Opposition Brief — FW/PBS, Inc. v. City of Dallas

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Supreme Court Of The United States

OCTOBER TERM, 1987

MJR, INc., et al,

Petitioners,

us.

Tue Crry of DaLLas, TEXAS, et al,

Respondents.

ON PETITION FOR WRIT OF CERTIORARI TO TE £

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

RESPONDENTS’ BRIEF iN OPPOSITION

CARROLL R GRAHAM

Counsel of Record

Mark K. O'BRIANT

Assistant City A‘torney

Orrice oF THE CITY ATTCRNEY

7BN City Hall

1500 Marilla Street

Dallas, Texas 75201

(214) 670-3510

Attorneys fer Respondents

SP Oe ere? eo ae oe

QUESTIONS PRESENTED FOR REVIEW

1. Can a content-neutral ordinance regulating sexually

oriented businesses temporarily deny a license to persons

recently convicted of specified sex-related crimes?

2. Does Young v. American Mini-Theatres require an ordi-

nance regulating the location of sexually oriented

businesses to contain a “grandfather clause,” thereby

exempting existing businesses from its locational

‘tions?

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED FOR REVIEW ......-.

TABLE OF CONTENTS .........::0:0sceeeeee ee i

TABLE OF AUTHORITIES .......-.-:0+000052904 iii

STATEMENT OF THE CASE ........-+++2s5859 bie

ARGUMENTS SUPPORTING DENIAL

OF THE WRIT .......--:eeeeeeeeeeeeerereeceee 5

|. THE REGULATORY PROVISIONS OF THE

ORDINANCE ARE CONSISTENT WITH

PRIOR DECISIONS OF THIS COURT ...... 5

end is Consistent With This Court’s Deci-

sions in Arcara v. Cloud Books, Inc. and City

of Renton v. Playtime Theatres, Inc. fae a 5

Of Renton ......-seceeesnceeeeenrneeceees 10

TABLE OF CONTENTS (Continued)

Page

Il. THE ZONING PROVISIONS OF THE ORDI-

NANCE ARE GOVERNED SQUARELY BY

CITY OF RENTON .....---0000eeeeerereeee 14

C. A City May Rely Upon the Experiences of

Other Cities in Dealing with the Secondary

Effects of Adult Cabarets, a Principle Clearly

Decided in City of Renton .....--+++00+%% 19

CONCLUSION .....--ccccceccceceneereeceneeceeees 21

APPENDIX A .......--- cece cece cee eeeeeeeeeeeees A-1

Cases Page

Adultworld Bookstore v. City of Fresno, 738 F.2d

1348 (9th Cir. 1985) .....-.---- ee cence eee eeeee 17

Airport Book Store, Inc. v. Jackson, 248 S.E.2d 623

(Ga. 1978), cert. denied sub nom,

Gateway Books v. Jackson, 441 U.S. 952 (1979) .. 10

Apple Theatre v. City of Seattle, 441 US.

FT See 17, 18

Arcara v. Cloud Books, Inc., 478 U.S. _— , 106 8S.

Ct. 3172, 92 L.Ed.2d 568 (1986) ........ 4, 5, 7, 8, 9, 10

Basiardanes v. City of Galveston, 682 F.2d 1203

(Sth Cir. (1962)... 2... c eee cee eet eee ee ees 16

Bayside Enterprises, Inc. v. Carson, 470 F.Supp. 1140

12

10

10

10

City of Paducah v. Investment Entertainment, Inc.,

791 F.2d 463 (6th Cir. 1986) cert. denied

___ US. -_ , 107 S.Ct. 316 (1986) .......--- 9, 13

City of Renton v. Playtime Theatres, Inc., 475 U.S.

41, 106 S. Ct. 925, 89 L.Ed 2d 29 (1986) .......--. 5, 6,

10, 11, 12, 14, 15, 16, 18, 19, 20

DeVeau v. Braisted, 363 U.S. 144 (198°, ........-- 4

Dumas v. City of Dallas, 648 F.Supp. 1061

(NLD. Tex. 1986)... 2... - cece renee eeeewewceees 2, 3, 5,

7, 8, 11, 14, 15, 16, 20

631 F.2d 497 (7th Cir. 1980), cert.

denied 450 U.S. 919 (1981)... ..----- eee eee 13

Fernandes v. Limmer, 663 F.2d 619 (5th Cir. 1981) . 12

106 Forsyth Corp. v. Bishop, 482 F 2d 280 (5th Cir.

1973), cert. denied 422 U.S. 1044 (1975) ........ 10

Freedman v. Maryland, 380 U.S. 51, 85 S.Ct. 734,

13 L.Ed.2d 649 (1965) .....-- 6 cece eee ee ees 4, 12,13

FWI/PBS, Ine. v. City of Dallas, 837 F.2d 1298 (5th

Cir. 1908) . 2.26... cece nce n nue eneennercneeees 2, 3, 4,

5, 7, 9, 11, 12, 13, 15, 16

Books v. Jackson, 441 U.S. 952, 99 S.Ct.

2182, GO L.Ed. 2d 1057 (1979) ......-----+++++> 10

Genusa v. City of Peoria, 619 F.2d 1203

i Ae Ae... |) 11, 19

Hart Book Stores v. Edmisten, 612 F.2d 812 (4th Cir.

GUND “oo occ dddeddedccoccowscoweces veccccces 17, 18

Miller v. California, 413 U.S. 15 (1973) ......----- 8

Near v. Minnesota, 283 U.S. 697 (1931) ......----- .

Northend Cinema, Ine. v. City of Seattle, 99 Wash.2d

709, 585 P.2d 1153 (1978) cert. denied sub nom.

Apple Theatre, Inc. v. City of Seattle, 441 U.S.

O46 (1979) 2... nn ence nc ceneeeceemerecreeere: 17, 18

Roth v. United States, 354 U.S. 476 (1957) .....--- 8

SDJ, Inc., v. City of Houston, 636 F.Supp.

1359 (S.D. Tex 1986) .......-------+5+ 11, 17, 18, 20

SDJ, Inc. v. City of Houston, 837 F.2d 1268 (5th

Cle. 19BB) 2... nec c ccc cence eer ceeeeeces 7, 11, 18, 20

TABLE OF AUTHORITIES (Continued)

Cases Page

United States v. O’Brien, 391 U.S. 367 (1968) ... 3

Wall Distributors, Inc. v. City of Newport News,

782 F.2d 1165 (4th Cir. 19€ ) ........-----++- il

West Gallery Corp. v. Salt Lake City Board of

Commissioners, 586 P.2d 429 (Utah 1978) ..... 10

Young v. American Mini-Theatres, Inc., 427 US. 50,

96 S.Ct. °140, 49 L.Ed.2d 310 (1976) .......-. 6, 10

11, 16, 17, 18

Statutes And Ordinances

Dallas City Code, Chapter 41A

(enacted as Ordinance 19196)

Section 41A-2 ......------0-seceeeeeeeeees 2

Section 41A-4 ........s-- ees neeeeeceeenees 2

este GORE... cccccccccerccnccesse abies? 3,8

Section 41A-13 .....-.---sssseeeceereeeeee 2, 14, 17

Section 41A-14 ........---se-reeeeereeeees 17

Dallas City Ordinance No. 19377 (amending

Chapter 41A) .....---ceesencnseeesseersrere 3, 8

TEX. CIV. PRAC. & REM. CODE, Ch. 65 ..... 13

TEX. PENAL CODE § 43.23 ........----+-+++ 8

Other Authorities

Note, “Using Constitutional Zoning to Neutralize

Adult Entertainment - Detroit to New York,”

5 Fordham Urban L. J. 455 (1977) ......-.--- 17

NO. 87-201

In The

Supreme Court Of The United States

OCTOBER TERM, 1987

MJ. INc., et al,

Petiti

us.

THE Crry or DaLLas, TEXAS. et al,

Respondents.

ON PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

RESPONDENTS’ BRIEF IN OPPOSITION

STATEMENT OF THE CASE

Petitioners’ statement of the case substantially and mate-

rially misrepresents the facts of this case. Petitioners have

stated as matters of fact, without citation to the record,

numerous unproven allegations for which there are no find-

ings by the trial court. Among these are the allegations that

adult cabarets in Dallas have caused no deleterious effects on

neighborhoods (Pet. at 3); the Dallas Ordinance will force

every adult cabaret in Dallas to close (Pet. at 4 and 25); and

that the areas to which the cabarets may relocate under the

Ordinance are industrial zones, poorly lit, with high crime

rates, which effectively sentence the cabarets to an

“economic death.” (Pet. at 5). Petitioners in a number of

instances have misrepresented the findings of the District

Court and have injected new facts not in the record."

Respondents will not engage“in a point-by-point debate

with Petitioners in this matter. Instead, Respondents refer

the Court to the history of the case as set forth in the lower

court opinions? and supplement same with the following

statement of the case.

After considering the studies of other metropohtan cities

on the effects of sexually oriented businesses upon neigh-

borhoods, as well as its own crime rate study, the City of

Dallas enacted a Sexually Oriented Business Ordinance,

codified as Chapter 41A of the Dallas City Code. The ordi-

nance regulates sexually oriented businesses in two basic

ways: zoning restrictions and a license requirement.

The zoning provisions prohibit such businesses from

locating within 1000 feet of a church, school, residential

area, public park adjacent to a residential area or another

sexually oriented business. Businesses located within 1000

feet of one of the prohibited areas are given a three-year

amortization period if they were already operating on the

effective date of the Ordinance. Section 41A-13, Dallas

City Code.

The licensing provisions require a license to be obtained

by those establishments meeting the Ordinance’s definition

of a “sexually oriented business.” Sections 41A-4 and 41A-2,

Dallas City Code. A license is not available to persons

recently convicted of certain sex-related crimes. However,

an individnal convicted of those crimes may again become

eligible for a license two years after the date of conviction or

‘See for example, Pet. at 29, nn. 20-22.

*Dumas v. City of Dallas, 648 F.Supp. 1061 (N.D. Tex. 1986), and

FW/PBS v. City of Dallas, 837 F.2d 1298 (5th Cir. 1988).

end of confinement, whichever is later. In the case of convic-

tions for felonies or multiple misdemeanors, the waiting

period is five years. Section 41A-5, Dallas City Code.

tive relief. The suits were consolidated, and the case was

submitted for decision on cross-motions for summary judg-

ment filed by all parties. No party objected to resolution of

the issues by summary judgment.’

The District Court upheld the constitutionality of the

Ordinance, with the exception of four relatively minor provi-

sions dealing with licensing. These sections were later

amended or deleted to comport with the Court’s ruling.‘

The District Court made a number of findings which are

pertinent to this Petition for Certiorari. First, the Court

found that the Ordinance was content-neutral, focusing on

the secondary effects of sexually oriented businesses and

having only an incidental impact on protected speech, and

that it satisfied the four-part test of United States v.

O’Brien, 391 U.S. 367 (1968). Second, the Court found that

the land available for the relocation of existing businesses

and the establishment of new businesses was substantial,

constituting 8-10% of the City’s total area.® The Court

‘See FW/PBS v. City of Dallas, 837 F.2d 1298, 1303 (5th Cir. 1988), and

— 1061, 1064 n. 5, and 1068 n. 17 (N.D.

‘ex. 1986).

‘See Ordinance 19377, enacted October 12, 1986, included herein as

Appendix A.

‘Dumas v. City of Dallas, 648 F 1061, 1070-71 (N.D. Tex. 1986).

Petitioners inaccurately state that the Court found “slightly more

than 8%” of the City to be available. Pet. at 25.

3

further found that the Ordinance’s three-year amortization

period was generous and constituted “. . . a valid mecha-

nism used to enforce valid locational regulations.”*

Regarding the licensing provisions, the District Court

found that the requirement of a license for sexually oriented

businesses is constitutional, and that the denial of licenses

to persons convicted of specified sex-related crimes is rea-

sonably related to the crime-control intent of the Ordi-

nance’ and is consistent with Arcara v. Cloud Books, Inc.,

478 US. _._, 106 S.Ct. 3175 (1986). Last, the Court held

that the Ordinance provides procedural due process of law

and satisfies the standard of Freedmwn v. Maryland, 380

U.S. 51 (1965).

The Fifth Circuit upheld the District Court decision in all

respects. The Court disagreed, however, that a content-neu-

tral regulation such as the Dallas Ordinance must meet the

Freedman standard of due process. Instead, the Court found

that the /)rdinance, being content-neutral, need only meet

the standards applicable to time, place, and manner regula-

tions and that it did so.

The Fifth Circuit agreed that the Ordinance’s use of crim-

inal convictions to deny licensing for a limited period of

time is constitutional. The Court found that ineligibility

results only from the recent commission of sex-related

crimes and that the City had demonstrated a substantial

relationship between the conviction and the evil to be regu-

lated. The Court stated additionally that the Ordinance in

this regard might well meet a strict scrutiny test as well as

a substantial relationship tesi.*

"Id. at 1071.

Id. at 1071, 1073-74.

"“FW/PBS v. City of Dallas, 837 F.2d 1298, 1301-1303 (Sth Cir. 1988).

"fd. at 1304-1305.

4

Finally, the Court held that the District Court had before

it sufficient evidence to conclude that the Ordinance allows

adequate alternative sites for the relocation of sexually

oriented businesses.’°

ARGUMENTS SUPPORTING DENIAL

OF THE WRIT

I. THE REGULATORY PROVISIONS OF THE ORDI-

NANCE ARE CONSISTENT WITH PRIOR DECI-

SIONS OF THIS COURT.

A. The Fifth Circuit and District Court Correctly Held

That Temporary Denial of a Sexually Oriented Busi-

ness License to Persons Recently Convicted of Speci-

fied Sex-Related Crimes Does Not Violate the

Constitution and is Consistent with This Court’s Deci-

sions in Arcara v. Cloud Books, Inc. and City of Renton

v. Playtime Theatres, Inc.

Petitioners assert that the provisions of the Ordinance

allowing denial of a license to a person with certain specified

convictions act as a prior restraint on expression. This con-

tention was correctly rejected by both the Fifth Circuit'' and

the District Court."

In City of Renton v. Playtime Theatres, Inc.,"* this Court

faced a zoning ordinance similar to the Dallas ordinance.

The Court in upholding the Renton ordinance tested the

ordinance under the time, place, or manner aialysis

reserved for content-neutral regulations, even thoug': the

Ordinance clearly marked businesses according tc the con-

tent of their products.

“Id at 1303.

“FW/PBS v. City of Dallas, 837 F.2d at 1304-05.

"Dumas v. City of Dallas, 648 F Supp. at 1073-74.

475 U.S. 41 (1986).

5

This Court gave two reasons for applying the time, place,

or manner analysis. First, the ordinance could be treated as

content-neutral because its purpose was not.to suppress

speech of a particular content, but to control the effects of

certain businesses on the urban environment. As long as the

City’s predominant concern was to curb the secondary

effects of adult businesses on neighborhoods, the ordinance

could distinguish between types of businesses without

engaging in content-based regulation.

Second, this Court affirmed that sexually oriented materi-

als are entitled to less First Amendment protection than

other forms of protected expression. The plurality opinion

in Young v. American Mini-Theatres had stated this idea in

recognizing that “society's interest in protecting this type of

expression is of a wholly different, and lesser, magnitude

than the interest in untrammeled political debate...”

City of Renton, 106 S.Ct. at 929-30, quoting Young, 427 U.S.

at 70.

The Fifth Circuit recognized that this reasoning applies

with equal force to the Dallas ordinance. The type of activ-

ity regulated is the same as in City of Renton, and there was

abundant evidence that the predominant concern of the

Dallas City Council in enacting the Ordinance was to limit

the secondary effects of sexually oriented businesses and

nct the content of their products.

Accordingly, the Fifth Circuit held that as a content-neu-

tral regulation, the Dallas Ordinance — including the details

of its licensing scheme — should be judged under a “time,

place, and manner” ana’;sis in accordance with Young v.

American Mini-Theatres and City of Renton. As the Court

noted, the “time, place, and manner” standard cannot be

limited solely to regulation of “place.” Therefore, the regula-

tions of the Ordinance are constitutional if they are

narrowly tailored to serve a substantial governmental

interest while leaving open alternative channels of

Satine oad

Use of Criminal Convictions

The Dallas ordinance, including its criminal convictions

disability, clearly meets this test. First, by limiting the dis-

ability to specified crimes that are sexual in nature, the

Ordinance exhibits a substantial relationship between the

conviction on which denial is based and the evil sought to be

prevented. indeed, the Fifth Circuit found that the Ordi-

nance might well meet a strict scrutiny standard as well as

the substantial relationship test. FW/PBS v. City of Dallas,

837 F.2d at 1304-05. The City Council's objective in enacting

the Ordinance was to ameliorate the effects of sexually ori-

ented businesses on neighborhoods — including the preven-

tion of crime. By its use of sex-related crimes as an

occupational disability, the Ordinance is “narrowly tailored

to avoid licensure of those who have recently shown a

predilection toward the criminal conduct the Ordinance was

designed to overcome.”'*

Second, Petitioners overiook the importance of this

Court's ruling in Arcara v. Cloud Books, Inc. 478 US.___,

106 S.Ct. 3175, 92 L.Ed.2d 568 (1986). In Arcara, this Court

upheld a New York law permitting closure of a sexually ori-

ented bookstore for cz. year because of acts of prostitution

and public lewdness occurring on the premises with the

knowledge of management. As ‘:. Avcara, the crimes .isted

in the Dallas Ordinance as a basis for denying licensure

(prostitution, public lewdness, sexual assault, etc.) manifest

“no element of protected expression” under the First

“SDJ, Inc. v City of Houston, 837 F.2d 1268, 1273 (Sth Cir. 1988).

"Dumas v. City of Dallas, 648 F Supp. at 1074 n. 34.

7

Amendment. Arcara, 106 S.Ct. at 3176-77. As such, they

may be used to deny licensure."* If criminal conduct will

permit closure of an adult business, it follows that one

who has recently been convicted of a sex-related crime

may for a time be denied a license to operate a sexually

oriented business.'’

Additionally, it must be stressed that the Dallas ordi-

under Texas law,'* may receive a license two years after his

date of conviction or end of confinement, whichever is later,

under the terms of the Ordinance. Just as the New York

law in Arcara permitted the closure of # business for one

'"Dumas v. City of Dallas, 648 F Supp. at 1074 n. 34.

“Section 41A-5ic), as amended by Ordinance 19377, Appendix A of

this Brief.

"Section 43.23, Texas Penal Code.

8

suppression of speech. ( »ntra, the Dallas Ordinarce is con-

tent-neutral, and its denial of a sexually oriented business

license to those convicted of sexually oriented crimes is but

a temporary occupational disability. [t does not bar the

exhibition of any particular film or ‘ook, and it is not

directed at future expression, unlike the cases cited by Peti-

attach to criminal convictions disc bilities aimed at prevent-

ing recidivism.” FW/PBS v. City of Dallas, 837 F.2d at 1305,

citing inter alia DeVeau v. Braisted, 363 U.S. 144, 155-59

(1960) (plurality opinion) (“Barring convicted felons from

certain employments is a familiar legislative device to insure

In addition to this Court’s ruling in Arcara, numerous

in which this Court denied certiorari.** The Ordinance’s

limited use of criminal convictions is narrowly tailored to

further a substantial governmental interest and is consis-

tent with this Court’s rulings in Arcara and City of Renton.

B. The Lower Courts’ Rulings That Sexually Oriented

Businesses May Be Subject to a License Requirement is

Consistent with Young v. American Mini-Theatres and

City of Renton.

In City of Renton, supra, this Court held that content-

neutral ordinances having an incidental impact on free

expression may be analyzed under a time, place, and

manner standard of review.” The Fifth Circuit in the

instant case accordingly applied this standard of review and

found that the regulatory provisions of the Ordinance are

rarer ae teense Bee fo yg

First Amendment.

In Young v. American Mini-Theatres, supra, this Court

Corp. v. Salt Lake City Board

"City of Renton v. Playtime Theatres, Inc., 106 S.Ct. at 927.

"Young v. American Mini-Theatres, 427 U.S. at 66.

10

messages according to the degree to which its interests

ne implicated. Young, 427 U.S. at 82 n. 6 (1976) (Powell,

J., concurring).

Accordingly, the Dallas Ordinance has imposed reason-

: News, 782 F.2d 1165, 1171

of supra; SDJ, Inc. v. of

1988); Genusa v. City of Peoria, 619 F.2d

because they have “markedly different effects upon their

663 F.2d 619 (Sth Cir. 1981), cert. dismissed 458 U.S. 1224 (1962).

12

“... is of a different order than the protection due sexually

oriented businesses. * * * What is being limited here is not

a particular movie — as in Freedman — nor episodic solici-

tation efforts — as in Fernandes — but a long-term com-

mercial business.” FW/PBS v. City of Dallas, id. at 1303.

The cases cited by Petitioners in support of their Freed-

man argument are easily distinguishable. Each of them

involves content-based regulations involving a direct impact

on the suppression of speech. The regulations involved in

City of Paducah v. Investment Entertainment™ and Enter-

tainment Concepts, Inc. v. Maciejewski® were local obscenity

ordinances which called upon a city board to review particu-

lar films and make administrative findings of obscenity. In

Freedman v. Maryland, the Maryland statute at issue actu-

ally required the films themselves to be licensed ond

directed the Board of Censors to deny licensure to films

deemed to be “obscene, or such as tend, in the judgment of

the Board, to debase or corrupt morals . . .” Freedman v.

Maryland, 380 U.S. 51, 52 n. 2 (1965). The Dallas Ordinance,

"791 F.2d 463 (6th Cir. 1986), cert. denied 93 L.Ed.2d 290 (1986).

"631 F.2nd 497 (7th Cr. 1980), cert. denied 40 U.S. 919 (1961).

"As the District Court noted, 648 F Supp. at 1075, prompt judicial

reves of an avers hcnaing acne i wale to any payin adh

a

stan jards, and comport with Freedman and fundamen-

tal tenets of due process.” Dumas v. City of Dallas, 648

F.Supp. at 1075.

ll. THE ZONING PROVISIONS OF THE ORDI.

NANCE ARE GOVERNED SQUARELY BY CITY

OF RENTON.

Section 41A-13 of the Ordinance prohibits sexually ori-

ented businesses from locating within 1000 feet of churches,

schools, residential areas, parks adjacent to residential

areas, and other sexually oriented businesses. Businesses

existing prior to the enactment of the Ordinance which vio-

late che location restrictions are declared nonconforming

uses and are given three years in which to relocate.”

provides adequate alternative sites for relocation. The Dis-

trict Court gave deference to the City Council findings (TR.

at 154) but also found them to be fully supported by the

evidence presented upon cross-motions for summary judg-

ment by both Plaintiffs and Defendants. See City’s Exhibit

Nos. 15 and 27 and Plaintiff's Exhibit Nos. 1, 3, 4, and ~

referred to in Dumas v. City of Dallas, 648 F.Supp. at 107,

Petitioners insist that the District Court failed to ade-

quately assess the impact of the Ordinance on cabarets, and

that the Ordinance fails to leave sufficient locations for

“Section 414-13, Dallas City Code.

14

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The Dis-

"See FW/PBS v. City of Dallas, 837 F.2d and Dumas

Dalles, 648 F Supp. ot 10840. 6 end 10080 17 ——

15

of sexually oriented businesses; that the available areas

stretched from the inner city area to the north and south

suburbs; and that the alternative sites were feasible loca-

tions for such businesses.* The Court concluded that the

Ordinance permits “reasonable alternative avenues of

communication” and satisfies Basiardanes v. City of

Galveston®™ and City of Renton. The Fifth Circuit held that

the District Court had evidence before it sufficient to sus-

tain its findings.*

It is evident that in making its findings the District Court

considered all of the evidence and found that the City’s

evidence proved that adequate alternative sites exist as a

matter of law and that Petitioners’ evidence spoke only to

economic desirability of the available areas. Petitioners did

not move to re-open the evidence following this adverse

decision. The record supports the findings of the District

Court, and Petitioners are bound by that record. Petitioners

may not now ask this Court to disregard an evidentiary

issue which was resolved against them by the trial court.

The case is squarely controlled by City of Renton.

right to a grendfather clause in all sexually oriented busi-

ness ordinances. Petitioners have missed the point of Young

In Young the pivotal issue was not whether one or more

Compare City of Renton, supra (five percent).

“Dumas v. City of Dallas, 648 F Supp. at 1070-71.

“682 F.2d 1203 (5th Cir. 1982).

*FW/PBS v. City of Dallas, 837 F.2d at 1303.

16

In asserting that an ordinance may not require the reloca-

tion of existing sexually oriented businesses, Petitioners cite

Adultworld Bookstore v. City of Fresno, 738 F.2d 1348 (9th

Respondents respectfully submit that the Ninth Circuit was

incorrect. At the time the above statement was made, at

least two such appellate cases after Young had heen decided,

and this Court denied certiorari in both.

In Hart Book Stores v. Edmisten, 612 F.2d 812 (4th Cir.

1979), the Fourth Circuit upheld a North Carolina statute

with a six-month amortization period. This Court denied

certiorari at 447 U.S. 929 (1980). And in Northend Cinema v.

City of Seattle, 585 P.2d 1153 (Wash. 1978), a Seattle ordi-

nance was upheld with a 90-day amortization period. Certio-

rari was denied sub nom. Apple Theatre v. City of S.attle at

441 U.S. 946 (1979).

The use of an amortization provision is a reasonable

alternative to a grandfather clause, SDJ, Inc. v. City of

Houston, 636 F.Supp. at 1370-71 (S.D. Tex. 1986), affirmed

at 837 F.2d 1268 (5th Cir. 1988), and is but another applica-

18

peers ane po nd appar

Petitioners’ argument is controlled squarely by City of

Renton. This Court rejected the notion that a city must con-

duct its own studies before enacting an ordinance, stating:

Petitioners would deny the City the right to rely upon the

experience and studies of other cities, in contravention of

City of Renton, and would require the City to “await deterio-

ration in order to act.” Genusa v. City of Peoria, 619 F.2d

1203, 1211 (7th Cir. 1980).

Petitioners’ complaint that the City Council of Dallas

relied upon insufficient eviderice in adopting the Ordinance

was squarely rejected by the District Court. The District

Court stated as follows:

19

;

Dumas v. City of Dallas, 648 F.Supp. at 1076 n.43 (ND.

Tex. 1986).

A number of studies by other cities have shown that top-

less bars contribute to the secondary effects generated by

adult businesses, and the City of Dallas was entitled to rely

upon the studies which it “reasonably believed to be relevant

by City of Renton and furnish no basis for issuance of a writ

of certiorari.

The decision of the Fifth Circuit Court of Appeals is in

harmony with this Court’s decisions in Young, City of Ren-

ton and Arcara. This Court should deny the Petition for

Writ of Certiorari.

Date: July 12, 1988

Respectfully submitted,

OFFICE OF THE CrTy ATTORNEY

Crry oF DALLAS, TEXAS

7BN City Hall

1500 Marilla Street

Dallas, Texas 75201

(214) 670-3510

CaRROLL R. GRAHAM

Counsel of Record

State Bar of Texas

No. 08257000

py Mek K Chua

Mark K. O'BRIANT

Assistant City Attorney

State Bar of Texas

No. 15165700

Attorneys for Respondents

21

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APPENDIX A

ORDINANCE NO. 19377

An ordinance amending Sections 41A-2, 41A-5, 41A-7,

41A-10, and 41A-13 of CHAPTER 41A, “SEXUALLY ORI-

ENTED BUSINESSES,” of the Dallas City Code, as

amended; amending definitions; adding definitions of “resi-

dential district” and “residential use”; amending provisions

dealing with the issuance of licenses for sexually oriented

businesses; amending inspection provisions; amending

revocation provisions; providing a penalty not to exceed

$1,000; providing a saving clause; providing a severability

clause; and providing an effective date.

WHEREAS, the city plan commission and the city

council, in accordance with the provisions of state law and

the applicable ordinances of the city, have given the

regarding this amendment to CHAPTER 41A, “SEXUALLY

ORIENTED BUSINESSES,” of the Dalias City Code, as

amended; and

WHEREAS, on June 18, 1986, the city council passed

as amended, by adding Chapter 41A, “SEXUALLY ORI-

ENTED BUSINESSES”; and

WHEREAS, on August 6, 1986, the city council adopted

Resolution No. 86-2453, clarifying certain definitions in

Ordinance No. 19196; and

WHEREAS, Section 3 of Resolution No. 86-2453

directed the city attorney to draft an ordinance amending

Section 41A-13(a) of the city code in a manner consistent

with the intent expressed in Resolution No. 86-2453; and

WHEREAS, the city attorney has drafted this ordinance

in accordance with the directive of Resolution No. 86-2453;

and

WHEREAS . the city attorney has further advised that

enforcement of Ordinance No. 19196 can be enhanced by

amending certain of its provisions dealing with issuance

and revocation at licenses and inspection provisions relat-

ing to sexually oriented businesses; Now, Therefore,

BE IT ORDAINED BY THE CITY COUNCIL OF THE

CITY OF DALLAS:

SECTION 1. That Subsection (13) of Section 41A-2,

“Definitions,” of CHAPTER 41A, “SEXUALLY ORIENTED

BUSINESSES,’ of the Dallas City Code, as amended, is

amended to read as follows:

“(13) NUDITY or a STATE OF NUDITY means:

(A) the appearance of a human bare buttock,

anus, male genitals, female genitals, or female breast, or

(B) a state of dress which fails to opaquely cover

a human buttock, anus, male genitals, female genitals, or

areola of the female breast.”

SECTION 2. That Subsections (15) through (21) o!

Section 41A-2, “Definitions,” of CHAPTER 41A, “SEXU-

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Ee a i a i i i ne el _—_— — Oe re —— ot

115) RESIDENTIAL DISTRICT means a single

family, duplex, townhouse, multiple family or mobile home

zoning district as defined in the Dallas Development Code.

(16) RESIDENTIAL USE means a single family,

duplex, multiple family, or “mobile home park, mobile home

subdivision, and campground” use as defined in the Dallas

Development Code.”

SECTION 4. That Section 414-5, “Issuance of License,”

of CHAPTER 41A, “SEXUALLY ORIENTED BUSI-

NESSES,” of the Dallas City Code, as amended is amended

to read as follows:

(a) The chief of police shall approve the issuance of a

license by the assessor and collector of taxes to an applicant

within 30 days after receipt of an application unless he

finds one or more of the following to be true:

(1) An applicant is under 18 years of age.

(2) An applicant or an applicant's spouse is overdue

in his payment to the city of taxes, fees, fines, or penalties

assessed against him or imposed upon him in relation to »

sexually oriented business.

(3) An applicant has failed to provide information

reasonably necessary for issuance of the license or has

falsely answered a question or request for information on

the application form.

(4) An applicant or an applicant's spouse has been

convicted of a violation of a provision of this chapter, other

than the offense of operating a sexually oriented business

without a license, within two years immediately preceding

the application. The fact that a conviction is being appealed

shall have no effect.

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a bd a TS

(5) An applicant is residing with a person who has

been denied a license by the city to operate a sexually

oriented business within the preceding 12 months, or resid-

ing with a person whose license to operate a sexually

_.ventea business has been revoked within the preceding 12

months.

(6) The premises to be used for the sexually ori-

ented business have not been approved by the health

department, fire department, and the building official as

being in compliance with applicable laws and ordinances.

(7) The license fee required by this chapter has not

been paid.

(8) An applicant has been employed in a sexually

oriented businecs in a managerial capacity within the

preceding manage a sexually oriented business premises in

a peaceful and law-abiding manner, thus necessitating

action by law enforcement officers.

(9) An applicant or the proposed establishment is

in violation of or is not in compliance with Section 41A-7.

41A-12, 414-13, 41A-15, 41A-16, 41A-17, 41A-18, 41A-19 or

41A-20.

(10) An applicant or an applicant's spouse has been

convicted of |esie-uadesindictmentcsmisdemeancsinios

#natienfer| a crime:

(A) involving:

(i) any of the following offenses as described

in Chapter 43 of the Texas Penal Code:

(aa) prostitution;

(bb) promotion of prostitution;

(cc) aggravated promotion of prostitution;

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(dd) compelling prostitution;

‘ee) obscenity;

(ff) sale, distribution, or display of harm-

ful material to minor:

(gg) sexual performance by a child;

(hh) possession of child pornography,

(ii) any of the following offenses as described

in Chapter 21 of the Texas Penal Code:

(aa) public lewdness;

(bb) indecent exposure;

>

(iii) 44] sexual assault or aggravated sex-

ual assault as described in Chapter 22 of the Texas Penal

Code;

(iv) [44] incest, solicitation of a child, or

harboring a runaway child as described in Chapter 25 of the

Texas Penal Code;

(v) (44) criminal attempt, conspiracy, or

solicitation to commit any of the foregoing offenses;

(B) for which:

(i) less than two years have elapsed since the

date of conviction or the date of release from confinement

imposed for the conviction, whichever is the later date, if

the conviction is of a misdemeanor offense;

(ii) less than five years have elapsed since

the date of conviction or the date of release from confine-

ment for the conviction, whichever is the later date, if the

conviction is of a felony offense; or

(iii) less than five years have elapsed since

the date of the last conviction or the date of release from

(b) The fact that a conviction is being appealed shall

have no effect en‘the disqualification of the applicant or

applicant's spouse.

(c) An applicant who has been convicted or whose

spouse has been convicted of an offense listed in Subsection

(d) e+] The license, if granted, shall state on its face

the name of the person or persons to whom it is granted, the

expiration date, and the address of the sexually oriented

business. The license shall be posted in a conspicuous piace

at or near the entrance to the sexually oriented business so

that it may be easily read at any time.”

SECTION 5. That Section 41A-7, “Inspection,” of

CHAPTER 41A, “SEXUALLY ORIENTED BUSINESSES,

of the Dallas City Code, as amended, is amended by adding

a new Subsection (c), to read as follows:

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‘‘c) The provisions of this section do not apply to areas

of an adult motel which are currently being rented by a

customer for use as a permanent or temporary habitation.”

SECTION 6. That Subsections (d) and (e) of Section

414-10, “Revocation,” of CHAPTER 41A, “SEXUALLY ORI-

ENTED BUSINESSES,” of the Dallas City Code, as

amended, are amended to read as follows:

“(d) Subsection (bX 7) does not apply to adult motels as

a ground for revoking the license unless the licensee or

employee knowingly allowed the act of sexual intercourse,

sodomy, oral copulation, masturbation, or sexual contact to

occur in a public place or within public view.

(e) When the chief of police revokes a license, the

vevocation shall continue for one year an‘ the licensee shall

not be issued a sexually oriented business license for one

year from the date revocation became effective. If, subse-

quent to revocation, the chief of police finds that the basis

for the revocation has been corrected or abated, the appli-

cant may be granted a license if at least 90 days have

elapsed since the date the revocation became effective. If

the license was revoked under Subsection (b\5), an appli-

cant may not be granted another license until the appropri-

ate number of, urs required under Section 41A-5(a\10B)

has elapsed |¢+neethe termination of any sentencepascle,

or probation |”

SECTION 7. That Subsection (a) of Section 41A-13,

“Location of Sexually Oriented Businesses,” of CHAPTER

41A, “SEXUALLY ORIENTED BUSINESSES,” of the

Dallas City Code, as amended, is amended to read as

follows:

“(a) A person commits an offense if he operates or

causes to be operated a sexually oriented business within

1,000 feet of:

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Se

(1) a church:

(2) a public or private elementary or secondary

school;

(3) a boundary of a residential district as defined in

this chapter (ey the Dallas DevelopmentCode |;

(4) a public park adjacent to a residential district as

defined in this chapter |(by-theDellasDevelopment-Code |;

or

(5) the property line of a lot devoted to a residential

use as defined in this chapter.”

SECTION 8. That a person violating a provision of this

ordinance, upon conviction, is punishable by a fine not to

exceed $1,000.

SECTION 9. That CHAPTER 41A of the Dallas City

Code, as amended, shall remain in full force and effect, save

and except as amended by this ordinance.

SECTION 10. That the terms and provisions of this

ordinance are severable and are governed by Section 1-4 of

CHAPTER 1 of the Dallas City Code, as amended.

SECTION 11. That this ordinance shall take effect

immediately from and after its passage and publication in

accordance with the provisions of the Charter of the City of

Dallas, and it is accordingly so ordered.

October 12, 1986

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