Appendix — Ice Emb. Embassy, Inc. v. City of Houston (No. 07-914)
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Supreme Court
Pres U.S.
07-914 JAN 7~ 2008
No.
OFFICE UF THE CLERK
Su Whe
Supreme Court of the Untted States
©
ICE EMBASSY, INC., et al.,
Petitioners,
V.
CITY OF HOUSTON,
Respondent.
©
On Petition for Writ of Certiorari
to the United States Court of Appeals
for the Fifth Circuit
ce)
APPENDIX TO
PETITION FOR WRIT OF CERTIORARI
VOLUME I, Pages 1 to 148
°
JOHN H. WESTON*
G. RANDALL GARROU
CATHY E. CROSSON
WESTON, GARROU, DEWITT
& WALTERS
12121 Wilshire Boulevard,
Suite 900
Los Angeles, CA 90025
(310) 442-0072
Attorneys for Petitioners
*Counsel of Record
COCKLE LAW BRIEF PRINTING CO (800) 225-6964
OR CALL COLLECT (402) 342 2831
APPENDICES
VOLUME I
Appendix A — Fifth Circuit Court of Appeals
Opinion (August 20, 2007)...........sccsesssssssoass App.
Appendix B —- Fifth Circuit Court of Appeals
Order denying as moot, unopposed motion to
file supplemental brief (August 20, 2007)... App.
Appendix C — District Court Letter transmit-
ting completed record on appeal to Court of
Appeals (120 volumes) (July 19, 2007)........ App.
Appendix D — District Court Letter to Counsel
containing CD of electronic record on appeal
Cert EAD, FOE iis concinxcosnsisieectea eee App.
Appendix E — Fifth Circuit Court of Appeals
Letter to Counsel establishing briefing
schedule (July 10, 2007) .........ccsccsccoccossscesees App.
Appendix F — Fifth Circuit Court of Appeals
ruling denying motion to reschedule setting
of expedited oral argument (July 2, 2007)..... App.
Appendix G — Fifth Circuit Court of Appeals
ruling ordering, inter alia, expedited briefing
(BROS BG, WOOT lisssicsssnscscssexatasecesaei sauce App.
Appendix H — District Court Findings of
Fact and Conclusions of Law (January 31,
ONE OS cis sscascinsanncankisn ieesassensauiceten sais App.
Appendix I - District Court Final Judgment
(sanmuary DB, BOGE). iicii cs csctscasee eee App.
On
10
11
13
16
20
66
i
APPENDICES -— Continued
Appendix J — District Court Order denying
motion for reconsideration of the Order of
May 10, 2005 (July 20, 2005)... App.
Appendix K — District Court Order regarding
limited issues remaining for litigation on
GON LUN.) ee App.
Appendix L ~ Fifth Circuit Court of Appeals
Opinion (November 25, 2003).....................5 App.
VOLUME II
Appendix M — District Court Amended Memo-
randum Opinion and Order of June 9, 1998
[Amending Opinion of February 18, 1998].... App.
VOLUME III
Appendix N — District Court’s Order of Final
Judgment of August 31, 1998...........00. App.
Appendix O — District Court’s Order of Sever-
Me ahr PAMRMUISE ZS, LOTS .............c0cccccerecrecrsess App.
Appendix P — District Court Supplemental
Memorandum Opinion and Order of June 11,
1998 [Initial Decision on Reconsideration] ... App.
Appendix Q -— District Court Memorandum
and Order of March 29, 2007 (Portion Denying
Motion to Alter or Amend Judgment)........... App.
Appendix R —- Fifth Circuit Court of Appeals
Order Denying Rehearing en banc (October
idan detekss sostnewvensavecsnscpseesdenians App.
77
149
425
427
428
ill
APPENDICES - Continued
Appendix S — Pertinent Portions of Houston
COIR FIG, We tae csecivncdcanetgiciamnceans App. 597
Appendix T — Pertinent Portions of Houston
Ordinance No. 86-323 .........c.ssccscccsescesencsscsse App. 625
Appendix U — Petitioners’ Statement of Issues
(as set forth within their Corrected Opening
Brief filed in the Fifth Circuit Court of Ap-
ORIG OF Fly 2B, BOTS a cnccccorinecsancasscssineaenass App. 644
App. 1
APPENDIX A
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 07-20329
ICE EMBASSY INCORPORATED; TEXAS RICH-
MOND CORPORATION; HFR ENTERPRISES
INCORPORATED; DWG FM, INCORPORATED; D.
RANKIN, INCORPORATED; W. L. YORK; STUDE-
MONT VIDEO; EASTEX VIDEO; 24 HOUR NEWS
AND VIDEO EMPORIUM; AIRLINE VIDEO AND
THAI COMPANY; DHR INCORPORATED; SUGAR’S
CABARET; CHIL SOUNG INCORPORATED, doing
business as BJ’s 24 Hour Newsstand; DARIS IN-
CORPORATED, doing business as Riveria Cabaret;
GNCD INCORPORATED, doing business as Fantasy
South; RUDE DOG II INCORPORATED, doing
business as Scores Cabaret; LONE STARR MULTI
THEATRES INCORPORATED, doing business as
Cinema West; AVW INCORPORATED, doing busi-
ness as Adult Video Megaplexxx; CLMS INCORPO-
RATED, doing business as 24 Hour Video & News;
9834 JENSEN INCORPORATED, doing business as
Harlem Knights; 8503 NORTH FREEWAY INCOR-
PORATED, doing business as Fantasy Cabaret;
LONG TRAN, doing business as Ellington News-
stand; NIEN X NGUYEN, doing business as DT
Video; AKM INCORPORATED, doing business as
Gigi’s Cabaret; DHR INCORPORATED, doing busi-
ness as Hi-10 Cabaret; PANAH INC, doing business
as Mirage Cabaret; R&R ENTERTAINMENT IN-
CORPORATED, doing business as Moments Cabaret;
App. 2
SSD ENTERPRISES INCORPORATED, doing busi-
ness as Ritz Cabaret; HHE INCORPORATED, doing
business as Passion Cabaret; HOUMAN SHAGHAGI,
doing business as Foxxys Cabaret; SOUTHEAST
TEXAS VENTURES, a Texas Joint Venture, doing
business as The Trophy Club; KMRC INCORPO-
RATED, doing business as LaChatte; ARIS MY-
LONAS, doing business as Baby Dolls Saloon; M K
CLUB & RESTAURANTS INCORPORATED, doing
business as Moulin Rouge; 10128 TDC 1 INCORPO-
RATED, doing business as Texas Dolls Cabaret; OB-
SESSION CABARET INCORPORATED, also known
as Obsession Cabaret Inc, doing business as Obsession
Cabaret Incorporated; GINO A BARONE, doing busi-
ness as Ban Management Company, doing business as
Telephone Road News & Video, also known as Consoli-
dated Video, doing business as Hillcroft News & Video;
AHD HOUSTON INCORPORATED, a Texas Corpora-
tion, doing business as Centerfolds (“Centerfolds”);
DNW HOUSTON INCORPORATED; TRUMPS IN-
CORPORATED, a Texas Corporation, doing business
as Rick’s Cabaret; ANDREW SEFIA, and others
similarly situated, doing business as Rumors; D
HOUSTON INCORPORATED, a Texas Corporation,
dying business as Treasures; RICK'S CABARET;
RICK’S SPORTS CABARET; XTC NORTH
Intervenor-Plaintiffs-Appellants
6340 WESTHEIMER INC, doing business as Allstars,
as successor in interest to Aris Mylonas
Appellant
V.
CITY OF HOUSTON
Intervenor Defendant-Appellee
App. 3
Appeals from the United States District Court
for the Southern District of Texas
USDC No. 4:97-CV-196
(Filed Aug. 20, 2007)
Before DENNIS, CLEMENT, and PRADO, Circuit
Judges.
PER CURIAM:*
This case was remanded to determine whether
the City of Houston (“the City”) could demonstrate
that its 1997 ordinance regulating sexually-oriented
businesses (“SOBs”) did not seek to reduce the secon-
dary effects of SOBs “by depriving SOBs of reason-
able avenues of communication.” N.W. Enters., Inc. v.
City of Houston, 352 F.3d 162, 183 (5th Cir. 2003)
(citing City of Los Angeles v. Alameda Books, Inc., 535
U.S. 425, 451 (2002)). Following a ten-day bench trial,
the district court found that the City had carried
its burden. See Ice Embassy, et al. v. City of Houston,
No. 4:97-CV-196, 2007 U.S. Dist. LEXIS 6894, at *63-
65 (S.D. Tex. Jan. 31, 2007). Certain SOBs appealed
and we heard oral argument. We now AFFIRM the
—
* Pursuant to 5TH Cir. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH Cir. R.
47.5.4.
App. 4
district court’s finding, essentially for the reasons
articulated by the district court in its opinion below.
App. 5
APPENDIX B
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 07-20329
ICE EMBASSY INCORPORATED; TEXAS RICH-
MOND CORPORATION; HFR ENTERPRISES
INCORPORATED; DWG FM, INCORPORATED; D.
RANKIN, INCORPORATED; W.L. YORK; STUDE-
MONT VIDEO; EASTEX VIDEO; 24 HOUR NEWS
AND VIDEO EMPORIUM; AIRLINE VIDEO AND
THAI COMPANY; DHR INCORPORATED; SUGAR’S
CABARET; CHIL SOUNG INCORPORATED, doing
business as BJ’s 24 Hour Newsstand; DARIS IN-
CORPORATED, doing business as Riveria Cabaret;
GNCD INCORPORATED, doing business as Fantasy
South; RUDE DOG II INCORPORATED, doing
business as Scores Cabaret; LONE STARR MULTI
THEATRES INCORPORATED, doing business as
Cinema West; AVW INCORPORATED, doing busi-
ness as Adult Video Megaplexxx; CLMS INCORPO-
RATED, doing business as 24 Hour Video & News;
9834 JENSEN INCORPORATED, doing business as
Harlem Knights; 8503 NORTH FREEWAY INCOR-
PORATED, doing business as Fantasy Cabaret;
LONG TRAN, doing business as Ellington News-
stand; NIEN X NGUYEN, doing business as DT
Video; AKM INCORPORATED, doing business as
Gigi’s Cabaret; DHR INCORPORATED, doing busi-
ness as, Hi-10 Cabaret; PANAH INC, doing business
as Mirage Cabaret; R&R ENTERTAINMENT IN-
CORPORATED, doing business as Moments Cabaret;
App. 6
SSD ENTERPRISES INCORPORATED, doing busi-
ness as Ritz Cabaret; HHE INCORPORATED, doing
business as Passion Cabaret; HOUMAN SHAGHAGI,
doing business as Foxxys Cabaret; SOUTHEAST
TEXAS VENTURES, a Texas Joint Venture, doing
business as The Trophy Club; KMRC INCORPO-
RATED, doing business as LaChatte; ARIS MY-
LONAS, doing business as Baby Dolls Saloon; M K
CLUB & RESTAURANTS INCORPORATED, doing
business as Moulin Rouge; 10128 TDC 1 INCORPO-
RATED, doing business as Texas Dolls Cabaret; OB-
SESSION CABARET INCORPORATED, also known
as Obsession Cabaret Inc, doing business as Obsession
Cabaret Incorporated; GINO A BARONE, doing busi-
ness as Ban Management Company, doing business as
Telephone Road News & Video, also known as Consoli-
dated Video, doing business as Hillcroft News & Video;
AHD HOUSTON INCORPORATED, a Texas Corpora-
tion, doing business as Centerfolds (“Centerfolds”);
DNW HOUSTON INCORPORATED; TRUMPS IN-
CORPORATED, a Texas Corporation, doing business
as Rick’s Cabaret; ANDREW SEFIA, and others
similarly situated, doing business as Rumors; D
HOUSTON INCORPORATED, a Texas Corporation,
doing business as Treasures; RICK’S CABARET;
RICK’S SPORTS CABARET; XTC NORTH
Intervenor-Plaintiffs-Appellants
6340 WESTHEIMER INC, doing business as Allstars,
as successor in interest to Aris Mylonas
Appellant
V
CITY OF HOUSTON
Intervenor Defendant-Appellee
App. 7
Appeals from the United States District Court for the
Southern District of Texas, Houston
(Filed Aug. 20, 2007)
ORDER:
IT IS ORDERED that the appellants’ unopposed
motion for leave to file a supplemental brief is denied
as moot.
/s/ Charles R. Fulbruge III
CHARLES R. FULBRUGE III
CLERK OF COURT
ENTERED AT THE DIRECTION
OF THE COURT
App. 8
APPENDIX C
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
MICHAEL N. MILBY P.O. BOX 61010
CLERK | HOUSTON, TX 77208
July 19, 2007
Mr. Charles R. Fulbruge III, Clerk
U.S. Court of Appeals, Fifth Circuit
600 South Maestri Place
New Orleans, LA 70130
IN RE: Ice Embassy Inc. et al vs.
The City of Houston
District Court Case No.: 4:97cv0196
Circuit Court Case No.: 07-20329
Dear Mr. Fulbruge:
Enclosed is a printed copy of the certified
electronic record on appeal in the above ref-
erenced matter. This record contains 120
volumes of the printed record on appeal.
e Copies of transcripts are enclosed.
¢ Copies of sealed documents are enclosed.
Copies do not need to be returned to our Clerk’s office.
Please properly dispose of all items when the appeal
process [is] complete.
App. 9
Very Truly Yours,
Michael N. Milby, Clerk
H Lerma
Deputy Clerk (m))
App. 10
APPENDIX D
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
OFFICE OF THE CLERK
MICHAEL N. MILBY POST OFFICE BOX 61010
CLERK HOUSTON, TX 77208
July 16, 2007
IN RE: Ice Embassy Inc., et al vs. City of Houston
District Court No.: 4:97cv0196
Circuit Court No.: 07-20329
To Whom It May Concern:
Enclosed is a CD containing an electronic record for
the above Notice of Appeal. Prepare your brief regard-
ing this appeal using this copy of the paginated
record. A copy of this CD was also sent to opposing
counsel.
Very Truly Yours,
Michael N. Milby, Clerk
H Lerma (m))
Deputy Clerk
App. 11
APPENDIX E
United States Court of Appeals
FIFTH CIRCUIT
OFFICE OF THE CLERK
CHARLES R. FULBRUGE III TEL. 504-310-7700
CLERK 600 S. MAESTRI PLACE
NEW ORLEANS, LA 70130
July 10, 2007
TO ALL LEAD COUNSEL:
No. 07-20329 Ice Embassy Inc v. City of Houston
USDC No. 4:97-CV-196
Dear Counsel:
In accordance with this Court’s order of May 25, 2007,
expediting this appeal, the briefing schedule is as
follows:
Appellants’ brief and record excerpts due —
July 18, 2007
Appellee’s brief due — July 25, 2007
Appellants’ reply brief due — July 30, 2007
Counsel will email their briefs to all lead counsel on
the due date and overnight the actual! briefs to the
Court and counsels.
Oral argument has been scheduled for the week of
August 6, 2007. Therefore, no additional time will be
granted for filing briefs.
App. 12
If you have any questions, please don’t hesitate to
contact me.
Sincerely,
CHARLES R. FULBRUGE III, Clerk
By: /s/ Debbie Kranz
Debbie Kranz, Deputy Clerk
504-310-7698
cc: Mr James Vincent Pianelli
Mr Patrick Andrew Zummo
Mr G Randall Garrou
Mr John Haldane Weston
Mr Joseph Matthew Grant
Mr Nelson T Hensley
Mr Albert Thomas Van Huff
App. 13
APPENDIX F
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 07-20329
ICE EMBASSY INCORPORATED; TEXAS RICH-
MOND CORPORATION; HFR ENTERPRISES
INCORPORATED; DWG FM, INCORPORATED; D.
RANKIN, INCORPORATED; W. L. YORK; STUDE-
MONT VIDEO; EASTEX VIDEO; 24 HOUR NEWS
AND VIDEO EMPORIUM; AIRLINE VIDEO AND
THAI COMPANY; DHR INCORPORATED; SUGAR’S
CABARET; CHIL SOUNG INCORPORATED, doing
business as BJ’s 24 Hour Newsstand; DARIS IN-
CORPORATED, doing business as Riveria Cabaret;
GNCD INCORPORATED, doing business as Fantasy
South; RUDE DOG II INCORPORATED, doing
business as Scores Cabaret; LONE STARR MULTI
THEATRES INCORPORATED, doing business as
Cinema West; AVW INCORPORATED, doing busi-
ness as Adult Video Megaplexxx; CLMS INCORPO-
RATED, doing business as 24 Hour Video & News;
9834 JENSEN INCORPORATED, doing business as
Harlem Knights; 8503 NORTH FREEWAY INCOR-
PORATED, doing business as Fantasy Cabaret;
LONG TRAN, doing business as Ellington News-
stand: NIEN X NGUYEN, doing business as DT
Video; AKM INCORPORATED, doing business as
Gigis Cabaret; DHR INCORPORATED, doing busi-
ness as Hi-10 Cabaret; PANAH INC, doing business
as Mirage Cabaret; R&R ENTERTAINMENT IN-
CORPORATED, doing business as Moments Cabaret;
App. 14
SSD ENTERPRISES INCORPORATED, doing busi-
ness as Ritz Cabaret; HHE INCORPORATED, doing
business as Passion Cabaret; HOUMAN SHAGHAGI,
doing business as Foxxy’s Cabaret; SOUTHEAST
TEXAS VENTURES, a Texas Joint Venture, doing
business as The Trophy Club; KMRC INCORPO-
RATED, doing business as LaChatte; ARIS MY-
LONAS, doing business as Baby Dolls Saloon; M K
CLUB & RESTAURANTS INCORPORATED, doing
business as Moulin Rouge; 10128 TDC 1 INCORPO-
RATED, doing business as Texas Dolls Cabaret; OB-
SESSION CABARET INCORPORATED, also known
as Obsession Cabaret Inc, doing business as Obsession
Cabaret Incorporated; GINO A BARONE, doing busi-
ness as Ban Management Company, doing business as
Telephone Road News & Video, also known as Consoli-
dated Video, doing business as Hillcroft News & Video;
AHD HOUSTON INCORPORATED, a Texas Corpora-
tion, doing business as Centerfolds (“Centerfolds”);
DNW HOUSTON INCORPORATED; TRUMPS IN-
CORPORATED, a Texas Corporation, doing business
as Rick’s Cabaret; ANDREW SEFIA, and others
similarly situated, doing business as Rumors; D
HOUSTON INCORPORATED, a Texas Corporation,
doing business as Treasures; RICK’S CABARET;
RICK’S SPORTS CABARET; XTC NORTH
Intervenor-Plaintiffs-Appellants
6340 WESTHEIMER INC, doing business as Allstars,
as successor in interest to Aris Mylonas
Appellant
V.
CITY OF HOUSTON
Intervenor Defendant-Appellce
Appeals from the United States District Court
for the Southern District of Texas, Houston
(Filed July 2, 2007)
Before DAVIS, BARKSDALE and BENAVIDES,
Circuit Judges.
PER CURIAM:
IT IS ORDERED that appellants’ motion to
reschedule oral argument scheduled for the week of
August 6, 2007, to December, 2007 is Denied.
IT IS FURTHER ORDERED that the appellants’
motion to file a single opening brief on behalf of all
appellants in excess of the word count limitation but
not to exceed 50,000 words is Granted.
IT IS FURTHER ORDERED that the appellants’
motion to file a single reply brief on behalf of all
appellants in excess of the word count limitation but
not to exceed 25,000 words is Granted.
App. 16
APPENDIX G
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 07-20329
ICE EMBASSY INCORPORATED; TEXAS RICH-
MOND CORPORATION; HFR ENTERPRISES
INCORPORATED; DWG FM, INCORPORATED; D.
RANKIN, INCORPORATED; W. L. YORK; STUDE-
MONT VIDEO; EASTEX VIDEO; 24 HOUR NEWS
AND VIDEO EMPORIUM; AIRLINE VIDEO AND
THAI COMPANY; DHR INCORPORATED; SUGAR’S
CABARET; CHIL SOUNG INCORPORATED, doing
business as BJ’s 24 Hour Newsstand; DARIS IN-
CORPORATED, doing business as Riveria Cabaret;
GNCD INCORPORATED, doing business as Fantasy
South; RUDE DOG II INCORPORATED, doing
business as Scores Cabaret; LONE STARR MULTI
THEATRES INCORPORATED, doing business as
Cinema West; AVW INCORPORATED, doing busi-
ness as Adult Video Megaplexxx; CLMS INCORPO-
RATED, doing business as 24 Hour Video & News;
9834 JENSEN INCORPORATED, doing business as
Harlem Knights; 8503 NORTH FREEWAY INCOR-
PORATED, doing business as Fantasy Cabaret;
LONG TRAN, doing business as Ellington News-
stand; NIEN X NGUYEN, doing business as DT
Video; AKM INCORPORATED, doing business as
Gigi’s Cabaret; DHR INCORPORATED, doing busi-
ness as Hi-10 Cabaret; PANAH INC, doing business
as Mirage Cabaret; R&R ENTERTAINMENT IN-
CORPORATED, doing business as Moments Cabaret;
App. 17
SSD ENTERPRISES INCORPORATED, doing busi-
ness as Ritz Cabaret; HHE INCORPORATED, doing
business as Passion Cabaret; HOUMAN SHAGHAGI,
doing business as Foxxys Cabaret; SOUTHEAST
TEXAS VENTURES, a Texas Joint Venture, doing
business as The Trophy Club; KMRC INCORPO-
RATED, doing business as LaChatte; ARIS MY-
LONAS, doing business as Baby Dolls Saloon; M K
CLUB & RESTAURANTS INCORPORATED, doing
business as Moulin Rouge; 10128 TDC 1 INCORPD-
RATED, doing business as Texas Dolls Cabaret; OB-
SESSION CABARET INCORPORATED, also known
as Obsession Cabaret Inc, doing business as Obsession
Cabaret Incorporated; GINO A BARONE. doing busi-
ness as Ban Management Company, doing business as
Telephone Road News & Video, also known as Consoli-
dated Video, doing business as Hillcroft News & Video;
AHD HOUSTON INCORPORATED, a Texas Corpora-
tion, doing business as Centerfolds (“Centerfolds”);
DNW HOUSTON INCORPORATED; TRUMPS IN-
CORPORATED, a Texas Corporation, doing business
as Rick’s Cabaret; ANDREW SEFIA, and others
similarly situated, doing business as Rumors; D
HOUSTON INCORPORATED, a Texas Corporation,
doing business as Treasures; RICK’S CABARET;
RICK’S SPORTS CABARET; XTC NORTH
Intervenor-Plaintiffs-Appellants
6340 WESTHEIMER INC, doing business as Allstars,
as successor in interest to Aris Mylonas
Appellant
CITY OF HOUSTON
Intervenor Defendant-Appellee
Appeals from the United States District Court
for the Southern District of Texas, Houston
(Filed May 25, 2007)
Before DAVIS, BARKSDALE and BENAVIDES,
Circuit Judges.
PER CURIAM:
IT IS ORDERED that the unopposed motion of
Ice Embassy, Inc., Texas Richmond Corp. and HFR
Enterprises, Inc., for leave to file oversized motion for
stay and/or injunction pending appeal is GRANTED.
IT IS FURTHER ORDERED that the motion of
Ice Embassy, Inc., Texas Richmond Corp. and HFR
Enterprises, Inc., for stay and/or injunction pending
appeal is GRANTED.
IT IS FURTHER ORDERED that the joinder
motion of A.H.D. Houston, Inc., D. Houston, Inc.,
D.N.W. Houston, Inc., D. Rankin, Ine., W.L. York,
Inc. and D.W.G. FM, for stay and/or injunction pend-
ing appeal and for leave to file an oversized motion is
GRANTED.
IT IS FURTHER ORDERED that the joinder
motion of SSD Enterprises, Inc. for stay and/or in-
junction pending appeal and for leave to file an
oversized motion is GRANTED.
IT IS FURTHER ORDERED that the joinder
motion for Chil Soung, Inc., Daris, Inc., GNCD, Inc.,
App. 19
Rude Dog II, Inc., Lone Starr Multi Theaters, Inc.,
AVW, Inc., 9834 Jensen, Inc., 8503 North Freeway,
Inc., Long Tran, Nien X. Nguyen, Sugar’s Cabaret,
A.K.M., Inc., DHR, Inc., Panah, Inc., R&R Enter-
tainment, Inc., Houman Shaghagi, Southwest Texas
Ventures, KMRC, Inc., Aris Mylonas, M.K. Club &
Restaurants, Inc., 10128 TDC1, Inc., Obsession
Cabaret, Inc., Gino A. Barone, Airline Video and Thai
Company, Trumps, Inc., XTC North, Rick’s Cabaret,
Rick’s Sports Cabaret, Andrew Sefia, Studemont
Video, Eastex Video, 24 Hours News and Video
Emporium, for stay and/or injunction pending appeal
and for leave to file an oversized motion is
GRANTED.
IT 1S FURTHER ORDERED that the joinder
motion of 6340 Westheimer, Inc., for stay and/or
injunction pending appeal and for leave to file over-
sized motion is GRANTED.
The clerk is directed to issue an expedited briefing
schedule to hasten a final determination of this
appeal.
App. 20
APPENDIX H
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
ICE EMBASSY, INC., et al., § CIVIL ACTION NO.
Plaintiffs, : H-97-0196
¥. §
THE CITY OF HOUSTON, ;
Defendant. §
FINDINGS OF FACT
AND CONCLUSIONS OF LAW
(Filed Jan. 31, 2007)
Plaintiffs are sexually-oriented businesses (“SOBs”)
who challenge on First Amendment grounds an
ordinance regulating such businesses (“Ordinance 97-
75”) adopted by Defendant City of Houston in Janu-
ary 1997. The case was tried to the Court on the issue
of whether the external distance restrictions, in light
of Ordinance 97-75 as a whole, affords reasonable
alternative avenues of communication for SOBs.
Having reviewed the full record in this case, having
heard the witnesses’ testimony, and having consid-
ered the exhibits introduced at trial, the Court issues
App. 21
the following Findings of Fact and Conclusions of
Law.’
The Court concludes that there were an adequate
number of reasonable alternative sites for SOBs
displaced by Ordinance 97-75. As a result, the Court
denies Plaintiffs’ challenge to Ordinance 97-75 and
holds that the ordinance does not violate the First
Amendment.
I. PROCEDURAL BACKGROUND
The City of Houston (“City”), through its City
Council, adopted Ordinance 97-75, effective January
15, 1997, amending prior ordinances regulating
SOBs. Plaintiffs challenged Ordinance 97-75 on
numerous First Amendment grounds. The Court
concludes the following: The Court has subject matter
jurisdiction over this lawsuit, and has personal
jurisdiction over the parties. Venue in this district
and division is appropriate. At least one Plaintiff, as an
owner and/or operator of an SOB that has been denied
a permit based on the locational requirements of Ordi-
nance 97-75, has standing to bring this action. Conse-
quently, all Plaintiffs have standing. See Bowsher uv.
' The Court explains the evidence and uses various forms of
the word “find” to indicate a finding of fact, and sets forth legal
principles and uses forms of the words “hold” and “conclude” to
indicate a conclusion of law. To the extent a finding of fact so
designated is more properly a conclusion of law, and to the
extent a conclusion of law is more properly a finding of fact, it
should be so construed.
App. 22
Synar, 478 U.S. 714, 721 (1986); James v. City of
Dallas, 254 F.3d 551, 563 (5th Cir. 2001), cert. denied,
534 U.S. 1113 (2002).
This Court issued its original decision in 1998,
and the case was appealed to the United States Court
of Appeals for the Fifth Circuit. The Fifth Circuit, in
N.W. Enterprises Inc. v. City of Houston, 352 F.3d 162
(Sth Cir. 2003), cert. denied, 543 U.S. 958 (2004),
affirmed in part, dismissed in part, reversed in part,
vacated in part, and remanded in part. Following
remand, the parties engaged in discovery and tried
the single remanded issue — described in the follow-
ing paragraph — to the Court for ten trial days begin-
ning December 4, 2006.
The United States Court of Appeals for the Fifth
Circuit remanded this case for the determination of
“whether there exists any basis for the fear ... that
the ordinance seeks to reduce secondary effects by
depriving SOBs of reasonable alternative avenues of
communication.” See N.W. Enterprises, 352 F.3d at 183.
The issue before this Court is whether the increased
distance requirements in Ordinance 97-75 were
enacted by the City Council to reduce SOBs’ negative
secondary effects with the Council’s reasonable
understanding that there were an adequate number
of alternative available sites within the City limits for
SOBs to operate in conformity with the requirements
of Ordinance 97-75.
To be a reasonably alternative avenue of commu-
nication for an SOB, an alternative location must be
App. 23
physically and legally available, but need not be
commercially desirable. See City of Renton v. Play-
time Theatres, Inc., 475 U.S. 41, 54 (2002); Woodall v.
City of El Paso, 49 F.3d 1120, 1124 (5th Cir. 1995);
SDJ, Inc. v. City of Houston, 837 F.2d 1268, 1276-77
(5th Cir. 1988). A “reasonable” number of sites exists
if those enterprises that desire to operate can find
physically and legally available locations. See Lake-
land Lounge of Jackson, Inc. v. City of Jackson, 973
F.2d 1255, 1260 (5th Cir. 1992).
Il. BACKGROUND OF ORDINANCE 97-75
A. The SOB Permit Process
The Court finds the following: There are many
types of SOBs described in Ordinance 97-75. An
arcade is a business where five or fewer patrons place
money into a machine that allows them to observe
live or recorded performances. An adult mini-theater
is a similar SOB but is intended to be used by more
than five but fewer than 100 patrons. At adult book-
stores, patrons may view, rent, or purchase adult
books, magazines, films, or videotapes, and at an
adult movie theatre, patrons in projection rooms. A
cabaret provides live entertainment, generally either
topless dancing or totally nude performances. If the
cabaret is licensed to serve alcoholic beverages, it is
sometimes referred to as an adult lounge. At an aduit
encounter parlor, patrons “congregate, associate, or
consort with employees who engage in _ specified
sexual activities with or in the presence of” the
App. 24
patrons. An adult modeling studio provides “figure
models” who engage in sexual activities with or
“display specified anatomical areas” to the patron.
For years prior to Ordinance 97-75 and under
Ordinance 97-75, City law required SOBs to obtain a
permit in order to operate within the City of Houston.
Permit applications were filed with the Houston
Police Department’s Vice Division, which determined
whether the applications complied with City ordi-
nances, including the locational requirements of the
current ordinance.’ If the Vice Division determined
that an applicant satisfied the requirements for a
permit, the application would be approved and the
permit would be issued. Otherwise, the Vice Division
would deny the permit application.
When evaluating the permit applications, the
Vice Division requested from the City Planning and
Development Department (“Planning Department”) a
map of the location and surrounding area of the site
for which the permit was requested. The maps
showed tract boundaries and “property use codes.”
The maps, which were regularly used by the City in
connection with a variety of its municipal functions,
were generated by computer using the most current
and accurate information available to the City.” The
* Enforcement of Ordinance 97-75 has been enjoined
pending a final decision on the issues in this case.
* In 1986, the City hired an engineering firm to develop a
computer-based mapping system. The firm developed a program
known as “Metrocom.” Later, the City took back authority over
(Continued on following page)
App. 25
Harris County Appraisal District (“HCAD”) provided
information about tract ownership and acreage, but
the City’s Planning Department would only incorpo-
rate the HCAD database into its map-generating
database after the HCAD information had been
verified and corrected to the extent possible. The Vice
Division soon learned through experience that the
land use codes on the maps were not always accurate
and, therefore, they used them only as guides for the
proposed location and the surrounding areas.
In order to determine if a site proposed for an
SOB met the City ordinance requirements, Vice
Division officers then visited the actual proposed site
and scrutinized the surrounding area. Although the
“use codes” on the Metrocom maps were not reliable,
the Vice Division officers found the property bound-
ary lines and distances depicted on the maps to be
quite accurate when compared with actual measure-
ments using a surveyor’s measuring wheel. Most
distances between property lines of proposed sites for
SOBs and property lines of other entities could not,
however, be measured with the measuring wheel
because of physical barriers, such as buildings, on the
intervening properties.
the mapping program and database, which became part of the
City’s Geographic Information Services (“G.I.S.”). Most Vice
Division officers, however, continued to refer to G.I.S., its offices,
and the maps it produced as “Metrocom,” and that is the name
used throughout the tmal and in these Findings of Fact and
Conclusions of Law.
App. 26
An applicant who was denied a permit had the
right to appeal the decision to a Hearing Officer
appointed by the Chief of Police. If the Hearing
Officer exercised his authority to reverse the Vice
Division’s decision, the applicant-appellant would be
issued a permit to operate an SOB. When the Hear-
ing Officer’s decision resolved an issue of statutory
interpretation, the Vice Division officers would there-
after apply the Hearing Officer’s decision when
evaluating subsequent permit applications presenting
the same issue.
B. Legislative History of Ordinance 97-75
The Court finds from the evidence at trial the
following as to the legislative history of Ordinance 97-
75. In May 1996, the Houston City Council appointed
several of its members to serve on a committee,
named the Sexually Oriented Business Ordinance
Revision Committee (the “Committee”), to consider
amendments to the existing SOB Ordinance. The
Committee began collecting information from numer-
ous sources regarding the activities and effects of
SOBs in Houston. Soon thereafter, the Planning
Department began assisting the Committee to deter-
mine whether the locational requirement changes
under consideration would allow SOBs a sufficient
opportunity to continue to operate. Among other
issues, the Committee wanted to know whether, if the
amendments being considered were adopted, SOBs
affected by the proposed locational amendments
App. 27
would be able to relocate to sites that satisfied the
new locational requirements.
At a meeting in June 1996, the Committee dis-
cussed its intention to address continuing secondary
effects of SOBs by increasing the sensitive use distance
requirement’ to 1,500 feet, a distance already enforced
in Harris County. The Co-Chairman of the Commit-
tee, Council Member Boney, stated that the City
could not infringe SOBs’ rights to operate and, there-
fore, the SOB Ordinance would need to allow an
adequate number of reasonable alternative sites to
which SOBs could relocate.
At a Committee meeting in July 1996, Council
Member Boney again emphasized that the City could
not use regulations to eliminate SOBs. Robert Lit-
dke, then director of the City Planning Department,
attended the meeting and described his department’s
capabilities and procedures for estimating the num-
ber of alternative sites that would be available under
the proposed increased distance requirements.
* A “sensitive use” includes a school, church, public park, or
licensed daycare center, and the “sensitive use distance re-
quirement” is used interchangeably with the term “external
distance requirement” or simply “distance requirement.”
* Plaintiffs argue that Council Member Helen Hucy re-
quested information and made comments that Plaintiffs charac-
terize as evidence of a City Council animus against SOBs. Even
if Council Member Huey held the anti-SOB sentiment that
Plaintiffs ascribe to her, there is no evidence that any other
member of City Council shared her views.
App. 28
In October 1996, Joseph Chow, a long time em-
ployee of the City Planning Department, and Litdke,
Chow’s supervisor, appeared before the Committee.
Litdke provided the Committee with a detailed over-
view of the Planning Department’s capabilities and
again explained its methodology for calculating the
availability of alternative sites for SOBs under the
distance restrictions of both the current ordinance
and the proposed increased restrictions of the new
ordinance. Litdke explained that the Planning De-
partment was using the same methodology it previ-
ously used to determine the availability of alternative
avenues of communication for the Council’s consid-
eration in passing the 1991 SOB ordinance (which
was still in effect). Applying each of the locational
requirements then being considered, the Planning
Department filtered over one million potential tracts
down to 9,993 conforming potential sites.
The Council Members asked the Planning De-
partment to add public parks as a sensitive use to its
analysis.” The Council Members also asked the Plan-
ning Department to determine the potential impact of
increasing the residential density distance requirement
from 1,000 to 1,500 feet from the center of the potential
tract. Chow appeared before the Committee at its
November 4, 1996 meeting to update the Committee
* The Committee also requested an evaluation of the effect
of adding hospitals, nursing homes, and libraries to the list of
sensitive uses. None of these was listed as a sensitive use in the
Ordinance « adopted.
App. 29
members on the Planning Department’s progress in
adding parks to the database. Chow also described
the Planning Department’s projections regarding how
the addition of public parks as a sensitive use might
affect the number of conforming parcels, and an-
swered additional questions by Committee members.
Chow explained that he and his staff began the
analysis with more than one million land parcels in
the City as identified by HCAD. He and his staff then
subtracted parcels that, based on land use codes
obtained from the best information available, they
believed would not be suitable for use by an SOB. The
Planning Department used a computer program that
drew a circle with a radius of 1,550 feet from the
center of each public park and excluded every parcel
with a center point within the circle.’ This process
was repeated with a circle of 1,050 foot radius for
evaluating the effect on existing licensed SOBs listed
by the Vice Division. The process of elimination was
" The computer program did not measure distances from
property line to property line, as required in the Ordinance,
because it would have taken an additional four to six weeks to
develop the programming required to perform the analysis. This
was true because the computer, although quite sophisticated for
that time, was not programmed to recognize and measure
distances between two or more parcels’ property lines. To
accomplish this task, a person would have had to plot points
along the property lines manually. To compensate for the fact.
that distances were being measured in the program from the
centers of the tracts involved, Chow’s staff added 50 feet to the
1,500-foot and the 1,000-foot sensitive use distance radii being
considered by the Committee.
App. 30
then repeated for the remaining sensitive uses, which
included schools, churches, and daycare centers,
using a 1,550 foot radius.
To perform this analysis, Chow’s staff did not rely
on the land use codes on the maps in the database;
rather, they compiled a list of parcels identified as
sensitive uses using various other pertinent sources
such as lists of public parks and lists of licensed
daycare centers. The program then applied the resi-
dential density test and estimated the number of
remaining parcels potentially available.” As Chow
reported to the Committee on November 20, 1996, his
assessment was that the number of potential sites
was 7,597.
The Committee also received information of the
status of SOBs in Houston, including the number of
existing, licensed SOBs, both the total number and
the number of each type licensed by the City. The
Committee found that there were 104 licensed SOBs
as of August 29, 1996, including 36 topless clubs, 9
adult theaters, 9 totally nude clubs, 4 video stores, 28
modeling studios, and 18 adult bookstores.
The Committee issued its final report on January
7, 1997. The Houston City Council accepted the
Committee’s report and, on January 15, 1997, enacted
* Out of necessity Chow’s staff used a 1,550-foot radius to
draw the circles and, unlike for the other sensitive uses, used
the land use cudes in the database to identify residential
properties.
App. 31
Ordinance 97-75 to prohibit SOBs from operating
within 1,500 feet of a school, church, public park, or
licensed daycare center. See Ordinance 97-75, § 28-
125(bX(1). Ordinance 97-75 also prohibits SOBs from
operating in high density residential areas or within
1,000 feet of another SOB. See id. § 28-125(bX2) and
(3). Plaintiffs are SOBs in Houston who would be
affected by the enforcement of the above-described
external distance requirements.
Retired Houston Police Officer Robert Foulis
testified at trial. Before he retired in 2004, he had
responsibility within the Vice Division for providing
information both to the public and to the Police
Department regarding SOBs in Houston. One of
Foulis’s regular duties in this position was to compile
lists of known SOBs in Houston for the Vice Division
to use in its enforcement activities. Based on his
personal knowledge at the time and on Vice Division
records, Foulis prepared a list of businesses holding
SOB permits as of January 1997. The list contained
101 licensed SOBs, three fewer than existed in Au-
gust 1996.
The Ordinance allowed existing SOB permit
holders to apply for permits under the new ordinance
by a date certain and thereby protect their locations
from any new SOB that applied for a location within
1,000 feet of the existing permit holders’ locations.”
* This provision did not guarantee a permit to the existing
SOB permit holder. Instead, it allowed the existing permit
(Continued on following page)
App. 32
Ninety-eight applications were received by the Vice
Division within the 45 day period provided in the
Ordinance.
The Court finds that, as of the date of the enact-
ment of Ordinance 97-75, there were 101 licensed
SOBs in Houston. There also were 25 SOBs operating
under the protection of an injunction issued in a
federal lawsuit challenging the 1991 ordinance.” The
information provided to the Committee indicated that
there were 95 SOBs that would be displaced as a
result of the locational requirements of the proposed
new ordinance.
The Court finds further that the City Planning
Department’s information that there were 7,597
potential sites to which SOBs could locate was based
on the best data available at the time and provided a
sound basis for the Committee to conclude that there
existed an adequate number of available alternative
avenues for communication. Chow opined that his
analysis had a 10% rate of error, but based this
opinion only on his experience in the Planning De-
partment working with HCAD data. The Court
holder to have its application evaluated under the new loca-
tional requirements before consideration of the application of
any applicant that sought to operate an SOB within 1,000 feet.
°° The Fifth Circuit noted in its opinion in this case that
“there were at most 128 SOBs in Houston when 97-75 was
enacted.” See N.W. Enterprises, 352 F.3d at 182. This figure was
based on the parties’ pre-appcal estimate; this Court had not yet
determined the number of SOBs in operation in January 1997.
App. 33
concludes, however, that even if the percentages were
reversed and the analysis were only 10% accurate,
the resulting 760 alternative available sites would
more than adequately accommodate SOBs affected by
the external distance requirements of Ordinance 97-
75 or, alternatively, all previously licensed SOBs.
lil. SUBSEQUENT VERIFICATION OF ADE-
QUATE SITES
In 1997, Plaintiffs filed this lawsuit and asserted
that there were not an adequate number of available
alternative sites for SOBs to operate under the loca-
tional requirements of Ordinance 97-75. Despite the
fact that the information provided to City Council by
the Planning Department clearly revealed that, even
excluding the vast majority of the 7,597 sites identi-
fied by Chow, there were an adequate number of
available alternative sites, the City undertook to
respond to Plaintiffs’ concerns by having Houston
Police Officer Steven Andrews, and other officers
working under his direction, examine a small per-
centage of the locations identified by the Planning
Department. Andrews, a fifteen year veteran of the
Vice Division, investigated the potential sites as if
permit applications had been filed for each location.
During his career, Andrews had performed dozens of
similar investigations in connection with permit
applications filed pursuant to earlier SOB ordinances.
The Court finds that the evidence establishes the
following facts regarding Andrews’s 1997-98 review of
App. 34
potential available sites for SOBs within the City of
Houston. In his prior investigations for SOB permit
applications, Andrews sought to determine whether a
proposed site met the distance criteria necessary for
the issuance of a permit. To evaluate the impact of
Ordinance 97-75 for purposes of this case, Andrews
employed the same methodology he had used
throughout his career in the Vice Division, but ap-
plied the external distance requirements from Ordi-
nance 97-75 to each location.
More specifically, Andrews applied the criteria of
Ordinance 97-75 to each location he investigated to
determine whether any part of the boundary of the
potential SOB tract was at least 1,500 feet from the
closest boundary line of property on which any
church, school, licensed daycare center or public park
was located. He also investigated to determine
whether no more than 75% of the tracts within a
1,500 foot radius from the center of the potential SOB
tract were residential, and that the boundary of the
potential SOB tract was at least 1,000 feet from the
boundary of any other potential SOB tract identified
in his report. To assist in his investigation, and
consistent with his practice while an officer in the
Vice Division, Andrews requested maps of potential
locations from G.I.S/Metrocom. At this time in 1997,
Metrocom was using the same program to generate
maps that it had used in 1996. Ultimately, Andrews
obtained over 2500 Metrocom maps, each showing a
potential parcel for an SOB. Andrews received 50 to
100 maps at a time. He divided the maps among pairs
App. 35
of officers, including himself, and instructed them to
perform a first stage review in which the officers
visited and visually inspected each location desig-
nated by a star on the map." If the officers saw a
sensitive use nearby or saw that the area around the
suggested site might be sufficiently residential to fall
within the 75% residential prohibition, the officers
rejected the site summarily and no further investiga-
tion was conducted. If there appeared to be no sensi-
tive uses within 1,500 feet and the area did not
appear to be excessively residential within the 1,500
foot radius, the site “passed” the officers’ review. This
first phase review was primarily to rule out sites that
likely violated any of the locational requirements of
Ordinance 97-75.
The maps included land use codes, indicating
religious uses, residential uses, commercial uses, and
other uses. The officers and Andrews used these land
use codes on the maps only as a starting point or
guide in their decisions as to whether a potential site
“passed” or not. The officers and Andrews based their
decisions about the availability of the sites on the
actual uses of the property and surrounding parcels
with the applicable radii, as determined during their
personal visit to the “passed” sites.
As to potential sites that passed the first phase
review, Andrews personally evaluated each site and
'' Occasionally, only one of the two officers in the pair would
perform this first stage review.
App. 36
the relevant surrounding areas to make a determina-
tion of the availability of the site in light of the re-
quirements of Ordinance 97-75. Andrews used the
definitions in that ordinance to locate the center point
of the tract. Using a radius of 1,500 feet, he then
drew a.circle from the center point of the tract. An-
drews then visited the site to locate the boundaries of
the tract. In doing this, he occasionally had to use a
measuring wheel. In this regard, he did not find any
differences between the distances shown on the
Metrocom maps and the distances he physically
measured on the site from objectively ascertainable
points. The scale depicted on the maps was accurate
every time he measured a distance on a tract. Using
the 1,500 foot circle he had drawn on the associated
Metrocom map as a guide, he carefully drove or
walked the area within the circle. If he saw a school,
licensed daycare center, church, or park, or if the area
was predominantly residential, he would reject the
site as “unavailable” for use by an SOB.
Andrews obtained official lists of public parks
and licensed daycare centers, which he used to iden-
tify and locate these two types of sensitive uses. If he
saw a daycare center that was not on the list, he
would check with the appropriate governmental
agency to see if the center had been licensed after the
list was compiled. If he was still unsure if the center
was licensed, he would visit it and ask to see its
permit. As required in the Ordinance, he considered
public parks and licensed daycare centers to be
disqualifying uses if the nearest point on the property
App. 37
line of the sensitive use was within 1,500 feet of the
nearest point of the property line of the potential site.
See Ordinance 97-75, § 28-125(b)(1).
In deciding whether a location was an available
alternative site, Andrews considered whether any type
of SOB could fit on the site. He testified persuasively
that the smaller sites could accommodate a modeling
studio or an adult bookstore. A modeling studio gener-
ally has a central area and one or more private rooms;
modeling studios often are located in small houses or
mobile homes. The standard driveway or the public
street in front of the building or tract of land provides
adequate parking, because in Andrews’s experience as
a Vice Division officer, customers usually do not park
at the studio (where their cars might be recognized);
they instead park elsewhere and walk to the studio.
Andrews soon realized that some of the potential
locations identified by Chow and Metrocom were very
close to each other. Because he also needed to apply
the 1,000 foot distance requirement between SOB
sites, he asked Metrocom to prepare larger scale
maps showing all of the sites in given areas (“cluster
maps”). Andrews used these cluster maps to identify
which of the sites meeting the sensitive use and
residential density requirements were also likely to
be less than 1,000 feet apart. He used the individual
site maps and his personal inspections to determine
which of the sites within a “cluster” would be an
available alternative site. Once he found an accept-
able site, he summarily rejected the other potential
sites within 1,000 feet. Mary of these “rejected” sites,
App. 38
however, would likely have been availiable under the
terms of the Ordinance, had the original site later
been determined not to be an adequate site.
Andrews spent approximately six months on this
project. He received over 2,500 maps from Metrocom,
numbered sequentially from 001 to 2821. Either he or
the officers assisting him visited about 1,561 sites, of
which 1,030 “passed” and 531 were rejected based on
the officers’ superficial review of the location and
surrounding area. Of the 1,030 sites that passed the
first phase review, Andrews personally visited about
500 locations. Between December 1997 and February
1998, Andrews identified 200 sites (out of the 500 or
so sites he closely evaluated) that he believed met all
of the distance requirements in Ordinance 97-75. He
took a photograph of each location and assembled a
notebook with one page summarizing identification
information for each site.”
Andrews ended his investigation after investigat-
ing only 1,536 of the 7,597 potential sites identified
by Chow. After his list of available sites reached 200,
Andrews stopped his analysis. He did not investigate
any of the remaining sites for which he had maps and
he did not request any additional maps. His ability to
verify approximately 200 conforming sites from such
* The notebook contained a few errors, such as photos or
acreage listing that were not accurate. Nonetheless, the note-
book was a helpful tool to refresh Andrews’s recollection of the
sites and to assist others in locating or assessing the properties.
App. 39
a small percentage of Chow’s list suggests strongly
that many more available sites would be found if the
remaining 6,061 locations identified by Chow had
been evaluated closely.
The 200 sites identified by Andrews within a year
after the adoption of Ordinance 97-75 were from the
list of sites identified by Chow within months before
the adoption of Ordinance 97-75. The Court finds that
because sites identified by Chow as available before
January 15, 1997, were verified by Andrews as avail-
able during the year after January 15, 1997, these
sites were available at the time the Ordinance was
adopted on January 15, 1997.
IV. AVAILABLE ALTERNATIVE SITES
A. Required Number of Available Alterna-
tive Sites
The “provision of just one more site than the
existing number of SOBs satisfies a city’s obligation
to provide alternative avenues of communication.”
N.W. Enterprises, 352 F.3d at 182 n.20 (citing
Woodall, 49 F.3d at 1127). A city is not required to
provide SOB sites to accommodate a specific propor-
tion of the city’s population. See id. (citing Lakeland
Lounge, 973 F.2d at 1259-60). Plaintiffs have cited no
authority from this Circuit, and the Court is aware of
none, requiring a city to provide an adequate number
of alternative available sites to accommodate antici-
pated future growth, speculative “total demand,” or
unlicensed businesses, even if those unlicensed
App. 40
businesses may compete for sites with licensed busi-
nesses. The Court does not find the Ninth Circuit
cases relied upon by Plaintiffs to be persuasive.”
The Court finds that at the time the Ordinance
was enacted, there were 101 licensed SOBs, plus
approximately 25 SOBs protected by an injunction
issued in other litigation. Only 95 of those SOBs
would be required to relocate if Ordinance 97-75 were
enforced. The City, under the Fifth Circuit’s analy-
sis, could have satisfied its constitutional obligations
with evidence of 127 alternative available sites — one
more than the number of existing SOBs and 32 more
than the number of SOBs that sought a permit after
Ordinance 97-75 was enacted. As a result, the City
must show that City Council reasonably believed
there were at least 127 available alternative sites for
SOBs at the time Ordinance 97-75 was adopted.
B. Procedure to Identify Available Alter-
native Sites
The Court concludes that the pre- and post-
enactment procedures utilized by the City to ascer-
tain if there were sufficient alternative sites available
'S Isbell v. City of San Diego, 258 F.3d 1108, 1114 (9th Cir.
2001); Young v. Simi Valley, 216 F.3d 807, 822 (9th Cir. 2000).
‘ In fact, many of the 95 businesses appear to have ceased
operation in the ten years since the Ordinance was enacted
(although the external distance requirements have not been
enforced).
App. 41
not only satisfied constitutional requirements, the
procedures far exceeded the requirements. The evi-
dence introduced at trial established that, pre-
enactment, Chow identified through computer-
generated research a universe of almost 7,600 sites
that potentially could satisfy the locational require-
ments of the then-proposed ordinance and provide
alternative locations for SOBs to operate. Chow used
computer programs that were quite sophisticated for
the time, and used the most current data that he, in
his professional opinion, considered reliable. Chow
presented his results to the Committee, and there
was no reliable factual basis for the Committee to
discredit the results. Consequently, the Committee
justifiably relied on Chow’s report in considering
whether there were adequate alternative sites avail-
able in Houston for SOBs affected by the proposed
ordinance. Substantively, the evidence before the
Committee was that 95 SOBs would have to close or
relocate because of the new Ordinance’s external
distance requirements. The Committee also knew
that Chow had identified 7,597 potential alternative
sites within the City limits for those businesses to
relocate. Given this evidence before it, City Council
was reasonable in concluding that at least 1.3% of the
identified sites would in fact be available to the SOBs
under the new Ordinance and thus would provide
constitutionaliy adequate aiternative avenues of
expression to the affected SOBs. The First Amend-
ment requires no more from the City.
App. 42
The City, in an exercise of caution and apparent
good faith, went beyond its constitutional obligations
and verified that Chow’s list in fact contained an
adequate number of available alternative sites. Using
methodology similar to that which he used in his
regular work as a Vice Division officer to evaluate
applications for SOB permits, Andrews investigated
approximately 1,500 sites from Chow’s list and de-
termined that at least 200 of them were available
alternative sites."°
The estimating procedure performed by employ-
ees of the Planning Department was an appropriate
means for City Council to determine the effect of the
proposed Ordinance and to assure itself with an
acceptable degree of precision under the circum-
stances that the Ordinance would not deprive the
affected SOBs of reasonable avenues of expression.
The verification process performed by the Vice Divi-
sion clearly substantiated the fundamental result of
the Planning Department’s estimating procedure —
that there were an adequate number of available
alternative locations for SOBs to operate their busi-
nesses. Given the fiscal and logistical constraints on
the City, the results of the estimating procedure and
verification process were each sufficiently reliable.”
* Metrocom selected at random approximately 1,500 sites
from the list of 7,597 potential sites identified by Chow.
°° The Vice Division’s verification process, while appropriate
and helpful, was not constitutionally required. It was, instead, a
voluntary response to concerns raised by Plaintiffs in this case.
App. 43
Each of these procedures gave rise to results that
were properly admitted at trial and that provided
circumstantial evidence on which the Court relied in
reaching its findings of fact in this case.
C. Specific Site Analysis Issues
The “City bears the burden of proving the exis-
tence of reasonable alternative sites.” N.W. Enter-
prises, 352 F.3d at 182. As to a particular site
suggested by the City, the Plaintiff SOBs have a
burden to explain and present evidence to support
any challenge to the site. See id. at 183. In the ab-
sence of particular challenges by Plaintiffs, “doubts as
to the ordinance’s constitutionality in its entirety may
be easily dispelled... .” Id.
As noted, in the verification phase of the City’s
analysis of alternative avenues of expression, the City
researched through Vice Division Officer Andrews
approximately 500 sites. Andrews identified 200 sites
that he believed would be available for the operation
of one or more types of SOB.” Plaintiffs assert multi-
ple challenges to these 200 sites,” which will be
’ As has been noted previously, after Andrews identified
200 available alternative sites, the investigation ended without
review of other potentiai sites.
* The Ordinance contains distance requirements involving
distances that are “within” either 1,000 feet or 1,500 feet of a
second property. A distance of exactly 1,000 feet or 1,500 feet is
(Continued on following page)
App. 44
addressed in turn. It is noted preliminarily that the
City withdrew certain sites from consideration and
Plaintiffs conceded they had no criticisms of other,
different sites.
1. Church Within 1,500 Feet
Ordinance 97-75 defines a “church” as:
A building, whether situated within the city
or not, in which persons regularly assemble
for religious worship intended primarily for
purposes connected with such worship or for
propagating a particular form of religious be-
lief.
Ordinance, § 28-121.
Plaintiffs objected to the availability of several
sites because there was located within 1,500 feet of
the site a hospital or an airport in which there was a
chapel. The Court concludes that such chapels do not
satisfy the definition of a “church” under the Ordi-
nance because Plaintiffs presented no evidence that any
of these chapels in an airport or hospital is in a “build-
ing ... in which persons regularly assemble for reli-
gious worship” or that the airport, hospital, or even the
chapel itself was “intended primarily for purposes
connected with such worship or for propagating a
not — and was not ever treated by the Vice Division as —- within
the applicable distance and, therefore, would not disqualify the
proposed site.
App. 45
particular form of religious belief.” Indeed, the City
had construed Ordinance 97-75’s predecessor, which
contained the identical definition of a church, in this
manner since a Hearing Officer held that such a
chapel was not a church for purposes of that ordi-
nance. After this Hearing Officer’s decision, the Vice
Division did not deny applications for SOB permits
based on the proximity to such chapels. Because the
chapels do not satisfy the definition of a church, the
Court finds that sites within 1,500 feet of the facility
containing a chapel are not disqualified on this basis.
Plaintiffs also objected to sites that were within
1,500 feet of a Jewish cemetery. There is no evidence
that any part of the cemetery was regularly used for
worship and, as a result, the Court finds that sites
challenged because they were within 1,500 feet of a
Jewish cemetery are not disqualified on this basis.
Plaintiffs also objected to sites that were within
1,500 feet of a “religious” land use code on the Metro-
com map. Andrews testified, and the Court finds as to
each, that there were no active churches as defined
by the Ordinance within 1,500 fect of the particular
sites relied on by Plaintiffs.
Plaintiffs also argued that certain sites were not
available because they were within 1,500 feet of
The timing focus is on the date Ordinance 97-75 was
adopted in January 1997. The Court has considered but is
unpersuaded by Plaintiffs’ evidence concerning services at
Houston's Intercontinental Airport.
App. 46
specific churches. In 1997, neither Southern Bible
College nor Aldine House of Prayer qualified as a
church as defined by the Ordinance, but the Court
finds that Site 742 was within 1,500 feet of Grace
Church and Site 1879 was within 1,500 feet of Brigh-
ton Church. These two sites are disqualified and
cannot serve as an available alternative site because
they were within 1,500 feet of a church.
2. Licensed Daycare Center Within
1,500 Feet
Ordinance 97-75 defines a “licensed day-care
center” as:
A facility licensed by the State of Texas,
whether situated within the city or not, that
provides care, training, education, custody,
treatment or supervision for more than
twelve (12) children under fourteen (14)
years of age, where such children are not re-
lated by blood, marriage or adoption to the
owner or operator of the facility, for less than
twenty-four (24) hours a day, regardless of
whether or not the facility is operated for a
profit or charges for the services it offers.
Ordinance 97-75, § 28-121. Only licensed daycare
centers would disqualify a site within 1,500 feet. The
Court finds that no proposed sites were disqualified
for being within 1,500 feet of a licensed daycare
center.
App. 47
3. Park Within 1,500 Feet
Ordinance 97-75 defines a “public park” as:
A publicly owned or leased tract of land,
whether situated in the city or not, desig-
nated, dedicated, controlled, maintained and
operated for use by the general public for ac-
tive or passive recreational or leisure pur-
poses by the city or any political subdivision
of the state and containing improvements,
pathways, access or facilities intended for
public recreational use. The term “public
park” shall not include parkways, public
roads, right-of-way, esplanades, traffic cir-
cles, easements or traffic triangles unless
such tracts or areas contain and provide im-
provements or access to a recreational or lei-
sure use by the public. A current list of public
parks shall be compiled and revised by the
Director of the Parks and Recreation De-
partment and maintained for public inspec-
tion in the office of the City Secretary.
Id. The Houston City Secretary maintained a list of
public parks. Enforcement of Ordinance 97-75 would
disqualify an SOB site if it were within 1,500 feet ofa
public park on this list.
Plaintiffs argue that certain sites were not avail-
able because they were located within 1,500 feet of a
public park. The Court finds that the Catherine
Keegan Wilderness Ranch was not a public park as
defined by the Ordinance. The Court finds that
App. 48
Cullinan Park, Memorial Park, and Jones Park are
not within 1,500 feet of the proposed sites.” The
Court finds, however, that Site 2317 is within 1,500
feet of Verne Cox Center (a public park in Pasadena,
Texas) and Site 2776 is within 1,500 feet of Harwin
Park. As a result, these two sites are not available
alternative sites for an SOB.
4. School Within 1,500 Feet
Ordinance 97-75 defines a “school” as:
A building, whether situated within the city
or not, where persons regularly assemble for
the purpose of instruction or education to-
gether with the playgrounds, stadia and
other structures or grounds used in conjunc-
tion therewith. The term is limited to:
(1) Public and private schools used for pri-
mary or secondary education, in which
any regular kindergarten or grades one
(1) through twelve (12) classes are
taught; and
(2) Special educational facilities in which
students who have physical or learning
disabilities receive specialized education
in lieu of attending regular classes in
” Again, the Court holds that a distance of exactly 1,500
feet is not — and was not ever treated by the Vice Division as —
within the applicable distance and, therefore, would not disqual-
ify the proposed site
App. 49
kindergarten or any of grades one (1)
through twelve (12).
Id. Schools used for purposes other than primary or
secondary education would not disqualify a site
within 1,500 feet.
Plaintiffs objected to sites that were within 1,500
feet of a Houston Independent School District
(“H.1.S.D.”) stadium or bus barn. The Court concludes
that a stadium “used in conjunction” with a particu-
lar school as defined by the Ordinance would disqual-
ify a site within 1,500 feet, while a stadium that was
simply owned by H.I.S.D. but not used in conjunction
with a specific school would not be disqualifying. The
Court finds that Delmar Stadium, the H.I.S.D. bus
barn, and Butler Stadium do not satisfy the Ordi-
nance’s definition of “school” because they were not
used in connection with any particular school but are,
instead, owned by H.1.S.D. for its general use. The
City presented evidence, and the Court finds, that the
Vice Division never denied an SOB permit application
based on its proximity to an H.I.S.D. facility not used
in conjunction with a specific school. As a result, sites
within 1,500 feet of these three identified structures
are not disqualified on that basis.
5. Size of Parcel or Size of Building on
Parcei
Plaintiffs object to numerous sites because either
the property or the building on the site is either too
large or too small, or, according to Plaintiffs, the sites
App. 50
do not have adequate space for parking for an SOB.
These objections are without merit. Size concerns are
not unreasonable obstacles that cannot be overcome.
See Woodall, 49 F.3d at 1124 (noting that the “rele-
vant consideration is whether the physical character-
istics of the site present an unreasonable obstacle to
opening a business”).
Small parcels and buildings can accommodate
certain types of SOBs, such as modeling studios and
adult bookstores, that require very little space for the
business itself or for parking. For these SOBs, sites
with small acreage, even as little as .2 acres, are
sufficient. Additionally, small buildings can be ex-
panded or torn down to permit construction of a
building more attractive to an SOB. Businesses can
and often do obtain variances from the City’s parking
requirements.
Large parcels and buildings are better for SOBs
such as cabarets, that generally require buildings
with thousands of square feet’ and need substantial
exterior space for parking large numbers of cars.
Large parcels of land can be subdivided and excess
portions sold or leased to others, or an SOB may
simply utilize less than an entire building if the
structure is too large.
“ Certain existing SOBs are located in structures with well
more than 10,000 square feet.
App. 51
The size of the parcel, and the size or prior use of
the building located on the site, are not disqualifying
unless the parcel were so tiny that it could not physi-
cally accommodate any type of SOB. The Court finds
that none of the proposed sites is disqualified based
on the size of the building or the parcel.
6. Undesirable Location Or Prior Use
Of Parcel
Plaintiffs complain that many of the sites were
too far from other commercial areas, were in a shop-
ping center, were in an industrial or construction
area, were in a “bad neighborhood,” or were otherwise
in an undesirable location. As to certain sites, Plain-
tiffs argued generally that the “tenant mix” was
unsuitable. With the exception oi sites that were
located in places such as an airport runway or under-
neath an interstate (no such sites are at issue in this
case), Plaintiffs’ complaints are not legally significant
because they relate largely to the commercial viabil-
ity of the site, not to its qualification constitutionally
as an available site. As is discussed more fully below,
there is “no requirement that an adult business be
able to obtain existing commercial sites ... with
market access to ensure its prosperity.” Woodall, 49
F.3d at 1124. While the location of the site may have
an impact on the cornmercial viability of an SOB,
“commercial viability is not a relevant consideration.”
Id.
App. 52
Plaintiffs also complain that certain sites were or
had previously been used for warehouses, cement
factories, or other businesses that require a special-
ized building. As is the case for undesirable locations,
undesirable prior uses are not disqualifying. See
Renton, 475 U.S. at 53 (available sites included
property developed for industrial and warehouse use).
7. Commercial Viability
Plaintiffs objected to a large number of sites as
either “insufficient for generic commercial business”
and/or “developed in a manner totally incompatible
with any average commercial business.” The City is
not constitutionally required, however, to identify
commercially viable sites. See Woodall, 49 F.3d at
1124 (holding that the fact that a site is not commer-
cially viable does not preclude it from qualifying as
an alternative available site). Indeed, in the Fifth
Circuit, “commercial viability is not a relevant con-
sideration.” /d.
Plaintiffs place significant reliance on the state-
ment in Woodall that a site may be excluded if it is
“developed in a manner unsuitable for any generic
commercial business.” Plaintiffs’ position is based on a
misreading of the Fifth Circuit’s directive. The Fifth
Circuit’s statement in Woodall that a site may be
excluded if it is unsuitable for any generic commercial
business allows the fact finder to exclude only a site on
which no generic commercial business could operate,
not to exclude a site that may be inappropriate for
App. 53
some ill-defined, average business. Indeed, this
Court’s interpretation is reinforced by the next sen-
tence in Woodall after the phrase so heavily relied
upon by Plaintiffs, where the Court of Appeals states
again, unequivocally, that “the fact that a site may
not be commercially desirable does not render it
unavailable.” Jd.
Similarly, the Fifth Circuit held that there “is no
requirement that an adult business be able to obtain
existing commercial sites at low cost and with market
access to ensure its prosperity.” Jd. In Renton, avail-
able sites included land “in all stages of development
from raw land to developed, industrial, warehouse,
office, and shopping space that is criss-crossed by
freeways, highways and roads.” Renton, 475 U.S. at
53.
Based on this Supreme Court and Fifth Circuit
authority, the Court concludes that commercial
viability is not a consideration for determining
whether a site is “available” for constitutional pur-
poses. The Court finds that none of the sites chal-
lenged as either “insufficient for generic commercial
business” and/or “developed in a manner totally
incompatible with any average commercial business”
is disqualified as an alternative site for an SOB.
8. Access, Roads and Other Infra-
structure
Plaintiffs complain that various buildings were
unsuitable because they had only a single entrance.
App. 54
With reference to the requirements of Ordinance 97-
75, only an SOB that operates as an arcade requires a
separate entrance. See Ordinance § 28-81. As a result,
no site is subject to disqualification because it lacked
a separate entrance.
Plaintiffs also objected to various sites because
they lacked an adequate infrastructure, such as
paved roads, electricity, or sewage facilities. To the
extent that there is no infrastructure near the parcel,
the absence of basic infrastructure would present an
unreasonable obstacle to opening a business on the
site. The Court finds that Site 2058 has no public
road whatsoever, and Sites 1247 and 2824, during
Andrews’s inspection, lacked paved roads to the
tracts. As to these parcels, Plaintiffs’ position is well-
taken and the Court finds that these three sites are
disqualified. See Woodall, 49 F.3d at 1124. However,
the mere absence of a major roadway does not dis-
qualify a site. See id.
9. Easements and Environmental Is-
sues
Plaintiffs argue that some of the sites are not
available alternative sites because they were subject
to utility, railroad, or other easements. Easements or
railroad tracks are not disqualifying unless they
cover the entire site such that nothing else can exist.
Easements or railroad tracks along an edge of larger
properties are clearly not disqualifying because the
remainder of the property remains available for
App. 55
business use. The Court finds that utility and rail-
road easements such as those present on the chal-
lenged sites in this case do not render the site
unusable and, therefore, none of the sites challenged
by Plaintiffs based on an easement or right of way is
disqualified on that basis.
Plaintiffs also challenge some of the sites listed by
the City because the sites were later found to have
environmental problems or potential environmental
issues. Although a toxic waste dump clearly would not be
an available alternative site for a business,” a subse-
quently-discovered environmental concern unknown in
January 1997 does not render the site unavailable at the
relevant time. The evidence established, and the Court
finds, that the identified environmental issues were not
known in January 1997. These concerns, therefore, do
not disqualify the proposed sites.
10. Long Term Leases and Deed Re-
strictions
Plaintiffs object to a number of sites because they
were subject either to long term leases or to deed
restrictions or other restrictive covenants. The Court
holds that the City is under no obligation when
contemplating a new ordinance with potential First
Amendment implications to search title and other
property records to determine whether a potential
* Indeed, Chow and Andrews both eliminated any site
which they identified as containing hazardous waste.
App. 56
site is subject to a long term lease or deed restric-
tions.” There is no basis in the appellate authorities
to place this burden on a municipality if there are
numerous potential available sites to which affected
SOBs may relocate.
The existence of a long term lease, even if shown
to exist, would not disqualify a site.“ See Renton, 475
U.S. at 53; Woodall, 49 F.3d at 1125-26 (finding it
“patently irrelevant” that the site was currently
occupied or leased). Property often can be sublet, and
leases are often terminated by existing tenants. The
Court finds that none of the proposed sites is dis-
qualified based on the existence of a long term lease.
Similarly, most deed restrictions do not render a
site unavailable. See Centerfold Club, Inc. v. City of
St. Petersburg, 969 F. Supp. 1288, 1302 (M.D. Fla.
1997) (holding that “[m]unicipal or local governments
are under no obligation either to dictate that third
parties make their land available to adult establish-
ments or to consider whether such private restrictions
in fact exist”). This is particularly true where, as was
the case for certain sites challenged by Plaintiffs, the
deed restrictions were not imposed until after the
* Where, however, evidence of such deed restrictions is
presented to the City, they should be considered if they specifi-
cally preclude use of the property for a sexually oriented busi-
ness.
* As for Site 293, Plaintiffs were unable to find evidence of
a long term lease. Regarding Site 2160, the lease was executed
after the adoption of Ordinance 97-75.
App. 57
date the relevant ordinance was adopted. Conse-
quently, the Court holds that a restriction describing
certain types of permitted and precluded uses for the
property would not generally disqualify a site.” For
example, deed restrictions favoring certain types of
businesses, such as retail, commercial, restaurants,
and theaters, clearly do not preclude all types of
SOBs. Similarly, other deed restrictions provided that
the property should be used for certain purposes —
such as commercial or retail businesses — and then
purported to preclude businesses that are “obnoxious”
or “out of harmony” with the favored use described in
the deed. Such deed restrictions are not disqualifying.
Also, Plaintiffs have not demonstrated that any
attempts to enforce these deed restrictions would be
successful as to any specific parcel.” As a result, the
Court finds that these restrictions, even if known to
the City, do not preclude all SOBs and do not disqual-
ify an otherwise available site.
Plaintiffs presented evidence, however, of three
sites that are subject to deed restrictions that were
in place before Ordinance 97-75 was adopted and
that specifically preclude use of the site for a
* For several sites, Plaintiffs relied on a deed restriction
that was not timely produced during discovery. As a result, the
deed restriction was excluded from evidence and cannot be used
to disqualify the site.
*° Indeed, Andrews testified that the Heights Association, a
Houston neighborhood association, lodged a protest against an
SOB permit application based on deed restrictions and the
protest was unsuccessful.
App. 58
sexually-oriented business. This is a “legal character-
istic that exclude[s] adult businesses” and, once
identified by a challenger with supporting evidence,
these sites would not be available as an alternative
avenue of communication. See Woodall v. City of El
Paso, 959 F.2d 1305, 1306 (5th Cir. 1992) (“Woodall
IT’), These restrictions, if known to the City, would
disqualify a site and, therefore, the Court finds that
Sites 343, 1879, and 2744 are disqualified on this
basis as alternative available sites in this case.
11. Proximity to Another SOB
The Ordinance precludes two SOBs from operat-
ing within 1,000 feet of each other.” An existing SOB
within the City limits would disqualify a second SOB
from obtaining a license to operate within 1,000 feet.
However, this disqualification applies only if the
original SOB were licensed by the City.” Unlicensed
SOBs are not disqualifying. The Court finds that the
SOBs that Plaintiffs argue disqualify a proposed site
are either unlicensed or are not qualified for a license
under Ordinance 97-75. As a result, these challenged
sites are available alternative sites for an SOB.
*” As noted earlier, if the sites are 1,000 feet from each other
exactly, then neither is disqualified because they are not
“within” 1,000 feet of each other.
* The 1,000 feet distance is measured “from the nearest
point on the property line of the applicant’s enterprise to the
nearest point on the property line of any other enterprise.”
Ordinance, § 28-125(b)(2).
App. 59
12. Government-Owned Sites
Plaintiffs argued that several sites were unavail-
able because they were owned by a governmental
entity. Plaintiffs cite no Fifth Circuit or Supreme
Court authority that supports this argument. The
City withdrew a few sites that were both owned by
the government and dedicated for use as part of a
City-owned airport. The situation involved in these
withdrawn sites was analogous to the situation
mentioned in Woodall for sites that are located on
“airstrips of international airports.” See Woodall, 49
F.3d at 1124. Generally, however, simple ownership
by a governmental entity does not disqualify a site.
The Court finds, however, that Site 259 was state
owned and, in January 1997, was being used in
connection with the construction of a controlled
access highway. Site 259, therefore, is disqualified,
but the other challenged sites are not disqualified on
the basis of governmental ownership.
13. Plaintiffs’ Difficulty Locating Site
Plaintiffs initially complained that they had
difficulty locating many of the sites because the
photograph or description Andrews included in his
notebook was inconsistent with the HCAD records or
the parcels observed on-site. Based on this difficulty,
Plaintiffs also objected to certain sites as being out-
side the Houston city limits.
App. 60
Plaintiffs and their expert did not initially rely
on the Metrocom maps, although the maps were
available. Andrews clarified, with reference to the
maps, which sites were at issue and that they were
located within the city limits. The Court finds that
Plaintiffs’ difficulties and confusion do not render an
otherwise available site unavailable.
14. Residential Density Requirement
Plaintiffs objected to numerous sites because the
land use codes on the Metrocom maps indicated that
the sites did not satisfy the residential density re-
quirements of Ordinance 97-75. Residential density is
determined by calculating the percentage of tracts
that were residential in character within a circle with
a radius of 1,500 feet from the center of the SOB
enterprise location.” An SOB permit could not be
granted if 75% or more of tracts within the circle were
“residential in character.” Ordinance, § 28-125(b)(3).
The Ordinance defined “residential” as follows:
Pertaining to the use of land, whether situ-
ated within the city or not, for premises such
as homes, townhomes, patio homes, manu-
factured homes, duplexes, condominiums
and apartment complexes, which contain
* The Ordinance provides that the “center” corresponds to
“the midpoint of a line joining the two most distant points on the
boundary of a tract on which the enterprise is located.” Ordi-
nance, § 28-125(bX3).
App. 61
habitable rooms for nontransient occupancy
and which are designed primarily for living,
sleeping, cooking, and eating therein. A
premises which is designed primarily for liv-
ing, sleeping, cooking and eating therein
shall be deemed to be residential in charac-
ter unless it is actually occupied and used
exclusively for other purposes.... The term
“residential” shall also include any unim-
proved tract designated for tax appraisal
purposes as residential by the Harris County
Appraisal District if situated in the City or
by the appraisal district of the county in
which the tract is situated if not situated in
the City. The term additionally shall include
any tract, that, based upon the records of the
planning official has been subdivided or plat-
ted for residential use, but that is not yet
designated for tax appraisal purposes as
residential.
Id., § 28-121. A“multifamily tract” was defined as:
Any residential tract that contains any build-
ing or buildings or portions thereof, that is
designed, built, rented, leased, sold, let out
or hired out to be occupied, or which is occu-
pied, in separate units, each containing liv-
ing, sleeping and food preparation facilities,
as the homes or residences of three or more
families, groups, or individuals living inde-
pendently of each other.
Id. Multifamily tracts were counted based on the tax
record acreage of the multifamily tract, with one-eighth
App. 62
of an acre treated as one residential tract. See Ordi-
nance § 28-125(b\(3).
Sites that appeared to be in highly residential
areas were disqualified both during Chow’s work and
later during Andrews’s investigation. For some sites,
the maps showed land use codes indicating high
density residential areas, but Andrews’s investigation
of the physical sites and surrounding areas in late
1997 and early 1998 often revealed development
inconsistent with the land use codes. Andrews’ con-
clusions from personal physical inspection of poten-
tial sites are more persuasive than land use code
designations on the Metrocom maps for most pur-
poses in the Court’s analysis. In many instances, the
potential site was in a highly commercial or mixed-
use area. For these sites, Andrews correctly did not
disqualify the sites based on the residential density
requirement because his physical investigation
revealed that the area was developed for uses other
than residential and the more reliable personal
inspection governs the Court’s analysis.
In other instances, the site was in or near “unim-
proved,” i.e. undeveloped, land. As to those sites,
Andrews considered the Metrocom use codes for
residential uses generally, but did not do detailed
calculations as to all residential or multifamily resi-
dences. He also conceded that he did not, as the
Ordinance requires, consult with the taxing authori-
ties to determine whether the undeveloped areas had
been platted as residential but not yet designated for
tax appraisal purposes. The Court concludes that
App. 63
sites near undeveloped areas that contained a “resi-
dential” land use code on the map should be excluded
if Plaintiffs have shown the 75% residential density
provision of § 28-125(c\3) was met.
As to Sites 384, 890, 1122, 1194, 1575, and 1705,
Andrews’s recollection is insufficiently clear to con-
tradict the codes on the maps. Consequently, these six
sites are excluded because the land use codes on the
Metrocom maps indicate that the residential density
exceeded 75%.
15. Conclusion on Site Analysis
The City has presented evidence of no fewer than
168 sites that, in January 1997, were available for
the operation of an SOB.
V. SUMMARY AND JUDGMENT
The evidence introduced at trial established that
the City of Houston, before adopting Ordinance 97-75,
reasonably believed that there were an adequate
number of available alternative sites for SOBs. The
City’s belief in this regard is supported by a prepon-
derance of the evidence. The City engaged in an
adequate analysis to determine whether a sufficient
number of available alternative sites existed in
Houston to accommodate SOBs that wouid be dis-
placed by the enforcement of Ordinance 97-75. The
Planning Department used computer programs and
property data that were the best available at the time
App. 64
and, significantly, that the City relied on for other,
unrelated municipal business. Chow, through his
analysis, identified 7,597 available alternative sites.
There were 126 licensed SOBs in January 1997,
including the 25 SOBs which were protected by an
injunction in a different case. The City was aware
that 95 of these businesses would be required to
relocate after Ordinance 97-75 was adopted. It was
clearly reasonable for City Council to believe there
were at least an adequate number of sites among the
7,597 on Chow’s list to provide alternative avenues
for communication for significantly more than the
number of existing licensed SOBs.
Additionally, the evidence at trial verified the
City’s belief that, at the time Ordinance 97-75 was
enacted in January 1997, there in fact were reason-
able alternative locations for SOBs in an adequate
number to accommodate businesses displaced or
otherwise affected by Ordinance 97-75.” Of the more
than 7,500 parcels identified by Chow, Vice Division
officers looked at approximately 1,500 properties. Of
this more than 1,500 sites, more than 1,000 (ap-
proximately ’/s) passed this initial phase of Andrews’s
investigation. Andrews personally visited approxi-
mately 500 of those sites, of which the Court finds at
* The Court reiterates that this more detailed investigation
was not constitutionally required, but served to verify City
Council’s pre-enactment understanding that enforcement of
Ordinance 97-75 would not violate the First Amendment.
App. 65
least 168 qualified as reasonably alternative avail-
able sites.
Based on the foregoing findings of fact and con-
clusions of law, the Court holds that Ordinance 97-75
does not violate Plaintiffs’ First Amendment rights. It
is therefore
ORDERED that judgment is entered in favor of
Defendant City of Houston.
The Court will issue a separate final judgment
consistent with these findings of fact and conclusions
of law.
SIGNED at Houston, Texas, this 3lst day of
January, 2007.
/s/ Nancy F. Atlas
Nancy F. Atlas
United States District Judge
App. 66
APPENDIX I
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
ICE EMBASSY, INC., et al., §
Plaintiffs,
CIVIL ACTION NO.
™ H-97-0196
THE CITY OF HOUSTON,
CO? CO OP COD CON LO? KOr
Defendant.
FINAL JUDGMENT
(Filed Jan. 31, 2007)
In accordance with the Findings of Fact and
Conclusions of Law entered this day, it is hereby
ORDERED that final judgment is entered in
favor of Defendant City of Houston, and Plaintiffs’
claims are DISMISSED WITH PREJUDICE.
This is a final, appealable order.
SIGNED at Houston, Texas, this 3lst day of
January, 2007.
/s/ Nancy F. Atlas
Nancy F. Atias
United States District Judge
App. 67
APPENDIX J
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
ICE EMBASSY, INC., et al.,
Plaintiffs,
v.
THE CITY OF HOUSTON,
Defendant.
§
:
: CIVIL ACTION NO.
§ H-97-0196
§
§
§
MEMORANDUM AND ORDER
(Filed July 20, 2005)
This case is before the Court on Plaintiffs’ “Mo-
tion for Reconsideration of Two Limited Aspects of
Order on Remand” [Doc. # 624], and Plaintiffs’ “Sup-
plemental Motion for Reconsideration Re Alameda
Books Point” (Doc. # 631]. Defendant filed a response
{[Doc. # 630], and Plaintiffs filed a Reply [Doc. # 632]
and Supplemental Authority [Doc. #633]. In both
motions, Plaintiffs seek reconsideration of the Court’s
decision limiting the issue in this case on remand to
the issue remanded by the United States Court of
Appeals for the Fifth Circuit, N.W. Enterprises, Inc. v.
City of Houston, 352 F.3d 162 (5th Cir. 2003), cert.
denied, _— U.S. __, 125 S. Ct. 416 (2004).
In the first motion, Plaintiffs ask the Court to
permit them to provide evidence and briefing in
App. 68
connection with facial challenges to the City of Hous-
ton’s residential proximity restrictions that were
raised in Plaintiffs’ Third Amended Complaint. All
arguments contained in the Third Amended Com-
plaint, including Plaintiffs’ challenge to the residen-
tial proximity restrictions, have been rejected by this
Court, this Court’s decision on the issue has been
affirmed by the Fifth Circuit, and the Supreme Court
denied Plaintiffs’ petition for a writ of certiorari.
In the original Motion for Reconsideration,
Plaintiffs also ask the Court to include as an issue on
remand the determination of the relevant dates for
the establishment of disqualifying uses in connection
with Plaintiffs’ pending permit applications. The
challenged Ordinance provides that disqualifying
uses for an applicant are to be determined as of the
date of application, and there is no reason at this
point to issue advisory rulings regarding the relevant
dates for each applicant.
In the second or “supplemental” motion, Plain-
tiffs ask the Court to allow them to conduct discovery
and present evidence to challenge the City of Hous-
ton’s justification for its expanded church/school
separation requirement. In support of their argu-
ment, Plaintiffs again cite City of Los Angeles uv.
Alameda Books, Inc., 535 U.S. 425 (2002), as well as
the decision following remand by the district court in
the Alameda Books case. In its ruling on the appeal
in this case, the Fifth Circuit considered, discussed,
and interpreted the Alameda Books decision. This
Court is bound by the Fifth Circuit’s discussion and
App. 69
interpretation of Alameda Books in this case, not by
that of the district court in California.
As the Court explained in its prior ruling, the
remand of this case by the Fifth Circuit was specific
and limited. “[T]he mandate rule compels compliance
on remand with the dictates of a superior court and
forecloses relitigation of issues expressly or impliedly
decided by the appellate court.” Henderson v. Stalder,
407 F.3d 351, 354 (5th Cir. 2005) (quoting United
States v. Lee, 358 F.3d 315, 321 (5th Cir. 2004)).
“Where, as here, further proceedings in the district
court are specified in the mandate of the Court of
Appeals, the district court is limited to holding such
as are directed.” Jd. (quoting Crowe v. Smith, 261 F.3d
558, 562 (5th Cir. 2001)).
Plaintiffs argue that a prior Fifth Circuit decision
in a criminal resentencing case indicates that the
district court has discretion to go beyond the man-
date. See Plaintiffs’ Supplemental Authority (citing
United States v. Matthews, 312 F.3d 652 (5th Cir.
2002)). Plaintiffs also cite a district court case from
the District of Hawaii, in which the district court
declined to apply the law of the case and permitted
further development of the record. Jd. (citing Casum-
pang v. International Longshore & Warehouse Union,
361 F. Supp. 2d 1195, 1201 (D. Haw. 2005)). To the
extent this Court has discretion to expand this case
as proposed by Plaintiffs in their motions, the Court
declines to extend this remanded case beyond the
issue specified in the mandate.
App. 70
The Court again notes that the case has been
remanded from the Fifth Circuit for the sole purpose of
determining whether the 1,500-foot distance restric-
tion, in hght of Ordinance 97-75 as a whole, affords
reasonable alternative avenues of communication for
sexually-oriented businesses. The Court declines to
expand this case beyond the terms of the mandate and
further declines to permit Plaintiffs to relitigate issues
expressly or impliedly decided by the Fifth Circuit.
Accordingly, it is hereby
ORDERED that Plaintiffs’ “Motion for Reconsid-
eration of Two Limited Aspects of Order on Remand”
[Doc. # 624] and Plaintiffs’ “Supplemental Motion for
Reconsideration Re Alameda Books Point” [Doc.
# 631] are DENIED. It is further
ORDERED that counsel shall submit by August
5, 2005 either an agreed docket control order or their
competing scheduling proposals for this Court’s consid-
eration of the single issue before it for determination. It
is further
ORDERED that the status and scheduling
conference is RESCHEDULED to August 11, 2005
at 1:00 p.m.
SIGNED at Houston, Texas, this 20th day of
July, 2005.
/s/ Nancy F. Atlas
Nancy F. Atlas
United States District Judge
App. 71
APPENDIX K
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
ICE EMBASSY, INC.., et al.,
Plaintiffs,
v.
THE CITY OF HOUSTON,
Defendant.
§
;
: CIVIL ACTION NO.
§ H-97-0196
8
8
§
MEMORANDUM AND ORDER
(Filed May 10, 2005)
Plaintiffs filed this lawsuit in 1997 challenging
the City of Houston’s Ordinance 97-75 governing
sexually-oriented businesses (“SOBs”). The case is
now before the Court on remand from the United
States Court of Appeals for the Fifth Circuit, N.W.
Enterprises, Inc. v. City of Houston, 352 F.3d 162 (5th
Cir. 2003), cert. denied, __~ U.S. 125 S. Ct. 416
(2004).
—-)
At Plaintiffs’ request, the Court accepted briefing
from the parties regarding which issues are before
the Court for decision. Plaintiffs argue that there are
numerous issues to be decided, including claims
raised by the Third Amended Complaint and other
matters Plaintiffs want to raise in a new amended or
supplemental complaint. Defendant argues that the
App. 72
only issue is the one remanded by the Fifth Circuit,
specifically “whether {the 1,500-foot distance] restric-
tion, in light of the Ordinance as a whole, affords
reasonable alternative avenues of communication for
SOBs.” Id. at 197. The remand of this case by the
Court of Appeals for the Fifth Circuit was extremely
specific and limited. Plaintiffs’ formulation of the
matters remaining to be decided is unsupported by
the record.
Plaintiffs argue that the Supreme Court’s deci-
sion in City of Los Angeles v. Alameda Books, Inc.,
535 U.S. 425 (2002), which was decided after this
Court’s ruling and before the decision by the Fifth
Circuit, requires that full discovery be permitted in
order that Plaintiffs may present evidence challeng-
ing Defendant’s evidence justifying the Ordinance.
The Fifth Circuit considered and discussed the Ala-
meda Books decision. The Fifth Circuit decision does
not require — nor permit — the discovery and eviden-
tiary battle proposed by Plaintiffs. The Fifth Circuit
interpreted Alameda Books to define the “standard of
constitutional scrutiny [as] whether Ordinance 97-75
addressed secondary effects of adult speech, as dem-
onstrated by the legislative record submitted by the
City.” N.W. Enterprises, 352 F.3d at 174. The Fifth
Circuit then stated that “[v]iewed from the perspec-
tive of Alameda Books, the City of Houston has
proven that its strengthened distance regulation
furthers substantial governmental interests.” Id. at
180. Consequently, the only additional evidence
contemplated by the Fifth Circuit’s remand is
App. 73
“whether there exists any basis for the fear ... that
the ordinance seeks to reduce secondary effects by
depriving SOBs of reasonable avenues of communica-
tion.” Jd. at 183.
The parties also disagree about the time frame as
to which the evidence must show that there are
reasonable alternative avenues of communication.
Plaintiffs argue that the City must show that there
were sufficient alternative avenues of communication
when the Ordinance was enacted, currently, and
presumably all points in between. The City argues
that the evidence must show only that there were
adequate alternative avenues of communication in
the time frame of the Ordinance’s enactment. The
City’s position is supported by the Fifth Circuit's
decision in this case, describing and relying on evi-
dence of alternative avenues of communication “when
97-75 was enacted[.]” Jd. at 182; see also SDd, Inc. v.
City of Houston, 837 F.2d 1268, 1276-77 (5th Cir.
1988), cert. denied, 489 U.S. 1052 (1989) (determina-
tion regarding alternative avenues of communication
based on evidence before district court from time of
enactment). In 1986, the United States Supreme
Court in City of Renton v. Playtime Theatres, Inc., 475
U.S. 41 (1986), approved an ordinance because evi-
dence from its enactment in 1982 established that
alternative avenues of communication existed. Jd. at
53-54. Under the limited remand by the Fifth Circuit,
the City must show only that the Ordinance, at the
time it was enacted, provided reasonable alternative
avenues of communication for SOBs. The City is not
App. 74
required to prove the number of SOBs and the num-
ber of alternative sites at various points in time
thereafter.
Plaintiffs also seek to pursue issues contained in
the Third Amended Complaint, which the Court in its
June 11, 1998 Order allowed to be filed. Plaintiffs
argue that the Court did not previously decide chal-
lenges in the Third Amended Complaint regarding
residential proximity and multi-family dwelling
provisions of Ordinance 97-75 and, therefore, those
challenges need to be addressed now. The Court
permitted the Third Amended Complaint, however,
only after determining that all issues raised were
already addressed by the Court. See N.W. Enterprises,
Inc. v. City of Houston, 27 F. Supp. 2d 754, 911 (S.D.
Tex. 1998) (noting that the Third Amended Complaint
“will not cause any delay, since the Court, in this
Opinion, has already addressed the issues included in
the Complaint”). The Court aiso noted that “{aJny
arguments raised by Plaintiffs that are not addressed
explicitly in this Opinion are rejected.” Jd. at 785. The
Fifth Circuit affirmed this Court’s decision “in its
entirety” with limited exceptions not relevant to
Plaintiffs’ challenges to the residential proximity and
multi-family dwelling provisions. N.W. Enterprises,
352 F.3d at 197. All such challenges contained in the
Third Amended Complaint have been rejected by this
Court, this Court’s decision on the issue has been
affirmed by the Fifth Circuit, and the Supreme Court
denied Plaintiffs’ petition for a writ of certiorari.
App. 75
Accordingly, these challenges are no longer before this
Court.
Plaintiffs express an intent to file another
amended or supplemental complaint seeking declara-
tory relief regarding a number of issues, including
disqualifying uses, whether the City may consider
disqualifying uses not in existence in 1997. and
whether the Court will permit the City to consider
only disqualifying uses that were in existence when
Plaintiffs filed their initial permit applications prior
to 1997. The City responds that the Ordinance pro-
vides that “disqualifying uses” for an SOB applicant
is to be determined as of the date of application. As is
discussed above, the Fifth Circuit remanded this case
for determination of a single, well-defined issue.
Additional amendments to Plaintiffs’ complaint will
not be permitted at this late stage of the proceedings.
“(T]he mandate rule compels compliance on
remand with the dictates of a superior court and
forecloses relitigation of issues expressly or impliedly
decided by the appellate court.” Henderson v. Stalder,
_. F.3d __, 2005 WL 845913 *2 (5th Cir. Apr. 13,
2005) (quoting United States v. Lee, 358 F.3d 315, 321
(5th Cir. 2004)). “Where, as here, further proceedings
in the district court are specified in the mandate of
the Court of Appeals, the district court is limited to
hoiding such as are directed.” Id. (quoting Crowe v.
Smith, 261 F.3d 558, 562 (5th Cir. 2001)).
Based on the foregoing, the Court concludes that
the case has been remanded from the Fifth Circuit for
App. 76
the sole purpose of determining whether the 1,500-
foot distance restriction, in light of Ordinance 97-75
as a whole, affords reasonable alternative avenues of
communication for SOBs. The Court is limited to the
terms of the mandate and cannot permit Plaintiffs to
relitigate issues expressly or impliedly decided by the
Fifth Circuit. It is hereby
ORDERED that counsel shall submit by May
25, 2005 either an agreed docket control order or
their competing scheduling proposals for this Court's
consideration of the single issue before it for determi-
nation.’ It is further
ORDERED that counsel for the remaining parties
shall appear before the Court on June 3, 2005 at 2:00
p.m. for a status and scheduling conference.
SIGNED at Houston, Texas, this 10th day of
May, 2005.
/s/ Nancy F. Atlas
Nancy F. Atlas
United States District Judge
' The City’s current proposed schedule does not allow
sufficient time to develop the case for final disposition, and
Plaintiffs’ current proposal includes much more time than is
necessary. Accordingly, the parties are directed to confer in an
attempt to reach agreement on a schedule for this case which is
both adequate reasonable.
App. 77
APPENDIX L
352 F.3d 162
United States Court of Appeals,
Fifth Circuit.
N.W. ENTERPRISES INCORPORATED; Amethyst
Enterprises Inc.; Campus Investments Incorporated;
1431 West 18th, Inc., Plaintiffs-Appellees, FTU Inc.;
DAJO Inc.; Ice Embassy Inc.; Texas Richmond
Corporation; Andrea Stafford; Frank I. Kent; Naomi
L. Parrish; Ann Marie Hasselbach; Jeanne L.
Grigsby; Susan Boyle; Dana Lynn Thomas; Kimberly
Ann Dushman; Michelle Hadley; Colleen Cloer; Leah
Marie Wilson; Carla K. Eaton; Chery] Thompson;
Robert G. Furey; HFR Enterprises, Inc.; Andrea Hill;
Gina Oliver; Heather Weldin; Charisma Barry;
Donna Soto; Andrea Allbright Marco; AHD Houston
Inc., a Texas Corporation d/b/a Centerfolds; DNW
Houston, Inc.; Parabar Co., doing business as
Paradise Club; Jane Doe One, Applicants; Jane Doe
Two, Applicants; Dee & Dee Enterprises, Inc.;
9924 J-45 North, Inc.; Hi-Houston, Inc.; Charles
Wesley, Inc.; Chil Soung, Inc., doing business as BJ’s
24 Hour Newsstand; Daris, Inc., doing business as
Riveria Cabaret; GNCD, Inc., doing business as
Fantasy South; Rude Dog II, Inc., doing business as
Scores Cabaret; Lone Starr Multi Theatres, Inc.,
doing business as Cinema West; AVW, Inc., doing
business as Adult Video Megaplexxx; CLMS, Inc.,
doing business as 24 Hour Video & News; C-Snap,
Inc., doing business as Interludes; East Bay, Inc.,
doing business as East Tex 24 Hour News & Video,
doing business as Hempstead Adult Bookstore, none,
doing business as XTC Cabaret Center;
App. 78
TNT Services, Inc., doing business as Xcalibur; 9834
Jensen, Inc., doing business as Harlem Knights; 8503
North Freeway, Inc., doing business as Fantasy
Cabaret; Corporate Clubs of Texas, Inc., doing
business as Fantasia I XTC; US Clubs, Inc., doing
business as Fantasia II] XTC; XTC Cabaret, Inc.,
doing business as XTC; DHL Inc., doing business as
Executive XTC; Cherie Feldman, doing business as
Executive Playmates; Eve Enterprises, Inc., doing
business as Club Royale; Long Tran, doing business
as Ellington Newsstand; Nien X. Nguyen, doing
business as DT Video; WMF Investments, Inc., doing
business as Chesapeake Bay; AKM, Inc., doing
business as Gigi’s Cabaret; DHR, Inc., doing business
as Hi-10 Cabaret; Panah, Inc., doing business as
Mirage Cabaret; R&R Entertainment, Inc., doing
business as Moments Cabaret; SSD Enterprises, Inc.,
doing business as Ritz Cabaret; HHE, Inc., doing
business as Passion Cabaret; F&R Club, Inc., doing
business as Silk Bar & Grill Cabaret; Atcomm
Services, Inc., doing business as Broadsteets;
Houman Shaghagi, doing business as Foxxy’s
Cabaret; Southeast Texas Ventures, A Texas Joint
Venture, doing business as The Trophy Club; KMRC,
Inc., doing business as LaChatte; Aris Mylonas, doing
business as Baby Dolls Saloon; MK Club &
Restaurants, Inc., doing business as Moulin Rouge;
10128 TDC 1, Inc., doing business as Texas Dolls
Cabaret; Southwest Clubco, Inc., doing business as
Playmates; Duncan Burch, Inc., doing business as
Michael’s International; Obsession Cabaret, Inc.,
doing business as Obsession Cabaret; Norman R.
Glenn, doing business as West Mt. Houston
Newsstand, doing business as Far West News, doing
App. 79
business as Highway 6 Newsstand; James Drew,
doing business as Gold Touch Stress Clinic and Velvet
Touch Stress Clinic; Pete Caserly, doing business as
Northwest News; A to X Video, doing business as
Pacific Management Enterprises; Hughes & St. Clair,
Inc., doing business as Pacific Management
Enterprises; Quasar International, Inc., doing
business as Pacific Management Enterprises; Video
News, Inc., doing business as Pacific Management
Enterprises; Chuck Wesley, doing business as Pacific
Management Enterprises; Chuck Wesley, Inc., doing
business as Northwest News; Jacob Borenstein, doing
business as Northwest News; 12851-59 Westheimer,
Inc.; 608 West Mt. Houston, Inc.; Gino A. Barone,
doing business as Ban Management Co., also known
as Consolidated Video, doing business as Hilleroft
News & Video, doing business as Telephone Road
News & Video; Heaven Video & News; Airline Video
and Thai Company; City Wide Group, Inc., doing
business as Studz News; ANS, Inc., dba Lone Star
News, doing business as Lone Star News, Northstar,
Inc., dba North Freeway News; Northeast, Inc., dba
Gulf Freeway News, doing business as Gulf Freeway
News; Eastex 24-Hour Newsstand; G.W. Rogers; R.
Glass; G. Humphrey; D.L. Stoneham; L.J. Putterman;
M. Roberts; V.L. Auzston; J.J. Langen; H. Perez; A.
Lucke; Y. Hinojosa; A.N. McMillen; B. Webb; R.
Sternes; S. Mongonia; K. Martin; N. Roberts; V.
Gobea; D. Quick; K. Warren; R. Sanchez; S. Jurek; N.
Espinoza; C. Emery; K. Martin; C. Combs; J.
Dampier; W. Kalinowski; J. Crenshaw; L.M. Bates;
H. Mactavish; T. Dove; E. Castillo; K.K. Hannan;
C.J. Sharpe; A.A. Cook; N. Bailey; T.R. King;
L.B. Meagher; N. Henry; A. Bailey; D. Dodson;
App. 80
J. Suarez; A.N. McMillan; K. Rosenberry; C. Garcia;
M. Fisher; D.M. Muenzler; T.J. Oakley; D. Carswell;
A. Kelly; T. Western; K.A. Radar; L. Phillips; T. Jones;
A. Gibson; G. Pierce; N. Neuenfeldt; T. Allen;
S.L. Whittenburg; P.A. Buffin; C. Vaughn; T.L.
Aldape; S.Y. Noreno; L. Tauarez; T. Dardas; N. Barry;
T. Standride; J.D. Burden; S.S. Salazar; H.L. Lococo;
S. Brady; S. Nnoli; E.I. Street; D. Jorgenson;
D.G. Lewis; P.Z. German; J.M. Rogers, Jr.;
B. Templemire; R. Duncan; J. Easterwood; J.C. Acres;
W. Templemire, Jr.; Trumps, Inc., doing business as
Rick’s Cabaret, A Texas Corporation; Andrew Sefia,
doing business as Rumors, and others similarly
situated; D. Houston, Inc., doing business as
Treasures, a Texas Corporation; S.E. Management,
Inc., doing business as Northshore Video and
News, Jeana Wiley, Operator of Southeastern
Management; Norman S. Harrison,
Intervenor Plaintiffs-Appellees-Cross-Appellants,
Elgin Investment Company, Ltd., doing business as
French Quarter Theater; KQ Investments, doing
business as Amenity Caberet; Mark Thai Do; doing
business as Dong Kyong Modeling Studio; DSSS Aria
Merica, Inc., doing business as Solid Platinum, a
Texas Corporation; Marketing Organization of
America, Inc., doing business as Exclusive Tanning,
a Texas Corporation; Budget Distributors, Inc., doing
business as Franc’s of Beverly Hills, a Texas
Corporation; Michael D’s Restaurant, Inc., doing
business as Houston Salon & Fitness Center, doing
business as Texas Health Salon, a Texas Corporation;
Le Crazyhorse Cabaret Astrodome, Inc., doing
business as Malibu Resorts, doing business as
Sensational Impressions, a Texas Corporation;
App. 81
EPZ Trading Company, doing business as Texas
Health Salon, a Texas Corporation; Deux Soeur
Enterprises, Inc., doing business as Native Tan, a
Texas Corporation; Limerick, Inc., doing business as
Video Specials, a Texas Corporation; Your A to X
Video Outlet, Inc., a Texas Corporation,
Intervenor Plaintiffs-Appellees,
v.
CITY OF HOUSTON,
Defendant-Appellant-Cross-Appellee.
N.W. Enterprises Incorporated; Amethyst
Enterprises, Inc.; Campus Investments Incorporated;
1431 West 18th, Inc.;
Plaintiffs-Appellees-Cross-Appellants,
FTU Inc.; DAJO, Inc.; Ice Embassy, Inc.; Texas
Richmond Corporation; Andrea Stafford; Frank I.
Kent; AHD Houston, Inc., a Texas Corporation d/b/a
Centerfolds; DNW Houston, Inc.; Parabar Co., doing
business as Paradise Club; Jane Doe One, Applicants;
Jane Doe Two, Applicants; Dee & Dee Enterprises,
Inc.; 9924 I-45 North, Inc.; Hi-Houston, Inc.; Charles
Wesley, Inc.; D Houston, Inc., doing business as
Treasures, a Texas Corporation; HFR Enterprises,
Inc.; Andrea Allbright Marco; Naomi L. Parrish;
Ann Marie Hasselbach; Jeanne L. Grigsby;
Susan Boyle; Dana Lynn Thomas; Kimberly Ann
Dushman; Michelle Hadley; Colleen Cloer;
Leah Marie Wilson; Carla K. Eaton; Andrea Hil);
Gina Oliver; Heather Weldin; Charisma Barry;
Donna Soto; Cheryl Thompson; Robert Furey,
Intervenor Plaintiffs-Appellees-Cross-Appellants,
and
Chil Soung, Inc., doing business as BJ’s 24 Hour
Newsstand; et al. (referred to as Chil Soung Appellants),
App. 82
Intervenor Plaintiffs-Appellees-Cross-Appellants,
KQ Investments, doing business as Amenity Cabaret;
Mark Thai Do, doing business as Dong Kyong
Modeling Studio; Norman S. Harrison; DSSS Aria
Merica, Inc., doing business as Solid Platinum, a
Texas Corporation; Marketing Organization of
America, Inc., doing business as Exclusive Tanning,
a Texas Corporation; Budget Distributors, Inc.,
doing business as Franc’s of Beverly Hills, a Texas
Corporation; Michael D’s Restaurant, Inc., doing
business as Houston Salon & Fitness Center, doing
business as Texas Health Salon, a Texas Corporation;
Le Crazyhorse Cabaret Astrodome, Inc., doing
business as Malibu Resorts, doing business as
Sensational Impressions, a Texas Corporation; EPZ
Trading Company, doing business as Texas Health
Salon, a Texas Corporation; Deux Soeur Enterprises,
Inc., doing business as Native Tan, a Texas
Corporation; Limerick, Inc., doing business as
Video Specials, a Texas Corporation; Your A tc
X Video Outlet, Inc., a Texas Corporation;
Elgin Investment Company, Ltd., doing
business as French Quarter Theater,
Intervenor Plaintiffs-Appellees,
Wi
City of Houston,
Defendant-Appellant-Cross-Appellee.
Nos. 98-20255, 98-20885.
Nov. 25, 2003.
Gerald E. Hopkins (argued), Langtry, TX, for
Plaintiffs-Appellees, Vista Video Corp. and Skyock.
App. 83
David Allen Furlow, Thompson & Knight, Hous-
ton, TX, for FTU, Inc., DAJO, Inc., Ice Embassy, Inc.,
Texas Richmond Corp., Stafford and Kent.
Joe William Meyer, Meyer, Knight & Williams,
Houston, TX, John Haldane Weston, G. Randall
Garrou (argued), Weston, Garrou & DeWitt, Los
Angeles, CA, for FTU, Inc., DAJO, Inc., Ice Embassy,
Inc., Texas Richmond Corp., Stafford, Kent, Parrish,
Hasselbach, Grigsby, Boyle, Thomas, Dushman,
Hadley, Cloer, Wilson, Eaton, Thompson, Furey, HFR
Enterprises, Inc., Hill, Oliver, Weldin, Barry, Soto and
Marco.
John E. Hill, Houston, TX, for Elgin Inv. Co. Ltd.
Mike J. DeGeurin, Foreman, DeGuerin, Nugent
& Gerger, Donald B. McFall, McFall, Sherwood &
Breitbeil, Joseph Matthew Grant, The Grant Law
Firm, Houston, TX, for AHD Houston, Inc., DNW
Houston, Inc., Parabar Co., Jane Doe Two and Hous-
ton, Inc.
Becki M. Fahle, John J. Fahle, III, Carter &
Fahle, San Antonio, TX, for Dee & Dee Enterprises,
Inc., 9924 I-45 North Inc., Hi-Houston, Inc. and
Charles Wesley, Inc.
Philip W. Boyko, Houston, TX, for Do and Harri-
son.
L. Paul Decuir, Jr., Channelview, TX, for DSSS
Aria Merica Inc.
App. 84
Beatrice A. Mladenka-Fowler (argued),
Mladenka-Fowler & Associates, Gilbert D. Douglas
(argued), Donna L. Edmundson, The City of Houston
Legal Dept., Houston, TX, Michael Acuna, Dallas, TX,
for City of Houston.
Nelson T. Helsley, Houston, TX, for Intervenors
Plaintiffs-Appellees-Cross-Appellants and XTC
Cabaret, Inc.
Appeals from the United States District Court for
the Southern District of Texas.
Before GARWOOD, JONES and STEWART,
Circuit Judges.
EDITH H. JONES, Circuit Judge:
These appeals and cross-appeals by the City of
Houston and regulated entities arise out of an action
brought by 105 individuals and 88 adult entertain-
ment establishments challenging the City of Hous-
ton’s 1997 amendments to its ordinances governing
sexually oriented businesses (SOBs). We overrule the
district court’s determination that certain provisions
of the amendments should be treated as content-
based and thus subject to strict scrutiny. Instead, all
of the provisions of City Ordinance 97-75 challenged
on First Amendment grounds should be subjected to
intermediate scrutiny. We reverse and remand the
court’s holding that invalidated the provisions of the
amendments that extended the distance regulations
for SOBs. We dismiss for lack of appellate jurisdiction
the court’s partial rulings on the provisions that
App. 85
included public parks and redefined multi-family
dwellings for purposes of establishing buffer zones
between SOBs and protected land uses. We affirm the
district court’s judgment in nearly all other respects.
BACKGROUND
City Ordinance 97-75 is the most recent in a long
line of ordinances enacted by the City of Houston to
regulate SOBs.’ In 1977, the City enacted Ordinances
77-1259 and 77-1260, which prohibited the operation
of adult commercial establishments within 2,000 feet
of any church, school, or other educational or charita-
ble institution. N.W. Enters., Inc., 27 F.Supp.2d at
770. This ordinance was struck down by a federal
district court on First and Fourteenth Amendment
grounds; on appeal this court did not reach the con-
stitutional issues. Id.
The City of Houston enacted new ordinances in
1983, 1985, 1986, 1991, and 1997. Under the 1985
version of the ordinance (as amended in 1986), SOBs
were prohibited from operating within 750 feet of a
school, church or place of worship, or daycare center;
or within 1,000 feet of any other SOB, or on any other
tract of land for which seventy-five percent or more of
the tracts within a 1,000-foot radius were residential.
Id. The 1985/1986 ordinance also regulated the
' For a more detailed recounting of the history of the City of
Houston’s regulation of SOBs, see N.W. Enters., Inc. v. City of
Houston, 27 F.Supp.2d 754, 770-72 (S.D.Tex.1998).
App. 86
exterior decor and signage of SOBs. Id. These regula-
tions were upheld against various constitutional
challenges in SDJ, Inc. v. City of Houston, 837 F.2d
1268 (5th Cir.1988), cert. denied sub nom., M.E.F.
Enters., Inc. v. City of Houston, 489 U.S. 1052, 109
S.Ct. 1310, 103 L.Ed.2d 579 (1989).
Ordinance 97-75 was enacted on January 15,
1997. It significantly amended Houston’s ordinances
governing SOBs. Several aspects of 97-75 are chal-
lenged in this case: (1) the increase in the minimum
distance from 750 feet to 1,500 feet between an SOB
and protected land uses; (2) the addition of public
parks to the lst of protected land uses; (3) the in-
creased importance of multi-family dwellings in
determining whether an area is at least seventy-five
percent residential; (4) regulations of “adult mini-
theatres”; (5) delayed implementation and amortiza-
tion provisions; (6) added restrictions on exterior
signs; (7) added requirements regarding interior
lighting, design and layout; and (8) licensing of man-
agers and entertainers.
The appellees filed suit a week after the ordi-
nance was enacted. In 1998, the district court granted
summary judgment on most of the issues in the case.’
* The district court issued three separate opinions: (1)
Amended Memorandum Opinion and Order of June 9, 1998,
N.W. Enters., Inc., 27 F.Supp.2d at 754; (2) Supplemental
Memorandum Opinion and Order of June 11, 1998, N.W. Enters.,
Inc., 27 FSupp.2d at 860; and (3) Amended Memorandum
(Continued on following page)
App. 87
The district court held that the portion of the ordi-
nance increasing the distance requirements was an
unconstitutional content-based regulation that must
be reviewed with strict scrutiny under the First
Amendment. The court denied summary judgment on
whether it was constitutional to add public parks to
the list of protected uses and on the modification of
the treatment of multi-family dwellings, finding
genuine issues of material fact as to whether there
would be sufficient alternative avenues of communi-
cation for the SOBs if these modifications were up-
held. The court upheld nearly all of the provisions of
the ordinance related to exterior and interior appear-
ance, implementation and amortization, finding that
they were content-neutral regulations that survive
intermediate scrutiny. The court subjected the sign-
age provision’s application to § 216 of the Texas Local
Government Code. The court upheld the regulations
pertaining to adult mini-theatres. The court upheld
the permit requirements for entertainers and manag-
ers under intermediate scrutiny but enjoined the City
of Houston from requiring on individuals’ applications
the disclosure of personal phone numbers, home
addresses, and criminal record information beyond
what the Ordinance uses in granting or denying a
permit. The court also enjoined the City from requir-
ing managers to conspicuously display personal
identification cards while working in SOBs, as it
Opinion and Order Regarding Conspicuous Display Require-
ment of August 10, 1998, N.W. Enters., Inc., 27 F.Supp.2d at 913.
App. 88
found this requirement a content-based regulation
that does not withstand strict scrutiny.
STANDARD OF REVIEW
We review a district court’s grant of summary
judgment de novo. Hodges v. Delta Airlines, Inc., 44
F.3d 334, 335 (5th Cir.1995) (en banc). Summary
judgment is appropriate when, viewing the evidence
and all justifiable inferences in the light most favor-
able to the non-moving party, there is no genuine
issue of material fact and the moving party is entitled
to judgment as a matter of law. Hunt v. Cromartie,
526 U.S. 541, 552, 119 S.Ct. 1545, 143 L.Ed.2d 731
(1999); see also Fed.R.Civ.P. 56(c). If the moving party
meets its burden, the non-movant must designate
specific facts showing there is a genuine issue for
trial. Little v. Liquid Air Corp., 37 F.3d 1069, 1075
(5th Cir.1994) (en banc). We review questions of
statutory interpretation de novo. Ott v. Johnson, 192
F.3d 510, 513 (5th Cir.1999).
DISCUSSION
Several dozen issues are raised on appeal by the
parties. Overarching the discussion are the questions
whether strict or intermediate scrutiny governs the
constitutional analysis of the Ordinance and whether
the Ordinance generally violates state constitutional
or statutory provisions. We will discuss these issues
first. Next we will address 97-75’s provisions that
limit the location of SOBs. The interpretation and
App. 89
constitutionality of amended regulations for the
physical structure and exterior signage of SOBs
comprise the third section of the opinion. Finally, we
consider issues surrounding the licensing of SOB
employees.
I. General Issues
A. Strict or Intermediate Scrutiny
While no sea change occurred in the constitu-
tional status of SOBs during the pendency of this
case on appeal, the Supreme Court refined the Ren-
ton test’ in the interim, see City of Los Angeles «
Alameda Books, Inc., 535 U.S. 425, 122 S.Ct. 1728,
152 L.Ed.2d 670 (2002), and partially superseded the
district court’s analysis. In Alameda Books, the Court
majority (including Justice Kennedy in a separate
concurrence) reaffirmed the three-part Renton test,
which considers (a) whether a sexually oriented
business zoning ordinance is a time, place and man-
ner regulation; (b) whether the ordinance is aimed at
the content of sexually-oriented speech (content-
based) or the “speech’s” secondary effects on the
community (content-neutral); and after passing those
tests, (c) whether the ordinance is designed to serve a
substantial governmental interest and leaves open
reasonable alternative avenues of communication.
See Alameda Books, 535 U.S. at 433-34, 122 S.Ct. at
° City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 50,
106 S.Ct. 925, 930, 89 L.Ed.2d 29 (1986).
App. 90
1733-34, citing City of Renton, 475 U.S. at 47, 106
S.Ct. at 930.
In that opinion, the Court expressly distin-
guished between the second and third parts of the
Renton test, explaining that:
The former requires courts to verify that the
“predominate concerns” motivating the ordi-
nance “were with the secondary effects of
adult [speech], and not with the content of
adult [speech].” The latter inquiry goes one
step further and asks whether the munici-
pality can demonstrate a connection between
the speech regulated by the Ordinance and
the secondary effects that motivated the
adoption of the Ordinance. Only at this stage
did Renton contemplate that courts would
examine evidence concerning regulated
speech and secondary effects.
Id. at 440-41, 122 S.Ct. 1728 (quoting Renton, 475
U.S. at 47, 106 S.Ct. 925) (alterations in original).
According to the majority, intermediate scrutiny
applies to SOB regulations whenever the governmen-
tal entity was predominantly concerned with regulat-
ing secondary effects of adult speech. Justice
Kennedy agreed that “the central holding of Renton is
sound: a zoning restriction that is designed to de-
crease secondary effects and not speech should be
subject to intermediate rather than strict scrutiny.”
Alameda Books, 535 U.S. at 448, 122 S.Ct. 1728
(Kennedy, J., concurring). Consequently, while Justice
Kennedy takes issue with the plurality’s use of the
App. 91
content-based/content-neutral dichotomy in_ these
cases, he, too, would apply the intermediate scrutiny
standard to regulate secondary effects of adult speech
so long as a municipal regulation does not ban the
protected speech.
The district court intermingled the second and
third prongs of the Renton test in a way rejected by
the Alameda Books majority. To determine the City’s
“predominant concern,” the district court felt it
should ascertain “whether the City Council relied on
evidence in the legislative record from which it could
have determined that negative secondary effects
associated with adult businesses actually exist and
that the proposed regulations would in some way
address these effects.” N.W. Enters., Inc., 27
F.Supp.2d at 776 (emphasis added). The district court
required this double proof before assessing the stan-
dard of review (strict or intermediate scrutiny) appli-
cable to each provision of 97-75. For example, in
discussing whether the provision that increased from
750 to 1,500 feet the distance an SOB must be located
from certain land uses was content-neutral or con-
tent-based, the court repeatedly stated that there was
no evidence in the record before the City Council that
SOBs caused secondary effects more than 750 feet
but less than 1,500 feet away. N.W. Enters., Inc., 27
F.Supp.2d at 805, 870, 875. Alameda Books forecloses
this approach.
The standard of constitutional scrutiny, after
Alameda Books, and taking into account Justice
Kennedy’s concurrence, is simply whether Ordinance
App. 92
97-75 addressed secondary effects of adult speech, as
demonstrated by the legislative record submitted by
the City. Even before Alameda Books, however, nei-
ther the Supreme Court nor this court required proof
of the efficacy of an ordinance in order to determine
the constitutional review standard. This court has
invariably analyzed ordinances regulating SOBs as
content-neutral time, place, and manner restrictions
where the legislative record demonstrated that the
municipality’s predominant concern was to regulate
secondary effects of SOBs and not to censor the
expression itself.“ Thus, in SDJ, Inc., as in other
cases, this court treated the ordinance at issue as a
content-neutral regulation where “the findings of the
Houston council as to the secondary effects of sexually
oriented businesses satisfy [the court] ... that the
city’s predominant concern was with secondary effects
and not the content of expression itself.” 837 F.2d at
* See, e.g., Encore Videos, Inc. v. City of San Antonio, 330
F.3d 288, 291 (Sth Cir.2003) (treating ordinance as content-
neutral where this court had previously found that the city had
specific evidence of secondary effects); LLEH, Inc. v. Wichita
County, Tex., 289 F.3d 358, 368 (5th Cir.2002) (finding adequate
evidence that county’s predominant concern was reducing
secondary effects where legislature gathered evidence of secon-
dary effects related to SOBs and the measures taken by other
legislatures); Lakeland Lounge of Jackson, Inc. v. City of Jack-
son, 973 F.2d 1255, 1258-59 (5th Cir.1992) (analyzing SOB
ordinance as content-neutral where the city council made
findings supported by evidence that SOBs have harmful effects
on the community).
App. 93
1273 (emphasis added).° This line of case fulfills
Renton, which, while reiterating that legislators’
subjective motivations alone cannot condemn an
otherwise constitutional statute, cited as sufficient
the purpose of the city’s ordinance. Renton, 475 U.S.
at 48, 106 S.Ct. at 929, quoting United States v.
O’Brien, 391 U.S. 367, 383-84, 88 S.Ct. 1673, 1683, 20
L.Ed.2d 672 (1968). Because that ordinance’s ex-
pressed purpose was to “protec[t] and preservle] the
quality of [the city’s] neighborhoods, commercial
districts, and the quality of urban life,’ not to sup-
press the expression of unpopular views,” id., the
Court deemed it content-neutral.
Further, the City need not demonstrate that the
City Council actually relied upon evidence of negative
secondary effects when it enacted 97-75. A local
government can justify a challenged ordinance based
both on evidence developed prior to the ordinance’s
enactment and that adduced at trial. J & B Entmt,
Inc. v. City of Jackson, Miss., 152 F.3d 362, 371-72
(5th Cir.1998) (citing Barnes v. Glen Theatre, Inc., 501
U.S. 560, 582, 111 S.Ct. 2456, 2469, 115 L.Ed.2d 504
(1991) (Souter, J., concurring)). This is because the
* The district court appears to have misread SDJ, as it cited
two paragraphs of that opinion dealing with the third Renton
inquiry, transposing an inapposite discussion to Renton’s
content-based/conient-neutrai secund inquiry. See N.W. Enters.,
Inc., 27 FSupp.2d at 777 (citing SDJ, 837 F.2d at 1274). SDJ
applied across-the-board intermediate scrutiny to Houston’s
ordinance without proof of efficacy under Renton’s second prong.
See 837 F.2d at 1273.
App. 94
“appropriate focus is not an empirical inquiry into the
actual intent of the enacting legislature, but rather
the existence or not of a current governmental interest
in the service of which the challenged application of
the statute may be constitutional.” Barnes, 501 U.S.
at 582, 111 S.Ct. at 2469 (Souter, J., concurring).
To require the legislature to show evidence of
negative secondary effects and of the new regulations’
efficacy requires too much of the City at this stage in
the inquiry. Disputes over the effectiveness of the
proposed regulations are properly reserved for the
final prong of the Renton analysis. See, Alameda
Books, supra.
The Houston City Council made express findings
of adverse secondary effects related to SOBs and the
City’s interest in ameliorating those effects. The
preamble to 97-75 states:
WHEREAS, the City Council finds that
sexually oriented businesses can exert de-
humanizing influences on churches, schools,
and day care centers, can have negative ef-
fects on property values, [and] can contribute
> As Justice Souter further noted: “At least as to the
regulation of expressive conduct, ‘we decline to void [a statute]
essentially on the ground that it is unwise legislation which [the
legislator] had the undoubted power to enact and which could be
reenacted in its exact form if the same or another legislator had
made a “wiser” speech about it.’” Barnes, 501 U.S. at 582, 111
S.Ct. at 2469 (Souter, J., concurring) (quoting United States v.
O’Brien, 391 U.S. 367, 384, 88 S.Ct. 1673, 20 L.Ed.2d 672
(1968)).
App. 95
to increased criminal activities in the sur-
rounding areas...and..
WHEREAS, the City Council finds that com-
prehensive new land use studies by the De-
partment of Planning and Development
demonstrate that increasing such distances
to 1,500 feet would not unduly impact the
availability of conforming sites for sexually
oriented businesses; and
WHEREAS, the City Council finds that in-
creasing such distances to 1,500 feet would
provide additional and needed protection to
the community from the adverse effects of
sexually oriented businesses without depriv-
ing such businesses of adequate opportuni-
ties to locate within the City; and
WHEREAS, the City Council finds that Arti-
cle III of Chapter 28 of the Code of Ordi-
nances should be amended to enhance
provisions regarding signage, configuration,
conduct of entertainment, age of admission
and related matters to reduce the secondary
effects of sexually oriented businesses upon
the community and further protect the
health, safety and welfare of the public; and
WHEREAS, the City Council finds that
sexually oriented businesses provide en-
hanced opportunities for employee participa-
tion in various forms of criminal activities,
including prostitution, lewd conduct, indecent
exposure, obscenity law violations and re-
lated crimes that are associated with sexual
conduct or sexually-oriented materials; and
App. 96
WHEREAS, the City has a substantial public
concern that its residents be protected from
criminal activity and be protected from cas-
ual sexual activity that facilitates the spread
of sexually transmitted diseases. ...
Preamble to Ordinance 97-75, at 2, 4.' Further, as
part of its summary judgment materials, the City
introduced sections of the legislative record support-
ing its current and former SOB ordinances. See N.W.
Enters., Inc., 27 F Supp.2d at 803 n. 103. That legisla-
tive record was held sufficient by this court to justify
characterizing Houston’s prior SOB ordinance as
content-neutral. See SDJ, Inc., 837 F.2d at 1273.
Together, these materials justify the conclusion
that the City’s predominate concern was to regulate
the secondary effects of SOBs. Under either the
plurality opinion or Justice Kennedy’s concurrence in
Alameda Books, intermediate scrutiny applies. The
City need not relitigate this issue every time its SOB
ordinances are challenged. As Justice Souter observed:
“Given our recognition that ‘society’s interest in
protecting this type of expression is wholly different,
” An eight-member committee of the Houston City Council
that proposed 97-75 specifically described its increased distance
regulations as a means “to protect such land uses from the
adverse secondary effects of SOBs,” “without unduly restricting
availability of conforming locations for sexually oriented busi-
nesses to operate.” The Committee report systematically ex-
plains the need for the regulations effected by 97-75 in terms of
the adverse secondary effects of SOBs, including increased
crime, illicit sexual conduct, and narcotics vivlations.
App. 97
and of lesser, magnitude, than the interest in un-
trammeled political debate, I do not believe that a
State is required affirmatively to undertake to liti-
gate this issue in every case.” Barnes, 501 U.S. at
584-85, 111 S.Ct. at 2470 (Souter, J., concurring); see
also City of Erie v. Pap’s A.M., 529 U.S. 277, 296-98,
120 S.Ct. 1382, 146 L.Ed.2d 265 (2000) (O’Connor, J.,
opinion joined by Rehnquist, C.J., Kennedy and
Breyer, JJ.) (city can rely on the evidentiary founda-
tion found in other Supreme Court cases regarding
secondary effects); Encore Videos, Inc. v. City of San
Antonio, 330 F.3d 288, at 291 (5th Cir.2003) (opinion
on reh.) (where a predecessor ordinance was suffi-
ciently supported to apply content-neutral review,
same findings were sufficient to consider a subse-
quent ordinance content-neutral); BGHA LLC v. City
of Universal City, Texas, 340 F.3d 295 (5th Cir.2003).
Because the constitutional standard of review
depends only upon the City’s predominate legislative
concern, not its pre-enactment proof that the ordi-
nance would work, there is no reason to parse each
provision of the ordinance separately to determine
the standard of review. The district court’s conscien-
tious methodology, bred by its misapplication of the
second prong of Renton, was flawed in this respect. In
fact, all parties seem to recognize the court’s error;
although differing in which level of scrutiny they
advocate, they urge us to apply one level consistently
to the Ordinance. The purpose and scope of the entire
Ordinance are reflected in the above-quoted pream-
ble, which summarizes City Council’s concern about
App. 98
multiple effects of SOBs. That all of such effects are
targeted by the Ordinance’s various provisions is
clear, as it is also clear that none of the provisions
directly censors adult speech. Thus, the Preamble,
together with the legislative record, provides suffi-
cient evidence to justify an intermediate scrutiny
standard of review to the entirety of 97-75, as a
content-neutral enactment.
B. The “Shell Game” Argument
Appellees argue that it is unconstitutional for a
city to change the rules repeatedly, with retroactive
impact, and to affect drastically the overwhelming
majority of existing adult businesses each time. The
district court rejected what the SOBs describe as a
“shell game” argument, observing that the City “has
the prerogative of experimenting with different possi-
ble solutions to municipal problems even when deal-
ing with First Amendment interests.” N.W. Enters.,
Inc., 27 FSupp.2d at 882 (citing City of Renton, 475
US. at 52, 106 S.Ct. at 931). The district court further
noted that the plaintiffs “cited no authority for the
proposition that enacting a significant change of rules
for adult businesses, even for a second time, in and of
itself violates the First Amendment.” Jd.
* The district court explained however, that each change to
the ordinance must satisfy “the requisite constitutional test.” Jd.
App. 99
On appeal, no relevant legal authority has been
cited in support of the “shell game” argument.’ More-
over, the SOBs have not attempted factually to sup-
port their contention that the City’s course of
amendments has successively put SOBs out of busi-
ness. Their argument also fails, because, as stated by
the district court, it conflicts with the authority
expressly reserved to cities in City of Renton, and
reaffirmed in Alameda Books, to experiment with
different possible solutions to municipal problems.
Renton, 475 U.S. at 52, 106 S.Ct. at 931; see also
Alameda Books, 535 U.S. at 434, 122 S.Ct. at 1736-
37. Appellees’ broad argument, if accepted, would
hobble municipalities.
C. Article I, Section 8 of the Texas Constitution
AHD contends that Article I, Section 8 of the
Texas Constitution affords broader free speech rights
to those involved in sexually oriented businesses than
does the federal Constitution. This argument is
foreclosed by Fifth Circuit precedent. Woodall v. City
° FTU does cite some cases only for the purpose of declaring
them inapplicable. Moreover, in its opening brief, FTU cites
Gammoh v. City of Anaheim, 73 Cal.App.4th 186, 86 Cal. Rptr.2d
194 (Cal.Ct.App.1999) in support of its shell game argument. In
Gammoh, the court held that the City of Anaheim could not
deny a permit to a sexually-oriented business that met al!
the requirements to obtain a permit on the basis that the City
may plan to “redevelop” the area in the future. Jd. at 199. FTU
makes no effort to explain why this analysis should apply in the
instant case.
App. 100
of El Paso, 49 F.3d 1120, 1127-28 (5th Cir.1995). Since
Woodall was written, neither the Texas Supreme
Court nor lower state courts have issued any rulings
undermining its conclusion.
D. 97-75’s Status as a Texas “Zoning Regula-
tion”
AHD argues that Ordinance 97-75 is a “zoning
regulation” that was not validly enacted. In Texas,
the passage of zoning regulations requires compliance
with special procedural rules. But AHD’s premise is
invalid. This ordinance is no zoning regulation. The
district court thoroughly and completely rejected this
argument. N.W. Enters., Inc., 27 F.Supp.2d at 795-98.
First, while the Texas Supreme Court character-
ized certain ordinances, which restricted the permis-
sible locations of mobile homes, as “hav[ing] the effect
of a zoning regulation,” the court also held that the
regulations were not “zoning regulations.” City of
Brookside Village v. Comeau, 633 S.W.2d 790, 793 n. 4
(Tex.1982). Second, AHD cites no authority to support
its argument that prohibiting adult businesses from
locating within 1,500 feet of churches, schools, day
care centers, parks, and residential areas would
produce hundreds of 162-acre regulated areas and
would effectively comprise a comprehensive land use
plan tantamount to zoning.
Finally, AHD observes that this and other courts
have described regulations similar to those in 97-75 as
zoning ordinances. For example, this court described
App. 101
the predecessor to 97-75 as “a detailed ordinance
imposing licensing and zoning restrictions upon
sexually oriented businesses” and described the
ordinance adjudicated in City of Renton as “a city
zoning provision similar to the Houston ordinance.”
SDJ, 837 F.2d at 1271, 1273. The use of generic
terminology in federal court opinions is a far cry from
a legal holding that the Houston ordinance amounts
to zoning under Texas law.
II. 97-75’s Provisions Regarding the Location of
SOBs and the Treatment of Multi-family Dwell-
ings and Public Parks as Protected Uses
The district court split the amended locational
restrictions on SOBs into three parts: the expansion
from 750 to 1,500 feet of the buffer zone between
SOBs and protected land uses; the addition of public
parks to protected land uses; and the extra weight
afforded multi-family residences in the buffer zone
calculation.” The court then separately determined
the constitutional standard of scrutiny for each part
of the restrictions according to the methodology we
have previously found in error. Additional procedural
'° Section 28-125(bX1) of 97-75 states that an SOB cannot
receive a permit to operate if the SOB is within 1,500 feet of any
school, church, public park, or licensed day-care center. Further,
Section 28-125(bX3) of 97-75 prohibits issuance of an SOB
permit if seventy-five percent of the tracts in an area within
1,500 feet of the SOBs location are residential in character.
Section 28-125(bX3) also counts a multi-family tract equivalent
to eight residential tracts.
App. 102
and substantive complications flow from the court’s
final complex ruling on locational restrictions. Ulti-
mately, however, the locational restrictions lack only
one qualification for being instantly upheld.
First, although the court no doubt acted with the
best intentions, it should not have trifurcated the
locational restrictions. The court cited no authority to
explain why separate constitutional analysis of the
components of a buffer zone formula is required,
meaningful or practical. That a city may choose to
insulate public parks and multi-family residences
from SOBs because of the likely presence of children
at the protected locations is just as obvious, and done
for the same reasons, as the choice of insulating
schools, churches, single-family homes and day-care
centers." (Houston’s ordinance already protected
these other land uses.) The material constitutional
questions, posed by Renton’s third prong, are whether
the buffer zone in toto addresses substantial govern-
mental interests and leaves sufficient alternative
avenues of communication. Thus, the City was re-
quired to justify its buffer zone in light of all the
protected uses it might define. The City’s burden is
substantial even without its having to foresee, and
separately map out, the possibilities that would arise
from a court’s picking and choosing among each
individual protected use. Here, for instance, the court
' Even under its flawed methodology, the district court
expressly held that the public parks and multi-family residence
components serve a substantial governmental interest.
App. 103
was requiring the City to provide information on the
separate impacts of public parks and the recalculated
multi-family residence formula on the number of
alternative sites available for SOBs. Given such
facially legitimate protected land uses, however, the
court should have analyzed the locational restrictions
adopted by the City rather than hypothetical varia-
tions it created by deconstructing the buffer zone
rule.
Second, the court’s trifurcation creates a question
of appellate jurisdiction, which we consider sua
sponte. The court certified for review under Fed. R.
Civ. Proc. 54(b) its decision that the 1,500-foot buffer
zone, increased from 750 feet, is “content based” and
unconstitutional under a strict scrutiny standard.
The court also certified as a “final” judgment under
Rule 54(b) its partial approval of the public parks and
multi-family residence components of the buffer zone,
but, finding fact issues extant, it expressly declined to
complete the analysis of those components.” The
latter certifications are flawed, because Rule 54(b)
allows a district court to enter final judgment “as to
one or more but fewer than all of the claims or parties
only upon an express determination that there is no
just reason for delay. .. .” Eldredge v. Martin Marietta
” The court heid that factfinding was required to determine
whether the parks and multi-family residence provisions left
sufficient alternative: avenues of communication to satisfy
Renton’s third prong. See N.W. Enters., Inc., 27 F.Supp.2d at
911-12.
App. 104
Corp., 207 F.3d 737, 740 (5th Cir.2000) (quoting Rule
54(b)). At best, the court certified only elements of
what it viewed as separate claims concerning the
public parks and multi-family residence components.
The certifications satisfy neither the “final judgment”
nor “separate claim” requirements of Rule 54(b).
Consequently, we lack Rule 54(b) appellate jurisdic-
tion over the public parks and multi-family residence
provisions.
The issue thus correctly before us is the constitu-
tionality of the City’s amended 1,500-foot locational
restriction without considering the public parks and
multi-family residence amendments. See City of
Renton, 475 U.S. at 53-54, 106 S.Ct. at 932. The
amended restriction is reviewed under intermediate
scrutiny, as was previously explained.” Under the
Renton test, the remaining questions are whether the
increased locational restriction addresses substantial
governmental interests and allows reasonable alter-
native avenues of communication.
In Alameda Books, the Court determined to
“clarify the standard for determining whether an
ordinance serves a substantial governmental inter-
est.” 535 U.S. at 430, 122 S.Ct. at 1731. The plurality
began with a recapitulation of Renton, noting that the
city there had met its burden of proving that an
'’ Because the district court erroneously applied strict
scrutiny review, its invalidation of this part of 97-75 cannot be
sustained.
App. 105
ordinance prohibiting the location of any SOB within
1,000 feet of protected land uses served a substantial
governmental interest. The city had relied on other
cities’ studies of the secondary effects of SOBs. With
regard to the different type of SOB dispersal ordi-
nance at issue before it in Alameda Books, the Court
rejected the Ninth Circuit’s requiring Los Angeles to
prove that the amelioration of secondary effects
postulated by its ordinance “is a necessary conse-
quence of” Los Angeles’s independent study. Id. at
437, 122 S.Ct. at 1735. The Court added that it would
not require localities to disprove other possible impli-
cations of the legislative materials at their disposal,
because Renton “specifically refused to set such a
high bar for municipalities that want to address
merely the secondary effects of protected speech.” Id.
at 438, 122 S.Ct. at 1736. Nor would municipalities
be required to prove, not merely by common sense,
but empirically, that SOB ordinances will successfully
reduce crime, as this would undermine Renton’s
allowance of local experimentation in responding to
secondary effects. Jd. at 439, 122 S.Ct. at 1736.
The Court explained its deference to the legisla-
tive evidentiary judgment as born of competing
policies: that of protecting constitutional speech and
that of respecting local legislators’ superior under-
standing of local problems. Jd. at 440, 122 S.Ct. at
‘* Justice Kennedy’s concurrence approves the Court's
treatment of the evidentiary questions. 535 U.S. at 451, 122
S.Ct. at 1742-43.
App. 106
1737. The point of deference is this: legislators cannot
act, and cannot be required to act, only on judicial
standards of proof. Legislative zoning decisions are
generally upheld on a rational basis standard. Impos-
ing a level of intermediate scrutiny, in cases like this,
requires more conviction of the connection between
legislative ends and means than does the rational
basis standard, but only in the sense of “evidence...
[that] is reasonably believed to be relevant” to the
secondary effects in question. Alameda Books, 535
U.S. at 442, 122 S.Ct. at 1738, quoting Renton, 475
U.S. at 51-52, 106 S.Ct. at 931.
Viewed from the perspective of Alameda Books,
the City of Houston has proven that its strengthened
distance regulation furthers substantial governmen-
tal interests. The challengers did not demonstrate
that the evidence fails to support the City’s rationale
or that the City’s factual findings are wrong. Ala-
meda, 535 U.S. at 439, 122 S.Ct. at 1736 (municipal-
ity “cannot get away with shoddy data or reasoning.”)
Hypothesizing, as the City of Houston did here, that
the adverse secondary effects of SOBs, such as in-
creased crime, auto theft, opportunities for prostitu-
tion and transmission of sexual diseases,
neighborhood blight, and reduced property values
would be decreased by dispersing SOBs further from
protected land uses, is hardly a new concept. Conse-
quently, after relying on the judgments, both legisla-
tive and judicial, that supported its previous SOB
distance regulations and after conducting public
hearings (with a mailing list of over 1,000 names),
App. 107
receiving hundreds of written submissions,” and
receiving copious materials from its Planning, Police
and Legal Departments, the City concluded that (a)
adverse secondary effects of SOBs remain a problem”
and (b) increasing the distance restriction to as much
as 1,500 feet is necessary to restrain those effects."’
* It is not unreasonable to expect a local government to be
responsive to the concerns of its citizens as expressed through
various community institutions. In this case, the support for
substantive regulation of SOBs came from organizations that
represent homeowners throughout the City of Houston, from the
wealthiest to the poorer neighborhoods. The democratic legiti-
macy that such support affords a legislature is an important
consideration for courts to keep in mind when according the
legislature the appropriate measure of deference it deserves.
See, e.g., R. Doc. 81, Ex. 22B at 16 (Downtown Historic District,
Inc.); id. at 32 (Southeast Neighborhood Coalition); id. at 48
(East Montrose Civic Association); id. at 71 (Greater Hobby Area
Partnership); id. at 79 (Gulf Freeway Oaks Club); id. at 80
(Boulevard Oaks Civic Association); id. at 114-16 (Houston
Heights Association); id. at 193 (Midtown Tax Increment
Reinvestment Zone No. 2); id. at 223 (Upper Kirby District
Association); id. at 244 (Southeast Neighborhood Coalition); id.
at 250 (South Main Center Association); id. at 261 (Sharpstown
Civic Association); id. at 265 (Boulevard Oaks Civic Association
and Southampton Civic Club); id. at 266 (Richmond/Westheimer
Residents Association, Inc.); id. at 274 (Neartown Association).
The civic associations uniformly supported more rigorous
locational restrictions, and several noted that SOBs, by their
attraction of crime and undesirable clientele, were hindering
efforts to renovate rundown or disadvantaged neighborhoods.
‘* The number of SOBs in Houston has increased substan-
tially since the City enacted its distance regulations in 1983.
" There is evidence in the legislative record that increasing
the distance to 1,500 feet from redefined residential tracts may
actually yield more permissible locations for SOBs, or at the
(Continued on following page)
App. 108
On similar evidence, this court recently found that a
Texas city’s SOB zoning ordinance fulfilled the “sub-
stantial government interest” prong of Renton. See
BGHA, LLC v. City of Universal City, Texas, supra.
The district court alternatively held that the City
failed to prove its amended buffer zone is “narrowly
tailored” at 1,500 feet, but in light of Renton, as
explained by Alameda Books, requiring proof to this
degree of exactitude set the bar too high. The City is
entitled to experiment with distance regulations. See
also, SDJ, Inc., supra at 1276 (courts will not chal-
lenge city’s legislative decision on the most appropri-
ate distance). Courts should not second-guess such
restrictions as long as they are not designed as a
subterfuge for banning the protected speech. Here,
the hearings, Legal Department advice, SOB Ordi-
nance Revision Committee’s Legislative Report, and
the Preamble to 97-75 all disclaim any such goal.
The district court’s concern with the City’s dou-
bling of its buffer zone from 750 to 1,500 feet between
SOBs and protected land uses is better placed with
Renton’s last inquiry, which concerns whether the
regulation leaves available sufficient alternative sites
very least does not appreciably reduce the permissible locations,
as it increases the circle within which residences may be
counted. As a result, the residential component of the larger
circle may decrease. Dee & Dee’s brief and the district court
acknowledge this effect. See N.W. Enters., 27 FSupp.2d at 880.
The district court will of course explore this possibility further
on remand.
App. 109
for the protected speech. Justice Kennedy’s concur-
rence in Alameda Books, a vote necessary to the
Court’s judgment,”* emphasizes that the City may not
use its regulation to eliminate businesses as a means
to reduce their secondary effects. Alameda Books, Id.
at 451, 122 S.Ct. at 1728. Before enacting 97-75, the
Citys SOB Ordinance Revision Committee took
extensive testimony from Joseph Chow, the Planning
Department’s executive responsible for determining
the practical effect of each of the municipal SOB
distance ordinances for the last 20 years. Chow
discussed at length in a legislative hearing how the
Planning Department, aided by new computer tech-
niques, calculated the availability of potential SOB
sites under all of 97-75’s locational restrictions.”
Even with the 1,500-foot requirement, strengthened
by the addition of public parks and recalculation of
multi-family residences, Chow estimated conserva-
tively that the City offers thousands of potential SOB
sites. After litigation commenced, the City offered the
two-page affidavit of a Police Vice Division Officer,
Steven Andrews, who asserted that 97-75 affords at
least 1,362 actual conforming SOB sites and 183 sites
'" See Marks v. United States, 430 U.S. 188, 193, 97 S.Ct.
990, 51 L.Ed.2d 260 (1977) (rationale of deciding vote on Su-
preme Court is critical).
'* Chow’s estimates in this regard have been accepted by
cuurtis that turned down two previcus challenges te Housten’s
SOB ordinances. SDJ, Inc., supra; 4330 Richmond Avenue, Inc.
v. City of Houston, C.A. No. 91-0665, 1997 WL 1403893
(S.D.Tex.1997), aff'd per curiam, No. 97-20798, 166 F.3d 338,
1998 WL 911994 (5th Cir. 1998) (unpub’d).
App. 110
that can be operated consistently with the minimum
distance between adult businesses. Since there were
at most 128 SOBs in Houston when 97-75 was en-
acted, under any of these estimates it would seem
that the City could support its contention that suffi-
cient alternative avenues of communication have
been provided.”
Like many other issues in this case, however, the
path to resolving the question of reasonable alterna-
tive sites is not straight. To begin with, the City bears
the burden of proving the existence of reasonable
alternative sites. See SDJ, Inc., 837 F.2d at 1273
(“Applying [the Renton] test requires the City to
prove that the Ordinance ... leaves open alternative
channels of communication.”). See also Alameda
Books, 535 U.S. at 434, 122 S.Ct. at 1733-34 (plural-
ity opinion states that the ordinance in Renton
“would be upheld so long as the City of Renton
showed ... that reasonable alternative avenues of
communication remained available”); Lim v. City of
Long Beach, 217 F.3d 1050, 1054 (9th Cir.2000);
Phillips v. Borough of Keyport, 107 F.3d 164, 177 (3d
* This court has held that the provision of just one more
site than the existing number of SOBs satisfies a city’s obliga-
tion to provide alternative avenues of communication. Woodall v.
City of El Paso, 49 F.3d 1120, 1127 (5th Cir.1995); see also
Lakeland Lounge v. City of Jackson, Miss., 973 F.2d 1255, 1259-
60 (5th Cir.1992) (nine sites for six businesses; Renton does not
require a specific proportion of a municipality be open to adult
businesses or a certain number of sites); Grand Brittain, Inc. v.
The City of Amarillo, 27 F.3d 1068, 1069 (5th Cir.1994).
App. 111
Cir.1997) (en banc). But cf. Woodall vu. City of El Paso,
49 F.3d 1120, 1126 (5th Cir.1995) (“The Adult Busi-
nesses had the burden of proving that the ordinances
... failled] to provide reasonable alternative avenues
of communication.”)
The City did not meet its burden for two techni-
cal reasons. First, Chow’s testimony to the SOB
Ordinance Revision Committee was neither offered
by the City nor admitted by the district court for the
truth of its contents in the summary judgment pro-
ceedings.” The district court specifically noted this
failing, N.W. Enters., Inc., 27 F.Supp.2d at 877. Sec-
ond, and somewhat inconsistently, the court also held
that the different estimates of reasonable alternative
sites made by Chow and Officer Andrews, both of
which well exceed the total number of SOBs affected
by 97-75, created a genuine, material fact issue on
which it declined to rule. N.W. Enters., Inc., 27
F.Supp.2d at 880-81. We agree with the district court
and with the SOBs, however, that Andrews’ affidavit
is too conclusory to be probative for summary judg-
ment purposes.” In its one-and-a-half pages, there is
neither any explanation of Andrews’ methodology nor
* The district court would have been correct to receive
Chow’s statements in proper evidentiary form, as against some
of the SOB’s objections on appeal that he was unqualified to give
“expert” testimony. His testimony on Houston’s SOB zoning
ordinances has been approved twice before in federal courts. See
SDJ, Inc., supra; 4330 Richmond, Inc., supra.
” The SOBs objected to the affidavit below on this basis.
See N.W. Enters., Inc., 27 F.Supp.2d at 880-81.
App. 112
is a map or other device incorporated by which his
conclusion may be verified. The City cannot sustain
its burden at this point solely based on Officer An-
drews’ affidavit.
On remand, further proceedings will be necessary
to determine whether there exists any basis for the
fear, expressed by Justice Kennedy in Alameda
Books, supra, that the ordinance seeks to reduce
secondary effects by depriving SOBs of reasonable
avenues of communication. If Chow’s legislative
testimony is properly admitted, and the City supports
Andrews’ testimony adequately, and if the SOBs
decline, as they did before, to offer controverting
evidence, the remaining doubts as to the ordinance’s
constitutionality in its entirety may be easily dis-
pelled on further summary judgment proceedings.”
* Chow’s legislative testimony and Andrews’ affidavit both
estimated the number of potential SOB sites considering the
entirety of 97-75: the 1,500-foot distance regulation and defining
public parks and redefined multi-family residences as protected
land uses. Since the district court has already upheld parts of
the public parks and multi-family residence provisions, the
remaining issue concerning alternative avenues of communica-
tion should be addressed as to the entirety of the buffer zone
regulations on remand.
App. 113
Ill. SOB Regulatory Issues
A. Applying 97-75 to Adult Arcades and Mini-
Theatres” |
1. Applicability of 97-75 Article III to the ar-
cades and mini-theatres regulated by Arti-
cle II
In two footnotes, the district court noted that,
while 97-75 Article II applies only to “adult arcades
and adult mini-theatres,” Article [II “applies to all
sexually oriented business enterprises, including
adult arcades and mini-theatres.” N.W. Enters., Inc.,
27 F.Supp.2d at 772 n. 35 (emphasis in original); see
also id. at 791 n. 81. N.W. Enterprises argues instead
that the ordinance, if properly construed, regulates
adult arcad
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