(holding that regulations that required dancers to wear at least
pasties and a G-string left open sufficient avenues of
communication). The provisions of Article II in no way limit the
message mini-theatres convey.
Thus, the inclusion of mini-theatres in Article II is
constitutional under intermediate scrutiny.
35
B. Amortization and Delayed Implementation Under the Ordinance
1. 180-day amortization period
Ordinance 97-75 § 8(a) provides an amortization period of
180 days following enactment for businesses affected by the distance
regulations found in Article III. The ordinance was passed on
January 15, 1997, but its enforcement was stayed. At the time of
the district court’s decision on August 10, 1998, almost a year and
a half had elapsed.
Before the district court, the various plaintiffs
objected to the brevity of this period, asserting that the City
grants lengthier amortization periods to other businesses rendered
non-compliant by the City’s regulatory actions. The district court
held that the plaintiffs “do not have standing” to make this
argument. Since the time consumed by litigation had already pro-
vided an exceedingly lengthy de facto amortization period, the
challengers were not injured by the 180-day provision. N.W.
Enters., Inc., 27 F. Supp. 2d at 823, 888.27 The FTU appellees do
27
The district court also held that the FTU appellees failed to meet
their evidentiary burden to mount a successful equal protection challenge to the
ordinance. Id. Additionally, the district court denied the plaintiffs’ motion
to compel discovery, which was necessary, the plaintiffs argued, to develop this
evidence. N.W. Enters., Inc., 27 F. Supp. 2d at 823, 889 n.1.
The FTU appellees contest this additional holding with two alterna-
tive arguments, both of which are predicated upon the assertion that their claim
is not merely an Equal Protection argument, as the district court assumed, but
also a First Amendment free speech claim. FTU’s assertion is that, in lieu of
a comprehensive plan for land-use, the City enacts “locational restrictions”
against a small number of businesses, most (if not all) of which peddle sexually
oriented entertainment. Because the affected businesses are engaged in expres-
sive conduct, actions singling them out mandate a higher level of judicial scru-
tiny. We reject this argument as wholly incompatible with constitutional law.
36
not respond to this holding. Failure to brief the issue constitutes
waiver. See United States v. Thibodeaux, 211 F.3d 910, 912 (5th
Cir. 2000).
2. 120-day amortization period
Section 7(a) of 97-75 provides a 120-day grace period for
arcades and mini-theatres regulated under Article II, with 30-day
extensions available upon request. This provision allows existing
adult mini-theatres and adult arcades time to comply with any new
design and architectural restrictions. N.W. Enterprises argues that
the 120-day provision inflicts an unconstitutional taking under the
Fifth and Fourteenth Amendments. This court has, however,
previously rejected virtually identical arguments because
regulations of the structural design of SOB’s do not prevent all
reasonable uses of the property and thus are not takings. SDJ,
Inc., 837 F.2d at 1278.
3. The Failure of 97-75 to provide deadlines for hearing
officials to decide applications for amortization
extensions and deadlines for appeals from denial of
amortization extensions.
Under § 8(c) of 97-75, businesses may seek extensions of
the 180-day amortization period of § 8(a) by filing an application
with a city hearing officer. The SOBs argue that § 8(c) is
unconstitutional in light of FW/PBS, Inc. v. City of Dallas, 493
U.S. 215 (1990), because it sets no definite time limit for
hearings, decisions or appeals concerning applications for
37
extension.28 The district court held these claims moot because many
of the requested amortization hearings had already been held and in
most of them, rulings had been issued.29 N.W. Enters., Inc., 27 F.
Supp. 2d at 820. Alternatively, the court rejected the plaintiffs’
challenge to § 8(c) on the merits. Id.
We agree with the SOBs that their claims are not moot:
they remain subject to the provisions of 97-75, and, as the district
court stated, some amortization hearings may still be pending.
However, the SOBs’ argument that 8(c) is unconstitutional
in light of FW/PBS is without merit. In FW/PBS, the district court
overturned, as an unconstitutional prior restraint, a licensing
scheme which did not require city officials to decide upon
applications for SOB licenses within a definite amount of time.
FW/PBS, 493 U.S. at 223. The provisions of 8(c) are readily
distinguishable from those in FW/PBS. In FW/PBS, a decision based
on a hearing was necessary for an SOB to obtain an operating
license, and the SOBs in FW/PBS could not operate until a decision
was made. N.W. Enters., Inc., 27 F. Supp. 2d at 820. The hearings
at issue in this case will consider applications for extensions of
time to comply with new regulations beyond the period already
28
N.W. Enterprises also complains that it is unable to take advantage
of § 8's amortization provisions because Article III of 97-75 does not apply to
arcades and mini-theatres. The arguments that N.W. Enterprises makes here
reiterate the erroneous belief that Article III is inapplicable to adult arcades
and mini-theatres, a contention we previously rejected.
29
The district court also stated that the plaintiffs lacked standing
because the claims were moot. Id. For simplicity, we treat this issue as one
of mootness, not standing.
38
afforded by 97-75. So long as an SOB is not closed for failure to
comply with 97-75 while awaiting a decision on its application for
extension, there is no unconstitutional prior restraint.
C. Signage and Exterior Appearance Regulations
1. 97-75 and Municipal Compensation Review Board
Section 3:28-130(g) of 97-75 imposes a number of signage
restrictions upon SOBs located in “commercial multi-unit centers.”
This provision evolved out of a concern that some SOBs were
attempting to avoid the original signage restrictions placed on
freestanding SOBs by converting their premises to “multi-unit
centers.” By extending the reach of the existing signage restric-
tions to multi-unit centers, the Houston City Council aimed to bring
all SOBs, regardless of the type of premises they occupied, within
the scope of these regulations. The district court granted summary
judgment to the FTU and AHD appellees, holding that the City must
follow the procedures outlined in § 216 of the TEXAS LOCAL GOVERNMENT
CODE before enforcing 97-75 § 3:28-130(g). See N.W. Enters., Inc.,
27 F. Supp. 2d at 896-99. Section 216 allows municipalities to
require the “relocation, reconstruction or removal of a sign,” but
requires municipalities to establish “a municipal board on sign
control.” See TEX. LOC. GOV’T CODE ANN. § 216.004(a) (Vernon 1999).
In addition, § 216 provides that “[t]he owner of a sign that is
required to be relocated, reconstructed or removed is entitled to
39
be compensated by the municipality for costs associated with the
relocation, reconstruction or removal.” Id. at § 216.003(b).
The signage restrictions that would apply to SOBs in
multi-unit centers provide that “it shall be unlawful for the owner
or operator of any [SOB] . . . to erect, construct or maintain any
sign . . . other than one primary sign and one secondary sign.” See
HOUSTON CITY ORDINANCE 97-75 § 3:28-130(a). In addition, the
restrictions prescribe the size, content and overall appearance of
the two allowable signs. See id. at § 3:28-130(b)-(f). For the
purposes of this ordinance, a sign is defined as:
Any display, design, pictorial or other representation,
which shall be so constructed . . . that the same is
visible from the outside of an enterprise and that is
used to seek the attraction of the public to any goods,
services or merchandise available at such enterprises
. . . [and] shall also include such representations
painted on or otherwise affixed to any exterior portion
of an enterprise as well as such representations painted
on or otherwise affixed to any part of the tract upon
which such enterprise is situated.
Id. at § 3:28-121.
The City argues that § 216 is inapplicable to SOB signs
in multi-unit centers because the regulation does not, by its own
terms, require the “relocation, reconstruction or removal” of SOB
signs. In addition, the City cites two affidavits from Ms. Ollie
Schiller, the Deputy Assistant Director in the Sign Administration
of the Public Works and Engineering Department and Sign
Administrator for the City of Houston, which indicate the signs in
question would not require relocation, reconstruction and removal
40
to comply with 97-75 § 3:28-130. The City argues that
Ms. Schiller’s opinion is entitled to great deference as she is in
charge of enforcing signage restrictions in Houston. It is true
that courts often afford agencies substantial deference in the
interpretation of statutes that they are charged with enforcing.
See, e.g., Chevron U.S.A. v. Natural Resources Defense Council,
Inc., 467 U.S. 837 (1984). However, the City incorrectly invokes
Chevron deference here. While Ms. Schiller’s agency enforces
Houston’s restrictions on signs, it is not charged with the
enforcement of the provisions of § 216. Rather, when a municipal
board on sign control is established under § 216, it is entitled to
“determine the amount of compensation to which an owner of a sign
that is required to be relocated, reconstructed or removed.” See
TEX. LOC. GOV’T CODE ANN. § 216.005. As a result, Ms. Schiller’s
interpretation of what constitutes “relocation, reconstruction or
removal” of a “sign” for the purposes of the provisions of § 216
does not control this court’s determination of the matter.
The state statute is, as the district court noted,
somewhat vague on the types of signs it covers — e.g., whether
principally freestanding billboards or all signs that “advertise”
or “inform” the public. Compare § 216.006 (compensation for
relocated sign includes “dismantling” and “transporting” it to
another site) with § 216.002 (definitions of “sign,” “on-premise
sign” (defined as “freestanding”) and “off-premise sign”). Further,
the parties’ briefs dispute whether the ordinance’s provisions will
41
require the “relocation, reconstruction or removal” of the signs at
issue, or will merely demand de minimis alterations. We express no
opinion on these or other questions of fact and state law that are
best resolved by a sign control board and state courts in the first
instance. We essentially agree with the district court’s decision
and hold that the City may not enforce § 28-130(g), as amended to
include multi-unit centers, without first designating a sign board
to oversee compliance with TEXAS LOCAL GOVERNMENT CODE § 216.
2. Constitutionality of signage and exterior appearance
restrictions.
The SOBs challenge the district court’s holding that §§
28-129 and 28-130 of 97-75 are constitutional. Section 28-129
governs the exterior appearance of SOBs. This provision is
unchanged from the exterior appearance provision that SOBs
unsuccessfully challenged in SDJ, Inc., 837 F.2d 1268. Like the
district court, we are bound by prior decisions of this court.
The plaintiffs also challenge the constitutionality of
§ 28-130's limitations on SOBs’ exterior signage. Substantively,
the ordinance’s restrictions on signage are identical to provisions
upheld in SDJ, Inc., but § 28-130(g) extends the signage provisions
to SOBs located in commercial multi-unit centers. This extension
is irrelevant for constitutional purposes. If the restrictions are
constitutional as to SOBs in stand-alone buildings, the fact that
an SOB is located in a multi-unit building cannot make the same
restrictions unconstitutional.
42
3. Regulations forbidding obstruction of entrances within an
SOB, e.g. 97-75 § 3:28-136(b)
Provisions of 97-75 including § 3:28-136(b) require
entrances to entertainment rooms to be free of obstacles, including
doors.30 The district court held this requirement facially valid
under an intermediate scrutiny standard, because the restrictions
were narrowly tailored to the governmental purpose. N.W. Enters.,
Inc., 27 F. Supp. 2d at 824-27; see also 892-95.
One of the appellees, Ice Embassy, Inc., complained that
this requirement is nevertheless unconstitutional as applied to its
proposed construction of a “VIP room” in its facility. The room,
as designed, would be large (4,000 square feet, seating more than
200 patrons), would be surrounded on all four sides by the main
room, would be constructed with clear walls, and would be accessible
by way of a clear, heavy, non-locking door. The City appears to
concede that this proposed room conforms to §§ 3:28-136(b) and 28-
258(c) in every respect except in having a door.
The district court agreed with Ice Embassy, holding the
prohibition of a door unconstitutional as applied to large “VIP
30
Ordinance 97-75 § 3:28-136(b) (“It shall be unlawful for any owner,
operator or manager of any enterprise to permit any employee to provide any
entertainment to any customer in any separate area within an enterprise to which
entry or access is blocked or obscured by any door, curtain or other barrier,
regardless of whether entry to such separate area is by invitation, admission
fee, club membership fee or any form of gratuity or consideration.”); id. at §
28-258(c) (“It shall be unlawful for any employee to engage in entertainment or
to expose any specified anatomical areas or engage in any specified sexual
activities in the presence of a customer in any separate area within an
enterprise to which entry or access is blocked or obscured by any door, curtain
or other barrier separating entry to such area from any other area of the
enterprise.”).
43
rooms.” The court’s conclusion, however, is tainted by its
erroneous application of strict scrutiny review.31
In defense of the district court’s analysis, Ice Embassy
emphasizes that “an essential element of the erotic dance expression
. . . is the musical accompaniment,” and Ice Embassy aims for a
different musical ambience in each of the “rooms” created by the
plastic wall. The purpose of the door is thus to minimize ambient
noise.
The City contests the district court’s reading of the
record and the court’s legal analysis. Testimony before the City
Council graphically demonstrated the use of larger “VIP rooms” for
prostitution. Moreover, the City asserts it could have imposed
greater restrictions on these rooms (including complete
prohibition), but it chose to permit them, requiring only easy
access through unobstructed entrances. Finally, the First Amendment
protects topless dancing from clothing, not musical accompaniment
from ambient noise.
The City’s arguments are persuasive. As we have
previously explained, the district court should have applied
intermediate scrutiny to these content-neutral regulations. The
court’s misapplication of the strict scrutiny standard led it to
31
Absent a legislative finding regarding such “secondary effects” of
large VIP rooms, the court concluded, this restriction is “content-based,”
subject to “strict scrutiny,” and unconstitutional. N.W. Enters., Inc., 27 F.
Supp. 2d at 892-95.
44
ignore the evidence that separate rooms, even large ones, can be and
have been used for prostitution. Under the test of intermediate
scrutiny, there is an appropriate fit between the means (lack of
obstacles) and ends (enforcement of prostitution laws) in the City’s
regulation.
D. Preemption of the regulation of businesses housing “adult
arcades and adult mini-theatres” imposed by 97-75 Article II
N.W. Enterprises argues that Article II of 97-75, which
regulates adult arcades and adult mini-theatres, is preempted by
Texas Local Government Code § 243.005 because the Ordinance
discriminates against them “on the basis” of their coin-operated
machines. Section 243.005 states, in pertinent part, that a
“regulation adopted under this chapter may not discriminate against
a business . . . on the basis of whether it contains one or more
coin-operated machines.” TEX. LOC. GOV’T CODE ANN. § 243.005(b)
(Vernon 1999). Further, a “business is not exempt from regulation
under this chapter . . . because it contains one or more coin-
operated machines.” Id. at § 243.005(a).32
32
Business Licensed Under Alcoholic Beverage Code:
Business Having Coin-Operated Machines
(a) A business is not exempt from regulation under this
chapter because it holds a license or permit under the Alcoholic
Beverage Code authorizing the sale or service of alcoholic beverages
or because it contains one or more coin-operated machines that are
subject to regulation or taxation, or both, under Chapter 8, Title
132, Revised Statutes.
(b) A regulation adopted under this chapter may not
discriminate against a business on the basis of whether the business
holds a license or permit under the Alcoholic Beverage Code or on
the basis of whether it contains one or more coin-operated machines
that are subject to regulation or taxation, or both, under
45
The district court granted summary judgment to the City,
reasoning that the basis for 97-75 Article II’s regulation of “adult
arcades and adult mini-theatres” is their provision of adult
entertainment, not possession of coin-operated machines. SDJ, Inc.
rejected a similar preemption challenge to a zoning ordinance
affecting alcohol-serving establishments: “the Ordinance does not
regulate the land use of these businesses on the basis of their
alcohol use, but regulates them as a result of the secondary affects
[sic] they have on surrounding areas.” N.W. Enters., Inc., 27 F.
Supp. 2d at 790 (quoting SDJ, Inc. v. City of Houston, 636 F. Supp.
1359, 1373-74 (S.D. Tex. 1986)); see also SDJ, Inc., 837 F.2d at
1280.
Additionally, § 243.005(a) of the TEXAS LOCAL GOVERNMENT CODE
explicitly forecloses the preemption argument that N.W. Enterprises
presents. Section 243.005(a) explicitly states that a business is
not exempt from municipal regulations enacted pursuant to chapter
243 of the Local Government Code because it contains coin-operated
machines that are subject to regulation under other statutes. Since
97-75 was enacted by the City of Houston under the authority of
Chapter 243, adult arcades and adult mini-theatres are not exempt
Chapter 8, Title 132, Revised Statutes.
(c) This chapter does not affect the existing preemption by
the state of the regulation of alcoholic beverages and the alcoholic
beverage industry as provided by Section 1.06, Alcoholic Beverage
Code.
TEX. LOC. GOV’T CODE ANN. § 243.005 (Vernon 1999).
46
from its provisions based on the fact that they contain coin-
operated machines.
N.W. Enterprises also argues that 97-75's location and
distance requirements violate another state law. Specifically, they
contend, under § 2153.452 of the TEXAS OCCUPATIONS CODE33 the City may
not prohibit the location of coin-operated machines more than 300
feet from churches, schools, or hospitals. See B&B Vending Co. v.
City of Garland, 711 S.W.2d 132, 134 (Tex. App. – Tyler 1986, writ
ref’d n.r.e.). The statute provides that
(a) For purposes of zoning, a political subdivision of
this state shall treat the exhibition of a music or
skill or pleasure coin-operated machine in the same
manner as the political subdivision treats the
principal use of the property where the machine is
exhibited.
(b) Subsection (a) does not prohibit a municipality from
restricting the exhibition of a coin-operated
amusement machine within 300 feet of a church,
school, or hospital.
TEX. OCC. CODE ANN. §2153.452 (Vernon 2003).
This argument is refuted by the statute itself. As noted
earlier, the City enacted 97-75 pursuant to authority granted under
Chapter 243 of the LOCAL GOVERNMENT CODE. Section 243.005(a) states
that businesses are not exempt from ordinances enacted pursuant to
Chapter 243 even though they contain coin-operated machines that are
33
The parties and the district court refer to this statute as TEX. REV.
CIV. STAT. ANN. art. 8814. It was repealed and codified as section 2153.452 in
1999. See ACT OF MAY 13, 1999, 76th Leg. R.S., ch. 388, § 6(a), 1999 TEX. GEN. LAWS
2439-40.
47
also subject to regulation under 2153.452.34 B&B Vending Company is
distinguishable because the ordinance at issue in that case was not
a regulation of SOBs. B&B Vending Company, 711 S.W.2d at 133 (coin-
operated machine owner sought a permit to put video games in a fast
food restaurant). Thus, § 243.005(a)’s exemption was unavailable
to the City to defend its regulation in that case. In sum, we
affirm the district court’s holding that the provisions of 97-75 are
not preempted either by TEXAS LOCAL GOVERNMENT CODE § 243.005(b) or TEXAS
OCCUPATIONS CODE § 2153.452.
E. Stay of enforcement of 97-75 after court rulings
In FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 110 S.Ct.
596, 107 L. Ed. 2d 603 (1990), the Supreme Court held that any
restraint of SOBs prior to judicial review must be limited to a
specified brief time period. This court, interpreting this
requirement, has held: “Maintaining the status quo means in our
view that the County cannot regulate an existing business during the
licensing process.” TK’s Video, Inc. v. Denton County, Tex., 24
F.3d 705, 708 (5th Cir. 1994). Section 8(a) grants non-complying
SOBs a 180-day enforcement moratorium for certain provisions of 97-
75. The FTU plaintiffs argue that, while this 180-day moratorium
might otherwise be valid, the unusual procedural posture of this
34
Section 243.005(a) actually refers to coin-operated machines subject
to regulation under Chapter 8, Title 132 of the Revised Statutes. Section
2153.452, however, is a codification of article 8814 which was part of Chapter 8,
Title 132. Thus, the exemption of § 243.005(a) necessarily extends to businesses
regulated under § 2153.452.
48
case condemns it here. The posture and argument is this: The
district court invalidated the ordinance’s locational restrictions
upon enactment. If the ordinance is upheld, the FTU plaintiffs
still have the right to a stay-of-enforcement for a certain period
of time after this court’s ruling. Because the ordinance does not
specifically provide for such a contingency, it is constitutionally
invalid.
The district court ruled against the FTU plaintiffs,
finding that a 180-day delay more than satisfied TK’s Video’s
limited stay-of-enforcement requirement: “Nothing in TK’s Video
supports Plaintiffs’ novel argument that the City was required to
build into its Ordinance additional periods of delay contingent on
various possible judicial rulings regarding the Ordinance’s
validity.” N.W. Enters., Inc., 27 F. Supp. 2d at 888. We agree.
TK’s Video merely grants non-complying businesses “a fair
opportunity to complete the administrative process and access courts
within a brief period.” TK’s Video, 24 F.3d at 709.
N.W. Enterprises makes a similar argument regarding the
grace periods embodied in §§ 7(a) and 9(a) of 97-75. The employee
licensing provisions and the structural, visibility, and lighting
provisions for adult arcades and adult mini-theatres were originally
to become effective on or about May 15, 1997, 120 days after the
passage of the ordinance. 97-75: §§ 7(a), 9(a). On account of the
pending litigation, the City did not enforce the ordinance until the
district court ruled on the City’s summary judgment motion and the
49
various cross-motions for summary judgment. N.W. Enters., Inc., 27
F. Supp. 2d at 767. After finding most of the licensing provisions
constitutional, the district court allowed the City to begin
enforcement of these restrictions on June 5, 1998, over a year after
initial enforcement was to begin. Id. at 900. Upon finding the
entirety of the arcade and adult mini-theatre provisions to be
constitutional, the trial court allowed the City to begin overall
enforcement against these entities.
Before this court, N.W. Enterprises argues that the
district court committed fundamental error and violated due process
by allowing one part of the ordinance to be enforced in advance of
the others. In support of this proposition it cites United States
v. O’Brien, 391 U.S. 367 (1969). Because we find no support for
this proposition in O’Brien or in the other cases that N.W.
Enterprises cites, we find no error in the district court’s handling
of the enforcement of these regulations.
IV. EMPLOYEE LICENSING
The Ordinance requires each manager and entertainer
of SOBs to obtain a permit and to display it conspicuously upon
himself or herself while working. The City must issue a permit
within 10 days from the date of application unless the applicant has
been convicted of or spent time in jail for an enumerated offense
within the last five years. The SOBs and employees challenge
various aspects of the permit requirements, and the City contends
50
that the district court erred in enjoining several aspects of this
regulation.
In this section, we affirm the judgment upholding the
constitutionality of the Ordinance’s permit requirements. We
reverse the judgement insofar as it has enjoined the City from
(a) requiring permit applicants to disclose their phone numbers and
home addresses on permit applications and (b) requiring managers to
conspicuously display their identification cards while working in
SOBs. We vacate the injunction prohibiting the City from disclosing
information on permit applications because the appellees have an
adequate legal remedy under state law. We also vacate as moot the
injunction prohibiting the City from requiring applicants to
disclose information on permit applications beyond that used by the
Ordinance to determine permit eligibility, because the City has
revised its application forms.
A. Licensing Procedures
1. Ten-day processing period
FTU35 contends that the district court should have
analyzed the validity of the 10-day time period for processing
permit applications in § 28-254(c) of the Ordinance under strict
scrutiny. The district court, however, correctly classified the
permit requirements as content-neutral provisions subject to
intermediate scrutiny. Specifically, the legislative record
35
FTU appellees include individuals who work in SOBs and are subject
to the licensing requirements.
51
reflects that entertainers in SOBs may often be more likely to
engage in prostitution and illegal lewd behavior, and managers, to
some extent, can control entertainers’ behavior.
Viewed under a standard of intermediate scrutiny, we
disagree with FTU’s contention that the 10-day processing period is
excessive. The period is well within the 60-day processing period
upheld by this court in TK’S Video, Inc. v. Denton County, Tex.,
24 F.3d 705 (5th Cir. 1994). FTU concedes that TK’s Video is
binding precedent on the permissible delay in processing business
permits but would distinguish its applicability to individual
permits. TK’s Video might not strictly control, because processing
a business permit application may be more complex and time-consuming
than processing the permit of an individual, yet that circumstance
supports a shorter time period for processing licenses for
individuals. A 10-day processing period for individual permits is
reasonable by comparison and does not impose an undue burden. Under
intermediate scrutiny, the least restrictive means need not be
employed.
FTU relies on Kev, Inc. v. Kitsap County, 793 F.2d 1053(9th Cir. 1986), to support its argument that the 10-day processing
period for entertainer and manager permit applications is excessive
and, thus, renders the permit requirements impermissible prior
restraints. In Kev, the Ninth Circuit concluded that a five-day
delay in issuing dancer permits was unconstitutional because Kitsap
County did not demonstrate a need for the delay. Id. at 1060.
52
Contrary to Kev, the record in this case indicates that the time
required to do certain background checks justifies the 10-day
processing period.
2. Written requests for temporary permits
Section 28-254(f) of the Ordinance provides that if the
City does not issue or deny a permit within the 10-day processing
period, it must immediately issue a temporary permit upon written
request by the applicant. FTU argues that the permit requirements
are unconstitutional prior restraints on expression because
requiring an applicant to submit a written request for a temporary
permit is not the least restrictive method for dealing with an
untimely response by the City.36 When analyzing the validity of a
content-neutral licensing scheme, however, this circuit does not
require that the least restrictive means be implemented. See TK’s
Video, 24 F.3d at 707-708. Because the ordinance requires the
immediate issuance of a temporary license upon written request by
an applicant, the Ordinance does not place an undue burden on
license applicants.
3. Days and times for permit application and renewal
Section 28-254(a) of the Ordinance provides that indi-
viduals who want to obtain or renew entertainer or manager permits
36
FTU suggests two less restrictive alternatives. First, the City
could allow applicants whose permits have not been issued by the end of the tenth
day to immediately begin work on the eleventh day without submitting a request
in writing. Alternatively, the City could issue temporary permits when
applicants turn in their permit applications so that applicants can work while
they wait for their applications to be processed.
53
can do so between the hours of 8:00 a.m. and 12:00 p.m. on Monday,
Wednesday, or Friday. FTU argues that the permit requirements are
facially unconstitutional content-based restraints on expression to
the extent that the Ordinance discriminates in the days and times
during which individuals can apply for permits. We agree with the
district court that FTU’s complaint does not rise to the magnitude
of a constitutional violation.
4. Burden of seeking judicial review of a permit denial and
burden of proof in court
FTU argues that the Ordinance’s dancer and manager permit
requirements are unconstitutional because § 28-254(e) places the
burden of seeking judicial review of permit denials on permit
applicants rather than on the City; FTU also argues that the City
should bear the burden of proof in court. In Freedman v. Maryland,
380 U.S. 51, 85 S.Ct. 734, 13 L. Ed. 2d 649 (1965), the Supreme
Court set forth three procedural safeguards to protect against
unlimited suppression of constitutionally protected speech by a
motion picture censorship board. First, any restraint before
judicial review occurs can be imposed only for a specified brief
period during which the status quo must be maintained; second,
prompt judicial review of that decision must be available; and
third, the censor must bear the burden of going to court to suppress
the speech and must bear the burden of proof in court. Freedman,
380 U.S. at 58-59, 85 S.Ct. at 739, 13 L.Ed. 2d at 654-55.
54
In FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 110 S.Ct.
596, 107 L.Ed. 2d 603 (1990), Justice O’Connor, joined by two other
Justices on the issue, dispensed with the third Freedman requirement
when analyzing the validity of an SOB licensing scheme. FW/PBS, 493
U.S. at 229-30, 110 S.Ct. at 607, 107 L.Ed. 2d at 621. This circuit
has followed Justice O’Connor in applying only the first two
Freedman procedural safeguards when dealing with a licensing scheme
that does not present the grave dangers of a censorship system.
See, e.g., Encore Videos, Inc. v. City of San Antonio, 310 F.3d 812,
823 (5th Cir. 2002); TK’s Video, 24 F.3d at 707-08. Other circuits
have also concluded that the third Freedman procedural safeguard
does not apply to licensing schemes that do not directly regulate
content. See, e.g., MacDonald v. City of Chicago, 243 F.3d 1021,
1035-36 (7th Cir. 2001); Ward v. County of Orange, 217 F.3d 1350,
1355 (11th Cir. 2000); Steakhouse, Inc. v. City of Raleigh, 166 F.3d
634, 640-41 (4th Cir. 1999) (in the context of an administrative
process).
FTU urges this court to apply the third Freedman
procedural safeguard to the Ordinance’s entertainer and manager
permit requirements, contending that individual managers and dancers
have less motivation and significantly less economic wherewithal
than the SOB plaintiffs in FW/PBS to seek judicial review of permit
denials. In FW/PBS, Justice O’Connor considers the degree of
motivation that an unsuccessful applicant would have to seek
judicial review of an adverse administrative decision, but she
55
dispenses with the third Freedman safeguard primarily because
“[u]nder the Dallas ordinance, the city does not exercise discretion
by passing judgment on the content of any protected speech.”
FW/PBS, 493 U.S. at 229, 110 S.Ct. at 607, 107 L.Ed. 2d at 621.
While the censor in Freedman engaged in presumptively invalid direct
censorship of expressive material, the city in FW/PBS simply engaged
in the ministerial, nondiscretionary act of reviewing the general
qualifications of license applicants. Similarly, the issuance of
manager and entertainer permits under Houston’s ordinance is a
nondiscretionary act that does not require the City to pass judgment
on the content of any protected speech.37 The third Freedman
procedural safeguard therefore does not apply; the City need not
bear the burden of seeking judicial review of a permit denial nor
the burden of proof in court.
B. Information on permit applications
1. Confidentiality
The Texas Public Information Act (TPIA) gives the public
the right to obtain information in government records unless the
“information [is] considered to be confidential by law, either
constitutional, statutory, or by judicial decision.” TEX. GOV’T CODE
37
Because the issuance of entertainer and manager permits under the
Ordinance is a nondiscretionary act that does not involve passing judgment on the
content of protected speech, FTU’s reliance on Speiser v. Randall, 357 U.S. 513,
78 S.Ct. 1332, 2 L.Ed. 2d 1460 (1958) is also misplaced. The Supreme Court
placed the burden of proof on the State in Speiser because the State was denying
tax exemptions to veterans if they did not sign an oath stating that they did not
advocate the overthrow of the government by unlawful means.
56
§ 552.101. The district court declared the information provided by
entertainers and managers on their permit applications confidential
under the TPIA, and then enjoined the City from disclosing such
information. We reverse the injunction because the appellees have
an adequate legal remedy under the TPIA. 11A CHARLES A. WRIGHT & ARTHUR
R. MILLER, FEDERAL PRACTICE AND PROCEDURE § 2942 at 44 (1995) (“[T]he main
prerequisite to obtaining injunctive relief is a finding that
plaintiff is being threatened by some injury for which he has no
legal remedy.”). Because the district court declared the
information on entertainer and manager permit applications
confidential under the TPIA, the City cannot disclose it to the
public. There is no need for the injunction.
2. Phone numbers and home address
The district court enjoined the City of Houston from
requiring permit applicants to disclose their phone numbers and home
addresses on permit applications. We reverse the district court’s
injunction. The appellees’ concern that their phone numbers and
home addresses may be disclosed to stalkers, overly-aggressive
suitors, or people zealously opposed to SOBs does not justify the
injunction because the information on permit applications is
confidential under the TPIA. Moreover, the information is
substantially related to the law enforcement and administrative
needs of the City.
57
AHD, FTU, and Dee & Dee argue that the district court
properly enjoined the City from requiring entertainers and managers
to disclose their phone numbers and home addresses on permit
applications under TK’s Video. In TK’s Video, this court upheld a
licensing scheme that required owners and employees of SOBs to
provide information about their age and certain regulatory
infractions and sexual offenses because such information
“substantially relates to the substantial government interest of
curtailing pernicious side effects of adult businesses.” TK’s
Video, 24 F.3d at 710. That the Denton County order at issue in
TK’s Video did not require license applicants to disclose their
phone numbers and home addresses does not mean such information may
not be required. While § 8-254(a)(1) requires permit applicants to
disclose their home and mailing addresses, the Ordinance does not
require permit applicants to disclose their phone numbers, but,
under the standard set forth in TK’s Video, the City can require the
disclosure of such information because there is a “‘relevant
correlation’ or ‘substantial relation’ between the information
required and the government interest.” Id. The information may not
be necessary to conduct criminal background checks or to ensure that
SOBs do not hire underage employees, but it is highly relevant to
the ability of law enforcement officers to investigate criminal
activity in SOBs.
The information also substantially relates to the City’s
ability to comply with the notice requirement of the Ordinance. The
58
appellees argue that the City can send the required notice to an
address other than an applicant’s home address, but the least
restrictive means of complying with the notice requirement need not
be employed. There is a substantial relation between the informa-
tion sought and the City’s interest; we therefore reverse the
district court injunction.
3. Criminal History
Under § 28-254(c) of the Ordinance, the City can deny an
applicant a permit based on a conviction for certain criminal acts
or jail time served for such acts during the preceding five years.
Dee & Dee argues that the district court incorrectly upheld the
Ordinance’s permit disqualification provision under TK’s Video. Dee
& Dee reads TK’s Video to allow criminal background checks solely
to monitor individuals working in SOBs but not to serve as grounds
for permit disqualification and argues that the district court
decision conflicts with prior Supreme Court and Fifth Circuit
precedent. We disagree. The licensing scheme at issue in TK’s
Video allowed the county director to deny a permit to an applicant
if the applicant or the applicant’s spouse had been convicted of
certain enumerated crimes or had been released from jail for such
a conviction within two years for a misdemeanor offense or within
five years for a felony offense. This court concluded that
histories of misconduct are “plainly correlated with the side
effects that can attend [adult] businesses, the regulation of which
59
was the legislative objective. . . . [E]nds and means are
substantially related[,] . . . assur[ing] a level of scrutiny
appropriate to the protected character of the activities and
sluic[ing] regulation away from content, training it on business
offal.” TK’s Video, 24 F.3d at 710. Under TK’s Video, the district
court properly upheld the Ordinance’s permit disqualification
provision.
As explained earlier, the Ordinance allows the City to
deny a permit to an applicant who has either been convicted of or
spent time in jail for an enumerated crime during the preceding five
years. The City’s initial permit application, however, required
applicants to disclose information beyond that used by the Ordinance
to determine permit eligibility. The district court therefore
enjoined the City from requiring permit applicants to disclose
criminal convictions obtained more than five years before the
application, convictions for crimes other than those enumerated in
the Ordinance, and time spent in jail for an offense other than one
of the enumerated crimes. N.W. Enters., Inc., 27 F. Supp. 2d at
858. Even after the City revised its permit applications to accord
with the limitations set by the Ordinance, the district court denied
the City’s motion to reconsider the injunction. Id. at 901. We
vacate the district court injunction as moot because the permit
application no longer requires applicants to disclose the
information covered by the injunction. See Doe v. Marshall, 622
60
F.2d 118, 120 (5th Cir. 1980); Sannon v. United States, 631 F.2d
1247, 1249 (5th Cir. 1980).
C. Conspicuous Display of Manager Identification Cards
Section 28-256 of the Ordinance requires each manager or
entertainer to conspicuously display a personal identification card
while working. The district court upheld the conspicuous display
requirement with regard to entertainers as a permissible content-
neutral regulation that is narrowly tailored to serve the City’s
substantial interest in ensuring that only licensed entertainers
work in adult businesses. With regard to managers, however, the
district court struck down the requirement under strict scrutiny,
concluding that the legislative record contains no justification for
the requirement for managers. After reviewing the record, we
disagree with the district court. Aside from its methodological
error in determining what level of scrutiny to apply, the court
overlooked evidence in the legislative record that supports the need
for the conspicuous display requirement for managers.
Managers monitor entertainers and play an important role
in ensuring that they do not engage in illegal activity. According
to the record, though, some managers “look the other way” while
entertainers perform lewd dances or illegal sexual acts.38 Law
38
At Houston City Council SOB Committee Meeting on August 26, 1999, a
number of vice officers testified to the activities taking place at these clubs.
For example, Vice Officer C testified that entertainers often “ask [the patron]
to give them some money to tip the manager or the floor person so that they will
look the other way while they perform a table dance.” See R. Doc. 81, Ex. 8E at
88. Vice Officer A testified that the officers had “heard of occasions where the
dancers told us that they pay extra to management personnel, floor persons,
61
enforcement officers must be able to determine from a distance
quickly, and without being intrusive, whether both entertainers and
managers of clubs are engaging in or permitting illegal activity.
The conspicuous display requirement is narrowly tailored to serve
this important government interest. Managers need not display their
real names but do need to furnish a picture and identification
number on their identification cards. We reverse the district court
decision on the unconstitutionality of the conspicuous display
requirement for managers and hold that the City can require managers
to conspicuously display their identification cards while working.39
CONCLUSION
The district court’s rulings in this case are extensive
and clearly reflect hard work and thoughtfulness. Upon review of
the voluminous briefs and record, we AFFIRM the judgment of the
bartenders, waiters to look the other way to make sure that no one know or to
warn them that someone is coming up the that they don’t know.” Id. at 92-93.
Indeed, Officer A noted that he had “one experience personally where the two
dancers spoke in front of me and asked if they thought the waitress was cool
because she wouldn’t tell on them or if the manager knew and he said it was
cool. In turn, these two persons were willing to perform sex acts on me at the
club at the time. They wanted to go through with it. I had to get out of it and
did not want to go through with it.” Id. at 93. According to Officer A, these
entertainers went beyond mere suggestion when he “observed [them] along with
another dancer engaged in sex with one another as well as [being] willing to
engage in sex with [individuals] who they thought were my business partners, but
were other police officers.” Id. at 93. In addition, Vice Officer B testified
that at one particular club that the Houston Police Department investigated, “the
manager also looked the other way as the girls performed table dances for us.
So, I’m sure the management did know what was going on.” Id. at 92.
39
AHD argues that the district court erred in upholding the Ordinance’s
manager and entertainer permit requirements under Article I, Section 8 of the
Texas Constitution because they are not the least restrictive means of achieving
the City’s interests. This argument is without merit. As we noted earlier, the
Texas Constitution does not provide broader rights than the First Amendment with
regard to SOBs, and there is no plausible reason for construing the state
constitution differently with respect to SOB managers and entertainers.
62
district court in its entirety40 with the following exceptions.
First, we REVERSE the district court’s ruling enjoining enforcement
of the amended 1,500-foot distance restriction and remand for a
determination whether that restriction, in light of the Ordinance
as a whole, affords reasonable alternative avenues of communication
for SOBs. Second, we DISMISS the cross-appeal of the Court’s non-
final rulings on the constitutionality of the public parks and
multi-family residence provisions. Third, we REVERSE the court’s
invalidation of 97-75's interior design restrictions related to
large VIP rooms. Fourth, we REVERSE the court’s invalidation of the
requirements that (a) permit applicants disclose phone numbers and
home addresses on their applications, and (b) managers conspicuously
display their identification cards while at work in SOBs. Finally,
we VACATE the court’s injunction prohibiting the City from
disclosing information on permit applications and requiring
applicants to disclose information beyond that required by 97-75.
AFFIRMED in Part, DISMISSED in Part, REVERSED in Part,
VACATED in Part, and REMANDED in Part.
40
We affirm the district court’s decision to require the formation of
a sign control board pursuant to TEXAS LOCAL GOVERNMENT CODE § 216, but we express
no opinion on the scope of the Texas statute or its applicability to signs
involved in the amended § 28-130(g).
63