# Appendix — Ice Emb. Embassy, Inc. v. City of Houston (No. 07-914) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386010_0497%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 2007 ## Text 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 l [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386010_0497%3A2. Public record. Not legal advice.