Appendix — Reliable Consultants Consultants, Inc. v. City of Kennedale, Texas (No. 06-1702)
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APPENDIX A
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 05-11474, Consolidated with 06-10304
[Filed March 23, 2007]
H AND A LAND CORPORATION; ET AL
Plaintiffs
RELIABLE CONSULTANTS, INC.,
doing business as Dreamer’s
Intervenor Plaintiff - Appellee
V.
CITY OF KENNEDALE TEXAS
Defendant - Intervenor Defendant -Appellant
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Appeal from the United States District Court for the
Northern District of Texas, Fort Worth
ON PETITION FOR REHEARING
Before SMITH, BENAVIDES AND PRADO, Circuit Judges.
PER CURIAM:
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ro
IT IS ORDERED that the petition for rehearing is
Denied
ENTERED FOR THE COURT:
/s/
United States Circuit Judge
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APPENDIX B
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 05-11474, Consolidated with 06-10304
[Filed February 22, 2007]
H AND A LAND CORP., ET AL,
Plaintiffs,
RELIABLE CONSULTANTS, INC.,
doing business as Dreamer’s,
Intervenor Plaintiff-Appellee,
Vv.
CILY OF KENNEDALE, TEXAS,
Defendant-Intervenor Defendant-Appellant.
a ae a a a a Le La a ae
Appeals from the United States District Court for the
Northern District of Texas, Fort Worth
Before SMITH, BENAVIDES, and PRADO, Circuit Judges.
BENAVIDES, Circuit Judge:
Kennedale, Texas, appeals the district couri’s grant of
summary judgment. We reverse and remand.
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I. FACTUAL BACKGROUND AND PROCEDURAL
HISTORY
This appeal raises a single question: Does the evidence
offered by the city of Kennedale sufficiently support its
ordinance regulating sexually oriented businesses?
In 1999, Kennedale annexed land that included multiple
sexually oriented businesses, thereby subjecting those
businesses to the city’s ordinances. The ordinances prohibit
the operation of sexually oriented businesses within 800 feet
of churches, schools, residences, day care centers, parks, and
other sexually oriented businesses, as well as within specified
overlay districts. Additionally, the ordinances require sexually
oriented businesses to obtain a license to operate. In justifying
its ordinances, Kennedale relied on (1) studies from nine other
cities, (2) an opinion survey of land use appraisers conducted
by the city’s attorney, and (3) citizen commentary from public
meetings, all regarding the harmful secondary effects of
sexually oriented businesses on surrounding land uses.
Following annexation, the ordinances allowed affected
businesses three years to recoup their investments and
relocate. Following criticism that the regulations failed to
leave a sufficient number of alternative locations for already
existing sexually oriented businesses, the city amended the
ordinances to identify specific parcels of land upon which
sexually oriented businesses may locate.
Reliable Consultants, Inc., d/b/a “Dreamers” (hereinafter
“Reliable”) is an off-site store, meaning that it sells video
tapes, DVD’s, magazines, and other print materials, but that
none of the materials can be viewed or consumed on the
Sa
premises, and the store offers no live entertainment, viewing
booths, or theaters.’
After finding the ordinances were content neutral, the
district court relied on Encore Videos, Inc. v. City of San
Antonio, 330 F.3d 288 (Sth Cir. 2003), to find that the City’s
evidence of secondary effects failed to show that the
ordinances were narrowly tailored to further a substantial
government interest. The court declined to consider additional
evidence Kennedale offered, and granted Reliable’s motion
for a permanent injunction. Kennedale appealed.
il. STANDARD OF REVIEW
We review a district court’s summary judgment ruling and
other legal issues de novo. N.W. Enters. Inc. v. City of
Houston, 352 F.3d 162, 172 (Sth Cir. 2003). We review a
district court’s factual findings for clear error. Kona Tech.
Corp. v. S. Pac. Transp. Co., 225 F.3d 595, 601 (Sth Cir.
2000). The Supreme Court’s admonition that cities not justify
ordinances by relying on “shoddy data or reasoning |” City of
Los Angeles v. Alameda Books, 535 U.S. 425, 438, 122 S.
Ct. 1728, 152 L. Ed. 2d 670 (2002) (plurality opinion),
rcquires factual findings, but turns on the legal interpretation
of what the Supreme Court meant by “shoddy.” Therefore,
we review a district court’s findings as to the existence of a
city’s evidence for clear error, but we review de novo whether
that evidence falls within the Supreme Court’s admonition.
Originally, there were five affected sexually oriented
businesses/plaintiffs, but all but one settled during the course of
litigation, leaving Reliable as the lone plaintitf-appellee.
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Hl. DISCUSSION
“Zoning regulations restricting the location of adult
entertainment businesses are considered time, place, and
manner restrictions . . . if they do not ban [adult-
entertainment] businesses throughout the whole of a
jurisdiction and are ‘designed to combat the undesirable
secondary effects of such businesses’ rather than to restrict the
content of their speech per se.” Encore Videos, 330 F.3d at
291 (quoting City of Renton v. Playtime Theatres, Inc., 475
U.S. 41, 49, 106 S. Ct. 925, 89 L. Ed. 2d 29 (1986)) (citing
Lakeland Lounge v. Jackson, 973 F.2d 1255, 1257-58 (Sth
Cir. 1992)). Time, place, and manner restrictions on speech
violate the First Amendment unless they are content-neutral,
are designed to serve a substantial governmental interest, do
not unreasonably limit alternative avenues of communication,
and are narrowly tailored. See Encore Videos, 330 F.3d at
291-92.
Kennedale’s ordinances meet the narrow tailoring standard
if they “target{] and eliminate[] no more than the exact source
of the evil [they] seek[] to remedy.” Encore Videos, 330 F.3d
at 293; Frisby v. Schultz, 487 U.S. 474, 485, 108 S. Ct.
2495, 101 L. Ed. 2d 420 (1988). Thus, an ordinance meant
to deter property depreciation may only regulate businesses
for which a connection to property depreciation can be
demonstrated.
To show that an ordinance advances its goals, a city “may
rely on any evidence that is ‘reasonably believed to be
relevant.’” Alameda Books, 535 U.S. at 438. However,
“[t}his is not to say that a municipality can get away with
shoddy data or reasoning. The municipality's evidence must
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fairly support the municipality’s rationale for its ordinance.”
Id. at 438.”
On-site businesses (i.e., adult theaters or strip clubs) pose
a greater threat of secondary effects than off-site sexually
oriented businesses (i.e., adult bookstores).* Therefore, a city
that enforces an ordinance meant to prevent harmful
secondary effects associated with the operation of an off-site
business must rely on evidence showing that off-site
businesses, rather than the broader category of sexually
oriented businesses that includes on-site businesses, cause
harmful secondary effects. Encore Videos, 330 F.3d at 295
(requiring city to “provide at least some substantial evidence
of secondary effects specific to adult businesses that sell books
or videos solely for off-site entertainment” to meet narrow
tailoring requirement).
In Encore Videos, we invalidated San Antonio’s ordinance
regulating sexually oriented businesses because the city failed
to present adequate evidence showing a connection between
off-site businesses and harmful secondary effects. San
Antonio’s evidence consisted of three studies conducted in
other cities showing a connection between sexually oriented
* Though this was a plurality opinion, a review of the concurrences
and dissent demonstrates that the Court would unanimously support
this admonishment.
* See Encore Videos, 330 F.3d at 295 (“Off-site businesses differ
from on-site ones, because it is only reasonable to assume that the
former are less likely to create harmful secondary effects. If
consumers of pornography cannot view the materials at the sexually
oriented establishment, they are less likely to linger in the area and
engage in public alcohol consumption and other undesirable
activities. ”)
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businesses, without isolating off-site businesses and secondary
effects. Encore Videos, 330 F.3d at 294-95. Those studies did
not provide any information exclusive to off-site businesses,
so a substantial portion of the ordinance’s burden on speech
did not serve to advance its goals, and it failed the narrow
tailoring prong. /d. at 295.
This case differs from Encore Videos because Kennedale,
unlike San Antonio, offers evidence that purports to show a
connection between purely off-site businesses, or
“bookstores,” and harmful secondary effects. To determine
whether the ordinance at issue is narrowly tailored, we must
determine whether Kennedale could reasonably believe that
the evidence is relevant to show the requisite connection to
harmful secondary effects. Alameda Books, 535 U.S. at 438.
In other words, we ask whether that evidence “fairly
support[s] the [city’s] rationale for its ordinance.” /d.
Applying our holding from Encore Videos, Kennedale cannot
reasonably believe its evidence is relevant unless it
sufficiently segregates data attributable to off-site
establishments from the data attributable to on-site
establishments. Encore Videos, 330 F.3d at 294-95.
Kennedale’s evidence consisted of studies from nine cities,
as well as an opinion survey of land use appraisers conducted
by the city’s attorney, and citizen commentary from public
meetings. Seven of Kennedale’s nine studies from other cities
fail to differentiate between on-site and off-site businesses.
The 1984 Indianapolis and 1986 Oklahoma City studies,
however, included surveys of real estate appraisers that
focused strictly on “adult bookstores.” The overwhelming
majority of survey respondents in both studies predicted that
the presence of an adult bookstore would negatively affect real
estate value in the surrounding area. The Indianapolis survey,
conducted by the City of Indianapolis in conjunction with
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Indiana University School of Business, Division of Research,
polled 20% of the national membership of the American
Institute of Real Estate Appraisers.‘ Eighty percent of the
respondents predicted that an adult bookstore would
negatively impact residential property values, and seventy-two
percent believed commercial property value would also be
negatively effected. The Oklahoma City study, which
surveyed one hundred Oklahoma City real estate appraisers,
produced similar results: Seventy-four percent predicted a
negative impact on real estate value in the surrounding area.
Appellee Reliable argues that the term “bookstore,” used
in both surveys, is a term of art and does not sufficiently
specify off-site premises. They argue instead that adult
bookstores often include peep shows, arcades, and other
forms of on-site entertainment, rendering them on-site
establishments. However, the Supreme Court has previously
used the term “bookstore” as distinguishable from “adult
video arcades.” Alameda Books, 535 U.S. at 442 (discussing
city’s prohibition on “combination of adult bookstores and
arcades”). This was a survey sent to and completed by real
estate appraisers, and so what matters is how those appraisers
would have understood the survey’s reference to an adult
bookstore.
Standing alone, it is reasonable to infer that the survey
respondents interpreted “bookstore” as signifying an off-site
establishment. Webster’s Dictionary defines “bookstore” as
“a place of business where books are the chief stock in trade.”
WEBSTER’S NEW INT’L DICTIONARY 253 (3d ed. 1981).
There is no reason to expect that simply adding the word
* In the Indianapolis study, 1527 questionnaires were mailed, and
507 (33%) were returned.
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“adult” to the term would completely transform the nature of
the business activity described. Moreover, the Indianapolis
survey also asked respondents to explain their prediction that
an adult bookstore would negatively impact property value:
29% believed such an _ establishment would attract
“undesirables” to the neighborhood, 14% felt it would create
a bad image of the area, and 15% felt that it offended
prevailing COmmunity attitudes. These reasons are equally
applicable to an on-site or off-site establishment, and are
distinguishable from the problems we have found to be unique
to on-site businesses. See Encore Videos, 330 F.3d at 295 (“If
consumers of pornography cannot view the materials at the
sexually oriented establishment, they are less likely to linger
in the area and engage in public alcohol consumption... .”).
It is reasonable for Kennedale to believe that the appraisers
responding to the survey understood the term “adult
bookstore” to mean off-site businesses, such as that operated
by the plaintiff-appellee.
Kennedale’s ordinances purport to protect against harmful
secondary effects. The Indianapolis and Oklahoma City
studies support the belief that off-site sexually oriented
businesses cause harmful secondary effects to the surrounding
area in the form of decreased property value. So long as they
are not relying on shoddy data or reasoning, we afford
substantial deference to cities with regards to the ordinances
they enact. See Alameda Books, 535 U.S. at 451 (Kennedy,
J., concurring) (noting that “a city must have latitude to
experiment” and “courts should not be in the business of
second-guessing fact-bound empirical assessments of city
planners”). The Indianapolis survey, in particular, was
drafted by experts, pretested, and administered to a large,
national pool of respondents. It is not “shoddy.” We therefore
find that Kennedale has produced evidence that it could have
reasonably believed was relevant, and thus could have
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properly relied upon. The ordinances are narrowly tailored to
advance a substantial governmental interest.
The other evidence produced by Kennedale to justify its
ordinance—an opinion survey of land use appraisers
conducted by the city’s attorney, and citizen commentary
from public meetings—has also been hotly debated by the
parties. Given our findings above, however, we need not
reach that additional evidence. Similarly, our finding moots
the question of whether the district court erred in excluding
additional evidence of secondary effects.
By finding that Kennedale’s ordinances were not narrowly
tailored, the district court never reached the final element of
the time, place, and manner analysis: whether the ordinances
unreasonably limit alternative avenues of communication. We
therefore remand this case to the district court to make those
findings.
IV. CONCLUSION
For the foregoing reasons, we REVERSE the district
court’s summary judgment and remand for findings as to
whether the ordinances leave open sufficient alternative
channels of communication.
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APPENDIX C
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
FORT WORTH DIVISION
CIVIL ACTION NO. 4:02-CV-458-Y
(Consolidated with 4:02-C V-471-Y)
[Filed February 8, 2006]
H AND A LAND CORPORATION
d/b/a/ SHOWTIME CABARET, et al.
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VS. )
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CITY OF KENNEDALE, TEXAS )
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ORDER PARTIALLY GRANTING AND PARTIALLY
DENYING PLAINTIFF-INTERVENOR’S MOTION
FOR ATTORNEY FEES AND COSTS
Pending before the Court is plaintiff-intervenor Reliable
Consultants, Inc., d/b/a/ Dreamer’s (“Reliable”)’s Motion for
Attorney Fees and Costs [doc. # 238], filed November 7,
2005. Having carefully considered the motion, response, and
reply, the Court concludes that the motion should be
PARTIALLY GRANTED and PARTIALLY DENIED.
This suit involves a series of zoning ordinances (“the
ordinances”) passed by defendant City of Kennedale, Texas
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(“Kennedale”) that affect Dreamer’s, an adult bookstore
owned by Reliable. The ordinances effectively prohibited
Dreamer’s from operating in its current location. In its
complaint, Reliable asserted constitutional claims pursuant to
42 U.S.C. § 1983. Reliable requested a declaratory judgment
that Kennedale’s ordinances were unconstitutional on their
face due to prior restraint; imposed improper time, place, and
manner restrictions; constituted a taking of private property;
and were content-based restrictions on speech. Reliable also
sought a permanent injunction, just compensation for the
taking of its private property, and attorneys’ fees.
On March 29, 2005, the Court entered an order partially
granting and partially denying the parties’ cross motions for
summary judgment. Specifically, the Court awarded
Kennedale summary judgment on “counts” two, four, five,
and seven of Reliable’s complaint, meaning that Kennedale
prevailed on Reliable’s claims that the ordinances constituted
a prior restraint and a taking of private property, and
restricted speech based on content. The Court awarded
Reliable summary indement on count three of its complaint,
concluding that the ordinances failed the narrow-tailoring
prong of the requisite time-place-and-manner test, and thus
were unconstitutionally applied to Reliable.’ (March 29,
2005, Order at 21-25.) Because the Court reached this
conclusion, it did not address whether the ordinances left open
alternative avenues of communication. (/d. at 25, n.12.) The
Court also granted Reliable’s request for a permanent
' Time, place, and manner restrictions on speech violate the First
Amendment unless they are content-neutral, are designed to serve
a substantial governmental interest, do not unreasonably limit
alternative avenues of communication, and are narrowly tailored.
See Encore Videos, Inc. vy. City of San Antonio, 330 F.3d 288. 290-
91 (Sth Cir. 2003).
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injunction but noted that the injunction did not prevent
Kennedale from amending its ordinances to come within the
requirements of the Constitution, if it could do so.
Prior to rendering its decision on the cross motions for
summary judgment, the Court struck the expert testimony of
Bruce McLaughlin, Reliable’s expert witness, because of
Reliable’s failure to comply with the Federal Rules of
Evidence and the Court’s scheduling order. That expert’s
testimony was primarily directed towards the alternative-
avenues-of-communication issue.
Reliable now moves for attorney fees and costs pursuant
to 42 U.S.C. § 1988(b), which provides that the Court may,
in its discretion, allow a prevailing party a reasonable
attorney’s fee as part of the costs in an action to enforce 42
U.S.C. § 1983. Although § 1988 uses the word “may,” the
court’s discretion to deny attorney’s fees to a prevailing party
is extremely narrow: “the prevailing party ‘should ordinarily
recover an attorney’s fee unless special circumstances would
render such an award unjust.” Blanchard v. Bergeron, 489
U.S. 87, 89 n.1 (1989) (citing Newman v. Piggie Park
Enters., Inc., 390 U.S. 400, 402 (1968); Hensley v.
Eckerhart, 461 U.S. 424, 429 (1983)); see also Scham v.
Dist. Courts Trying Criminal Cases, 148 F.3d 554, 557 (Sth
Cir. 1998). “Absent special circumstances that would render
such an award unjust, a prevailing plaintiff should be awarded
§ 1988 fees ‘as a matter of course.” Scham, 148 F.3d at 557
(quoting Espino v. Besteiro, 708 F.2d 1002, 1005 (Sth Cir.
~ 1983)).
“To qualify as a prevailing party, the plaintiff must (1)
obtain actual relief, such as an enforceable judgment or a
consent decree; (2) that materially alters the legal relationship
between the parties; and (3) modifies the defendant's behavior
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in a way that directly benefits the plaintiff at the time of the
judgment or settlement.” Walker v. City of Mesquite, 313
F.3d 246, 249 (Sth Cir. 2002) (citing Farrar v. Hobby, 506
U.S. 103, 111-12 (1992)). Based on this definition, there can
be no doubt that Reliable is the prevailing party in this case.
Reliable prevailed on its application for a preliminary
injunction and on the narrowtailoring question. Moreover,
because Reliable prevailed nearly to the greatest extent that it
could have prevailed (since the Court’s ruling precluded
Kennedale from enforcing the ordinances as they were against
Reliable), the Court must award to Reliable the great portion
of the fees that it requests.’
2 While it is true that “work on an unsuccessful claim cannot be
deemed to have been ‘expended in pursuit of the ultimate result
achieved,” it is also true that:
[some cases will] involve a common core of facts or will
be based on related legal theories. Much of counsel’s time
will be devoted generally to the litigation as a whole,
Making it Giftuli iv Givide We hours expended on a claim-
by-claim basis. Such a lawsuit cannot be viewed as a series
of discrete claims. Instead the district court should focus on
the significance of the overall relief obtained by the
plaintiff in relation to the hours reasonably expended on the
litigation.
Where a plaintiff has obtained excellent results, his
attorney should recover a _ fully compensatory fee.
Normally thts will encompass all hours reasonably
expended on the litigation, and indeed in some cases of
exceptional success an enhanced award may be justified. /n
these circumstances the fee award should not be reduced
simply because the plaintiff failed to prevail on every
contention raised in the lawsuit. See Davis v. County of
Los Angeles, supra, at 5049. Litigants in good faith may
raise alternative legal grounds for a desired outcome, and
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To calculate the amount of a reasonable attorney’s fee, the
court begins by “determining the compensable hours from the
attorneys’ time records, including only hours reasonably
spent.” Shipes v. Trinity Indus. , 987 F.2d 311, 319 (Sth Cir.
1993). The court may reduce the number of compensable
hours “where the documentation of hours is inadequate.”
Hensley, 461 U.S. at 433. The court also excludes any hours
that it determines “are excessive, redundant, or otherwise
unnecessary.” /d. at 434. Next, the Court “must select an
appropriate hourly rate based on prevailing community
standards for attorneys of similar experience in similar cases.”
Shipes, 987 F.2d at 319. “The number of compensable hours
is then multiplied by the selected hourly rate to produce the
lodestar amount.” /d.; see also Rutherford v. Harris County,
Tex., 197 F.3d 173, 192 (Sth Cir. 1999) (citing League of
United Latin Am. Citizens # 4552 v. Roscoe Indep. Sch. Dist.
(“ LULAC ”), 119 F.3d 1228, 1232 (Sth Cir. 1997)). The fee
applicant bears the burden of substantiating both the requested
hours and the hourly rate. Hensley, 461 U.S. at 437. After
calculating the lodestar amount, the court must then determine
whether the lodestar should be adjusted based on the factors
listed in Johnson v. Georgia Highway Express, Inc., 488
F.2d 714 (Sth Cir. 1974). See Shipes, 987 F.2d at 320.
the court’s rejection of or failure to reach certain grounds
is not a sufficient reason for reducing a fee.
Hensley, 461 U.S. at 435 (quoting Davis v. County of Los Angeles,
8 E. P. D. para. 9444, at *5049 (CD Cal. 1974)) (emphasis
added).
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Reliable requests compensation for 829.65 hours of
services performed by Reliable’s counsel and their staff.
While the majority of these hours are properly documented
and are reasonable, there are a few instances where a
reduction must be made. First, the instant motion is Reliable’s
second attempt to recover fees and costs from Kennedale; the
Court denied the first because Reliable insufficiently
substantiated its request. Reliable should not be compensated
for the expenses it incurred in preparing the first motion for
attorney’s fees. Kennedale should not be forced to bear the
financial cost of Reliable’s failure to properly move for fees
and costs. However, the Court is aware that portions of the
work done in preparation of the first motion for fees
undoubtedly shortened Reliable’s preparation time and
expenses in preparing its amended motion. Consequently, the
Court will figure the total amount of time spent by Reliable in
preparing both of its motions for attorneys fees and costs
and then reduce that amount by 30%. See Barrow v.
Greenville Indep. Sch. Dist. (“Barrow II”), Civil Action No.
3:00-CV-0913-D, 2005 U.S. Dist. LEXIS 34557, at *40
(ND Tex Dec 20, 2005) (Fitzwater, 1) (“it is imnassible
to conduct meaningful review and determine the precise
number of hours that should be reduced in each time entry due
to vague descriptions. The court has therefore attempted to
reach a fair determination by alternate means.”) (citation
omitted).
Second, Reliable is not entitled to recover those fees
related to McLaughlin’s expert testimony. Since the Court
sanctioned Reliable for its failure to comply with the Court’s
> Reliable’s motion requests reimbursement for 819.25 hours of
services; its reply requests retmbursement for an additional 10.4
hours of services.
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scheduling order and the Federal Rules of Evidence by
striking McLaughlin’s testimony, Reliable should not recover
the fees and costs related to McLaughlin’s service as their
expert. To rule otherwise would effectively place onto
Kennedale the financial burden of paying for McLaughlin’s
participation in this suit, moving to strike his testimony, and
defending against striking that testimony. Given the result
reached, Kennedale should not have to shoulder such a
burden.
Third, in some instances, Reliable’s motion contains
vague entries. For example, there are several references to
“motions to strike.” There were several motions to strike in
this cause, however, one of which concerned McLaughlin.
Reliable’s reference to “motions to strike” generally is too
vague to award the full costs requested, especially given that
some of those fees are likely in relation to McLaughlin.
Consequently, the Court will reduce by 20% references to
“motions to strike.” See Hensley, 461 U.S. at 433 (“Where
the documentation of hours is inadequate, the district court
may reduce the award accordingly.”); Hopwood v. Texas,
236 F.3d 256, 279 (Sth Cir. 2000) (affirming 25% reduction
in fee award based, inter alia, on inadequate documentation);
LULAC, 119 F.3d at 1233 (“District courts enjoy broad
discretion to exclude or reduce hours based on insufficient
documentation. . . .”). Secondly, though Reliable moves for
substantial fees and costs related to Gary Polozola’s
representation in this cause as local counsel, Polozola’s
records are too vague to grant the full amount requested.*
* Attached to Polozola’s affidavit is one chart listing Polozola’s
fees and costs by month; following that chart are the month-by-
month bills for Polozola’s services in this case. Reliable argues that
it IS not requesting fees for all of Polozola’s services. Moreover,
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Having fairly reviewed the record and the documents attached
to Polozola’s affidavit, and taking into account the matters
that the Court has already concluded that it would exclude
from the computation, the Court concludes that it is
appropriate to reduce Polozola’s hourly award by 35%.°
Given all of the above, the Court deems the following
award appropriate: compensation for 74.5 hours of H. Louis
Sirkin’s services; compensation for 220.2 hours of Jennifer
M. Kinsley’s services; compensation for 141.1 hours of staff
the chart indicating monthly totals does not match the monthly bills,
making it clear that Reliable is not requesting reimbursement for
the total of Polozola’s services. Nowhere, however, (at least to
which the Court was directed) does Reliable indicate which fees
and services qualify for § 1988 relief and thus fall within Reliable’s
request for fees and costs. Reliable cannot succeed where there is
such vague substantiation. Further, the Court notes that the only
documentation it has regarding the substantive portions of
Polozola’s services are his monthly hills, which often cantain vague
entries. As previously discussed, where there are vague entries the
Court is not required to grant attorneys fees. See Hensley, 461
U.S. at 433.
> Kennedale argues that it should not be liable for Reliable’s costs
in avoiding state-court liability for violating the ordinances.
Reliable’s case, however, would most certainly have been
weakened had it not vigorously prosecuted its defense in state
court. For instance, failing to defend itself in state court would
necessarily have weakened Reliable’s argument that it would suffer
irreparable harm should it have to close or move locations within
Kennedale, since Reliable likely would have needed to close or
relocate had it not defended itself. See Castellano v. Fragozo, 311
F.3d 689, 711 (Sth Cir. 2002), rev'd other grounds, 352 F.3d
939 (Sth Cir. 2003).
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services; and compensation for 214.73 hours of Polozola’s
Services.
Next the Court must determine the hourly rates for the
services awarded above. Reasonable fees under § 1988 “are
to be calculated according to the prevailing market rates in the
relevant community.” Blum v. Stenson, 465 U.S. 886, 895
(1984). Where an out-of-state attorney performs work in an
in-state forum, the relevant community for determiming the
prevailing market rate will generally be that found in the
relevant district within the instate forum. See Hopwood, 236
F.3d at 281. However, “where . . . a plaintiff can show he
has been unable through diligent, good faith efforts to retain
local counsel, attorney's fees under 42 U.S.C. § 1988 are not
limited to the prevailing rate in the district where the case is
tried.” Donaldson v. O’Connor, 454 F. Supp. 311, 315
(N.D. Fla. 1978).
Once the relevant community is determined, a court must
also determine an appropriate market rate, since “[t]he type
of services rendered by lawyers, as well as their experience,
skill, and reputation, varies extensively--even within a law
firm.” Blum, 465 U.S. at 895 n.11. Thus, “[t]o inform and
assist the court in the exercise of its discretion [in determining
an appropriate market rate], the burden is on the fee applicant
to produce satisfactory evidence--in addition to the attorney’s
own affidavits--that the requested rates are in line with those
prevailing in the community for similar services by lawyers
of reasonably comparable skill, experience, and reputation.”
/d. (emphasis added).
Reliable requests $300 per hour for Sirkin’s services,
$200 per hour for Kinsley’s services, $50 per hour for their
clerks’ services, and $150 per hour for Polozola’s services.
Having reviewed the affidavits submitted with the motion, the
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Court deems these fees to be reasonable. While Sirkin and
Kinsley practice in Ohio and Reliable has not demonstrated
that it tried through diligent efforts to hire lead counsel from
this community, the fees requested are in line with those
prevalent in this community.° Many of the requested fees,
however, were billed to Reliable when Sirkin and Kinsley
charged a lower rate, $275 an hour and $175 an hour
respectively. It appears that Sirkin and Kinsley changed their
rates at the beginning of 2005. The Court will therefore
respectively award Sirkin and Kinsley $275 and $175 an hour
for their services prior to 2005 and $300 and $200 an hour for
their services after.’ Polozola should be compensated at his
requested rate of $150 an hour and Sirkin’s and Kinsley’s
clerks should be compensated at $50 an hour.
Finally, having considered the necessary Johnson
factors, the Court concludes that a reduction of the lodestar
fee is unwarranted. Consequently, Reliable is entitled to the
® Reliable arenes that no other attorneys specializing in Dirst-
Amendment issues were available in the Fort Worth area; it did not
specify whether such attorneys were available in Dallas.
Nevertheless, just because Reliable wanted a specialist does not
mean that Reliable should be entitled to compensation for a
specialist when there may have been other competent, though not
as qualified, attorneys from this community who could have
performed the necessary service. See ACLU v. Barnes, 168 F.3d
423, 438 (11th Cir. 1999).
? Of the hours awarded, Sirkin requests fees for 4.3 hours of
services performed in 2005, none of which are subject to the
reductions taken by the Court, making his award at the $300-an-
hour rate $1,290.00. Kinsley requests fees for 41.2 hours of
services performed in 2005 (including the reductions taken by the
Court), making her award at the $200-an-hour rate $8,240.00.
22a
following in attorneys fees: $20,595.00 for Sirkin’s services;
$40,965.00 for Kinsley’s services; $7,055.00 for clerks’
services; and $32,209.50 for Polozola’s services. Thus, the
total award for fees is $100,824.50.
Reliable also requests that the Court grant it $65,938.41
in costs for mediation, photocopies, travel expenses, excess
postage, expert fees, and architect-and-design expenses.®
“{AJll reasonable out-of-pocket expenses, including charges
for photocopying, paralegal assistance, travel, and telephone,
are plainly recoverable in section 1988 fee awards because
they are part of the costs normally charged to a fee-paying
client.” Assoc. Builders & Contractors, Inc. v. Orleans
Parish School Bd. , 919 F.2d 374, 380 (Sth Cir. 1990) (citing
Int’l Woodworkers of Am. v. Champion Int'l Corp. , 790 F.2d
1174, 1185 (Sth Cir. 1986); Mo. v. Jenkins, 491 U.S. 274,
109 S. Ct. 2463, 2470 (1989)). As already discussed above,
Reliable is not entitled to compensation for its expert costs in
relation to McLaughlin.’ Other than that expenditure,
however, the Court considers Reliable’s cost requests to be
reasonable. Consequently, the Court concludes that an award
of $45,421.20 in costs is appropriate. This makes Reliable’s
total recovery $146,245.70.
8 Such costs are not recoverable under 28 U.S.C. § 1920. See
Barrow IT, 2005 U.S. Dist. LEXIS 34557, at *80-87 (citations
omitted).
° While Kennedale opposes an award of any costs to Reliable
concerning architect-and-design fees, Kennedale informed Reliable
that it stood a better chance of remaining in its location despite the
ordinances if it had demonstrative evidence of a new building.
(Pl.’s App. to Mot. at 59, 4.15.) Given this, Reliable is entitled to
reimbursement for its costs in hiring an architect to create such
demonstrative evidence.
23a
Therefore, Reliable’s Motion for Attorney Fees and Costs
[doc. # 238] is PARTIALLY GRANTED and PARTIALLY
DENIED: GRANTED in that Reliable is awarded
$100,824.50 in attorneys’ fees and $45,421.20 in costs,
making their total recovery pursuant to 42 U.S.C. § 1988
$146,245.70; DENIED in all other respects.
SIGNED February 8, 2006.
/s/
TERRY R. MEANS
UNIED ATATES DISTRICT JUDGE
TRM/kat
24a
APPENDIX D
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
FORT WORTH DIVISION
Case No. 4:02-CV-0458-Y
{Filed November 7, 2005]
H AND A LAND CORP. Et Al., )
Plaintiffs, )
)
Vv. )
)
CITY OF KENNEDALE, TEXAS, )
Defendant. )
)
PLAINTIFF-INTERVENOR RELIABLE
CONSULTANTS, INC.’S MOTION FOR
ATTORNEY FEES AND COSTS
Pursuant to 42 U.S.C. § 1988, Plaintiff-Intervenor
Reliable Consultants, Inc., by and through counsel,
respectfully moves the Court for an order awarding attorney
fees of $131,605.00 and costs in the amount of $65,938.41.
This motion is supported by a separately filed brief and
appendix.
25a
Respectfully submitted,
/s/ Jennifer M. Kinsley
H. LOUIS SIRKIN (Ohio Bar No. 0024573)
JENNIFER M. KINSLEY (Ohio Bar No. 0071629)
SIRKIN, PINALES & SCHWARTZ LLP
105 West Fourth Street, Suite 920
Cincinnati, Ohio 45202
Telephone (513) 721-4876
-and-
GARY POLOZOLA
111 N. Houston Street, Suite 212
Fort Worth, Texas 76102
Telephone (817) 870-9822
Counsel for Plaintiff-Intervenor
Reliable Consultants, Inc. d/b/a Dreamer’s
26a
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
FORT WORTH DIVISION
Case No. 4:02-CV-0458-Y (Judge Means)
H AND A LAND CORP. Et Al., )
Plaintiffs, )
)
Vv. )
)
CITY OF KENNEDALE, TEXAS, )
Defendant. )
)
ORDER GRANTING PLAINTIFF-INTERVENOR
RELIABLE CONSULTANTS, INC.’S MOTION
FOR ATTORNEY FEES AND COSTS
This Court having previously granted summary judgment
in part for Plaintiff-Intervenor Reliable Consultants, Inc.
hereby finds that Reliable Consultants, Inc. is a prevailing
party and is therefore entitled to attorney fees and costs
pursuant to 42 U.S.C. § 1988. The Court awards attorney
fees and costs as follows:
1. Fees for H. Louis Sirkin and Jennifer M. Kinsley in
the amount of $82,052.50. This figure has been computed
applying hourly rates of $300 per hour for Mr. Sirkin, $200
per hour for Ms. Kinsley, and $50 per hour for law clerks and
other associates employed by the Sirkin Pinales & Schwartz
LLP firm;
2. Expenses for H. Louis Sirkin and Jennifer M. Kinsley
in the amount of $24,454.56;
27a
3. Fees for Gary Polozola in the amount of $49,552.50.
This figure has been computed applving an hourly rate of
$150 per hour for Mr. Polozola;
4. Expenses for Gary Polozola in the amount of $970.74;
and
5. Expenses incurred directly by Reliable Consultants,
Inc. in the amount of $40,513.11.
As a result, a total of $197,543.41 in attorney fees and
expenses shall be assessed against Defendant City of
Kennedale.
It is so ordered.
Judge Means
United States District Court
Northern District of Texas
APPENDIX E
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
FORT WORTH DIVISION
CIVIL ACTION NO. 4:02-CV-458-Y
(Consolidated with 4:02-CV-471-Y)
[Filed October 24, 2005]
H AND A LAND CORPORATION
d/b/a/ SHOWTIME CABARET, et al.
)
)
)
VS. )
)
CITY OF KENNEDALE, TEXAS )
)
JUDGES: TERRY R. MEANS, UNITED STATES
DISTRICT JUDGE.
ORDER DENYING DEFENDANT'S MOTION
TO ALTER OR AMEND JUDGMENT
Pending before the Court is defendant City of Kennedale,
Texas (“Kennedale”)’s Motion to Alter or Amend Judgment
ldoc. # 186), filed April 12, 2005. Having carefully
considered the motion, response, and reply; the Court
concludes that the motion should be DENIED.
29a
This suit involves a series of zoning ordinances (“the
ordinances”) in Kennedale that affect Dreamer’s, an adult
bookstore owned by plaintiff-intervenor Reliable Consultants,
Inc. (“Reliable”). The ordinances effectively prohibit
Dreamer’s from operating in its current location. Kennedale
presently moves for the alteration or amendment of the
Court’s March 29 order granting summary judgment to
Reliable on the issue of whether the ordinances are
constitutional time, place, and manner restrictions as applied
to Dreamer’s. The Court concluded that the ordinances failed
the narrow-tailoring prong of the requisite time-place-and-
manner analysis, and thus were unconstitutionally applied to
Reliable, because there was not substantial evidence of the
secondary effects of sexually-oriented businesses selling adult
products solely for off-site consumption.' (March 29, 2005,
Order at 21-25.) Such a showing is necessary pursuant to the
Fifth Circuit’s decision in Encore Videos. See 330 F.3d at
295.
Altering, amending, or reconsidering a judgment pursuant
to Federal Rule of Civil Procedure 59(e) is an extraordinary
measure that courts should use sparingly.* See Templet v.
Hydrochem Inc., 367 F.3d 473, 479 (Sth Cir. 2004). The
' Time, place, and manner restrictions on speech violate the First
Amendment unless they are content-neutral, are designed to serve
a substantial governmental interest, do not unreasonably limit
alternative avenues of communication, and are narrowly tailored.
See Encore Videos, Inc. v. City of San Antonio, 330 F.3d 288, 290
9} (Sth Cir. 2003).
* Kennedale’s motion is properly brought pursuant to Rule 59(e)
because it was filed within ten days after the order of which
Kennedale seeks alteration or amendment. See FED. R. CIV. P.
6(a) & SMe) (West 2005).
30a
remedy is so extraordinary that the standard under Rule 59(e)
“favors denial of motions to alter or amend a judgment.”
Southern Constructors Group, Inc. v. Dynalectric Co. , 2 F.3d
606, 611 (Sth Cir. 1993) (citation omitted). Accordingly,
relief pursuant to that rule should only be granted where the
moving party has presented substantial reasons for
reconsideration. See Baustian v. La., 929 F. Supp. 980, 981
(E.D. La. 1996). Consequently, a “district court has
considerable discretion in deciding whether to reopen a case
under Rule 59(e).” Edward H. Bohlin Co. v. Banning Co., 6
F.3d 350, 355 (Sth Cir. 1993); see also Lavespere v. Niagra
Mach. & Tool Works, inc., 910 F.2d 167, 174 (Sth Cir.
1990).
There are three grounds for altering or amending a
judgment: (1) to accommodate an intervening change in
controlling law, (2) to account for new evidence not available
at trial, and (3) to correct a clear error of law or prevent
manifest injustice. See Schiller v. Physicians Res. Group,
Inc., 342 F.3d 563, 567 (5th Cir. 2003) (citation omitted);
Benjamin Moore & Co. v. Borden (in Re Benjamin Moore &
Co.), 318 F.3d 626, 629 (Sth Cir. 2002). A Rule 59(e) motion
should not be used to relitigate prior matters that should have
been urged earlier or that simply have been resolved to the
movant’s dissatisfaction. See Templei, 367 F.3d at 479
(citation omitted); Schiller, 342 F.3d at 567; Simon v. United
States, 89) F.2d 1154, 1159 (Sth Cir.1990); Jn re Self, 172
F.Supp.2d 813, 816 (E.D. La. 2001). Nor can such motions
be used to argue a case under a new legal theory. Dial One of
the Mid-South, Inc. v. Bellsouth Telcoms., Inc., 401 F.3d
603, 607 (Sth Cir. 2005) (citation omitted). Kennedale rests
on the last two grounds for its motion: the presentation of new
evidence and the Court’s clear error in concluding that the
ordinances were not narrowly tailored.
3la
There is no precise definition in the law for what
constitutes “clear error,” though its clear that any analysis of
clear error should conform to a “very exacting standard.”
Hopwood v. Texas, 236 F.3d 256, 272 (Sth Cir. 2000)
(regarding “clearly erroneous” standard in reviewing district-
court decisions generally); see also Esparza v. Telerx Mktg.,
EP-04-CA-0241-FM, 2005 U.S. Dist. LEXIS 12328, at * 3
(W.D. Tex. June 21, 2005) (citing Lightfoot v. District of
Columbia, 355 F. Supp. 2d 414, 422 (D.D.C. 2005))
(incorporating “exacting standard” into district court’s
analysis of Rule 59(e) motions). “{D]istrict courts should have
‘a clear conviction of error’ before finding that a. . .
judgment was predicated on clear error.” Lightfoot, 355 F.
Supp. 2d at 422 (citing Piper v. United States DOJ, 312 F.
Supp. 2d 17, 21 (citing Oneida Indian Nation v. Co. of
Oneida, 214 F.R.D. 83, 98 (N.D.N.Y. 2003)). In essence, a
judgment must be “dead wrong” to qualify as being clearly
erroneous. /d. (citing Parts & Elec. Motors, Inc. v. Sterling
Elec., Inc., 866 F.2d 228, 233 (7th Cir. 1988)).
Kennedale argnes that the Conrt’s indgment was clearly
erroneous since Kennedale did present substantial evidence of
the secondary effects of off-site adult-entertainment businesses
and because the Court engaged in a Daubert-style analysis of
an informal survey Kennedale offered in support of its case.’
Neither of these arguments is persuasive. First, the Court has
already weighed the evidence presented by Kennedale and
* The reference to Daubert is to the United States Supreme Court's
decision in Daubert v. Merrell Dow Pharmaceuticals, Inc. , 509
U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993), which held
that courts must perform a gate-keeping function for experts and
exclude testimony that is irrelevant or does not result from the
application of reliable methodologies or theories to the facts of the
case. See S09 U.S. at 592-95.
32a
concluded that it did not comport with the Fifth Circuit’s
instructions in Encore Videos. Simple disagreement by
Kennedale with the Court’s decision does not warrant a Rule
59(e) re-opening of the issue. See Jn re Self, 172 F.Supp.2d
at 816. Nor has Kennedale made arguments demonstrating
that the Court’s interpretation of Encore Videos was “dead
wrong.” See Lightfoot, 355 F. Supp. 2d at 422 (citing Parts
& Elec. Motors, 866 F.2d at 233). Should the Fifth Circuit
wish to clarify its mandate, it may do so, but the Court is not
in a position to ignore that mandate, and the Court’s reasons
for concluding that the requirements of Encore Videos are
unmet remain the same.
Moreover, the Court did not conduct a Daubert-style
analysis of Kennedale’s survey. Instead, the Court merely
pointed out the many flaws extant in the survey’s formulation
and results. As previously discussed by the Court in its March
29 order, when enacting an ordinance that limits free
expression, a city may rely on “any evidence that is
‘reasonably believed to be relevant,’” but may not use
“shoddy data or reasoning” in doing so. City of L.A. v.
Alameda Books, 535 U.S. 425, 428, 122 S. Ct. 1728, 152 L.
Ed. 2d 670 (2002) (citing City of Renton v. Playtime Theatres,
Inc., 475 U.S. 41, 51-52, 106 S. Ct. 925, 89 L. Ed. 2d 29
(1986). In its March 29 order the Court merely questioned
whether Kennedale could reasonably rely upon a survey
exhibiting as many flaws as the survey used here. Posing such
a question is not tantamount to subjecting the survey to a
Daubert analysis. Nor in doing so did the Court require clear
proof of secondary effects or substitute its findings for those
of Kennedale’s legislative body. Were the Court wholly
unable to question whether the data relied upon by Kennedale
was shoddy, the Supreme Court's cautioning that a city cannot
rely upon shoddy data would be meaningless.
33a
Furthermore, the Court’s order, fairly viewed, establishes
that the Court did not base its decision upon the seeming flaws
in the formulation of Kennedale’s survey. Rather, the Court
rested its conclusion upon the survey’s failure to properly
limit its enquiry to off-site adult-entertainment establishments.
Simply because Kennedale disagrees with that conclusion does
not compel reconsideration of the issue. Nor has Kennedale
demonstrated that the Court’s conclusion was clearly
erroneous or dead wrong since Kennedale’s arguments merely
consist of its own opinion regarding the interpretation of the
survey. The Court has already rendered judgment on that
issue and Kennedale’s opinion on the matter is not enough,
alone, to demonstrate the clear erroneousness of the Court’s
earlier conclusion.
Kennedale also argues that newly discovered evidence
supports alteration of the Court’s March 29 decision. When
taking up a motion under Rule 59(e) it is within the Court’s
discretion to view materials not available at the time of its
challenged decision. See Ford Motor Credit Co. v. Bright, 34
F.3d 322, 324 (Sth Cir. 1994). In deciding whether to use its
discretionary authority to reopen a case, a court must balance
between two competing interests: “the need to bring litigation
to an cnd and the need to render just decisions on the basis of
all the facts.” Lavespere, 910 F.2d at 174; see also Freeman
v. County of Bexar, 142 F.3d 848, 853 (Sth Cir. 1993). A
district court is therefore tasked with striking the proper
balance between these competing interests by considering,
among other things, “{t}he reasons for the moving party’s
default, the importance of the omitted evidence to the moving
party s case, whether the evidence was available to the non-
movant before she responded to the summary judgment
motion, and the likelihood that the nonmoving party will
suffer unfair prejudice if the case is reopened.” /d.
34a
The Court declines to use its discretion and reopen the
instant matter based upon the newly proffered evidence.
Kennedale already had an opportunity to prove its point
during the summary-judgment phase of this case, but it failed
even to raise a genuine issue of material fact regarding the
pertinent issues. Moreover, the newly proffered evidence is
countered by new evidence adduced by Reliable. Nor has
Reliable had an adequate opportunity to respond to
Kennedale’s new evidence through discovery. Furthermore,
since the discovery period in this cause has already lapsed,
Reliable will undoubtedly suffer unfair prejudice should the
Court reopen the case and examine the new evidence adduced
by Kennedale.
This matter has been pending for over three years. At
some point, there must be a conclusion to the litigation and
finality accorded to the Court’s judgment. Otherwise, either
party could, without end, petition the Court to reopen the
matter. Consequently, the Court concludes that relief pursuant
to Rule 59(e) is unwarranted.
Kennedale also asks the Court to modify its March 29
order as it relates to plaintiff-intervenor Beverly van Dusen,
d/b/a B & V Video Enterprises d/b/a “New Video” (“B &
V”) since Kennedale and B & V settled their dispute on
October 15, 2004. While Kennedale and B & V may have
settled their dispute prior to the Court’s ruling on Kennedale’s
summary-!udgment motion, which was directed towards B &
V’s claims, B & V did not file dismissal papers with the Court
until April 7, 2005. Nor did Kennedale file a motion to
withdraw those portions of its summary-judgment motion that
related to B & V. The Court cannot retroactively apply the
dismissal. Moreover, such treatment is especially unjustified
here, where neither of the parties treated their settlement
agreement as being important enough to warrant notifying the
35a
Court. On March 29 B & V’s claims were still pending before
the Court. Consequently, there is no basis for modifying the
Court’s order issued that same day.
Kennedale also requests clarification of the Court’s March
29 order, in which the Court specifically declined to review
whether the ordinances left open alternative avenues of
communication since analysis of that issue was unnecessary
due to the Court’s ruling on narrow tailoring. Later in its
order, when analyzing Reliable’s permanent-injunction
request, the Court stated that “Dreamer’s has operated in its
current location for twenty-five years and currently has no
Sites to which it may relocate.” (March 29, 2005, Order at
28.) The Court did not mean to imply a ruling on the
alternative-avenues-of-communications question; it merely
intended to draw attention to the fact that Reliable owned the
land on which it was located and did not presently own, nor
was it renting or leasing, any other land to which it could
immediately relocate. Any other potential meaning that could
be gleaned from the Court’s statement ts unintended.
The March 29 order also stated that the permanent
injunction granted therein did not prevent Kennedale from
amending its ordinances to come within the requirements of
the Constitution, if it could do so. (/d.) Kennedale presently
moves the Court to discuss whether Kennedale’s newly
proffered evidence would permit Kennedale to constitutionally
pass an ordinance restricting sexually-oriented businesses such
as Reliable. Kennedale also seeks clarification regarding its
non-locational licensing regulations. The Court cannot grant
the requested relief, however, because federal courts cannot
issue advisory opinions. See Ala. State Fed'n of Labor vy.
McAdory, 325 U.S. 450, 461, 65S. Ct. 1384, 89 L. Ed. 1725
(1945); C & H Nationwide v. Norwest Bank Tex. N.A., 208
F.3d 490, 493 (Sth Cir. 2000): Halder v. Standard Oil Co.,
36a
642 F.2d 107, 110 (Sth Cir. 1981) (citing McAdory, 325 U.S.
at 461); White v. Ascension Parish Sch. Bd. , 343 F.3d 373,
377 (Sth Cir. 2003).
Therefore, Kennedale’s Motion to Alter or Amend
Judgment [doc. # 186] is DENIED.
SIGNED October 24, 2005.
/s/
TERRY R. MEANS
UNITED STATES DISTRICT JUDGE
TRM/kat
37a
APPENDIX F
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
FORT WORTH DIVISION
CIVIL ACTION NO. 4:02-CV-458-Y
CONSOLIDATED w/4:02-C V-471-Y
[Filed April 12, 2005]
H AND A LAND CORPORATION, ET AL.
VS.
)
)
)
)
CITY OF KENNEDALE, TEXAS )
)
DEFENDANT’S MOTION TO ALTER
OR AMEND JUDGMENT
TO THE HONORABLE JUDGE OF SAID COURT:
NOW COMES Defendant City of Kennedale, Texas, and
pursuant to Rule 59(e) of the Federal Rules of Civil Procedure
submits its Motion to Alter or Amend the Order on Motion
for Summary Judgment filed on March 29, 2005, and the Rule
54(b) Final Judgment, filed on March 30, 2005 and would
respectfully show this Honorable Court as follows:
38a
I.
Defendant respectfully requests this Court’s
reconsideration of its order partially granting and partially
denying summary judgment because the court committed clear
error on the following points: (1) Defendant reasonably relied
on its appraisers’ survey; (2) Defendant reasonably relied
upon several other studies which differentiate between on-
premises and off-site businesses; (3) Defendant reasonably
relied upon public comments which constitute substantial
evidence of the adverse effects caused by off-site businesses.
Additionally, Defendant presents the Court with newly-
discovered evidence of adverse secondary effects caused by
“take-home-only” sexually oriented businesses. Such evidence
is filed herewith in the form of affidavits and exhibits that
were unavailable at time of summ.iy judgment.
II.
In the alternative, Defendant seeks clarification of certain
findings and conclusions set forth in the order, including a
finding as to the existence of a reasonable number of
alternative sites for the relocation of Dreamer’s. Defendant
requests clarification from the court that it remains free to
determine whether sufficient evidence exists that businesses
like Dreamer’s adversely affect surrounding properties, and
if so, it remains free to implement its ordinances as to
Dreamer’s under those circumstances. Finally, Defendant
requests clarification that it may enforce the “non-locational”
restrictions of its ordinances against Dreamer’s.
WHEREFORE, PREMISES CONSIDERED, Defendant
prays that the Court reconsider and amend its March 29, 2005
Order and its March 30, 2005 Entry of Final Judgment.
39a
Respectfully submitted,
/s/
APRIL M. VIRNIG
State Bar No. 24029883
WAYNE K. OLSON
State Bar No. 15276900
GEORGE A. STAPLES
State Bar No. 19058000
TAYLOR, OLSON, ADKINS,
SRALLA & ELAM, L.L.P.
6000 Western Place, Suite 200
I-30 @ Bryant Irvin
Fort Worth, Texas 76107
Phone: 817/332-2580
Facsimile: 817/332-4740
ATTORNEYS FOR
DEFENDANT,
CITY OF KENNEDALE
CERTIFICATE OF CONFERENCE
1, Wayne K. Olson, attorney with TAYLOR, OLSON,
ADKINS, SRALLA & ELAM, LLP made a good faith
attempt to confer by telephone with Louis Sirkin, Jennifer
Kinsley, and Gary Polozola, attorneys for Plaintiff-intervenor,
on April 11, 2005, regarding the merits of this Motion. Mr.
Polozola was unavailable due to a medical emergency. Mr.
Sirkin and Ms. Kinsley are out of town until April 14, which
is past Defendant's deadline to file this motion, and their
office indicated they were unavailable to confer. Even though
40a
a conference was not possible, Defendant anticipates that
Plaintiff-intervenor will oppose this motion.
/s/
WAYNE K. OLSON
4la
APPENDIX G
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
FORT WORTH DIVISION
CIVIL ACTION NO. 4:02-C V-458-Y
(Consolidated with 4:02-CV-471-Y)
{Filed April 11, 2005}
HAND A LAND CORPORATION
d/b/a/ SHOWTIME CABARET, et al.
)
)
)
vs. )
)
CITY OF KENNEDATF. TEXAS )
)
FINAL JUDGMENT
Pursuant to plaintiff Beverly Van Dusen’s agreed Motion
to Dismiss with Prejudice, filed April 7, 2005, and granted
this same day, and to Federal Rules of Civil Procedure 58 and
41(a) (1),
It is hereby ORDERED, ADJUDGED, and DECREED
that all claims in the above-styled and numbered cause are
DISMISSED WITH PREJUDICE. All costs under 28 U.S.C.
§ 1920 shall be taxed against the party incurring the same.
42a
SIGNED April_11, 2005.
/s/
TERRY R. MEANS
UNITED STATES DISTRICT
JUDGE
TRM/kat
APPENDIX H
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
FORT WORTH DIVISION
CIVIL ACTION NO. 4:02-CV-458-Y
(Consolidated with 4:02-CV-471-Y)
[Filed March 29, 2005)
H AND A LAND CORPORATION
d/b/a/ SHOWTIME CABARET, et al.
)
)
)
Vv. )
)
CITY OF KENNEDALE, TEXAS )
\
ORDER PARTIALLY GRANTING AND PARTIALLY
DENYING PLAINTIFF-INTERVENOR’S MOTION
FOR PARTIAL SUMMARY JUDGMENT AND
PARTIALLY GRANTING AND PARTIALLY
DENYING DEFENDANT'S MOTION FOR
SUMMARY JUDGMENT
(with special instructions to the clerk of court)
Pending before the Court is defendant City of Kennedale,
Texas (“Kennedale”)’s Motion for Summary Judgment {doc.
# 94-1]. Also pending before the Court is the Motion for
Partial Summary Judgment [doc. # 1LIS-1] of plainuff-
intervenor Reliable Consultants, Inc., d/b/a/ “Dreamer’s”
44a
(hereinafter, “Reliable”). Having carefully considered the
motions, responses, and replies, the Court concludes that both
motions should be PARTIALLY GRANTED and
PARTIALLY DENIED.
I]. RELEVANT BACKGROUND
Reliable and plaintiff Beverly van Dusen, d/b/a B & V
Video Enterprises d/b/a “New Video” (hereinafter, “B & V”)
operate sexually oriented businesses on property in Tarrant
County, Texas, Kennedale annexed in 1999. Kennedale’s
ordinances at the time of annexation, as well as those enacted
afterward (collectively, “the ordinances”), prohibited
Dreamer’s, New Video, and three other sexually oriented
businesses from operating in their current locations. The
ordinances do not ban sexually oriented businesses altogether,
but provide that such businesses may not operate within 800
feet of a residential district, a church or synagogue, a schooi
or licensed day-care center, a public library, another sexually
oriented business, or within specified overlay districts. The
ordinances also require any sexually oriented businesses to
obtain a license to operate. The affected businesses were
given a three-year amortization period from the date of
annexation in which to recoup their investments and relocate
their businesses. An appeal for an extension of time was also
possible, though neither Reliable nor B & V applied for such
an extension.
On May 20, 2002, H and A Land Corporation, d/b/a/
Showume Cabaret (“H and A”), one of the sexually oriented
businesses impacted by the annexation, brought suit in this
Court against Kennedale seeking a temporary restraining
order and preliminary injunction against Kennedale’s
enforcement of the ordinances. On May 23, Dingler &
Dingler Construction Company, d/b/a Fantasy Foxx
45a
(“Dingler”), intervened as a plaintiff in the action; Reliable
intervened as a plaintiff on May 24. B & V, collectively with
Southern Salvage Inc., d/b/a Log Cabin Adult Bookstore
(“Southern Salvage”), brought a separate suit against
Kennedale on May 24 that was later consolidated with H and
A’s suit on June 11. Kennedale later settled its disputes with
H and A, Dingler, and Southern Salvage, and their claims
against Kennedale were dismissed with prejudice by the
Court.' While Dingler and Southern Salvage ceased operation
of their businesses, H and A was permitted to continue its
operation following an agreement to make aesthetic changes
to its facility and to add a pizza restaurant within the building.
Reliable’s complaint requests a declaratory judgment that
Kennedale’s ordinances are unconstitutional on their face
because they impose a prior restraint on the exercise of the
right to free expression, impose improper time, place, and
manner restrictions, constitute a taking of private property,
and are content-based restrictions on speech. Reliable also
seeks a permanent injunction, just compensation for the taking
of its private property, and attorneys’ fees. B & V’s complaint
alleges that Kennedale’s ordinances are unconstitutional on
their face and void for vagueness and overbreadth, constitute
Violations of freedom of expression because they are prior
restraints, are content-based, limit alternative avenues of
communication, and violate the Equal Protection and Due
Process Clauses of the Fourteenth Amendment. B & V
requests preliminary and permanent injunctions, a declaration
that Kennedale’s ordinances are unconstitutional pursuant to
‘H and A's claims were dismissed on December 4, 2002. Southern
Salvage’s claims were dismissed with prejudice on January 13,
2004, while Dingler’s claims were dismissed with prejudice on
January 14.
46a
the First, Fifth, Eighth, Ninth, and Fourteenth Amendments
to the Constitution, and attorney’s fees.
Kennedale filed a motion for summary judgment as to both
Reliable and B & V (collectively, “Plaintiffs”)’s claims.
Reliable moved for partial summary judgment as to its request
for a declaration regarding its prior-restraint claims, its claim
that the ordinances constitute improper time, place, and
manner restrictions, and its claim that the ordinances
constitute content-based restrictions on speech. B & V has not
moved for summary judgment on any of its claims.
Il. SUMMARY JUDGMENT STANDARD
Summary judgment ts proper when the record establishes
“that there is no genuine issue as to any material fact and that
the moving party is entitled to judgment as a matter of law.”
FED. R. Civ. P. 56(c). An issue is considered “genuine” if “it
is real and substantial as opposed to merely formal,
pretended, or a sham.” Bazan v. Hidalgo Cty. , 246 F.3d 481,
489 (5th Cir. 2001) (citing Wilkinson v. Powell, 149 F.2d
335, 337 (Sth Cir. 1945)). Facts are considered “material” if
they “might affect the outcome of the suit under governing
law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248,
106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). To determine
whether there are any genuine issues of material fact, the
Court must first consult the applicable substantive law to
ascertain what factual issues are material. Lavespere v. Niagra
Mach. & Tool Works, 910 F.2d 167, 178 (Sth Cir. 1990).
Next, the Court must review the evidence on those issues,
viewing the facts in the light most favorable to the nonmoving
party. /d.; Newell v. Oxford Mgmt. Inc., 912 F.2d 793, 795
(5" Cir. 1990); Medlin v. Palmer, 874 F.2d 1085, 1089 (5"
Cir. 1989).
47a
In makizig its determination on the motion, the Court must
look at the full record including the pleadings, depositions,
answers to interrogatories, admissions on file, and affidavits.
See FED. R. Civ. P. 56(c); Williams v. Adams, 836 F.2d 958,
961 (5th Cir. 1988). Rule 56, however, “does not impose on
the district court a duty to sift through the record in search of
evidence to support” a party’s motion for, or opposition to,
summary judgment. Skotak v. Tenneco Resins, Inc. , 953 F.2d
909, 915-16 & n.7 (Sth Cir. 1992). Thus, parties should
“identify specific evidence in the record, and . . . articulate”
precisely how that evidence supports their claims. Forsyth v.
Barr, 19 F.3d 1527, 1536 (Sth Cir. 1994). Further, the
Court’s function is not to weigh the evidence and determine
the truth of the matter but to determine whether there is a
genuine issue for trial. See Anderson, 477 U.S. at 249.
To prevail on a motion for summary judgment, the
moving party has the initial burden of demonstrating that there
is nO genuine issue as to any material fact and that he is
entitled to judgment as a matter of law. See Celotex Corp v.
Catrett. 477 U.S. 317. 393, 1N6 S. Cr. 2548, O1 L.Ed. 24
265 (1986). A defendant moving for summary judgment may
submit evidence that negates a material element of the
plaintift’s claim or show that there is no evidence to support
an essential element of the plaintiff's claim. See Celotex
Corp., 477 U.S. at 322-24; Crescent Towing and Salvage Co.
v. M/V Anax, 40 F.3d 741, 744 (Sth Cir. 1994); Lavespere,
910 F.2d at 178.
To negate a material element of the plaintiff's claim, the
defendant must negate an element that would affect the
outcome of the action. See Anderson, 477 U.S. at 247. If the
defendant moves for summary judgment alleging no evidence
to support an essential element of the plaintiff's claim, the
defendant need not produce evidence showing the absence of
48a
a genuine issue of fact on that essential element. Rather, the
defendant need only show that the plaintiff, who bears the
burden of proof, has adduced no evidence to support an
essential element of his case. See Celotex, 477 U.S. at 325;
Teply v. Mobil Oil Corp. , 859 F.2d 375, 379 (Sth Cir. 1988).
When the moving party has carried its summary-judgment
burden, the respondent must go beyond the pleadings and by
his own evidence set forth specific facts showing there is a
genuine issue for trial. Arbaugh v. Y&H Corp., 380 F.3d 219,
222 (5" Cir. 2004) (citing Celotex Corp. v. Catrett, 477 U.S.
317, 324, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986)); see
also FED. R. Civ. P. 56 (e). This burden is not satisfied by
creating some metaphysical doubt as to the material facts, by
conclusory allegations, by unsubstantiated assertions, or by
only a scintilla of evidence. See Little v. Liquid Air Corp., 37
F.3d 1069, 1075 (Sth Cir. 1994). If the evidence is merely
colorable or is not significantly probative, summary judgment
may be granted. See Anderson, 477 U.S. at 249-50.
III. ANALYSIS
The First Amendment protects sexually explicit speech,
whether film, video, print, or symbolic, that is not obscene.
TK’s Video v. Denton County, 24 F.3d 705, 707 (5" Cir.
1994) (citing Mitchell v. Commission on Adult Entertainment
Establishments, 10 F.3d 123, 130 (3rd Cir. 1993)). Society’s
interest in protecting such speech, however, “is of a wholly
different, and lesser, magnitude than the interest in
untrammeled political debate.” Young v. American Mini
Theatres, Inc., 427 U.S. 50, 70, 96S. Ct. 2440, 49 L. Ed. 2d
310 (1976) (plurality opinion). Given this distinction,
restrictions on sexually oriented businesses are permissible
under certain circumstances. City of Renton v. Playtime
49a
Theatres, Inc., 475 U.S. 41, 106 S. Ct. 925, 89 L. Ed. 2d 29
(1986).
A. Prior Restraint
Reliable argues that the ordinances are so restrictive in
providing reasonable alternative sites for relocation that they
impose a prior restraint on its First Amendment rights. Where
an ordinance imposes a total ban on sexually oriented
businesses it may constitute a prior restraint. See Encore
Videos, Inc. v. City of San Antonio, 330 F.3d 288, 290-91
(Sth Cir. 2003). Reliable bases its argument on the fact that
two of the sexually oriented businesses impacted by the
ordinances have ceased operation.
This fact, alone, cannot support Reliable’s prior-restraint
argument. The ordinances clearly do not ban sexually oriented
businesses altogether, but instead provide that such businesses
may not operate within certain designated areas and within
certain range of residential districts, churches or synagogues,
schools or licensed day-care centers nublic libraries or other
sexually oriented businesses. Furthermore, the fact that H and
A was allowed to continue its operation within Kennedale
demonstrates that there is not a total ban on the operation of
adult-entertainment businesses within the city. The Court
therefore concludes that Kennedale is entitled to summary
judgment on Reliable’s prior-restraint claim.’
* The Court notes that B & V’s complaint contains several prior-
restraint allegations, none of which were addressed by Kennedale
in its motion for summary judgment. Consequently, because
Kennedale wholly fails to address the allegations in B & V’s
complaint, the Court grants Kennedale 's summary -judgment motion
only as to Reliable’s prior-restraint claims and not as to B & V's.
50a
B. Content-Based versus Content-Neutral Time, Place, and
Manner Restrictions
Kennedale contends that the ordinances should be analyzed
as time, place, and manner regulations. “Zoning regulations
restricting the location of adult entertainment businesses are
considered time, place, and manner regulations . . . if they do
not ban [adult-entertatnment] businesses throughout the whole
of a jurisdiction and are ‘designed to combat the undesirable
secondary effects of such businesses’ rather than to restrict the
content of their speech per se.” Encore Videos, 330 F.3d at
291(quoting Renton, 475 U.S. at 49) (citing Lakeland Lounge
v. Jackson, 973 F.2d 1255, 1257-58 (5" Cir. 1992)). Harmful
“secondary effects” of sexually oriented businesses include
crime, reduction of economic activity, and lowered property
values. /d. The Court has already determined that the present
ordinances do not ban sexually oriented businesses throughout
all of Kennedale, and will therefore focus its inquiry on
whether the ordinances are aimed at combating secondary
effects.
“Where ‘nothing in the record . . . suggests impermissible
motives on the part’ of the enacting legislature, a local
government seeking to use the secondary-effects justification
need show only that ‘(1) the drafters of the ordinance did rely
upon studies of secondary effects,’ and (2) a ‘majority’ of the
city council members received ‘some information about the
secomiary effects.’ /d. (quoting Lakeland Lounge, 973 F.2d at
1259). The record here reflects that this standard has been
satisfied. Nothing in the record suggests an impermissible
motive, and the ordinances themselves indicate that Kennedale
reviewed other cities’ studies, as well as its own survey, of
secondary effects in enacting the ordinances. (Def.’s App. in
Support of Mot. for Summ. J. at 1-2a, 31, 48, 91, 97
(Ordinances)). The studies that were reviewed and the
Sla
information received regarding those studies was also
provided to city-council members. (Def.’s App. to Reply to
Pl.’s Resp. to Def.’s Mot. for Summ. J. at 449-50 (Olson
Aff.)). The Court will therefore analyze the ordinances as
time, place, and manner restrictions.
Time, place, and manner restrictions on speech violate the
First Amendment unless they are content-neutral, are designed
to serve a substantial governmental interest, do not
unreasonably limit alternative avenues of communication, and
are narrowly tailored. See Encore Videos, 330 F.3d at 291-
92.3
> The Court notes Kennedale’s advancement of the standard
articulated in United States v. O’Brien, 391 U.S. 367, 88 S. Ct.
1673, 20 L. Ed. 2d 672 (1968). But O’Brien typically applies to
adult-entertainment cases where regulations are imposed on the
manner in which sneech can occur, SUCH ad vesuLiCUONS ON public
nudity, rather than to regulations on the location where such
expression can take place, such as the zoning ordinance at issue
here. See City of Erie v. Pap’s A.M., 529 U.S. 277, 289, 120 S.
Ct. 1382, 20 L. Ed. 2d 672 (2000); Barnes v. Glen Theatre, Inc.,
501 U.S. 560, 111 S. Ct. 2456, 20 L. Ed. 2d 672 (1991); J&B
Entertainment v. City of Jackson, 152 F.3d 362 (5" Cir. 1998).
Cases involving circumstances similar to the present dispute apply
the Renton standard articulated in Encore Videos. See City of L.A.
v. Alameda Books, 535 U.S. 425, 122 S. Ct. 1728, 20 L. Ed. 2d
672 (2002); Renton, 475 U.S. at 41; Encore Videos, 330 F.3d at
288; N.W. Enters. v. City of Houston, 352 F.3d 162 (S" Cir.
2003); Lakeland Lounge, 973 F.2d at 1255; SDJ, Inc. v. Houston,
837 F.2d 1268 (S" Cir. 1988). The Court will therefore apply the
Renton standard articulated in Encore Videos rather than the
O'Brien standard.
52a
(1) Content-Neutrality
“The principal inquiry in determining content neutrality,
in speech cases generally and in time, place, and manner cases
in particular, is whether the government has adopted a
regulation of speech because of disagreement with the
message it conveys.” Hill v. Colorado, 530 U.S. 703, 719,
120 S. Ct. 2480, 147 L. Ed. 2d 597 (2000) (quoting Ward v.
Rock Against Racism, 491 U.S. 781, 791, 109 S. Ct. 2746,
105 L. Ed. 2d 661 (1989)). This inquiry “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 [such speech].’” Almeda Books,
535 U.S. at 440-41 (quoting Renton, 475 U.S. at 47). In
essence, the Court must ask whether the ordinances aim to
regulate the content or the consequences of sexually explicit
speech.* 7K’s Video, 24 F.3d 705 at 707. Proof of the
efficacy of the ordinance is not required.” N.W. Enters. , 352
F.3d at 174. Should the Court determine that a regulation is
content based, it is presumptively invalid and subject to strict
scrutiny. Alameda Books, 535 U.S. at 434 (citing Simon &
Schuster, Inc. v. Members of N. Y. State Crime Victims Bd..,
502 U.S. 105, 115, 118, 112 S. Ct. 501, 116 L. Ed. 2d 476
* This inquiry “is similar to that applied to the question of
secondary effects motivation.” Encore Videos, 330 F.3d at 292. A
court must look to whether the challenged ordinances “address{]
[the] secondary effects of adult speech, as demonstrated by the
legislative record.” N.W. Enters., 352 F.3d at 174.
> Such evidence should only be examined at the second stage of the
court's inquiry, i.e., when analyzing whether the ordinances are
designed to serve a substantial governmental interest. Almeda
Books, 535 U.S. at 440-41 (citing Renton, 475 U.S. at 50-52).
53a
(1991); Arkansas Writers’ Project, Inc. v. Ragland, 481 U.S.
221, 230-231, 107 S. Ct. 1722, 95 L. Ed. 2d 209 (1987)).
The ordinances at issue here either specifically state, or
amend and adopt the findings of prior ordinances that state,°
that the Kennedale city council seeks to minimize and control
the adverse secondary effects of sexually oriented businesses.’
° Ordinance No. 108 imposes licensing and locational requirements
on sexually oriented businesses; its preamble states Kennedale’s
findings regarding such businesses and its reasons for imposing
zoning restrictions on them. (App. to Def.’s Mot. for Summ. J. at
2-3). Ordinance No. 186 adopts the findings in Ordinance No. 108
and amends the regulations contained therein. (/d. at 30-46).
Ordinance No. 187 amends the zoning restrictions for the overlay
districts established in the Kennedale zoning ordinance and given
treatment in Ordinance No. 186, which amended Ordinance No.
108. (/d. at 34, 48-50). Ordinance No. 226 amends Ordinance
Nos. 186 and 187, which amended Ordinance No. 108. (/d. at 79).
Ordinance No. 231 amends the regulations in Ordinance No. 187.
(/d. at 86). Ordinance Nos. 252 and 269 adopt the findings made
in Ordinance Nos. 108 and 186 and also finds, based upon the
results of a survey conducted by the city attorney’s office, that
take-home only establishments have adverse effects on surrounding
property values. (/d. at 91-92). Because all of these ordinances
either relate back or specifically amend Ordinance No. 108, the
Court will treat the findings, statements, and conclusions reached
in Ordinance No. 108's preamble as applying to all of the
ordinances. Only Ordinance No. 210, which merely re-classifies,
zones, or re-zones all of the property within Kennedale, does not
specifically relate back to Ordinance No. 108. (/d. at 72-77).
” The preamble to Ordinance No. 108 states, in relevant part:
WHEREAS, the City Council of the City of Kennedale, Texas,
heretofore adopted regulations restricting the location of sexually
oriented businesses within the City of Kennedale based upon
54a
studies, reports, and findings regarding the harmful effects of
sexually oriented businesses on surrounding land uses; and
WHEREAS the city council deems it necessary and advisable
to amend these regulations . . . ; and
WHEREAS, studies, reports, and findings conducted by the
cities of Austin, El Paso, and Indianapolis regarding the harmful
effects of sexually oriented businesses on surrounding land uses
have been presented to and reviewed by the city council; and
WHEREAS, studies, reports, and findings conducted by the
cities of Los Angeles, Las Vegas, Houston, Amarillo, and
Beaumont were presented to the city council and made part of the
public record; and
WHEREAS, the city finds that churches, synagogues, licensed
day care centers, public parks, schools and public libraries are
centers of family oriented activities and therefore enhance the
quality of life in surrounding areas; and
WHEREAS, there is convincing documented evidence that
sexually oriented businesses, because of their very nature, have a
deleterious effect on surrounding land uses, causing increased
crime and the downgrading of property values; and
WHEREAS, the city council desires to minimize and control
these adverse effects and thereby protect the health, safety, and
welfare of the citizenry; protect the citizens from increased crime,
preserve the quality of life; preserve the property values and the
character of surrounding neighborhoods; and deter the spread of
urban blight; and... .
WHEREAS, the city council finds that sexually oriented
businesses are frequently used for activities such as prostitution or
sexual liaisons of a casual nature; and
55a
(Def.’s App. to Mot. for Summ. J. at 2-3, 31-32, 48, 79, 91-
92, 97-98 (Ordinances)). Although merely mentioning
“secondary effects,” or its functional equivalent, within an
ordinance’s preamble “may not save a statute ‘formulated
without specific attention to specific secondary effects,’” see
J & B Entertainment, 152 F.3d at 374 (quoting Lakeland
Lounge, 973 F.2d at 1259), the ordinances here include the
requisite degree of specificity. The ordinances demonstrate
that Kennedale not only made specific findings of the adverse
effects generally associated with sexually oriented businesses,
but also that Kennedale sought to remedy specific adverse
effects, namely, increased crime, decreased property values,
sexual-crime activity, and the spread of sexually transmitted
diseases. See supra note 7; J & B Entertainment, 152 F.3d at
374 (“No explanation of what specific secondary effects
motivated [the city] to enact the Ordinance appears in its text,
and the City Council failed to make any specific legislative
WHEREAS, the concern over sexually transmitted diseases is
a iegitimate neaith concern of the city which demands reasonable
regulation of sexually oriented businesses in order to protect the
health and well-being of the citizens: and
WHEREAS, the city council finds that these amendments will
promote the public health, safety, morals and general welfare of the
citizens of the city; and
WHEREAS, the city council finds that these amendments have
neither the purpose nor effect of imposing a limitation or restriction
on the content of any communicative materials, including sexually
oriented materials, nor do these amendments have the effect of
restricting or denying access by adults to sexually oriented
materials protected by the First Amendment. . .
(App. to Def.’s Mot. for Summ. J. at 2-3).
56a
findings prior to enactment”). The record also reflects that, in
enacting the ordinances, Kennedale relied upon studies
conducted for other cities, statements made at public hearings,
a survey conducted by Kennedale’s attorney, and other
information compiled by Kennedale’s attorney that was
presented to the Kennedale city council. (/d. at 2-3, 31-32,
91-92, 97-98; App. to Def.’s Reply to Pl.’s Resp. to Def.’s
Mot. for Summ. J. at 386-96 (Hearing Minutes), 449-53
(Olson Aff.), 454-56 (Miller's 2™ Aff.)). Furthermore,
Ordinance No. 108 specifically states that the ordinance is
directed not at limiting protected speech but rather at
controlling the adverse effects associated with such
expression. (/d. at 2-4).
The record therefore demonstrates that the ordinances are
predominantly concerned with and seek to address the
secondary effects from, rather than the content of, the form of
speech regulated. Moreover, it is important to note that the
ordinances do not directly regulate speech, but rather regulate
the locations where such speech may occur. See Hill, 530
U.S. at 719. As such, the Court concludes that the ordinances
were not adopted because of disagreement with the message
conveyed and therefore constitute content-neutral regulations.
See SDJ, 837 F.2d at 1268; Lakeland Lounge, 973 F.2d at
1258-59. Summary judgment on this question is therefore
awarded to Kennedale.®
* Resolution of this issue in Kennedale's favor, in effect, denies
Reliable’s motion for summary judgment as to the seventh “count”
in its complaint and grants summary judgment on the issue to
Kennedale.
57a
(2) Substantial Governmental Interest Plus Narrow
Tailoring’
Kennedale must be able to demonstrate a connection
between the speech regulated and its substantial interest in the
ordinances’ enactment. Almeda Books, 535 U.S. at 438.
Courts have routinely held that “[a] city’s ‘interest in
attempting to preserve the quality of urban life is one that
must be accorded high respect,’” Renton, 475 U.S. at SO, 52
(quoting Young, 427 U.S. at 71), and that courts must “allow
cities a ‘reasonable opportunity to experiment with solutions’
to address the secondary effects of protected speech.” Almeda
Books, 535 U.S. at 439-41 (quoting Renton, 475 U.S. at 52
(quoting Young, 427 U.S. at 71)). Attempting to control the
secondary effects of adult-entertainment businesses by
restricting the businesses themselves is one such permissible
solution. Lakeland Lounge, 973 F.2d at 1257; see also Encore
Videos, 330 F.3d at 293. The diminution of secondary eifects
that Kennedale’s ordinances seek to achieve may therefore be
important enough to be said to further a_ substantial
government interest. See Encore Videos. 330 F.3d at 2.9%
In determining whether a city has a substantial interest in
iis regulation, however, a court cannot “hypothesize . . . an
objective or accept a [city’s] naked assertion” of importance,
but instead must “intrude into the regulatory decision process
» Although these are separate factors in the analysis, Encore Videos
recognized that, were an ordinance to fail the more stringent
requirements of the narrow-tailoring prong, then the ordinance’s
underlying premise would almost surely also fail to qualify as a
substantial governmental interest. Encore Videos, 330 F.3d at 293.
For this reason, and also because the particular facts of this case
make it practical to do so, the Court will analyze these factors in
tandem.
58a
to the extent that [it] insist{[s] upon objective evidence of
purpose—a study or findings.” SDJ, 837 F.2d at 1274. This
insistence upon some form of objective proof “reduces the
risk that a purported effort to regulate effect is a mask for
regulation of content{—t]hat is, evidence of legitimate purpose
is supported by proof that secondary effects actually exist and
are the result of the business subject to the regulation.” /d. A
city may rely on “any evidence that is ‘reasonably believed to
be relevant,’” but may not use “shoddy data or reasoning” in
doing so. Almeda Books, 535 U.S. at 438 (quoting Renton,
475 U.S. at 51-52). Furthermore,
[t]he municipality’s evidence must fairly support the
municipality’s rationale for its ordinance. If [the]
plaintiffs fail to cast direct doubt on this rationale,
either by demonstrating that the municipality’s
evidence does not support its rationale or by
furnishing evidence that disputes the municipality’s
factual findings, the municipality meets the standard
set forth in Renton. If [the) plaintiffs succeed in
casting doubt on a municipality’s rationale in either
manner, the burden shifts back to the municipality to
supplement the record with evidence renewing support
for a theory that justifies its ordinance. See, e.g., City
of Erie v. Pap’s A.M., 529 U.S. 277, 298 [] 120 S.
Ct. 1382, 146 L. Ed. 2d 265 (2000) (plurality
opinion).
Almeda Books at 438-39. 7
Kennedale has relied on several studies demonstrating that
adult-entertainment businesses have adverse secondary effects
on their surrounding communities. All of these studies were
conducted in other cities: a 1986 study conducted in Austin;
one from El Paso conducted in 1986; Los Angeles’s 1976
59a
study; a 1978 Las Vegas study; an Amarillo study conducted
in 1977; Beaumont’s 1982 study; a 1980's study conducted in
Houston; a 1984 study from Indianapolis; and a 1986
Oklahoma City study (collectively, “the predicate studies”).
(App. to Def.’s Reply to Pl.’s Resp. to Def.’s Mot. for
Summ. J. at 109-385; App. to Pl.’s Mot. in Limine at 91-
194). Kennedale is “entitled to rely on the experiences . . . of
other cities . . . so long as whatever evidence the city relies
upon is reasonably believed to be relevant to the problem that
the city addresses.” Renton, 475 U.S. at 51-52; see also
Alameda Books , 535 U.S. at 438; Encore Videos, 330 F.3d at
294. The predicate studies all conclude that adult-
entertainment businesses have adverse secondary effects on
their surrounding communities, including adverse effects upon
crime levels and property values.
Kennedale also relies upon an informal survey of real-
estate appraisers prepared by April Virnig, Kennedale’s legal
counsel. Three hundred eighteen surveys were sent out to
licensed real-estate appraisers in Tarrant County who were
listed on a website: only thirty-six of the surveys sent out
were returned, which constitutes an 11.3 percent return rate.
Though others assisted her in its formulation, Virnig
prepared the main portion of the survey herself. Virnig is not
a specialist in social science, in the field of statistics, or in
conducting surveys. (App. to Pl.’s Mot. in Limine at 15-50;
App. to Pl.’s Mot. in Limine at 171). Furthermore, the
survey was not drafted or administered in a scientific manner.
Virnig and Kennedale’s city staff merely committed to paper
some questions regarding an adult-entertainment video store,
mailed that list of questions to the appraisers listed on a
websjte, and then waited for the appraisers to respond
voluntarily and without incentive. (/d. at 15-50)
60a
In administering and evaluating the survey, no effort was
made to ensure representative sampling, no sample group of
appraisers was retained to review the survey, no attention was
given to the difference between or the comparative utility of
open-ended and closed-ended questions, no control group was
formed, no mechanisms were installed to protect against
coverage error, and no measures were put in place to ensure
that the person who responded to the survey was actually the
person to whom the survey was sent. (/d.) In addition,
although the responses to some of the questions strongly
indicated that sexually oriented businesses have a deleterious
effect upon residential-and commercial-property values, the
overall responses to other questions were less supportive of
Kennedale’s position."° Thus, not only was the process in
conducting the survey lacking in scientific rigor, but the
results were also less than compelling for Kennedale due to
the survey’s low response rate, the answers to some of the
questions posed, and the comments made at the end of the
survey.
While the failure to conduct the survey without much, if
any, scientific rigor may not be enough alone to lead the
Court te determine that Kennedale could not reasonably rely
upon the survey’s results, that fact coupled with the weak
return and the mixed results contained therein forces the
Court to question Kennedale’s reasonableness in relying on
the survey. Kennedale cannot use “shoddy data or reasoning”
'’ For instance, in response to the question “Would you expect the
average value of COMMERCIAL property located within 500 feet
of an adult video store to be affected by its proximity?,” 23
answered yes and 10 answered no. In response to the question
“Would you expect the average value of COMMERCIAL property
located within 1000 feet of an adult video store to be affected by its
proximity?,” 19 responded yes and 14 responded no.
\
61a
in justifying its ordinances. Almeda Books, 535 U.S. at 438
(quoting Renton, 475 U.S. at 51-52). But the weaknesses in
the survey’s formulation and administration, the low response
rate, and the sometimes tepid support it offers to Kennedale’s
position, make it appear that Kennedale has done so.
Fven assuming, however, that Kennedale were able to
demonstrate that it has a substantial interest in regulating
businesses such as reamer’s and New Video, Kennedale is
unable to show that the ordinances have been narrowly
tailored. To be narrowly tailored, an ordinance must regulate
only speech that actually serves the government’s substantial
interest in its being regulated. As recently articulated by the
Fifth Circuit,
[a] time, place, and manner regulation meets the
narrow tailoring standard if it “targets and eliminates
no more than the exact source of the evil it seeks to
remedy.” Frisby [v. Schultz, 487 U.S. 474, 485, 108
S. Ct. 2495, 101 L. Ed. 2d 420 (1988)]. Although
[the] government need not choose the “least intrusive
means” to advance its legitimate interests, it “may not
regulate expression in such a manner that a substantial
portion of the burden on speech does not serve to
advance its goals.” Ward, 491 U.S. at 799.
Encore Videos, 330 F.3d at 293. The ordinances here fail this
narrow-tailoring standard because they regulate expression
that is not included within their justification for the regulation.
The ordinances generally impose restrictions upon
“sexually oriented businesses,” which is defined as
an adult arcade, adult bookstore, adult cabaret, adult
motel, aduit movie theater, adult video store, love
62a
parlor, nude modeling studio 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 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, or whose employees or
customers appear in a state of nudity.
(App. to Def.’s Mot. for Summ. J. at 8). The ordinances
therefore apply equally to those establishments offering on-
site entertainment, where individuals can view sexually
explicit materials or activity at the establishment itself, and
those offering only materials for off-site consumption, where
patrons may only purchase sexually explicit materials for off-
premises use.
Reliable’s bookstore, Dreamer’s, sells sexually explicit
but non-obscene video cassette tapes, DVD recordings,
magazines, other print material, novelties, clothing, and other
general merchandise. Dreamer’s does not offer any on-site
entertainment of any kind—it is a take-home-only business,
which means that none of the materials sold there may be
viewed or consumed on premises. The store offers no live
entertainment, viewing booths, or theaters.
Since Kennedale justifies the ordinances on its desire to
combat the adverse secondary effects of “sexually oriented
businesses,” Kennedale must be able to demonstrate that the
ordinances address those problems. Encore Videos, 330 F.3d
at 294. To establish that the ordinances satisfy this narrow-
tailoring standard, Kennedale relies on the predicate studies
it reviewed, the survey conducted by Virnig, and statements
63a
made at public hearings. This evidence, however, does not
sufficiently support Kennedale’s broad regulation of sexually
oriented businesses. None of the predicate studies differentiate
between on-site and off-site adult-entertainment businesses in
either the collection of data or in the studies’ resulting
opinions. All of the studies simply lump all forms of sexually
oriented businesses into one category when analyzing their
impact upon surrounding communities.
Such a general treatment of adult-entertainment businesses
is not sanctioned within the Fifth Circuit:
Off-site businesses differ from on-site ones, because it
is only reasonable to assume that the former are less
likely to create harmful secondary effects. If
consumers of pornography cannot view the materials
at the sexually oriented establishment, they are less
likely to linger in the area and engage in public
alcohol consumption and other undesirable activities. ”
See World Wide Video, Inc. v. City of Tukwila, 117
Wn.2d 382, 816 P.2d 18, 21 (Wash. 1991)... Bur
see Z.J. Gifts, L.L.C. v. City of Aurora, 136 F.3d
683, 687 (10th Cir. 1998) . . .; LQ Invs., Inc. v. City
of Rochester, 25 V'.3d 1413, 1418 (8th Cir. 1994).
Id. at 295. Where an ordinance is as extensive as the
ordinances at issue here, the Court “must require at least
some substantial evidence of the secondary effects of
establishments that sell adult products solely for off-site
consumption.” /d. (citing Alameda Books, 525 U.S. at 438)
(emphasis added). Thus, “in order to meet the narrow
tailoring requirement, [Kennedale must] . . . provide at least
some substantial evidence of secondary effects specific to
adult businesses that sell books or videos solely for off-site
entertainment.” /d. (emphasis added) (citing Ward, 491 U.S.
64a
at 799 (holding that the government “may not regulate
expression in such a manner that a substantial portion of the
burden on speech does not serve to advance its goals”)).
Neither the predicate studies nor the public comments
submitted as evidence satisfy this requirement. As already
discussed, none of the predicate studies differentiate between
sexually oriented businesses that offer on-site and off-site
materials. There are surveys attached to the Indianapolis and
Oklahoma City studies focusing on a “bookstore” ; but neither
of these surveys give a definition for “bookstore” or in any
way indicate that “bookstore” refers only to those
establishments selling off-site materials. (App. to Pl.’s Mot.
in Limine at 170-78, 189-191). “Bookstore” can be and has
been interpreted to include many forms of on-site
entertainment, and the term, alone, does not connote solely
businesses that offer printed materials for exclusive off-site
consumption. See United States v. Jenkins, 46 F.3d 447, 449
(5" Cir. 1995) (involving 17 adult bookstores that provided
on-site peep machines exhibiting pornographic videotapes);
Almeda Books, 535 U.S. at 429, 432 (involving bookstore
where patrons could view videotapes on-site for a fee).
Furthermore, while Kennedale may rely on_ the
experiences of other cities in enacting regulations, that
evidence must “be relevant to the problem that the city
addresses.” Renton, 475 U.S. at 51-52. The predicate studies
are not relevant to the problem addressed by Kennedale
because Kennedale seeks to restrict all sexually oriented
businesses, both on-and off-site, by relying on evidence that
fails to take the substantial differences between those types of
establishments into account.
Kennedale’s reliance on the comments made at public
hearings suffers from the same lack of specificity that their
65a
reliance on the predicate studies does. Although some of the
comments made at the public hearings indicate that
Kennedale’s citizens were concerned with adverse secondary
effects from the adult-entertainment businesses in operation at
that time, none of those comments indicate whether they refer
to on-site- or off-site-entertainment establishments
exclusively, or even collectively. (App. to Def.’s Reply to
Pl.’s Resp. to Def.’s Mot. for Summ. J. at 386-396).
Consequently, because neither the predicate studies nor
the public comments constitute evidence, let alone substantial
evidence, of secondary effects specific to off-site adult
businesses, the only evidence left for Kennedale to rely upon
in regulating Dreamer’s is the survey conducted by Virnig.
Even assuming that the casual manner with which the
survey was conducted, combined with its low rate of return,
would constitute “substantial evidence,” the survey also fails
to sufficiently distinguish between on- and off-site adult-
entertainment establishments. The preamble of the survey sets
out for its respondents certain definitions and = facta!
assumptions, the relevant portion of which states:
For purposes of this survey, an adult video store is
defined as a commercial establishment which as one of
its principal business purposes offers for sale or rental
for any form of consideration photographs, films,
motion pictures, video cassettes, video reproductions,
slides or other visual representations which are
distinguished or characterized by an emphasis on
matters depicting or describing specified sexual
activitics Or specified anatomical areas.
Adult videos may be rented or purchased, but may not
be viewed at the store.
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(App. to Pl.’s Mot. in Limine at 84). While the definition of
“adult video store” indicates that “photographs, films, motion
pictures, video cassettes, video reproductions, slides or other
visual representations . . .” are offered “for sale or rental for
any form of consideration,” only videos are specifically
limited by the definition to off-site consumption, thereby
wholly excluding from the off-site limitation all of the other
types of materials that may be bought or rented. Thus, a
respondent could easily assume that the definition would allow
photographs, slides, films, motion pictures, and other visual
representations to be viewed on-site. The results of a survey
that does not precisely enquire as to the secondary effects of
adult businesses that allow only off-site consumption of their
inventory cannot constitute “substantial evidence” of the
secondary effects of those businesses.
Owing primarily to the fundamental flaw in the survey’s
enquiry, but also because of the survey’s shoddy
methodology, the Court concludes that Kennedale has failed
to provide the Court with substantial evidence upon which
Kennedale could be said to have reasonably relied in
regulating off-site sexually oriented businesses.'' The
'' To establish that Kennedale has a substantial interest in regulating
both on-and off-site sexually oriented businesses, there must be
some “evidence of legitimate purpose . . . supported by proof that
secondary effects actually exist and are the result of the business
subject to the regulation.” SDJ, 837 F.2d at 1274. Kennedale,
however, has no evidence indicating that off-site only adult
businesses result in the same adverse secondary effects that on-site
adult businesses do. Reliable has therefore cast doubt on
Kennedale’s evidence demonstrating its “substantial interest” in the
reguiation, and the burden is on Kennedale to “supplement the
record with evidence renewing support for a theory that justifies its
i
67a
ordinances, therefore, are neither narrowly tailored nor
supported by a substantial governmental interest as applied to
such off-site businesses. The Court therefore concludes that
the ordinances are unconstitutional as applied to Reliable, and
that Reliable is entitled to summary judgment on this issue.'”
(3) Reliable’s Claim for a Permanent Injunction
Reliable seeks summary judgment on the third claim in its
complaint, which requests a permanent injunction prohibiting
Kennedale from enforcing the ordinances that are
unconstitutional as applied to Reliable. The Court finds that
such an injunction is warranted.
The standard for a permanent injunction is essentially the
same as for a preliminary injunction. See cee Distribs. v. J&J
Snack Foods Corp. , 325 F.3d 586, 587 n.34 (5" Cir. 2003);
Dresser-Rand Co. v. Virtual Automation Inc. , 361 F.3d 831,
847 (5" Cir. 2004) (citing Amoco Prod. Co. v. Village of
Gambell, 480 U.S. 531, 546 n.12, 107 S. Ct. 1396, 94 L.
Ed. 2d 542 (1987)). To obtain a nermanent iniunction, 2
plaintiff must therefore show: (1) actual success on the merits;
(2) an irreparable injury if the injunction is not granted; (3)
injury to the plaintift if the injunction is not granted outweighs
the injury to the defendant if it is granted; and (4) the granting
of the permanent injunction will not disserve the public
interest. See Hurris County v. Carmax Auto Superstores Inc. ,
ordinance.” Almeda Books, 535 U.S. at 438-39. Kennedale has
failed to do so.
'? Because the ordinances must fail on narrowly tailored and
substantial-interest grounds, the Court need not examine whether
Kennedale’s ordinances offered alternative avenues of
communication.
68a
177 F.3d 306, 312 (5™ Cir. 1999) (quoting White v. Carlucci,
862 F.2d 1209, 1211 (5™ Cir. 1989)); Doe v. KPMG, L.L.C.,
325 F.Supp.2d 746, 751 (N.D. Tex. 2004); Millennium Rests.
Group, Inc. v. City of Dallas, 191 F.Supp.2d 802, 809 (N.D.
Tex. 2002).
As already discussed, Reliable has demonstrated actual
success on the legal merits of its claim that the ordinances, as
applied to Reliable, are unconstitutional. Furthermore, non-
obscene sexually explicit speech, whether film, video, print,
or symbolic is protected by the First Amendment. 7K’s Video,
24 F.3d at 707 (citing Mitchell, 10 F.3d at 130). “[W]hen a
case involves infringement of First Amendment rights, there
is a strong presumption that the plaintiff will be irreparably
injured if an injunction is not issued.” Millennium, 191
F.Supp.2d at 810 (granting preliminary injunction against
city’s ordinance restricting sexually-expressive speech). As
stated by the Supreme Court: “[t]he loss of First Amendment
freedoms, for even minimal periods of time, unquestionably
constitutes irreparable injury.” Elrod v. Burns, 427 U.S. 347,
373, 96S. Ct. 2673, 49 L. Ed. 2d 547 at (1976). The Court
therefore concludes that Reliable would suffer irreparable
injury were an injunction not granted.
The harm to Reliable in closing Dreamer’s also outweighs
the harm to Kennedale in allowing Dreamer’s to remain in
operation. Although Kennedale argues that its ordinances are
aimed at restricting the adverse secondary effects associated
with sexually oriented businesses, Kennedale has only weak
and methodologically impaired evidence to show that such
adverse secondary effects are actually the product of off-site
businesses such as Dreamer’s. Kennedale’s evidence on this
point is anemic, and there is no indication that Kennedale will
actually suffer harm by allowing Dreamer’s to continue
operating. Dreamer’s has operated in its current location for
69a
twenty-five years and currently has no sites to which it may
relocate. The harm to Reliable in forcing it to close Dreamer’s
therefore outweighs any potential harm to Kennedale in
allowing it to remain open. Furthermore, Kennedale remains
free to amend its ordinances, and, in the meantime, has police
power to control any secondary effects that may result from
allowing Dreamer’s to remain in operation. See Millennium,
191 F.Supp.2d at 810. Given these facts, the Court concludes
that Reliable would suffer greater harm from the enforcement
of the ordinances than Kennedale will in being enjoined
against their enforcement.
Finally, since Kennedale remains free to enforce its
criminal regulations and laws and those ordinances that
remain in compliance with the First Amendment, and may use
its police power in doing so, the Court also concludes that the
pubic interest will not be disserved by granting the injunction.
See id. Nor does the injunction prevent Kennedale from
amending its ordinances to come within the requirements of
the Constitution, if it can do so. Since the factors necessary
far enterino a nermanent iniunction have haan caticfiied tha
~ . - eo ~=295 -— cr ee ee ee nae we rewesw ae “eee ]S vee wow
BR SAULRYARYREG thee
Court concludes that such a remedy is warranted.
(4) Kennedale’s Time, Place, and Manner Regulation as
Applied to B & V
B & V did not move for summary judgment. Kennedale
argues that Renton has been satisfied as to B & V because
New Video offers on-site entertainment. Kennedale, however,
offers no evidence to support this allegation, and only cites to
B & V’s complaint as support for its argument. B & V's
complaqnt only states that New Video sells, rents, exhibits,
and distributes books, magazines, newspapers, and videotapes
to consenting adults only; there is no indication of whether
New Video is an on-or off-site business.
70a
The Court must review the facts in the light most
favorable to the plaintiff when reviewing Kennedale’s motion
for summary judgment. Lavespere, 910 F.2d at 178. The
Court therefore must deny Kennedale’s motion as to B & V
on this issue. As there is neither evidence as to whether
Kennedale had a substantial interest in regulating the type of
business B & V operates, because the Court does not know
what type of business that is, nor substantial evidence of
narrow tailoring, the Court cannot conclude that there is no
genuine issue of fact regarding those issues. Consequently,
Kennedale’s motion on this question as to B & V must be
denied.
However, since it appears that resolution of this issue will
turn on whether B & V operates an on-site or off-site
business (assuming, of course, that resolution of whether the
ordinances provide sufficient alternative avenues of
communication will not also be dispositive), the Court notes
that it will entertain a motion for leave by either or both
parties for a second summary judgment motion that properly
addresses whether New Video is an on-site or off-site adult-
entertainment business.'* Either party may also include within
any such second motion for summary judgment arguments
regarding B & V’s prior-restraint claims.
'’ Any such motions for leave must be filed no later than May 2,
2005, and the underlying summary-judgment motion(s) must be
fully self-contained, meaning they may not refer for their
arguments or evidence to any other motions or appendices already
submitted to the Court.
Tila
C. Fifth Amendment and the Takings Clause
Reliable argues that the ordinances have produced a
regulatory taking of its property without just compensation
both because the ordinance requires Reliable to relocate and
because the amortization period begins enforcement of the
ordinance prior to the expiration of Reliable’s license to
operate. The Takings Clause of the Fifth Amendment
provides that private property [shall not] be taken for public
use, without just compensation.” U.S. CONST. amend. V.
Where a regulation “denies all economically beneficial or
productive use of land,” it may constitute a regulatory taking
pursuant to the Fifth Amendment. Lucas v. S.C. Coastal
Council, 505 U.S. 1003, 1015, 112 S. Ct. 2886, 120 L. Ed.
2d 798 (1992) (citation omitted). The ordinances here do not
prevent all reasonable uses of Reliable’s property, and
therefore do not constitute a taking. See SDJ, Inc. v. Houston,
837 F.2d 1268, 1278 (Sth Cir. 1988); N.W. Enters. , 352 F.3d
at 186. Kennedale is entitled to summary judgment on these
claims.
D. B & V’s Remaining Claims
(1) Vagueness and Overbreadth
The first claim for relief in B & V’s complaint asserts that
several of the definitions included in the ordinances are void
for vagueness and overbreadth.'* Kennedale argues that the
'* While “the vagueness doctrine protects individuals from laws
lacking sufficient clarity of purpose or precision in drafting,” J &
B Entertainment, 152 F.3d at 365 (citing Erznoznik v. City of
Jacksonville, 422 U.S. 205, 95 S. Ct. 2268, 45 L. Ed. 2d 125
(1975)), “‘{o]verbroad legislation need not be vague, indeed it may
be too clear; its constitutional intirmity is that it sweeps protected
72a
ordinances are clear in their meaning and precise in their
definitions.
B & V has never indicated why the challenged portions of
the ordinances are void for vagueness and overbreadth, and
wholly failed to address these issues in defending itself against
Kennedale’s motion for summary judgment. When the moving
party has carried its summary-judgment burden, the
respondent must go beyond the pleadings and by his own
evidence set forth specific facts showing there is a genuine
issue for trial. Arbaugh, 380 F.3d at 222 (citing Celotex, 477
U.S. at 324); see also FED. R. Civ. P. 56(e). Not only has B
& V not adduced any evidence showing there is a genuine
issue for trial, but it also wholly failed to respond to
Kennedale’s arguments. Consequently, the Kennedale’s
motion for summary judgment on this issue must be granted.
(2) Equal-Protection and Due-Process Claims
Kennedale moves for summary judgment on B & V’s
claims pursuant to the Equal Protection and Due Process
Clauses of the Fourteenth Amendment. B & V wholly failed
to respond to Kennedale’s arguments on these issues.
Consequently, the Court concludes that Kennedale should be
granted summary judgment on these claims.
Iii. CONCLUSION
Therefore, it is ORDERED that Kennedale’s Motion for
Summary Judgment [doc. # 94-1] is PARTIALLY
GRANTED and PARTIALLY DENIED. Kennedale is hereby
activity within its proscription.’” /d. (citing News Co. v. Casado,
721 F.2d 1281, 1287 (10" Cir. 1983)).
73a
awarded summary judgment on “counts” two, four, five, and
seven of Reliable’s complaint. Kennedale is further awarded
summary judgment as to B & V’s first, third, and fourth
causes of action.
It is further ORDERED that Reliable’s Motion for Partial
Summary Judgment [doc. # 115-1] is PARTIALLY
GRANTED and PARTIALLY DENIED. Reliable is hereby
awarded summary judgment on count three of its complaint. '°
It is further ORDERED that’ Kennedale is
PERMANENTLY ENJOINED from enforcing against
Reliable those portions of the ordinances found in the above-
styled and -numbered cause to be unconstitutionally applied to
Reliable.
It is further ORDERED that, inasmuch as the Court has
now granted summary judgment on all claims asserted by
Reliable, the Court finds no just reason for delaying the entry
of final judgment as to these claims and hereby DIRECTS the
\ an er es
clerk of the Court to enter the Dulo S43} Timat JUGEMCt
issued separately this same day.
SIGNED March 29, 2005.
/s/
TERRY R. MEANS
UNITED STATES DISTRICT JUDGE
'S The Court notes that this order resolves all of the claims made in
Reliable’s complaint.
74a
APPENDIX I
To: Kennedale City Council
From: April M. Virnig, Assistant City Attorney
Date: July 3, 2003
Re: Survey
The City of Kennedale recently conducted a survey of real
estate appraisers to obtain their opinion on the secondary
affects an adult bookstore would have on the surrounding
community.
I. METHODOLOGY
On or about April 16, 2003, the City of Kennedale
conducted a survey. Three hundred eighteen (318) survey
questionnaires were mailed to all licensed real estate
appraisers in Tarrant County, Texas listed on the State of
Texas website. All real estate appraisers who received the
survey are licensed by the State of Texas. A sample survey
questionnaire is attached as Appendix A. Thirty-six (11.3%)
of the questionnaires were completed and returned. The table
below summarizes the objective part of the questionnaire.
This includes question nos. 1-13 and 15.' Subjective
comments are discussed in a separate section of this report.
These were taken from responses to question number 16.
The survey of real estate appraisers in Tarrant County
produced results that were consistent with the results of the
‘ Question No. 14 was for internal purposes only.
75a
national survey of appraisers carried out by the City of
Indianapolis, attached as Appendix B. The results were all
consistent with the survey of Oklahoma City real estate
appraisers conducted by the City of Oklahoma’s Community
Development Department, attached as Appendix C. In the
Kennedale survey, the Oklahoma survey, and the national
survey, respondents overwhelmingly indicated that an adult
book (or video store, as in the Kennedale survey) would have
a negative effect on residential and commercial property
values in the hypothetical surrounding neighborhood.
There were two major differences between the Kennedale
survey and the Oklahoma and national surveys. First, the
Kennedale survey inquired about effects at distances ranging
from 500 to 1000 feet, while the other two surveys used
distances from one to three blocks. Second, the Kennedale
survey uses an adult video store, as opposed to an adult
bookstore and the Kennedale survey specifically defined
“adult video store” as a commercial establishment which as
one of its principal business purposes offers for sale or rental
for any form of consideration photographs, films. motion
pictures, video cassettes, video reproductions, slides or other
visual representations which are distinguished or characterized
by an emphasis on matters depicting or describing specified
sexual activities or specified anatomical areas. The
hypothetical used by Kennedale specifically states that adult
videos may be rented or purchased, but may not be viewed at
the store. The Oklahoma survey and the national survey
simply use the term “adult bookstore” in their surveys and do
not include a definition.
if. SUMMARY OF RESULTS
In summary, most of the appraisers who responded to the
Kennedale survey felt that the presence of an adult video store
76a
would have a negative impact on both residential and
commercial property values in the surrounding area, although
the negative impact dissipates slightly as the distance from the
adult video store increases.
A. Objective Questions
Would you expect the average value of RESIDENTIAL
property located with 500 feet of an adult video store to be
affected by its proximity:
36 ~=6Yes _ 2». me
28 Residential property values would be below
values of similar property not located within
500 feet of an adult video store.
1 Residential property values would be higher
than similar property not located within 500
feet of an adult bookstore.
Would you expect the average value of COMMERCIAL
property located within 500 feet of an adult video store to
be affected by its proximity?
23 Yes 10 No
12_—§ Commercial property values would be below
values of similar property not located within 500
feet of an adult video store.
5 Commercial property values would be higher than
similar property not located within 400 feet of an
adult bookstore.
T7Va
Would you expect the average value of RESIDENTIAL
property located within 800 feet of an adult video store to
be affected by its proximity?
£5. Yes _6 No
23 Residential property values would be below
values of similar property not located within
800 feet of an adult video store.
J Residential property values would be higher
than similar property not located within 800
feet of an adult bookstore.
Would you expect the average value of COMMERCIAL
property located within 800 feet of an adult video store to
be affected by its proximity?
22 Yes 10 No
17 Commercial property values would he below
values of similar property not located within
800 feet of an adult video store.
0 Commercial property values would be higher
than similar property not located within 800
feet of an adult bookstore.
Would yo expect the average value of RESIDENTIAL
property located within 1000 feet of an adult video store
to be affected by its proximity?
28 “Yes 6 No
oe
78a
23 Residential property values would be below
values of similar property not located within
1000 feet of an adult video store.
J Residential property values would be higher
than similar property located within 1000 feet
of an adult bookstore.
Would you expect the average value of COMMERCIAL
property located within 1000 feet of an adult video store
to be affected by its proximity?
19 Yes 14 No
14 Commercial property values would be below
values of similar property not located within
1000 feet of an adult video store.
0 Commercial property values would be higher
than similar property not located within 1000
feet of an adult bookstore.
Would you expect the presence of an adult video store to
adversely affect attracting new COMMERCIAL
businesses to this neighborhood?
28 ~Yes 6 No
Generally, what is your opinion as to the effect of sexually
oriented businesses on the surrounding properties?
30 Cause a decrease in the market
value and = marketability” of
surrounding properties
79a
5 Have no effect on the market value
and marketability of surrounding
properties
] Cause an increase in the market
value and marketability’ of
surrounding properties
B. Subjective Question
The final survey question allowed the participants to write
a response in their own words.
16. Specifically, how do you think an adult video store
affects the value of surrounding property located in
Tarrant County, Texas?
Survey Answers no. 16, above (and additional hand-written
comments) include the following:
Adversely affects residential properties more so than
commercial properties...The types of commercial
establishments that would be affected are the family oriented
businesses such as grocery stores, malls, restaurants, etc.
Only with a paired sale would this be known. A paired sale is
one without an adult store then a resale of same after which
shows the difference.
It may affect more of the marketability and time on ‘ie market
more than sales price. Residential property will be more
adversely affected compared to commercial. Some uses tke
80a
day care, churches, offices, would not go for a site in close
proximity.
I am aware of a property that was located adjacent to aS.O.B.
that sold for 25% less than its market value (had it not been
next to an S.O.B.); $800,000 values vs. $600,000 sale price.
Some uses, such as industrial, do not appear to be as
adversely affected as other uses, such as an office building or
retail sales.
Negative. You have a family community.
A single store of sporadically placed stores have little effect,
in my opinion. However, based upon what happened to the
area in Dallas, N/W of Love Field, it does affect the overall
value of the desirability for residential properties in the area,
in my opinion.
The answers to the survey questions imply uniform impact on
all properties - either residential or commercial. I have found
that impact on commercial properties depends greatly on the
type of commercial property, as some are clearly not impacted
at all while others are severely impacted. The type of adult
entertainment facility also has a great deal to do with any
impact on nearby properties. I have found the size, location,
and “presence” of the adult facility are key factors related to
any imps: *
Adult video stores create an extreme stigma for communities
allowing these businesses to be located within their
8la
boundaries. The first thing you see when entering Kennedale
off 820 is “adult video” and “liquor stores.” Families and
businesses that support the community do not want the stigma
that is attached to sexually oriented businesses and liquor
stores. Salvage yards are negative influence upon residential
and retail. If the City of Kennedale ever wants to be a nice
suburb or bedroom community, it will have to do some
serious zoning work or taxation that will cause these types of
businesses to leave.
No Affect.
Any residential or commercial property not similarly inclined
will be negatively affected. Visually, these businesses have a
much larger impact than physical location. As an appraiser,
J cannot “quote” values without data, research and completing
an appraisal analysis or report.
Naturally any adult business in a residential area is going to
have an adverse affect on marketability and value of the
residential properties.
It appears to limit number of potential users such as family
oriented businesses. The adversely affects market value and
marketability.
No need to single out video stores. Residential values can
also be affected by proximity to fire stations, churches,
cemeteries, water towers, power lines, schools, and/or
shopping centers. An adverse value case is weak.
82a
I would expect residential property values to be negatively
affect by adult video store. Sexually oriented businesses are
typically found in areas that do not exhibit a pride in
ownership - Also these properties tend to command lower
prices - In general, sexually oriented businesses are not seen
as enhancers of value - More often than not, their presence is
an indication of decline.
Discourages major chains, retailers, restaurants. Has greatest
effect on residential values. Most “adult” uses are located
within industrial area which are less negatively affected.
Note: Arlington, Fort Worth and Tarrant County have all
completed studies on the influence of sexually oriented
businesses.
The questions you are asking cannot be answered simply.
They are unique to the location and cannot be answered in
general terms. My suggestion is that you actually hire a
commercially qualified appraiser to do analysis and feasibility
report to answer these items.
By allowing sexually explicit business of any type into your
residential and neighborhood commercial areas (grocery
stores, gas Stations, doctor offices, vets, etc.) you impact the
surrounding properties negatively. (Amount would take
research to determine.) These types of businesses should go
in areas of heavy commercial or light industrial uses (limited
visibility, low traffic flow, etc.). People looking for such
material will find it - many would prefer to be off the
“beaten” path. Hence, not only would it help neighborhoods
83a
and overall city appeal, it would probably be good for the
business Owners as well.
The market impact for the typical buyer would be negatively
affected by proximity to adult sexually oriented businesses
because the typical buyer would not be willing to pay the same
price if given a choice between similar properties with the
“SOB” near one versus the other, whether residential or
commercial.
Decreases Value!
Has a definite market effect - the entire area tends to become
non-family friendiy. A negative market is created for family
oriented business to go elsewhere. The make-up of the
neighborhood changes. You will tend to have more crime.
Focus and attention will have to change with the changes. I
think you have disaster areas with such husinesses If the
cities home-owners want it - ok, it’s their home values.
Very negatively. Promotes crime, including drugs and
promiscuity.
It would depend on the nature of the business. If it is in the
area you are annexing on 287 it would definitely affect
residential and commercial property values.
Every situation is different. [It may or may not have any affect
on property values.
84a
Depends on the surrounding use - generally I have found that
it does not affect industrial or heavy commercial type uses.
Retail and residential uses are negatively affected because of
public perception of sexually oriented businesses.
Red light districts should be zoned similarly to industrial
parks. Therefore, only people with an interest travel to the
area.
85a
Appendix A
To: Tarrant County Professional Real Estate Appraisers
From: City of Kennedale, Texas
Date: April 16, 2003
RE: Survey
In the very near future, the City of Kennedale will be
amending its ordinance regulating the location of sexually
oriented businesses. In an effort to more completely analyze
the impact of such businesses on surrounding properties, the
City asks for your help in establishing a “best professional
opinion” on the matter.
We ask that you please help us by completing the enclosed
brief survey. As a professional real estate appraiser, the
information you provide will help the City establish important
information regarding locating adult sexually oriented
businesses in Kennedale, Texas.
A nastage-naid , self-addressed envelone has been cncioscd
for your convenience. The City of Kennedale sincerely thanks
you for your time and attention to this matter.
86a
ADULT VIDEO STORE SURVEY
Please base your responses on the facts presented below:
» The city has a population of approximately 6,500
residents.
» the neighborhood contains a mixture of residential and
commercial properties and there is presently one adult
video store located in this neighborhood.
For purposes of this survey, an adult video store is defined
as a commercial establishment which as one of its
principal business purposes offers for sale or rental for
any form of consideration photographs, films, motion
pictures, video cassettes, video reproductions, slides or
other visual representations which are distinguished or
characterized by an emphasis on matters depicting or
describing specified sexual activities or specified
anatomical areas.
Adult videos may be rented or purchased, but may not be
viewed at the Store.
Would you expect the average value of
RESIDENTIAL property located within 500 feet of an
adult video store to be affected by its proximity?
. Fe No
If you answered “yes” to question number 1, above,
how would you expect the average value of
RESIDENTIAL property within 500 feet of the adult
video store to be affected?
_ Residential property values would be 10% or
more below values of similar property not
located within 500 feet of an adult video store.
87a
Residential property values would be from 0-
10% below values for similar property not
located within 500 feet of an adult bookstore.
Residential property values would be from 0-
10% higher than similar property not located
within 500 feet of an aduli bookstore.
Residential property values would be more
than 10% higher than similar property not
located within 500 feet of an adult bookstore.
Would you expect the average value of
COMMERCIAL property located within 500 feet of
an adult video store to be affected by its proximity?
Yes No
If you answered “yes” to question number 3, above,
how would you expect the average value of
COMMERCIAL property within 500 feet of the adult
video store to be affected?
Commercial property values would be 10% or
more below values of similar property not
located within 500 feet of an adult video store.
Commercial property values would be from 0-
10% below values for similar property not
located within 500 feet of an adult bookstore.
Commercial property values would be from 0-
10% higher than similar property not located
within 500 feet of an adult bookstore.
Commercial property values would be more
than 10% higher than similar property not
located within 500 feet of an adult bookstore.
88a
Would you expect the average value of
RESIDENTIAL property located within 800 feet of an
adult video store to be affected by its proximity?
Yes No
If you answered “yes” to question number 1, above,
how would you expect the average value of
RESIDENTIAL property within 800 feet of the adult
video store to be affected?
Residential property values would be 10% or
more below values of similar property not
located within 800 feet of an adult video store.
Residential property values would be from 0-
10% below values for similar property not
located within 800 feet of an adult bookstore.
Residential property values would be from O-
10% higher than similar property not located
within 800 feet of an adult bookstore.
Residential property values would be more
than 10% higher than similar property not
located within 800 feet of an adult bookstore.
Would you expect the average value of
COMMERCIAL property located within 800 feet of
an adult video store to be affected by its proximity?
Yes No
If you answered “yes” to question number 3, above,
how would you expect the average value of
COMMERCIAL property within 800 feet of the adult
video store to be affected?
10.
89a
Commercial property values would be 10% or
more below values of similar property not
located within 800 feet of an adult video store.
Commercial property values would be from 0-
10% below values for similar property not
located within 800 feet of an adult bookstore.
Commercial property values would be from 0-
10% higher than similar property not located
within 800 feet of an adult bookstore.
Commercial property values would be more
than 10% higher than similar property not
located within 800 feet of an adult bookstore.
Would you expect the average value of
RESIDENTIAL property located within 1000 feet of
an adult video store to be affected by its proximity?
Yes No
If you answered “yes” to question number 5, above,
how would you exmect the average valuc of
RESIDENTIAL property within 1000 feet of the adult
video store to be affected?
Residential property values would be 10% or
more below values of similar property not
located within 1000 feet of an adult video
store.
Residential property values would be from 0-
10% below values for similar property not
located within 1000 feet of an adult bookstore.
Residential property values would be from O-
10% higher than similar property not located
within 1000 feet of an adult bookstore.
ll.
12.
13.
90a
Residential property values would be more
than 10% higher than similar property not
located within 1000 feet of an adult bookstore.
Would you expect the average value of
COMMERCIAL property located within 1000 feet of
an adult video store to be affected by its proximity?
Yes No
If you answered “yes” to question number 7, above,
how would you expect the average value of
COMMERCIAL property within 1000 feet of the adult
video store to be affected?
Commercial property values would be 10% or
more below values of similar property not
located within 1000 feet of an adult video
store.
Commercial property values would be from 0-
10% below values for similar property not
located within 1000 feet of an adult bookstore.
Commercial property values would be from 0-
10% higher than similar property not located
within 1000 feet of an adult bookstore.
Commercial property values would be more
than 10% higher than similar property not
located within 1000 feet of an adult bookstore.
Would you expect the presence of an adult video store
to adversely affect attracting new COMMERCIAL
businesses to this neighborhood”?
Yes No
9la
14. Are you aware of the existence of sexually oriented
businesses in the City of Kennedale?
Yes No
15. | Generally, what is your opinion as to the effect of
sexually oriented businesses on the surrounding
properties?
Cause a decrease in the market value and
marketability of surrounding properties
Have no effect on the market value and
marketability of surrounding properties
Cause an increase in the market value and
marketability of surrounding properties
Specifically, how do you think an adult video store
affects the value of surrounding property located in
Tarrant County, Texas?
av
92a
Appendix B
ADULT
ENTERTAINMENT
BUSINESSES IN
INDIANAPOLIS
AN ANALYSIS 1984
ADULT ENTERTAINMENT BUSINESSES
IN INDIANAPOLIS
AN ANALYSIS
Department of Metropolitan Development
Division of Planning
February, 1984
SUMMARY AND RECOMMENDATIONS
SUMMARY AND RECOMMENDATIONS
During the past ten years, Indianapolis has experienced a
significant growth in the number and variety of adult
entertainment businesses located in its jurisdiction. An adult
entertainment business, for the purposes of this study, is an
establishment which primarily features sexually stimulating
material or performances. As of mid-1983 there were sixty-
eight such businesses operating in this City. They were
located at forty-three separate sites.
The proliferation of these businesses heightened the
community's awareness of their existence and resulted in
numerous requests that the City control their presence.
Beyond the moral objections raised by many citizens, it was
93a
also alleged that such businesses had a detrimental effect on
property values and contributed to high crime rates where they
were located.
The Indianapolis Division of Planning undertook this study in
July of 1983. Of the existing adult entertainment sites, the
study examined six representative locations (the Study Area)
and the presence - or lack thereof - of certain relevant
conditions therein. It then compared these sites with six
physically similar locations (the Control Area) containing no
adult entertainment business. Both groups of sites were
compared with the City as a whole.
Because of their importance to the public welfare of the
community, the study examined the factors of crime incidence
during the period 1978-1982 and real estate value appreciation
from 1979-1982. In support of limited real estate data on a
small area level, the City collaborated with Indiana University
in a national survey of real estate appraisers to develop a “best
professional opinion” as to the effect of adult entertainment
eo wwe
As discussed in Appendix III of this report, case law has
tirmly established the legal and constitutional basis for control
of the use of land within their jurisdiction by states and
municipalities in order to safeguard “the public health, safety,
morals and general welfare of their citizens”. The “public
welfare”, in this context, embraces the stabilization of
property values and the promotion of desirable home
surroundings. On the other hand, case law has also upheld
the right of this business sector to operate in the community
under the First and Fourteenth Amendments of the
Constitution.
94a
In establishing an empiric base to determine whether controls
were warranted in order to direct the location of these
businesses, analyses of the data showed:
- The average major crime rate (i.e., crimes per 10,000
population) in the IPD District was 748.55, the Control
Area 886.34, and the Study Area 1090.51. Major crimes
occurred in areas of the study that contained at least one
adult entertainment establishment at a rate that was 23 %
higher than the six similar areas studied not having such
businesses and 46% higher than the Police District at
large.
- Although it was impossible to obtain a discrete rate for
sex-related crimes at the police district level, it was
possible to compare rates between the Control Areas and
the Study Areas. The average sex-related crime rate in the
Contro] Areas over the five year period was 26.2, while
that rate for the Study Areas was 46.4.
- If the ratio of sex-related crimes was the same as that
established for major crimes between the Control Area and
the Study Area, however, we would expect a sex-related
crime rate of 32.3. The actual rate of 46.4 is 77% higher
than that of the Control Areas rather than the 23% that
would be expected and indicates the presence of abnormal!
influences in the Study Areas.
Close examination of crime statistics within the Study
Areas indicate a direct correlation between crime and the
residential character of the neighborhood. Crime
frequencies were 56% higher in residential areas of the
study than in its commercial areas.
95a
At the same time, sex-related crimes occurred four times
more frequently within residential neighborhoods having
at least one adult entertainment business than in
neighborhoods having a substantially district-related
commercial make-up having adult entertainment.
Although the housing base within the Study Areas was of
a distinctly higher value than that of the Control Areas, its
value appreciated at only one-half the rate of the Control
Areas’ and one-third the rate of Center Township as a
whole during the period 1979-1982.
Pressures within the Study Areas caused the real estate
market within their boundaries to perform in a manner
contrary to that within the Control] Areas, Center
Township and the County. In atime when the market saw
a decrease of 50% in listings, listings within the Study
Areas actually increased slightly.
As a result, twice as many houses were placed on the
m at enhctantially lavwoar netnnn than vernsstA LAH
market maf wuevvur eeacauan y averywa pisarro Ganceaa wwuiue vue
expected had the Study Area’s market performance been
typical for the period of time in question.
The great majority of appraisers (75%) who responded to
a national survey of certified real estate appraisers felt that
an adult bookstore located within one block would have a
negative effect on the value of both residential (80%) and
commercial (72%) properties. 50% of these respondents
foresaw an immediate depreciation in excess of 10%.
At a distance of three blocks, the great majority of
respondents (71%) felt that the impact of an adult
bookstore fell off sharply so that the impact was negligible
on both residential (64%) and commercial (77%). At the
96a
same time, it appears that the residual effect of such a use
was greater for residential than for commercial properties.
- Jn answer to a survey question regarding the impact of an
adult bookstore on property values generally, 50% felt
that there would be a substantial-to-moderate negative
impact. 30% saw little or no impact, and 20% saw the
effect as being [unreadable] on factors such as the
predominent values (property and [unreadable] existing in
the neighborhood, the development standards imposed on
the use, and the ability of an existing commercial
[unreadable] to buffer the impact from other uses.
While the statistics assembled and analyzed in this study
should not be construed as proving that adult businesses cause
the negative impacts illuminated herein, an obvious variable
in each instance of comparison is their presence. Crime rates
— particularly those that are sex-related - show substantial
deviation from normal rates for this population. Analyses of
real estate listings and sales show a negatively abnormal
performance of the real estate market in areas where adult
entertainment is offered. In this latter case, the best
professional judgment available indicates overwhelmingly that
adult entertainment businesses - even a relatively passive use
such as an adult bookstore - have a serious negative effect on
their immediate environs.
Consequently, it would seem reasonable and prudent that the
City exercise its zoning power to regulate the location of adult
entertainment businesses so that they operate in areas of the
community that, while accessable to their patrons, are yet
located in districts that are least likely to injure the general
welfare of residents.
97a
IT IS, THEREFORE, RECOMMENDED:
- THAT ADULT ENTERTAINMENT BUSINESSES
BE ALLOWED TO LOCATE IN AREAS THAT
ARE PREDOMINANTLY ZONED FOR DISTRICT-
ORIENTED COMMERCIAL ENTERPRISES - 1. E.,
C4 OR MORE INTENSE USE CATEGORIES.
- THAT NOADULT ENTERTAINMENT BUSINESS
BE ALLOWED TO LOCATE IN AREAS THAT
ARE PREDOMINANTLY ZONED FOR
NEIGHBORHOOD-ORIENTED COMMERCIAL
ENTERPRISES - I. E., C3 OR LESS INTENSIVE
USE CATEGORIES.
- THAT EACH LOCATION REQUIRE A SPECIAL
EXCEPTION WHICH, AMONG OTHER
CONSIDERATIONS, WOULD REQUIRE
APPROPRIATE DEVELOPMENT STANDARDS
DESIGNED TO BUFFER AND _ PROTECT
ADJACENT PROPERTY VALUES.
- THAT THESE USES NOT BE ALLOWED TO
LOCATE WITHIN 500 FEET OF A RESIDENTIAL,
SCHOOL, CHURCH OR PARK PROPERTY LINE
NOR WITHIN 500 FEET OF AN ESTABLISHED
HISTORIC AREA.
INTRODUCTE,
As is the case in most large cities, Indianapolis has
experienced a rapid growth in the number and variety of adult
entertainment businesses over the past ten years. As of June,
1983 there were sixty-eight such businesses located singly and
in clusters throughout Marion County.
98a
For the purpose of this study, the term “adult entertainment
business” is a general term utilized to collectively designate
businesses which primarily feature sexually stimulating
material and/or performances. These non-exclusively include
adult bookstores, adult caberets, adult drive-in theaters, adult
mini motion picture theaters and arcades, adult entertainment
arcades and adult service establishments.
These enterprises have posed a particular problem due, in
part, to the moral implications attendant upon such businesses
in the minds of many members of the community. While this
is, perhaps, the view of the majority, case law on the subject
has clearly established that the exclusion of such businesses
from a community is an infringement of First Amendment
rights. The proliferation of such businesses providing various
forms of adult entertainment in Marion County has
exacerbated this dilemma and given rise to additional charges
of negative impacts on neighborhoods in proximity to their
location.
Through the use of their zoning power, cities have within the
past half century directed the physical growth of communities
in order to assure a harmonious blend of land uses which
foster the general welfare of the population. This power has
been applied more recently to adult entertainment businesses
in many communities and has served as a prime means of
controlling possible negative impacts on neighborhoods.
This study was undertaken to examine these alleged negative
impacts with the purpose of empirically establishing, to the
extent possible, their existence or non-existence as well as
their real dimensions in Indianapolis. The possible
relationships between these impacts and the land use
characteristics of the sites in which they are offered were also
examined to ascertain whether certain land use classifications
99a
were better suited than others for the location of adult
entertainment businesses.
TABLE OF CONTENTS
SUMMARY AND RECOMMENDATIONS
INTRODUCTION
STUDY METHODS
CRIME INCIDENCE
MAJOR CRIMES
SEX-RELATED CRIME
CRIME IMPACT BY AREA TYPE
REAL ESTATE IMPACT
PROFESSIONAL APPRAISAL OF IMPACTS
20% NATIONAL SURVEY
100% MSA SURVEY
APPENDICIES
I. AREA MAPS
Il. SURVEY OF APPRAISERS
Ul. LAND USE CONTROL OF
ADULT ENTERTAINMENT
ItI-t
100a
METHODOLOGY
STUDY METHODS
As described below, the study methodology employs the
comparison of different land areas in Indianapolis. The two
basic areas of comparison are Study Areas and Control Areas.
They are distinguished by the existence of adult entertainment
establishments within their boundaries (the Study Areas) or
the absence thereof (the Control Areas).
These two designations are further differentiated as to the
general purpose or emphasis of the land uses they contain.
Those that generally serve the immediately surrounding
residential uses are termed “Neighborhood-Related” while
those that contain uses meant to serve a boarder geographic
area are designated “Community-Related.”
STUDY SITE LOCATIONS
At the time of the study’s inception, there were at least forty-
three possible, distinct sites in Indianapolis where adult
entertainment was offered either singly or in clusters of
establishments. For manageability purposes, it was decided to
select six of these sites that were representative. In choosing
these subject locations (as well as the Control Areas of the
study), the determinant characteristics were their zoning mix,
population size and the relative age of housing stock. In each
case, adult entertainment was offered during the time span of
the study.
The selection process was additionally based on the number of
establishments located in a given neighborhood, whether it
was residential in nature and therefore neighborhood-related,
10la
or contained a significant portion of its land use in regional,
commercial uses which made it community-related.
The designation “Neighborhood-Related” was applied where
a preponderance ((75 %) or more) of the area [unreadable] was
zoned D1 through D12 (residential dwelling [unreadable], and
the commercial areas were neighborhood-related [unreadable]
C3 (a neighborhood commercial classification). Special Use
designations were judged to be neighborhood-related or not on
an individual basis. SU1 (church) and SU2 (school), for
example, were judged to be generally neighborhood-related.
“Community-Related” areas were described as areas where a
significant proportion (30% or more) of the zoning within the
1000-foot radius was C4 (Community-Regional Commercial)
or more intense and the Special Uses within the boundaries
were of a community-wide nature. SU6 (hospital) and SU21
(cemetery) were judged, therefore, to be related to the
community generally.
Within these two broad classifications, six locations were
chosen. Two of them were situated in residential settings, two
in regional-commercial settings and two in areas that fell in
between, i.c., areas that had a high percentage of residential
zoning but also contained a certain proportion of regionally
oriented commercial zoning. These six locations became the
Study Areas of this investigation. (cf. Appendix I)
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103a
Of the two sites chosen in residential areas, one contained an
adult bookstore (Apollo Adult Books, 5431 East 38th St.) and
a massage parlor (Eve’s Garden of Relaxation, 5429 East 38th
St.) The other residential location contained an adult movie
house (Rivoli Theater, 3155 East 10th St.) and a topless bar
(Ten-De Club, 3201 East 10th St.)
One of the commercial/residential areas had a topless bar
within its boundaries (Blue Moon Saloon, 2101 West
Washington), while the other harbored the White Front Bar
which featured topless dancing (3535 West 16" St.)
The two commercial areas chosen were in the sixty-one
hundred block of East Washington St. and the forty-four
hundred block of North Keystone. The first site contained
two adult bookstores (Modern Art Bookstore at 6118 and
Adult Arcade at 6122) and a massage parlor (Spanish Moon
at 6116). The North Keystone location contained four
massage parlors (Other World, 4441, Diamond’s Angels,
4445, Pleasure Palace, 4461, and Town and Country, 4463),
two adult bookstores (Video World, 4447 and Adult
Bookstore, 4475) as well as a topless lounge (Devil's
Hideaway, 4451).
Six areas were also selected to serve as control sites for the
study. These sites were chosen on the basis of their proximate
location to the Study Areas (or their location on major
thoroughfares in areas physically similar in location and types
of development), size or population and = zoning
characteristics. None contained adult entertainment
businesses. Selection was also made so that two of the sites
were in predominantly residential areas, two in commercial
areas and two in areas that contained a significant mix of
residential and regional commercial zoning. These six sites
became the Control Areas of the study, (cf. Appendix I.)
104a
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108a
STUDY SITE COMPARISONS
Throughout the following analyses, a series of comparisons
are made at several different levels of geography: i.e.,
County/Police District; Census Tract/Census Tract Cluster;
and Control/Study Area.
Large Area
When dealing with crime statistics, the Indianapolis Police
Department District is used as the Jargest universe of
comparison. In the case of real estate information,
Marion County is used as the largest geographic area of
comparison. Center Township is also used as a basis of
comparison in the analysis of adult entertainment impacts
on property values.
Mid-Size Area
Intermediate geographic levels used for comparison in the
study were census tracts when study sites were centrally
located within their boundaries. Where they were not,
those census tracts in proximity to the site were chosen as
the basis of comparison.
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110a
Sub-Area
The Control Areas and the Study Areas, as described
above, formed the smallest geographic group of the study.
These target areas were constituted using the criteria listed
in the previous section of this report and data derived for
them by aggregating block-level or addressed data within
a 1000-foot radius of the area centroid.
1980 CENSUS TRACTS MAP
ADULT ENTERTAINMENT BUSINESS STUDY
| MAP OMITTED]
CRIME INCIDENCE
CRIME INCIDENCE
The Data Processing Unit of the Indianapolis Police
Department performed two computer runs of their “Incidence
Files”' in August of 1983 at the request of the City Division
of Planning. The resultant printouts detailed all reported
incidents to which police had been dispatched in the Control
Areas and the Study Areas during the years 1978, 1979, 1980,
1981 and 1982. Data were assembled from these printouts on
' The Incidence File is a computerized listing of all reports made
by police after initial investigation of an incident to which they
were dispatched. It, therefore, provides a more reliable indication
of crime incidence than the computerized “Police Run” file which
logs police dispatches based on preliminary information on the
incidents.
Illa
a year-by-year, area-by-area basis. They were then grouped
by Major Crimes’ and Sex-Related Crimes.’
Summary data for the Indianapolis Police District were also
assembled for major crimes during the years 1978 through
1982. Unfortunately, sex-related crimes had not been
discreetly assembled for the Police District and study
constraints would not allow their tabulation manually.
The purpose of these tabulations was to identify any possible
abnormalities that might have occurred in expected frequency
and nature of crime between the Indianapolis Police District,
the Control Areas which were chosen for their similarity to
the Study Areas and the Study Areas themselves in which
adult entertainment establishments were in operation.
As was demonstrated in the previous section, the Study Area
locations were chosen as being representative of existing adult
entertainment sites in zoning mix, size of population, age of
housing stock and types of adult entertainment services
offered in the area. Excepting the latter, these same critcria
were used in the choice of Control sites. Because they were
representative, it is possible to compare Control and Study
Areas as well as infer tindings to other adult entertainment
locations in the community.
Based on the summaries of crimes, crime rates were computed
for each area using 1980 Census data as the population
* Criminal Homicide, Rape, Robbery, Aggravated Assault,
Residence Burglary, Non-Residence Burglary, Larceny and Vehicle
Theft.
’ Rape, Indecent Exposure, Obscene Conduct, Child Molestation,
Adult Molestation and Commercial Sex.
112a
constant.* The crime rate statistics portrayed the frequency of
crime in each area for each 10,000 of population and allowed
direct comparison of crime impacts between the three areas.
The same technique was used to compare the magnitude of
sex-related crime in the Control Areas and the Study Areas.
MAJOR CRIMES
The crimes of Criminal Homicide, Rape, Robbery,
Aggravated Assault, Residence and Non-Residence Burglary,
Larceny and Vehicle Theft are reported on a monthly basis by
the Indianapolis Police Department as Major Crimes. During
the period of this study (1978-1982), there were 175,796
major crimes reported in the IPD District with an annual high
of 37,220 occuring in 1980. The crime rate for this year was
792.42 in the police district.
This represented an increase of 2,115 major crimes over the
previous year total and an increase of 6% in the crime rate.
The lowest annual total in the study period (33,898) was
reported in 1981 which represented a drop of 10% in the
crime rate from the previous year.
* Since population estimates were not available for each year of the
survey, the 1980 Census figures were used because they were the
result of an actual enumeration and, falling at the mid-point of the
survey, they would tend to balance out population trends during the
five year time span.
13a
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115a
Over the same period of time, the Control Area for this study
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highest number occurring in 1980 when 1,099 crimes were
reported. The crime rate for this year was 942.05 in this
area. This is compared to the lowest total of 912 and a crime
rate of 781.76 for 1978. This represented an absolute
difference of 187 total major crimes and a difference of 21%
in the crime rate (160.29).
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118a
During the period 1978-1982, 4,657 major crimes were
committed in the Study Area. As in the IPD District and the
Control Area, the greatest volume of major crimes (1,103)
occurred in 1980 which had a crime rate of 1,291.42. The
fewest number of crimes in the study’s time frame was 867 in
1978 which represented a differencial in the total number of
major crimes reported and the rate of crime of -236 and
276.32 respectively from 1980.
119a
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{2la
The frequency of crimes in the IPD District, the Control
Areas and the Study Areas showed approximately the same
pattern. In each of the areas, the number of major crimes
increased from 1978 to 1980 when they peaked. Subsequent
years showed frequency levels below the 1980 high.
The average crime rate figure for the Indianapolis Police
Department District was 748.55. The Control Area had a rate
that was 137.79 higher than the overall police district,
whereas the Study Area was 204.17 points higher than the
Control Area. In other words, people living in the Control
Area of the study were exposed to a major crime rate in their
neighborhoods that was 18% higher than that of the IPD
population generally.
Residents of the Study Area, however, were exposed to a
major crime rate that was 23 % higher than that of the Control
Area and 46% higher than the population of the IPD District
as a whole.
MAJOR CRIME RATE 1978-1982
[GRAPH OMITTED]
rte,
122a
{unreadable} to examine crime rates within the Control
[unreadable] in relation to the land use characteristics
{unreadable} in which they occurred.
[unreadable] provide a better understanding of actual impact
[unreadable] of the area than crime frequencies in that
{unreadable} a ratio of crime to each 10,000 of popula-
[unreadable] this way, they tell us just how vulnerable a
neigh- funreadable) is historically to crime within its
boundaries.
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12Sa
[unreadable], we find that this impact is 74% higher in dis-
[unreadable] commercial areas of the Control Area than
similar dis- [unreadable] commercial areas of the Study Area.
However, while the [unreadable] is approximately the same in
the residential areas of junreadable] the Study Area ex
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