Opposition Brief — Woodall v. City of El Paso

Supreme Court, U.S.

(2) FILED

y OCT 19 1995

IN THE

Supreme Court of the Anited States

OCTOBER TERM, 1995 —

PHYLLIS WOODALL, et. al.,

Petitioners,

Vv.

THE CITY OF EL PASO,

Respondent.

On Petition for Writ of Certiorari

To The United States Court of Appeals

For The Fifth Circuit

BRIEF IN OPPOSITION

EDUARDO MIRANDA*

CHERYL L.W. JACKSON

Ray, McChristian & Jeans

A Professional Corporation

801 North El] Paso Street

El Paso, Texas 79902-3903

(915) 541-7200

Attorneys for Respondent

The City of El Paso

*Counsel of Record

Alpha Lew Brief Company © Houston, Texas * (713) 981-9000 © 1-800-981-9001

go et

i

QUESTIONS PRESENTED

Is land that is physically and legally available, but

commercially undesirable to adult businesses,

constitutionally available under City of Renton v.

Playtime Theater, Inc.. 475 U.S. 41, 106 S. Ct. 925,

89 L. Ed. 2d 29 (1986), reh’g denied, 475 U.S.

1132, 106 S. Ct. 1163, 90 L. Ed. 2d 205 (1986)?

Does Article I, Section 8 of the Texas Constitution

provide greater protection than the First Amendment

in the context of zoning laws that regulate the

location of adult businesses?

‘i

LIST OF PARTIES

Counsel of record for Respondent City of El Paso

("El Paso") certifies that the following is a list of all parties

to the proceedings in the United States Fifth Circuit Court of

Appeals:

PHYLLIS WOODALL AND JEANNIE COUTTA,

Individually and D/B/A THE NAKED HAREM

AND THE COSMOPOLITAN

SOLEDAD AGUAYO

HIROYOSHI IWABUCHI and LUZ IWABUCHI

Individually and D/B/A/ THE CABARET

ESTELA RODRIGUEZ

ENRIQUE VILLANUEVA, Individually and

D/B/A SWINGER’S BOUTIQUE

WILLIE CENICEROS, Individually and

D/B/A SWINGER’S CINEMA

JEDJO, INC. AND SMD ENTERPRISES, INC.,

D/B/A THE LAMPLIGHTER AND THE RED FLAME

MARC DIEDRICH

BRUCE SEIKO

THE CITY OF EL PASO

ili

TABLE OF CONTENTS

Page

ee POE ST ee ee ee i

1. Is land that is physically and legally available,

but commercially undesirable to adult

businesses, constitu-tionally available under

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

U.S. 41, 106 S. Ct. 925, 89 L. Ed. 2d 29

(1986), reh’g. denied, 475 U.S. 1132, 106 S.

Ct. 1163, 90 L. Ed. 2d 205

a ars een ee eae fe eee i

2. Does Article I, Section 8 of the Texas

Constitution provide greater protection than

the First Amendment in the context of zoning

laws that regulate the location of adult

i wala o ge Wie de ra hee ee 0 ee i

F< - Tre eerrn et tee eee li

So fe, iii

pp Pe ips kay... Se vi

one hn See 6s 00:0 ¥ bee ew |

CONSTITUTIONAL PROVISIONS AND

ORDINANCES INVOLVED ................. 2

COUNTERSTATEMENT OF THE CASE ......... 2

REASONS FOR DENYING THE WRIT........ <a

Il.

Il.

IV.

CONCLUSION

iv

THERE ARE NO SPECIAL AND

IMPORTANT REASONS FOR GRANTING

pa: Pe a ee eee ee oe ee

THE DECISION OF THE COURT OF

APPEALS IS CONSISTENT WITH THIS

COURT’S HOLDING IN CITY OF RENTON

V. PLAYTIME THEATRES, INC. AND DOES

NOT CONFLICT WITH

ESTABLISHED PRECEDENT. .........

THE OPINION OF THE FIFTH CIRCUIT IS

IN HARMONY WITH OTHER

See ie ¢ ba seo ee

EL PASO WAS ENTITLED TO

JUDGMENT AS A MATTER OF LAW. ...

THE TEXAS CONSTITUTION DOES NOT

PROVIDE GREATER PROTECTION THAN

THE FIRST AMENDMENT IN THE

CONTEXT OF ZONING LAWS THAT

REGULATE THE LOCATION OF ADULT

PAR PRES Cheb ee ese ewes

APPENDIX A

(Opinion, United States Fifth Circuit Court of

Appeals, dated April 14, 1995) .........

APPENDIX B

ick. |

(City of El Paso Ordinance No. 6169, dated

oo ee ee ee ee

. 8

. 10

15

APPENDIX C

(City of El Paso Ordinance No. 8926, dated

oe Ss rear rr een 24a

APPENDIX D

(City of El Paso Ordinance No. 9326, dated

Wy | ee ee ae 3la

APPENDIX E

(Order on Suggestion for Rehearing En Banc,

fe a Per ee 37a

vi

TABLE OF AUTHORITIES

CASES PAGE

Alexander v. City of Minneapolis,

928 F.2d 278 (8th Cir. 1991) .............. 9, 13

City of Renton v. Playtime Theatres,

Inc., 475 U.S. 41, 106 S. Ct. 925,

89 L. Ed. 2d29 (1986), reh’g denied,

415 U.S. 1132, 90 L. Ed. 2d 205,

IGS SiG ee se cet Sasa ree eke passim

Davenport v. Garcia,

Pa gee EE we 6b bh ae hee os passim

D.G. Restaurant Corp. v. City of

Myrtle Beach, 953 F.2d 140, 147

eT ie Pee eee ee ee eee re et 9

Ex Parte Tucci,

PR SF 9 es eee ee passim

FW/PBS, Inc. v. City of Dallas

ee er 8 4 || ree ee a 12

Grand Brittain, Inc. v. City of

Amarillo, Texas, 27 F.3d 1068

ee ee ee ee eee © oe passim

Intern. Food and Beverage Systems

v. City of Fort Lauderdale, 794

Fe Ree eee GN OE FES 0 66 VS FEN 0 14

vii

Lakeland Lounge v. City of

Jackson, Miss., 973 F.2d

1255 (Sth Cir. 1992) .........

Lindsay v. Papageorgiou,

751 S.W.2d 544 (Tex.App.-Houston

[ist Dist.] 1988, writ denied) ....

Maloy v. City of Lewisville,

848 S.W.2d 380 (Tex. App.-

Ft. Worth 1993, writ denied) ....

SDJ, Inc. v. City of Houston,

837 F.2d 1268 (Sth Cir. 1988) ...

Topanga Press, Inc. v. City of

Los Angeles, 989 F.2d 1524

(Oth Cle. 1993) ce ieee ee

Woodall v. City of El Paso,

950 F.2d 255 (Sth Cir. 1992) ....

Woodall v. City of El Paso

959 F.2d 1305 (Sth Cir. 1992),

cert. denied, __ U.S.__,

113 S. Ct. 304, 121 L. Ed. 2d 237

Woodall v. City of El Paso,

49 F.3d 1120 (Sth Cir. 1995) ....

Young v. American Mini

Theatres, Inc., 427 U.S. 50,

96 S. Ct. 2440, 49 L. Ed. 2d

cS ee er

Ordinances:

El Paso, Tex., Ordinance 6169

Oe Oe ee eee er ee

El Paso, Tex., Ordinance 8926

(Feb. 10, 1987) .............-.

El Paso, Tex., Ordinance 9326

Sup. CL. R. IO CID... caren iss

Sei Ci RA iS. . ok ees.

eet ee 5

No. 95-482

IN THE

Supreme Court of the Gnited States

OCTOBER TERM, 1995

PHYLLIS WOODALL, et. al.,

Petitioners,

Vv.

THE CITY OF EL PASO,

Respondent.

On Petition for Writ of Certiorari To

The United States Court of Appeals

For The Fifth Circuit

BRIEF IN OPPOSITION

El Paso respectfully requests that this Court deny the

Petition for Writ of Certiorari to review the judgment and

order of the United States Court of Appeals for the Fifth

Circuit entered in Woodall v. City of El Paso, 49 F.3d 1120

(Sth Cir. 1995).

OP? IONS BELOW

The denial of Petitioners' Suggestion for Rehearing En

Banc in the Court of Appeals for the Fifth Circuit was

entered on June 22, 1995 and appears as Appendix E. The

published opinion of the Court of Appeals was entered on

April 14, 1995 in Woodall v. City of El Paso, 49 F.3d 1120

(Sth Cir. 1995), ("Woodall III"), and appears as Appendix A.

2

CONSTITUTIONAL PROVISIONS

AND ORDINANCES INVOLVED

The First Amendment to the Constitution of the

United States provides in pertinent part as follows:

Congress shall make no law respecting an

establishment of religion, or prohibiting the

free exercise thereof; or abridging the

freedom of speech, or of the press...

U.S. CONST. Amend I.

Article One, Section Eight of the Constitution of the

State of Texas provides in pertinent part as follows:

Section 8. Every person shall be at liberty to

speak, write or publish his opinion on any

subject, being responsible for the abuse of that

privilege; and no law shall ever be passed

curtailing the liberty of speech or of the press.

TEX. CONST. Art. I, §8.

COUNTERSTATEMENT OF THE CASE

A. Course and Proceedings Below:

On April 15, 1988, Phyllis Woodall, et. al.

("Petitioners"), commenced a civil rights action against El

Paso in state court seeking damages and injunctive relief

pursuant to 42 U.S.C. Section 1983, and under the First,

Fourth, Fifth, Sixth and Fourteenth Amendments to the

United States Constitution. The case was subsequently

removed to federal court by El Paso and tried to a jury on

January 11, 1990. During the first trial, Petitioners

3

stipulated that El] Paso’s ordinances contained facially valid

time, place, and manner restrictions; therefore, the only issue

presented to the first jury was whether El Paso’s ordinances

afforded Petitioners reasonable alternative avenues of

communication.

In the first trial, a jury found (1) that 39 adult

businesses operated in the City of El Paso on March- 22,

1988; (2) that there were 1,165 acres of land which complied

with El Paso’s adult businesses ordinances; (3) that there

were 59 sites which complied with El Paso’s ordinances and

which were reasonably available to adult businesses; and (4)

that El Paso’s ordinances, as applied to Petitioners, “did not

effectively deny them a reasonable opportunity to open and

operate their adult businesses." After trial, the trial court

denied Petitioners’ claims under Article I, Section 8, of the

Texas Constitution.

On initial appeal, a panel of the Court of Appeals for

the Fifth Circuit reversed and remanded, holding that the

jury had been given insufficient instructions and that land

cannot be reasonably available if its physical, economic, or

legal characteristics make it impossible for any adult business

to locate there. Woodall v. City of El Paso, 950 F.2d 255,

263 (Sth Cir. 1992) ("Woodall 1").

On rehearing, the Court of Appeals for the Fifth

Circuit expressly rejected Petitioners’ theory that land is not

available for use by adult businesses, if it would be

“unreasonable” to expect adult businesses to relocate there,

and withdrew its entire discussion entitled "Unavailable Land

Under Renton", contained in Part A of its original opinion

(950 F.2d, at 258). Woodall v. City of El Paso, 959 F.2d

1305, 1306 (Sth Cir. 1992), ("Woodall II"), cert. denied,

US. , 113 S. Ct. 304, 121 L. Ed. 2d 237.

4

On remand, the trial court considered and denied

Petitioners’ claim under Article I, Section 8 of the Texas

Constitution, holding that, in the context of zoning laws

regulating the location of adult businesses, the Texas

Constitution does not provide any greater protection than the

United States Constitution. (Record, Vol. 5, p. 1145.)

On retrial, Petitioners again stipulated that El Paso’s

ordinances were content-neutral time, place, and manner

restrictions and that they served a substantial government

interest. The second jury found that El Paso’s ordinances

effectively denied Petitioners a reasonable opportunity to

open and operate their entertainment business, and also found

that in 1988 and 1992 there were only 12 acres and 12 sites

in the City of El Paso that complied with El Paso ordinances

and which were reasonably available to adult businesses.

The jury further found that there were 39 and 22 adult

businesses in operation in 1988 and 1992, respectively.

(Record, Vol. 7, pp. 1412-1413).

El Paso moved for judgment as a matter of law and

for new trial. Both motions were denied by the trial court

without discussion.

The judgment of the Court of Appeals for the Fifth

Circuit which Petitioners seek to have reviewed was entered

on April 14, 1995. Petitioners did not file a petition for

panel rehearing. Petitioners did not file their Petition for

Writ of Certiorari within ninety (90) days of April 14, 1995

as required by Rule 13 of the Rules of this Court.

Petitioners filed a Suggestion for Rehearing En Banc. The

Suggestion for Rehearing En Banc was denied by the Court

of Appeals on June 22, 1995. The Court of Appeals treated

the Suggestion for Rehearing En Banc as a Petition for Panel

Rehearing (Appendix E).

5

On appeal, the Court of Appeals for the Fifth Circuit

reversed and rendered, holding that El Paso was entitled to

judgment as a matter of law, that commercial viability is not

a relevant consideration, and that the Texas Constitution

provides no greater protection than the First Amendment in

the context of land use restrictions of adult businesses.

Woodall v. City of El Paso, 49 F.3d 1120 (Sth Cir. 1995)

("Woodall III").

B. Statement of the Facts:

Beginning in 1978, El Paso passed a series of zoning

ordinances regulating the location of adult businesses. EL

PASO TEX. ORDINANCES 6169 (178), 8926 (1987), and

9326(1988) (Appendices, B,C, & D).

tn April, 1988, El Paso police began issuing citations

to those adult businesses found operating in violation of El

Paso’s ordinances. Petitioners filed suit in state court for

damages and injunctive relief soon thereafter.

Cc. Petitioners’ Misstatements of Fact:

El Paso respectfully submits that Petitioners have

mischaracterized and misrepresented the evidence. On page

7 of their Brief, for example, Petitioners state that of the

1,135 acres that were potentially available, approximately

600 acres were without utilities, roads, or development. A

thorough review of the evidence, however, will show that the

1,135 acres consisted of land in various stages of

development, most, if not all, of which had access to roads,

utilities and other necessary infrastructure.

There is no evidence in the record to support

Petitioners’ representations that the land described incorrectly

by Petitioners as “developable land” approximated three-

6

tenths of the 158,397 acres that comprise the City of El

Paso. The uncontroverted evidence is that all of the sites

identified by El Paso had road access, had existing structures

or had no physical impediments to building, and that utilities

are normally put in at the time that roads are constructed.

Woodall Ill, 49 F.3d at 1125.

As the Court of Appeals found, there was no evidence

from which a reasonable inference could be drawn that the

sites identified by El Paso were the only sites potentially

available. Id. at 1126. The Court of Appeals further found

that the zoning maps showed that each site identified by El

Paso was part of a larger area of potentially available sites,

and that virtually every site could be shifted to some other

location without significantly affecting other sites or

reducing the total number of sites available. Jd. Petitioners’

representation that Phyllis Woodall’s testimony related to

specific sites identified by El Paso rather than to general

areas, is not supported by the evidence, and is inconsistent

with the findings of the Court of Appeals.

The Petitioners’ argument that, "there was substantial

evidence offered from which the jury could have concluded

that many of the sites identified by the City were not legally

or physically available," (Petitioners’ Brief, at 8), is not

supported by the evidence. As the Court of Appeals

correctly found, the photographs of the sites admitted into

evidence showed that the sites had road access and that those

sites without existing structures had no visible impediments

to constructing a building. /d. at 1125.

In regard to Petitioners’ statements that many of the

sites had no roads, utilities, sidewalks, streetlights, or other

infrastructure improvements, or that some of the sites were

precluded by deed restrictions, insufficient parking, and lease

commitments, (Petitioners’ Brief, at 8), the record is wholly

7

devoid of any evidence supporting such representations. A

review of the record supports the findings of the Court of

Appeals that all of the sites specifically identified by El Paso

had road access, utilities access, and that they either had

existing structures or had no physical impediments to

building. Jd. at 1125. The Court of Appeals correctly

further found that there was no evidence that any site was

subject to a long-term lease which would remove any site out

of the commercial real estate market. The Court of Appeals

further found that there was no evidence that any site with

road access was actually inaccessible to the general public,

or that any site’s parking problem could not be cured by

Petitioners at a reasonable cost. /d. at 1126.

D. The Court of Appeals’ Opinion:

In reversing the judgment of the trial court, the Court

of Appeals for the Fifth Circuit found that although

Petitioners presented evidence upon which a jury could have

found that none of the sites were “commercially desirable",

they presented scant evidence that the proposed sites were

physically or legally unavailable, and virtually no relevant

evidence at all about numerous alternative sites which were

not specifically identified. _ The Court of Appeals

consequently found that the jury’s verdict was clearly against

the great weight of the evidence. /d. at 1123.

The Court of Appeals reiterated its previous holdings

that the fact that a site may not be commercially desirable

does not render it unavailable:

"It is not relevant that a relocation site will

result in lost profits, higher overhead costs, or

even prove commercially unfeasible for an

adult business. 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. As we have

stated time and again, commercial viability

is not a relevant consideration." (emphasis

added).

Woodall III, 49 F.3d at 1124 (citing Grand Brittain, Inc. v.

City of Amarillo, Texas, 27 F.3d 1068, 1069 (Sth Cir. 1994);

Lakeland Lounge of Jackson, Inc. v. City of Jackson, Miss.,

973 F.2d 1255, 1260 (Sth Cir. 1992)).

The Court of Appeals further held that Petitioners’

claims under the Texas Constitution should be analyzed

under the same standard used under the United States

Constitution. Petitioners argued that the standard announced

by the Texas Supreme Court in Davenport v. Garcia, 834

S.W.2d 4 (Tex. 1992), for prior restraints should be

expanded to land use cases involving adult businesses. The

Court of Appeals found that there is no Texas authority to

support that argument. The only Texas authority directly on

point opted for the standard announced in Renton. Id. at

1128.

REASONS FOR DENYING THE WRIT

I. THERE ARE NO SPECIAL AND IMPORTANT

REASONS FOR GRANTING THE WRIT.

There is no reason for this Court to grant the Petition

for Writ of Certiorari. Petitioners have failed to articulate

any special and important reasons justifying the exercise of

this Court’s judicial discretion in favor of granting the Writ.

Sup. Ct. R. 10.

In holding that commercial viability is not a relevant

factor in the constitutional analysis required by Renton, the

9

Court of Appeals faithfully followed this Court’s holding in

Renton that "the inquiry for First Amendment purposes is not

concerned with economic impact." Renton, supra at 54.

Petitioners’ claim that commercial viability is a relevant

consideration in the constitutional analysis required by

Renton does not give rise to any special and important

unresolved federal question issues. In rejecting Petitioners’

theory that a site is only available if it would be

commercially reasonable for an adult business to locate there,

the Court of Appeals for the Fifth Circuit did not decide an

important question of federal law which has not been

authoritatively settled by this Court and the United States

courts of appeals which have addressed the issue and applied

the standard enunciated in Renton. See Grand Brittain, Inc.

v. City of Amarillo, Texas, 27 F.3d 1068 (Sth Cir. 1994);

Lakeland Lounge v. City of Jackson, Miss., 973 F.2d 1255

(Sth Cir. 1992); Topanga Press, Inc. v. City of Los Angeles,

989 F.2d 1524 (9th Cir. 1993); Woodall v. City of El Paso,

959 F.2d 1305 (Sth Cir. 1992), cert. denied; __ US.

___, 113 S. Ct. 304, 121 L. Ed. 237; Alexander v. City of

Minneapolis, 928 F.2d 278 (8th Cir. 1991); D.G. Restaurant

Corp. v. City of Myrtle Beach, 953 F.2d 140 (4th Cir.

1991); SDJ, Inc. v. City of Houston, 837 F.2d 1268 (4th Cir.

1988).

The Court of Appeals’ holding that Petitioners’ claims

under the Texas Constitution should be decided under the

legal standard enunciated by this Court in Renton does not

raise a federal question. The Court of Appeals correctly

decided to defer to the Texas Supreme Court on the state

constitutional question of whether the standard adopted by it

in Davenport v. Garcia, 834 S.W.2d 4 (Tex. 1992), should

be expanded to land-use cases involving adult businesses.

Accordingly, there is no discretionary jurisdictional basis

upon which this Court should review the judgment of the

Court of Appeals.

10

Il. ©THE DECISION OF THE COURT OF APPEALS

IS CONSISTENT WITH THIS COURT’S

HOLDING IN CITY OF RENTON V. PLAYTIME

THEATRES, INC. AND DOES NOT CONFLICT

WITH ESTABLISHED PRECEDENT.

After reviewing the evidence, the Court of Appeals

for the Fifth Circuit correctly noted that El Paso’s evidence

was premised on the theory that a site is available if it is

physically or legally available, pursuant to Woodall I], and

that Petitioners, on the other hand, predicated their entire

case on the theory that a site is available only if it would be

commercially reasonable for an adult business to locate there.

Woodall Il, at 1123.

In holding that commercial viability is not a relevant

consideration in the constitutional analysis under Renton, the

Court of Appeals for the Fifth Circuit faithfully followed this

Court’s holding in Renton.

The legal standard for determining the

constitutionality of adult business zoning ordinances, such as

the one challenged in this case, was initially established by

this Court in City of Renton v. Playtime Theatres, Inc., 475

U.S. 41, 106 S. Ct. 925, 89 L. Ed. 2d 29 (1986), reh’g

denied, 475 U.S. 1132, 106 S. Ct. 1163, 90 L. Ed. 2d 205

(1986). In Renton, this Court explicitly rejected the

“commercially viable" theory and held that “the inquiry for

First Amendment purposes is not concerned with economic

impact.” Id. at 54.

In Renton, this Court further held that requiring adult

businesses to fend for themselves in the real estate market on

an equal footing with other prospective purchasers and

11

lessees does not give rise to a First Amendment violation.

Id. at 54. This Court further held that the First Amendment

does not compel the government to ensure that adult

businesses will be able to obtain sites at bargain prices. /d.

In Renton, adult businesses had argued, just like

Petitioners claim, that since some of the available acreage

was already occupied, or because most of the undeveloped

land was not currently for sale or lease, there were no

“commercially viable" sites, and therefore, the ordinance

substantially restricted speech. Id. at 53-54, 106 S. Ct. at

932, 89 L. Ed. 2d at 41-42. In sustaining the validity of the

Renton ordinance, this Court held that commercial viability

or suitability was not a viable theory for attacking the

validity of zoning ordinances. Renton, 475 U.S. at 54.

In his concurring opinion in Young v. American Mini

Theatres, Inc., Justice Powell stated:

The constraints of the ordinance with respect

to location may indeed create economic loss

for some who are engaged in this business.

But in this respect they are affected no

differently from any other commercial

enterprise that suffers economic detriment as

a result of land-use regulation. The cases are

legion that sustained zoning against claims of

serious economic damage.

427 U.S. at 78, 96 S. Ct. at 2455, 49 L. Ed. 2d at 330

(Powell, J., concurring.)

The Constitutional approach enunciated by this Court

in Renton, and correctly followed by the Court of Appeals,

represents a fair and equitable balance between the

constitutional right of adult businesses to open and operate,

12

and the right of local governments to curb the secondary

negative land-use impact of such businesses. To adopt

Petitioners’ approach would place an extremely onerous, if

not impossible, burden on local governments by requiring

them to engage in site-by-site assessments of every possible

relocation site in order to guarantee the success or

profitability of adult businesses, i.e., local governments

would be placed under the impossible burden of ensuring the

commercial viability of adult businesses. The approach

suggested by Petitioners would give an unwarranted

advantage to adult businesses in the competition for available

space in the real estate market. To ensure that sites be

commercially viable as requested by Petitioners would

require more than the First Amendment commands.

The Court of Appeals for the Fifth Circuit has

consistently held that commercial viability is not a relevant

factor in the constitutional analysis required by Renton.

Grand Brittain, Inc. v. City of Amarillo, Tex., 27 F.3d 1068

(Sth Cir. 1994); Lakeland Lounge v. City of Jackson, Miss.,

793 F.2d 1255 (Sth Cir. 1992); SDJ, Inc. v. City of Houston,

837 F.2d 1268 (Sth Cir. 1988); FW/PBS, Inc. v. City of

Dallas, 837 F.2d 1298 (Sth Cir. 1988).

Recently, the Court of Appeals for the Fifth Circuit

recognized that there is a legal distinction between promising

a commercially viable alternative site and affording a

reasonable opportunity to operate an adult business at a new

location, and held that Renton does not require that local

governments ensure that adult businesses can obtain existing

commercial sites at low cost and with market access to assure

their prosperity. Grand Brittain, 27 F.3d at 1069-70.

In Woodall I, a panel of the Court of Appeals for the

Fifth Circuit held that land cannot be reasonably available if

its physical or legal characteristics make it impossible for any

13

adult business to locate there. Woodall v. City of El Paso,

950 F.2d 255, 263 (Sth Cir. 1992). In footnote 5, the Court

observed that “although [Petitioners’] proof and contentions

at trial dealt exclusively with physical and legal

unavailability, land may be unavailable if it is economically

unsuitable because no adult business could possibly expect to

profit by operating there." /d. at 261, n. 5. The Court of

Appeals further noted, however, that since Petitioners had

not contended that the general areas identified by El Paso

were commercially unavailable, it did not decide whether

land that is economically unsuitabie is reasonably available.

Id.

On rehearing, the Court of Appeals in Woodall II

repudiated Petitioners’ theory that land is not available for

use by adult businesses if it would be “unreasonable” to

expect adult businesses to relocate there. The Court

withdrew its entire discussion entitled "Unavailable Land

Under Renton", contained in Part A of its original opinion

(950 F.2d, at 258). Thus, in Woodall II, the Court of

Appeals for the Fifth Circuit expressly rejected the argument

that sites and land areas must be commercially viable or

suitable in order to be reasonably available. The holding in

Woodall III is in accord with this prior law.

Il. THE OPINION OF THE FIFTH CIRCUIT IS IN

HARMONY WITH OTHER CIRCUITS.

Decisions of other circuit courts also hold that

commercial viability is not a relevant constitutional issue

under Renton . In Alexander v. City of Minneapolis, 928

F.2d 278 (8th Cir. 1991), the Court of Appeals for the

Eighth Circuit held that the fact that adult businesses could

not secure property meeting their economic or commercial

criteria did not invalidate zoning ordinances under the second

prong of Renton’s two-prong analysis. The Court of Appeals

14

further held that the City of Minneapolis was not required to

provide adult businesses with actual sites for relocation

purposes, as long as the ordinance provided for "potential"

sites and did not deprive plaintiffs of a “reasonable

opportunity to open and operate." Jd. at 284.

In another post-Renton decision, Intern. Food and

Beverage Systems v. City of Fort Lauderdale, 794 F.2d 1520

(11th Cir. 1986), the Eleventh Circuit Court of Appeals held

that economic impact was not the appropriate standard to

apply in determining the constitutionality of adult business

ordinances and noted that in Renton, “Justice Rehnquist does

not say that the City may not limit alternative avenues of

communication, but only that it may not limit such avenues

unreasonably." Jd. at 1526.

Petitioners’ reliance on Topanga Press, Inc. v. City

of Los Angeles, 989 F.2d 1524 (9th Cir. 1993), is wholly

misplaced. In Topanga, the Court of Appeals for the Ninth

Circuit did not hold that commercial viability is a relevant

consideration. The Court simply enumerated several factors

which may assist in determining whether a site may be

considered part of the available real estate market. First, the

Court acknowledged that the First Amendment only requires

that a site be potentially available rather than actually

available, but that the requirement of potentiality connotes

genuine possibility. Jd. at 1531. Second, the Court of

Appeals held that relocation sites that are reasonably

accessible to the general public may be part of the market.

Third, manufacturing areas which have proper infrastructure

may be included in the market. Fourth, as long as a

relocation site suits some commercial enterprise, although not

the “particular needs of an adult business," it too, may be

part of the real estate market. Jd. at 1531. Finally, the

Court of Appeals held that commercially-zoned areas are part

of the market.

15

Topanga does not support Petitioners’ theory. As the

Court of Appeals found, all of the sites and the more than

1,000 acres identified by El Paso are genuinely available,

physically and legally, to commercial enterprises. The

uncontroverted evidence shows that all of the sites and land

areas are reasonably accessible to the general public, have

access to utilities and public roads, suit some generic

commercial purpose, and are commercially zoned. Thus,

even the factors in Topanga are satisfied in this case.

If sites and land areas are available for commercial

businesses in general, they are constitutionally available, and

it is irrelevant if such proposed sites are not economically

desirable for adult businesses.

IV. EL PASO WAS ENTITLED TO JUDGMENT AS

A MATTER OF LAW.

The Court of Appeals did not err in holding that the

jury’s verdict was clearly against the great weight of the

evidence and in rendering judgment in favor of El Paso as a

matter of law.

The only evidence presented at trial regarding general

land areas and sites that were physically and legally available

for adult businesses was the testimony of Patricia Aduato,

Planning Coordinator for El Paso’s Department of Planning.

Her uncontroverted testimony was that in 1988, there were

approximately 1,135 net acres that were physically and

legally available as potential relocation sites for adult

businesses. (Transcript, pp. 3-177).

Aduato testified that the 1,135 acres were legally and

physically available and were highlighted in red on El Paso’s

zoning maps. (Transcript, 2-41). Through Adauto’s

testimony, El Paso identified within the 1,135 acres, no less

16

than 66 possible sites as potentially available for the

relocation of adult businesses. (Transcript, p. 2-202);

Woodall III, supra at 1125, n.1. She testified that each of

the circles shown on the maps represented a site of

approximately one acre, and that all of the land areas

designated in red were commercially zoned for the operation

of adult businesses, and were available both legally and

physically for the potential relocation of acum businesses.

(Transcript, p. 2-98).

She further testified that all of the sites had access to

public utilities and public streets. (Transcript, pp. 2-99, 2-

200, 3-110). The undisputed evidence is that although forty-

five (45) of the sites were vacant, they all had access to

public streets and public utilities. The remaining 21 sites

were occupied by buildings of various shapes and sizes which

had access to public streets and utilities. (Transcript, pp. 2-

99, 2-20, 2-42 through 2-168, 3-180 through 3-181).

Petitioners failed to present any evidence

controverting the evidence presented by El Paso. Petitioners’

expert witness, Jeffrey D. Jones, conceded that the sites were

physically and legally available, but rejected them because

they were not commercially suitable for the successful

operation of an adult business. (Transcript, pp. 2-237, 2-

247, 2-256 through 2-257, 3-2, 3-3).

Jones did not evaluate any sites other than those

identified by El Paso. (Transcript, pp. 2-259, 3-22 through

3-24). His analysis of the sites was predicated on the

premise that sites are not reasonable if they are not

commercially viable. His assignment was to establish an

“economic” criteria for the successful operation of adult live

entertainment businesses within the City of El Paso and to

study and analyze the sites identified by El Paso in the

context of what he believed was the relevant commercial

en

17

market for adult businesses. (Transcript, p. 3-22). He had

no opinion as to whether or not the ordinances in question

provided for reasonable alternative avenues of

communication. (Transcript, p. 3-8).

Upon a thorough review of the record, the Court of

Appeals found that although Petitioners had presented

extensive evidence that none of the sites identified by El Paso

were commercially desirable locations for adult businesses,

they presented scant evidence that the proposed sites were

physically or legally unavailable, and virtually no relevant

evidence regarding alternative sites not specifically identified

by El Paso. Woodall Ill at 1123.

The Court of Appeals found, after a through review

of the record, that all of the sites specifically identified by El

Paso had road access, that utilities were put in at the time

that the roads were constructed, and that all sites had existing

structures or had no physical impediments to building. /d.

at 1125. The Court of Appeals found that, although Phyllis

Woodall had testified that some of the general areas

identified by El Paso did not have roads, that the closest

roads dead-ended in the middle of nowhere, and that some

areas were covered with sagebrush and sinkholes, Woodall

could not relate her testimony to any of the sites specifically

identified by El Paso. /d. at 1125, n.2. The Court found,

upon review of the photographs entered into evidence, that

the specific sites identified by El Paso have road access, and

that those sites without existing structures have no visible

impediments to constructing a building. Jd.

The Court of Appeals further found as “patently

irrelevant" much of the evidence presented by Petitioners in

regard to their reasons why they considered various sites

unavailable. Jd. at 1125. For example, although Petitioners

claimed that some of the sites were unavailable because the

18

owner of the site would probably not rent or sell to an adult

business, or because the site was occupied by a building that

was occupied or leased, the Court of Appeals found the

record devoid of any evidence supporting Petitioners’ claims.

The Court of Appeals found that although Petitioners claimed

that some of the sites were unavailable because they were on

less travelled roads, there was absolutely no evidence that

any site with road access was actually inaccessible to the

general public. Id. at 26.

The Court of Appeals found no evidence in support

of Petitioners’ claims that many of the specifically identified

sites had no roads, utilities, sidewalks, streetlights,

infrastructure, or that some of the sites were unavailable

because of deed restrictions, insufficient parking, or lease

commitments (Petitioners’ Brief, at 8). The Court of

Appeals found no evidence that surrounding sites suffered

from any impediments that rendered them unavailable. /d.

The Court of Appeals further found that the collection

of sites identified by El Paso was but one possible

arrangement of locations for adult businesses, and that every

site could be shifted to some nearby eligible location without

significantly upsetting other sites or reducing the total

number of sites available. Id. As stated by the Court, "if

the suggested site proved physically or legally unavailable,

there was another site next door or across the street that was

also potentially available.” Id.

A thorough examination of the evidence, even in the

light most favorable to Petitioners, establishes as a matter of

law that El Paso’s ordinances provide constitutionally

sufficient locations for adult businesses to open and operate.

Petitioners’ position that many of the sites are not

constitutionally available because they are not commercially

viable is simply not a relevant consideration in the

constitutional analysis required by Renton.

ee

19

Vv. THE TEXAS CONSTITUTION DOES NOT

PROVIDE GREATER PROTECTION THAN

THE FIRST AMENDMENT IN THE CONTEXT

OF ZONING LAWS THAT REGULATE THE

LOCATION OF ADULT BUSINESSES.

In the area of land-use zoning ordinances, Article I,

Section 8 of the Texas Constitution does not provide greater

protection than does the U.S. First Amendment. The test

enunciated in City of Renton v. Playtime Theaters, Inc., 475

U.S. 41, 106 S. Ct. 925, 89 L. Ed. 2d 29 (1986), is the

controlling test for determining the constitutionality of E!

Paso’s ordinances under the Texas Constitution. Lindsay v.

Papageorgiou, 751 S.W.2d 544 (Tex. App.--Houston [1st

Dist.] 1988, writ denied); Maloy v. City of Lewisville, 848

S.W.2d 380 (Tex. App.--Ft. Worth 1993, writ denied).

Petitioners rely on Ex Parte Tucci, 859 §.W.2d 1

(Tex. 1993), to argue that a higher standard applies. The

Court in Tucci, however, applied the standard established in

Davenport v. Garcia, 834 S.W.2d 4 (Tex. 1992). Davenport

is a prior restraint case involving the validity of a gag order

prohibiting a guardian ad litem from speaking in public or

private to any of the children whose interest she represented

in a lawsuit concerning allegations of toxic chemical

exposure at a dump site. In holding that the trial court had

illegally issued the gag order, the Texas Supreme Court

stated that the trial court had engaged in an unconstitutional

prior restraint under Article I, Section 8 of the Texas

Constitution. The higher standard enunciated by the Court

is limited to cases involving the prior restraint of pure

speech.

It is clear from the language of Davenport that the

Texas Supreme Court intended the standard enunciated in

that case to apply only to cases involving prior restraints.

20

The Court did not hold that this standard should apply in

cases involving free speech and land-use/zoning ordinances

imposing time, place, and manner restrictions on adult

businesses.

Tucci, like Davenport, is not a land-use/zoning

ordinance case. A plurality of the court treated Tucci as a

prior restraint case, not a "place" restriction on speech as

alleged by Petitioners. Tucci, 859 S.W.2d at 8n.15. The

plurality therefore proceeded to apply the Davenport

standard. Tucci therefore has no applicability to the case

before this Court.

The two Texas cases which involved the state

constitutionality of land use regulations relating to adult

businesses have applied the same standard as that under the

First Amendment. In Lindsay v. Papageorgiou, 751 S.W.2d

544 (Tex. App.--Houston [1st Dist.] 1988, writ denied). The

owner and operator of a topless club sought to invalidate,

under Article I, Section 8 of the Texas Constitution, a land-

use zoning regulation that regulated the location of adult

businesses in Harris County. In denying plaintiffs claims

for relief, the Houston Court of Appeals stated that the

guarantees of free speech and freedom of expression

contained in Article I, Section 8 of the Texas Constitution,

“are identical to the protection afforded by the First

Amendment to the United States Constitution." Lindsay, 751

S.W.2d at 549 (emphasis added).

After the decision of the Texas Supreme Court in

Davenport, the Ft. Worth Court of Appeals in Maloy v. City

of Lewisville, 848 S.W.2d 380 (Tex. App.--Ft. Worth 1993,

writ denied), upheld the validity of an injunction restraining

the operation of adult businesses in the City of Lewisville,

Texas. The Court cited Lindsay as authority, and held that

the injunction was directed not to the content of any speech

BEST AVAIL!

21

on the part of plaintiffs but toward obtaining compliance with

the City of Lewisville’s zoning ordinance, and therefore, the

ordinance did not violate Article I, Section 8 of the Texas

Constitution. Jd. at 385.

The only two cases directly on point have opted for

the substantial governmental interest test as stated in Renton

that content-neutral time, place, and manner regulations are

acceptable provided they serve a substantial governmental

interest and do not unreasonably limit alternative avenues of

communications. This Court should reject, as the Court of

Appeals did, Petitioners’ invitation to read the minds of the

Texas Supreme Court Justices on the issue of whether the

Davenport standard should be extended to apply in land-use

regulation cases.

CONCLUSION

For the reasons set forth above, the Petition for a

Writ of Certiorari should be denied.

Respectfully submitted,

EDUARDO MIRANDA

Counsel of Record

CHERYL L.W. JACKSON

Ray, McChristian & Jeans, P.C.

801 N. El Paso Street

El Paso, Texas 79902

(915) 541-7200

la

APPENDIX A

Phyllis WOODALL, et al., Plaintiffs,

Phyllis Woodall, et al., Plaintiffs-Appellees,

Vv.

The CITY OF EL PASO, et al., Defendants,

The City of El Paso, Defendant-Appellant.

Phyllis WOODALL, et al., Plaintiffs,

Phylliss Woodall, Jeannie Coutta d/b/a the

Naked Harem, Jedjo, Inc., SMD

Enterprises, Inc., d/b/a The Lamplighter

d/b/a Red Flame and Marc Diedrich,

President, Plaintiffs-Appellants,

v.

The CITY OF EL PASO, et al.,

Defendants-Appellees.

Nos. 93-8674, 93-8739

United States Court of Appeals,

Fifth Circuit.

April 14, 1995

Adult businesses challenged constitutionality of zoning

ordinance that restricted their location, claiming that

ordinance effectively denied them reasonable opportunity to

open and operate. The United States District Court for the

Western District of Texas, Emilio M. Garza, J., entered

judgment on jury verdict for city and businesses appealed.

The Court of Appeals, 950 F.2d 255, reversed and

remanded. On remand the District Court, Lucius Desha

Bunton, III, J., entered judgement on jury verdict for adult

2a

businesses and enjoined enforcement of ordinance, and

appeal was taken. The Court of Appeals, Robert M. Parker,

Circuit Judge, held that: (1) jury had improperly determined

that there were insufficient locations for adult businesses by

counting only sites satisfying ordinance’s spatial separation

requirements where it would be commercially reasonable for

adult business to be conducted; (2) record showed that there

were enough sites for all adult businesses if correct standard,

counting all sites which meet the spatial requirements of

ordinance and were not barred by physical characteristics

rendering them unavailable for any kind of development or

legal characteristics excluding adult businesses, there were

sufficient number of spaces for all then existing adult

businesses; and (3) there was no higher standard to be

satisfied under Texas Constitution than there was under

Federal Constitution, before locations of adult businesses

could be regulated.

Reversed and remanded.

Appeals from the United States District Court for the

Western District of Texas.

Before HIGGINBOTHAM, SMITH and PARKER,

Circuit Judges.

ROBERT M. PARKER, Circuit Judge:

At issue in this case is the constitutionality of the City

of El Paso’s (the City) zoning ordinances (the Ordinances)

regulating sexually-oriented or adult businesses. Shortly

after the City began enforcing the Ordinances, various adult

businesses and adult business owners (the Adult Businesses)

filed suit seeking damages and injunctive relief. After this

case was tried, appealed, reversed, remanded, and retried,

3a

the jury returned a verdict in favor of the Adult Businesses.

The district court entered a judgment awarding damages to

the Adult Businesses and enjoining enforcement of the

Ordinances against the Adult Businesses. The City appeals,

contending that the jury could not have reached the verdict

it did under the correct legal standard. The Adult Businesses

cross-appeal, contending that the district court erred in

applying only federal constitutional standards rather than the

greater protections the Adult Businesses claim they enjoy

under the Texas Constitution. We decide two issues on

appeal: whether the City was entitled to judgment as a matter

of law due to the lack of evidence that the Adult Businesses

were denied reasonable alternative avenues of

communication, and whether Article 1 Section 8 of the Texas

Constitution provides greater protection under the

circumstances of this case than that provided by the First

Amendment to the United States Constitution. After a

thorough review of the record, we conclude that the jury

could only have reached its verdict based on an incorrect

view of the law, and that there is no constitutional infirmity

with the City’s zoning ordinances. We also hold that the

Adult Businesses are entitled to the same protection under the

Texas Constitution as under the United States Constitution.

I.

In the 1970s the City of El Paso began passing a

series of zoning ordinances regulating sexually-oriented or

adult businesses such as adult bookstores, adult movies,

topless bars and live nude entertainment establishments. By

March, 1988, the Ordinances prohibited these businesses

from locating within 1000 feet of churches, schools,

residences, nurseries, parks, and each other. See El Paso,

Tex.Ordinances 6169 (1978), 8926 (1987), 9326 (1988); El

Paso, Tex., Code art. IT § 20.08.080.A (March 1989).

4a

In April, 1988 El Paso police began ticketing adult {

businesses which failed to comply with the Ordinances. The

Adult Businesses filed suit in state court for damages under

42 U.S.C. § 1983 and for injunctive relief, alleging that the

Ordinances violated the First and Fourteenth Amendments of

the United States Constitution and Article | Section 8 of the

Texas Constitution. The City removed the cause to federal

court alleging jurisdiction under 28 U.S.C. §§ 1331 and

1343.

Erotic non-obscene printed matter, films, and live

entertainment are sheltered by the First Amendment, but

enjoy less protection than some other forms of speech, such |

as political speech. TK’s Video v. Denton County, Texas, 24 |

F.3d 705, 707 (Sth Cir.1994). Although the Constitution

looks askance at attempts to regulate such "speech" based

solely on its content, we distinguish between regulating the

content and regulating the consequence of protected activity.

City of Renton v. Playtime Theaters, Inc. 475 U.S. 41, 46-

48, 106 S.Ct. 925, 928-29, 89 L.Ed.2d 29 (1986). A

content-neutral time, place, or manner restriction must (1) be

justified without reference to the content of the regulated

speech; (2) be narrowly tailored to serve a significant or

substantial governmental interest; and (3) preserve ample

alternative mens of communication. /d.

=

The Adult Businesses stipulated in the first trial that

the Ordinances contained facially valid time, place and

manner restrictions, so the only issues presented to the first

jury were whether the Ordinances afforded the Adult

Businesses reasonable alternative avenues of communication

and if not, what damages should be awarded. The jury

returned a verdict in favor of the City, finding that 39 adult

businesses operated in El] Paso on March 22, 1988, that the

Ordinances allowed for 59 adult business sites on 1,165

acres, and that the Ordinances had not denied the Adult

nn ee |

—

Sa

Businesses “a reasonable opportunity to open and operate

their adult entertainment businesses." After the trial the

district court dismissed the Adult Businesses’ claims under

the Texas Constitution.

On appeal, the Adult Businesses argued that the jury

had been misled about the proper law to apply in answering

the district court’s special interrogatories. We reversed and

remanded for a new trial, holding that the district court

should have instructed the jury that land cannot be found to

be reasonably available if its physical or legal characteristics

made it impossible or any adult business to locate there.

Woodall v. City of El Paso, 950 F.2d 255 (5th Cir. 1992)

(Woodall I). We also ordered that the district court

reconsider the Adult Businesses’ claim under the Texas

Constitution. The opinion in Wooddall I contained a lengthy

discussion on the meaning of available land under Renton,

which suggested that an alternative site is not reasonably

available unless it is economically suited to the needs of adult

businesses. see id. at 260-61.

On rehearing, we reiterated our prior holding that

land with physical characteristics which render it unavailable

for any kind of development, or legal characteristics which

exclude adult businesses, may not be considered “available”

for constitutional purposes under Renton. Woodall v. City of

El Paso, 959 F.2d. 1305 (Sth Cir. 1992) (Woodall I). We

withdrew our prior discussion regarding economic

unavailability and stated that we did not endorse the Adult

Businesses’ theory that land is not available for use by adult

businesses if it would be “unreasonable” to expect adult

businesses to relocate there.

Shortly before the second trial, the Adult Businesses

filed a motion to reinstate their claims under the Texas

Constitution. The district court determined that their rights

6a

under the Texas Constitution mirrored those under the United

States Constitution and denied the motion. On retrial, the

parties again stipulate that the Ordinances were content

neutral time, place and manner restrictions and that they

served a substantial government interest. The parties also

stipulated to the amount of damages to be awarded in the

event of an outcome favorable to the Adult Businesses. At

the close of the Adult Businesses’ evidence, the City moved

for directed verdict. The motion was denied and the matter

was submitted to the jury. The jury was asked to determine

the number of adult businesses in operation in 1988 and

1992, the number of sites and total acreage available in both

of those years, and whether their Adult Businesses were

denied a reasonable opportunity to open and operate their

businesses. For 1988, the jury found that there were 39

adult businesses in operation, 12 sites available, 12 acres

available, and that the Adult Businesses were denied a

reasonable opportunity to open and operate their businesses.

For 1992, the jury found that were 22 adult businesses in

operation, 12 sites available, 12 acres available, and that the

Adult Businesses were denied a reasonable opportunity to

open and operate their businesses. The City timely filed a

motion for judgment as a matter of law and for new trial.

The City appealed, contending that the Adult

Businesses staked their entire case on principles espoused in

Woodall I, withdrawn in Woodall Il, and expressly

repudiated in Lakeland Lounge of Jackson, Inc. v. City of

Jackson, Mississippi, 973 F.2d 1255, 1260 (Sth Cir. 1992),

and that the jury rendered its verdict based on those wrong

principles. The Adult Businesses filed a cross appeal,

renewing their argument that the Texas Constitution provides

them broader protections than the United States Constitution,

and alleging that the district court erred in denying their

motion to reinstate their claims brought under the Texas

Constitution.

Ta

Il.

A.

The City and the Adult Businesses tried this case

under different views of the applicable legal standard. The

City approached this case under the theory that a site is

available unless it is physically or legaliy unavailable as we

stated in Woodall II. The Adult Businesses apparently took

their cue from the portion of this Court’s opinion in Woodall

I that was withdrawn in Woodall II as "unnecessary" to the

Court’s decision. The Adult Businesses’ position at trial and

on appeal has been that a site is only available if it would be

commercially reasonable for an adult business, or, more

equivocally, for some hypothetical "generic" retail business

that has all the requirements of a topless bar, to locate there.

In any event, the Adult Businesses’ evidence overwhelmingly

concerned whether a topless bar could expect to make a

reasonable profit at a particular site.

It is plain after a thorough review of the record that

the jury decided this case based on a misapprehension of the

questions presented to it. The Adult Businesses’ entire case

was founded on the premise that it would not be

commercially reasonable for an adult business, or more

particularly a topless bar, to locate on the alternative sites

proposed by the City. This was the theory of the case that

the Adult Businesses presented to the jury in their opening

statements, it is what the Adult Businesses argued to the

jury, and to a lesser extent it is what the Adult Businesses

argued on appeal. The Adult Businesses presented extensive

evidence upon which a jury could have found that none of

the sites suggested by the City were commercially desirable

locations for adult businesses, but scant evidence that the

proposed sites were physically or legally unavailable, and

virtually no relevant evidence at all about numerous

alternative sites not specifically designated by the City. The

8a

jury’s verdict is clearly against the great weight of the

evidence. The Court must now determine whether the record

is so devoid of evidence upon which the jury could have

reached its verdict that the City was entitled to a judgment as

a matter of law.

In determining whether the district court should have

granted the City’s mctions for judgment as a matter of law,

this Court must review the decision of the district court by

examining all of the evidence before the jury and the

reasonable inferences drawn from such evidence. The aim

of the Court on review is to determine whether a rational

jury could reach the conclusion that the jury actually

reached. Fields v. J. C. Penny Co., 968 F.2d 533, 536 (Sth

Cir. 1992). If the facts and reasonable inferences therefrom

point so strongly and overwhelmingly in favor of the moving

party that reasonable persons could not arrive at a contrary

verdict, viewing the facts in the light most favorable to the

party against whom the motion is made, and giving that party

the advantage of fair and reasonable inferences which the

evidence justifies, then a motion for judgment as a matter of -

law should be granted. Hamilton v. Grocers Supply Co.,

Inc. 986 F.2d 97 (Sth Cir. 1993).

B.

The inquiry into whether the record contains evidence

to support the jury’s determinations begins with the meaning

of the questions the jury was asked to answer. The jury was

asked to determine how many alternative sites were

reasonably available to the Adult Businesses under the

Ordinances, and whether the Ordinances left reasonable

alternative avenues of communication. In Renton, the

Supreme Court set out two principles that infuse successive

cases dealing with zoning ordinances restricting permissible

locations of adult businesses: (1) the ordinances must allow

9a

for reasonable alternative avenues of communication and (2)

commercial viability is not a factor. 475 U.S. at 54, 106

S.Ct. at 932. In Woodall II, we interpreted Renton as

standing for the proposition that “land with physical

characteristics that render it unavailable for any kind of

development, or legal characteristics that exclude adult

businesses, may not be considered ‘available’ for

constitutional purposes under Renton." 959 F.2d at 1306.

Physical availability may be thought of in terms of the

cost of altering or developing the area to change its physical

characteristics to make it suitable for some generic

commercial enterprise. The relevant consideration is whether

the physical characteristics of the site present an

unreasonable obstacle to opening a business; an obstacle that

can be overcome without incurring unreasonable expense

does not make a site unavailable, but an obstacle that cannot

reasonably be overcome renders the site unavailable. Thus,

in determining whether there are sufficient sites available, the

finder of fact may exclude land under the ocean, airstrips of

international airports, sports stadiums, areas not readily

accessible to the public, areas developed in a manner

unsuitable for any generic commercial business, areas lacking

in proper infrastructure, and so on. See Topanga Press, Inc.

v. City of Los Angeles, 989 F.2d 1524, 1532 (9th Cir. 1993).

However the fact that a site may not be commercially

desirable does not render it unavailable. It is not relevant

that a relocation site will result in lost profits, higher

overhead costs, or even prove commercially unfeasible for an

adult business. Jd. at 1531. 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.

Grand Brittain, Inc. v. City of Amarillo, Texas, 27 F.3d

1068, 1069 (Sth Cir. 1994). As we have stated time and

again, commercial viability is not a relevant consideration.

10a

See id.; Lakeland Lounge, 973 F.2d at 1260; SDJ, Inc. v.

City of Houston, 837 F.2d 1268 (Sth Cir. 1988).

The jury found that there were 39 adult businesses in

operation in 1988 but only 12 sites available and only 12

acres available, and the jury determined that the Adult

Businesses had been denied an opportunity to open and

operate their businesses. The City contends that none of the

jury’s findings for 1988 is supported by the evidence. The

jury also found that there were 22 adult businesses in

operation in 1992 but only 12 sites reasonably available and

only 12 acres available, and determined that the Adult

Businesses had been denied a reasonable opportunity to open

and operate their businesses. The jury’s finding that 22 adult

businesses were in operation is unchallenged, but the City

contends that the jury’s other findings relative to 1992 are

unsupported.

Where a zoning ordinance requires that adult

businesses maintain a certain distance from one another,

merely knowing the number of acres available is not

particularly enlightening. Assuming a 1000 foot separation

requirement and that each business requires one acre, 100

available acres could support as few as two or as many as

~ 100 locations depending on how the acreage is situated

within the city and how the available acreage is utilized. We

are therefore not particularly concerned with determining

how much acreage was actually available. It is enough to

note that the jury’s findings on available acreage were clearly

based on a misapprehension of the meaning of available land

and that the findings find no support in the record. What is

important is the number of adult business locations that the

acreage will support given the spacing requirements. That is

what determines whether there are sufficient alternative sites

available and that is our focus in reviewing the sufficiency of

the evidence.

lla

D.

The City identified 50 specific sites meeting the

Ordinances’ spacing requirements which it contended were

physically and legally available in 1988. The sites were

located on 1433 acres of land complying with the

Ordinances, though the City did not contend that all 1433

acres were physically and legally available. In addition to

the 50 sites identified as available in 1988, the City identified

16 additional sites that had become available due to rezoning

that it contended were physically and legally available in

1992 located on 1690 acres of land meeting the zoning

requirements.’ The uncontroverted evidence is that all of

the sites specifically identified by the City had road access in

1992, that utilities were put in at the time that the roads were

constructed, and that all sites either had existing structures or

had no physical impediments to building.? The evidence for

' Patricia Aduato (known as Patricia Garcia in Woodall 1), El Paso’s

Planning Coordinator, stated that the City had identified 64 sites that were

available in 1992, but this is clearly a misstatement. Aduato gave

testimony about each of the 66 specific sites that the City contended were

available and both the City and the Appellees entered into evidence

photographs of all 66 sites.

? Phyllis Woodall testified that many areas identified by the City

were undeveloped desert with no road access. She testified that some

areas did not have roads or the closest roads dead-ended in the middle of

nowhere, that some areas were covered with sagebrush and sinkholes,

and that some had no utilities; but Woodall never tied her testimony to

any of the specific sites identified by the City as available. Indeed she

could not, because both the Adult Businesses and the City entered into

evidence photographs of the specific sites identified by the City which

indisputably show that the sites have road access and that those sites

without existing structures have no visible impediments to constructing a

building.

12a

1988 was substantially the same, except that there was some

evidence that three sites may not have had road access in

1988.°

The Adult Businesses advanced a number of reasons

why they considered various sites unavailable. Some are

patently irrelevant. The Adult Businesses claimed that some

sites were unavailable because the owner of the site probably

would not rent or sell to an adult business, or because the

building was currently occupied or leased,‘ neither of which

is of amy obvious concern under Renton. Renton’s

prohibition against consideration of economic impact

forecloses inquiry into whether a relocation site is only

"potentially" as opposed to “actually” available. Topanga

Press, 989 F.2d at 1529. The Adult Businesses’ complaints

about most sites amounted to nothing more than the fact that

some of the sites were on less travelled roads or away from

other commercial development, though there was no evidence

> Patricia Aduato testified that, although all the roads appeared on

1988 zoning maps, she did not know whether the roads on which three

of the proposed sites were located had actually been built at that time.

* We suggested in Woodall | that "[When a] business is operated

pursuant to a lease that commits the property to the present tenant for its

business purposes for a term of years, the property may be effectively

unavailable to adult businesses or any business enterprise. Such a

leasehold could legally bar appellants’ use in the same manner as

restrictive covenants or zoning prohibitions." 950 F.2d at 262. In

Topanga Press, the Ninth Circuit expressed some mystification about this

suggestion, but declined to pass on its correctness, and stated that

“property is not ‘potentially’ available when it is unreasonable to believe

that it would ever become available to a commercial enterprise." 989

F.2d at 1531. We need not speculate here about what lease terms would

make a property unavailable to any commercial enterprise. The record

is devoid of evidence that any site was subject to a long term lease, much

less one with such terms as would take it out of the commercial real

estate market.

13a

that any site with road access was actually inaccessible to the

general public. The Adult Businesses’ oniy real objection to

these sites was that they did not believe the locations could

generate sufficient business to support a topless bar, which

is to say that the Adult Businesses deemed them to be not

commercially viable. See Lakeland Lounge, 973 F.2d at

1260; see also D.G. Restaurant Corporation v. City of

Myrtle Beach, 953 F.2d 140 (4th Cir. 1991) (holding that

ordinance that restricted adult businesses to a remote area of

town away from other businesses and tourist areas did not

violate Renton).

The Adult Businesses complained that some sites had

existing structures that were unsuitable for any small retail

business. In many cases these were large multi-tenant office-

warehouse buildings, and the uncontroverted evidence was

that retail businesses could and occasionally did locate in

such buildings. A few sites were occupied by rather large

single use building like a warehouse or factory, which could

arguably be outside the commercial real estate market. The

Adult Businesses also complained that some sites lacked

adequate parking to meet the City’s requirements for retail

businesses, but made no attempt to show that any site’s

parking problem could not be cured at a reasonable cost.

The Adult Businesses had other similar complaints about

other sites. However, even if we agreed that the these sites

suffered from defects so severe as to take them out of the

commercial real estate market and render them physically

unavailable, there was no evidence that surrounding sites

suffered from the same impediments so as to render them

likewise unavailable.

There is simply no evidence in the record from which

a reasonable inference could be drawn that the sites proposed

by the City were the only sites potentially available. Rather,

the collection of specific sites suggested by the City was but

14a

one possible arrangement of adult business locations that

could coexist under the spacing requirements of the

Ordinances. The zoning maps show that each site suggested

by the City was part of a larger area of potentially available

sites, and virtually every site could be shifted to some nearby

location without significantly upsetting other sites or reducing

the total number of sites available. In almost every case, if

the suggested site proved physically or legally unavailable,

there was another site next door or across the street that was

also potentially available.

The Adult Businesses had the burden of proving that

the Ordinances denied them a reasonable opportunity to open

and operate their businesses by failing to provide reasonable

alternative avenues of commufftication: To meet their burden,

the Adult Businesses had t6 show that the areas left open to

them were inadequate to satisfy the demand for adult

business locations. Under the circumstances of this case, in

order show that the number of adult businesses that could

coexist under the Ordinances was smaller than the number of

sites suggested by the City, the Adult Businesses had to show

not only that a specific site was unavailable, but that its

surrounding area was unavailable as well.

The Court can identify few proposed sites where there

was even a suggestion that the site suffered from an

impediment that might also reasonably be attributed to the

surrounding area. Although Phyllis Woodall testified

generally that the areas which the City claimed were

available under the Ordinances lacked street access, were

covered with sinkholes, or were otherwise unsuitable for any

sort of development, the photographs of the specific sites

entered into evidence by both sides make it clear that the

actual sites suggested by the City and their immediate

vicinity were not the areas about which Woodall testified.

The record suggests only three situations in which the

15a

evidence might support an inference that a specific site and

its surrounding area were physically or legally unavailable:

three sites and their surrounding areas may have been subject

to reciprocal easements barring adult businesses, four sites

may have been within 1000 feet of prohibited uses, and three

sites might not have had road access in 1988. However,

even assuming that there was sufficient evidence to support

findings that all the aforementioned areas were actually

unavailable, the Ordinances still left a sufficient area

physically and legally available for at least forty adult

businesses to operate simultaneously in 1988, and for

significantly more in 1992. When we compare this with the

jury’s findings that there were 39 adult businesses in

operation in 1988 and only 22 in 1992, we see that, as a

matter of arithmetic, there were at all relevant times more

"reasonable" sites available than businesses with demands for

them. The Ordinances therefore afforded the Adult

Businesses adequate alternative means of communication.

See Lakeland Lounge, 973 F.2d at 1260.

Ii.

The Adult businesses contend that the district court

erred in denying their. motion to reinstate their claims under

Article 1 Section 8 of the Texas Constitution. The Adult

Businesses maintain that the standard for determining the

validity of El Paso’s Ordinances under the Texas Constitution

and the United States Constitution are different, and thus

they are entitled to pursue a separate claim under Texas

Constitution.

Article 1, Section 8 of the Texas Constitution

provides in the relevant part:

Every person shall be at liberty to speak, write or

publish his opinions on any subject, being responsible

16a

for the abuse of that privilege; and no law shall ever

be passed curtailing the liberty of speech or of the

Similarly, the First Amendment of the United States

Constitution provides:

Congress shall make no law ... abridging the freedom

of speech, or the press; or the right of the people

peaceably to assemble, and to petition the

Government for a redress of grievances.

The Texas Supreme Court has held that free speech

rights under the Texas Constitution may be broader than

those provided by the Federal Constitution in certain cases.

E.g., Ex Parte Tucci, 859 S.W.2d 1 (Tex. 1993); Davenport

v. Garcia, 834 §.W.2d 4 (Tex. 1992); O’Quinn v. State Bar

of Texas, 763 S.W.2d 397 (Tex. 1988); Channel 4, KGBT v.

Briggs, 759 S.W.2d 939 (Tex. 1988). The Adult Businesses

argue that under Davenport the free speech clause of the

Texas Constitution requires the City to show that the

Ordinances protect a "compelling government interest" and

are the “least restrictive means" possible to protect this

interest, whereas under Renton the United States Constitution

only requires the City to show that the Ordinances protect a

“substantial government interest" and do not "unreasonably

limit" alternative avenues of communication.

The district court determined that the greater

protections set out in Davenport apply only to prior restraints

and not to time, place and manner restrictions in land use

restrictions of sexually oriented businesses. The district

court noted that Lindsay v. Papageorgiou, 751 S.W.2d 544

(Tex-App. - Houston [1st Dist.] 1988, writ denied), the only

Texas case directly on point, held that the Renton standard

applies under Texas Constitution as well as under the United

17a

States Constitution. The Adult Businesses contend that the

Davenport standard was extended to land-use cases in Ex

Parte Tucci, 859 S.W.2d 1, and that Lindsay has been

impliedly overruled. We are unpersuaded.

In Tucci, a plurality of Justices held that the

Davenport standard should have been applied to a temporary

restraining order which regulated abortion protest during the

1992 Republican Party Convention in Houston, Texas. The

Tucci Court addressed the applicability of Davenport to

restrictions on political protest. It did not address whether

the more stringent standard was applicable in land-use cases

involving adult businesses. The simple fact of the matter is

that there is no direct Texas authority supporting the Adult

Businesses’ position that the Davenport standard should be

expanded to land-use cases involving adult businesses, and

the only Texas authority directly on point opted for the

Renton standard. See Lindsay v. Papageorgiou, 751 S.W.2d

544 (Tex. App. - Houston [lst Dist.] 1988, writ denied), see

also Maloy v. City of Lewisville, 848 S.W.2d 380 (Tex. App.

- Fort Worth 1993, no writ). If the intermediate Texas

courts are wrong about Texas law in this area, we are

content to wait until the Texas Supreme Court corrects their

error. We hold that the Adult Businesses’ claims under the

Texas Constitution should be determined under the same

standard as used under the United States Constitution.

IV.

We conclude that the City was entitled to judgment as

a matter of law, and that the district court did not err in

denying the Adult Businesses’ motion to reinstate their claims

under the Texas Constitution. We therefore REVERSE and

REMAND with instructions to dissolve the injunction entered

by the district court prohibiting enforcement of the

Ordinances and for entry of judgment in accordance with this

opinion.

18a

APPENDIX B

(City of El Paso Ordinance No. 6169,

dated February 21, 1978)

FIRST READING 6169

Date 1/7/78

‘llegib!

Date 2/21/78

‘Hesibl

AN ORDINANCE AMENDING CHAPTER 25

(ZONING) OF THE EL PASO CITY CODE,

THE PENALTY BEING AS PROVIDED IN

SECTION 25-10 OF THE CODE

BE IT ORDAINED BY THE CITY COUNCIL OF THE

CITY OF BL PASO: inten

That the following new section be added to Chapter

25 (zoning) of the El Paso City Code:

Section 25-49 Regulation of Certain Businesses.

PURPOSES: In the development and execution of this

ordinance it is recognized that some property uses, by their

very nature, have serious objectionable characteristics,

including devaluation of property, particularly when more

than one of these uses is established in relatively close

proximity to other such uses, or in close proximity to

residential neighborhoods, churches or schools. Special

regulation of the uses described in this ordinance is necessary

to protect residential neighborhoods and other surrounding

businesses from the blighting and downgrading effects of

these uses, and to protect the health, welfare and safety and

morals of citizens whose homes, businesses, churches and

schools may be located near these uses. The primary

purpose of this ordinance is to prohibit the described uses

within one thousand feet of any area zoned “residential”,

a erereeeeeenaedemeiamenaaiiie

19a

“planned unit development" or "mountain development", and

to prevent the establishment of these uses within one

thousand feet of each other, and to prevent the establishment

of these uses within one thousand feet of any church or

school, which would contribute to the deleterious effects

sought to be avoided by this ordinance, such as property

devaluation and exposure of children to sexually explicit

materials.

Uses subject to these controls are as follows: adult

bookstores, adult motion picture theaters, nude live

entertainment clubs.

1. Application to establish any of the above

regulated uses shall be made to the _Zoning Administrator,

who shall not approve any such request if there is already in

existence one or more such regulated use within one

thousand feet of the proposed site of the regulated use, or if

the proposed site of the use is within one thousand feet of

any area zoned “residential,” “planned unit development” or

“mountain development,” or if the proposed site of the

regulated use is within one thousand feet of any church or

school.

For the purposes of this ordinance measurements shall

be made in a straight line, without regard to intervening

structures or objects, from the nearest portion of the building

or structure used as a part of the premises of a regulated use

to the nearest property line of a church, school or district

zoned “residential,” “planned unit development" or

“mountain development."

The Zoning Board of Adjustment may, after public

notice and hearing, grant a special exception to the

provisions of this ordinance if the following findings are

20a

made in addition to the requirements for obtaining special

exceptions under any other applicable ordinance:

(a) That the proposed use will not be contrary to

the public interest or injurious to nearby

properties, and that the spirit and intent of this

ordinance will be observed.

(b) That the establishment of a regulated use or

an additional regulated use in the area will not

be contrary to any program of neighborhood

conservation or any improvement project.

(c) That all applicable regulations of this or any

other ordinance or statute governing such use

or similar uses will be observed.

a It shall be unlawful to establish any use

regulated by this ordinance if the proposed location is within

one thousand feet of any district zoned “residential,”

"planned unit development" or "mountain development," if

the proposed location is within one thousand feet of any

church or school. The establishment of a church, school or

district zoned "residential," “planned unit development," or

"mountain development" within one thousand feet of a

previously existing use regulated by this ordinance shall not

render such use unlawful.

3. Definitions in this ordinance:

(a) Adult bookstore shall mean an

establishment having as a substantial or significant portion of

its stock in trade, books, magazines and other periodicals,

and “peep shows" or film strips which are distinguished or

characterized by their emphasis on pictorial or photographic

representations of “specified sexual activities" or "specified

2la

anatomical areas" (as defined herein) or an establishment

with a segment or section devoted to the sale or display of

such material.

A “significant or substantial portion” shall

mean more than one-third of the stock in trade or sales of the

described material in excess of $5,000 retail value per year.

(6) Adult motion picture theater shall mean

an enclosed building or outdoor screen presenting material

distinguished or characterized by an emphasis on matter

depicting, describing or relating to "specified sexual

activities” or "specified anatomical areas" (as defined herein)

for observation by patrons of such establishments, and which

offers such material for at least any 120 days in any 12-

month period.

(c) Nude live entertainment club shall

mean any bar, club, theater, lounge or establishment which

offers live nude entertainment by dancers, models, actors,

actresses, players, waitresses or waiters. Nude live

entertainment shall mean live human dancers, models, actors,

actresses, players, waitresses or waiters whose pubic area,

buttock or genitals are exposed to the view of patrons at any

time.

(d) Specified sexual activities shall mean:

(1) human genitals in a state of

actual or simulated sexual

stimulation or arousal;

(2) acts of human masterbation,

sexual intercourse or sodomy;

(3) fondling or other erotic

touching of human genitals,

pubic region, buttock, or

female breast;

22a

(4) "sexual intercourse," "sexual

contact", or “deviate sexual

intercourse" as defined in Sec.

21.01 Texas Penal Code.

(e) Specified anatomical areas shall mean

less than completely covered human genitals, pubic region,

buttock, and female breast below a point immediately above

the top of the areola.

(f) Church shall mean any building used

for public worship on a regular and continuing basis by any

religious denomination or sect.

(h) School shall mean any public, private

or parochial institution which offers a course-of instruction

for any grades from kindergarten through the twelfth grade.

4. Amortization of nonconforming uses. Any use

in conflict with the purposes or terms of this ordinance which

is lawfully existing at the adoption of this ordinance shall be

entirely discontinued and shall thereafter cease operation

within five years from the date any such use becomes

nonconforming under this ordinance. If such nonconforming

use is discontinued, interrupted, or changed, any future use

of such land shall be in conformity with the provisions of

this ordinance. Amortization of uses not conforming to the

provision prohibiting location of a regulated use within one

thousand feet of another regulated use shall not be required

unless required by some other provision of this ordinance or

other law (e.g. location within one thousand feet of

residential zone).

5. If any provision, section, subsection, sentence,

clause or phrase of this ordinance, or the application of same

to any person or set of circumstances is for any reason held

23a

to be unconstitutional, void or invalid, the validity of the

remaining portions of this ordinance or their application to

other persons or sets of circumstances shall not be affected

thereby, it being the intent of the City Council in adopting

this ordinance that no portion thereof or provision, or

regulation contained herein, shall become inoperative or fail

by reason of any unconstitutionality of any other portion

hereof and all provisions of this ordinance are declared to be

severable for that purpose.

PASSED AND APPROVED this _ 2]st_ day of

February , 197_8.

[S/

Mayor Pro-Tem

ATTEST:

LS/

City Clerk

APPROVED AS TO FORM:

[S/

Michael Spurlock

Assistant City Attorney

24a

APPENDIX C

(City of El Paso Ordinance No. 8926,

dated February 10, 1987)

008926

AN ORDINANCE AMENDING SECTIONS 20.02.044

(ADULT BOOKSTORE), 20.02.540 (NUDE LIVE

ENTERTAINMENT CLUB), 20.08.080 (ADULT

BUSINESSES), AND 20.62.020 (NONCONFORMING

USES AND STRUCTURES), OF TITLE 20 OF THE

EL PASO CITY CODE (ZONING). THE PENALTY

BEING AS PROVIDED IN CHAPTER 20.68 OF

THE EL PASO CITY CODE

WHEREAS, it is the intent of the City Council of the

City of El Paso to regulate the location of adult bookstores,

adult motion picture theaters and nude live entertainment

clubs, in such a manner as to diminish the negative

secondary impacts of such uses on surrounding residential

land uses while preserving a reasonable opportunity for such

businesses to operate in locations which are appropriate for

such uses; and

WHEREAS, the City Plan Commission held a public

hearing on January 15, 1987, and made the following

recommendations:

Based on the report presented by the Department of

Planning in conjunction with New Mexico State

University, that adult entertainment businesses should

be regulated in the Zoning Ordinance to protect

neighborhood property values and to preserve the

quality of life and character of these residential

neighborhoods; and

25a

WHEREAS, the City Council, at a public hearing on

February 10, 1987, considered the matter of passage of an

ordinance governing land use regulation of adult

entertainment; and

WHEREAS, the City Council makes the following

findings which for the basis for such land use regulation of

adult entertainment uses:

1. Adult entertainment land uses should be regulated

by zoning regulations to separate them from

incompatible uses in the same manner as other land

uses are regulated. ee

ae Property values in areas adjacent to adult

entertainment land uses are adversely affected.

3. Location of adult entertainment land uses in close

proximity to residential uses, churches, parks or

schools is inappropriate land use, and decreases the

quality of life in such areas.

4. There is a correlation between higher crime rates

and concentration of adult entertainment land uses.

NOW, THEREFORE, BE IT ORDAINED BY THE CITY

COUNCIL OF THE CITY OF EL PASO:

That Sections 20.02.044 (Adult Bookstore), 20.02.540

(Nude Live Entertainment Club), 20.08.080 (Adult

Businesses), and 20.62.020 (Nonconforming Uses and

Structures) of Title 20 of the El Paso City Code be and are

hereby amended as follows:

26a

Article II. Definitions.

20.02.044, Adult Bookstore.

"Adult Bookstore” means an establishment having a

majority of its stock in trade, books, magazines and other

periodicals, and “peep shows" film strips, or video cassettes

which are distinguished or characterized by their emphasis on

pictorial or photographic representation of “specified sexual

activities” or “specified anatomical areas" (as defined in this

chapter), or an establishment with a section or segment

devoted to the sale, rental or display of such material, where

such section or segment comprises twenty percent (20%) or

more of such establishment’s stock in trade, sales or rentals.

20.02.540, Nude Live Entertainment Club.

"Nude live entertainment club" means any bar, club,

theater, lounge or establishment which offers live nude

entertainment by dancers, models, actors, actresses, players,

waitresses or waiters. "Nude live entertainment” means live

human dancers, models, actors, actresses, players, waitresses

or waiters, exposing “specified anatomical areas" as that

term is defined in this Code, to the view of patrons.

Article II. Supplementary Use Regulaticss.

20.08.080, Adult Businesses.

A. No adult bookstore, adult motion picture

theater or nude live entertainment club may be established

within one thousand feet of the following:

a A church.

2. A public or private elementary or

secondary school.

27a

He A nursery school, kindergarten, child

care center, day nursery or day care

center.

A boundary of any residential district.

A public park adjacent to a residential

district.

6. The property line of a lot devoted to

any residential use.

ee Another adult bookstore, adult motion

picture theater or nude live

entertainment club.

ae a

B. For the purposes of this section, measurements

shall be made in a straight line, from the nearest portion of

the building or structure used as a part of the premises of a

regulated use to the nearest property line of any uses listed

in Section 20.08.080(A.).

. Any adult bookstore, adult motion picture

theater or nude live entertainment club lawfully in existence

on February 10, 1987, and not in compliance with the zoning

provisions of the City Code, shall be deemed as

nonconforming use and shall comply with all of the

provisions of the zoning code regulating such uses by

February 10, 1988. In the case of any such uses being

located within one thousand feet (1,000 ft.) of each other, the

use first established and continually operating shall be

allowed to continue to operate at it’s location, provided such

use complies with all other provisions of the zoning code.

[additional one year amort. period]

D. The subsequent establishment of any use set

forth in Section 20.08.080(A.) above within one thousand

feet of a previously existing use regulated by this section

shall not render such use a nonconforming or unlawful use.

28a

E. The regulations in this zoning code of adult

bookstores, adult motion picture theaters and nude live

entertainment clubs are intended to be land use controls

meant to regulate the harmful secondary effects of such uses

only, and shall not be construed as being intended to limit

access by adults to sexually oriented material, activity or

expression, protected by The First Amendment of The

United States Constitution.

F. Signage. The owner or operator of an

adult entertainment use may erect, construct and maintain

signs allowed by and conforming with Chapter 20.66 of the

City Code. No signs shall contain photographs, silhouettes,

drawings or pictoral representations of any manner, and may

contain only the name of the regulated establishment.

G. If any section, subsection, clause or any

portion of the regulations in this zoning code regulating adult

bookstores, adult motion picture theaters and nude live

entertainment clubs is held to be invalid or unconstitutional

by the decision of any court of competent jurisdiction, such

decision shall not affect the validity of the remaining portions

of this code regulating such uses.

20.62.020, Nonconforming Uses and Structures.

F. Any adult bookstore, adult motion picture

theater or nude live entertainment club which is deemed

nonconforming under Section 20.08.080 (C.) of Title 20 of

this code, shall comply with all provisions of the zoning code

regulating such uses by February 10, 1988.

1. Within thirty (30) days from February 10,

1987, the operator or owner of such permitted

use shall file the name and location of the

29a

operation with the Zoning Administrator of

the City of El Paso.

2. The City Council may grant an extension

for operation, of nonconforming uses beyond

the time provided herein, if the owner of the

existing enterprise proves that he is unable to

recoup his investment in such existing

enterprise by that date. In order to secure an

extension of time, the secure an extension of

time, the owner must submit to the City Clerk

a written request for such extension on or

before January 10, 1988. No application for

extension received by the City Clerk after

January 10, 1988 shall be considered. Such

written request shall set forth the following

information:

(a) the amount of the owner’s

investment in the existing

enterprise through February

10, 1987;

(b) the amount of such investment

that has been or will be

realized through February 10,

1988;

(c) the life expectancy of the

existing enterprise;

(d) the existence or nonexistence

of lease obligations, as well as

any contingency clauses therein

permitting termination of such

lease.

30a

This information shall be supported by relevant

documentary evidence such as financial statements and tax

records. Copies of such documentary evidence must be

attached to the request for extension. The City Clerk shall

notify the applicant of the date and time of the City Council

meeting at which time such request shall be considered by

City Council.

PASSED AND APPROVED this___ 10th _ day of

_February_, 1987.

[S/

Mayor

ATTEST:

_LS/

City Clerk

APPROVED AS TO CONTENT:

[S/

Planning Department

APPROVED AS TO FORM:

[S/

Assistant City Attorney

ZNG3:028

3la

APPENDIX D

(City of El Paso Ordinance No. 9326,

dated March 22, 1988)

009326

AN ORDINANCE AMENDING TITLE 20 (ZONING),

SECTION 20.08.080 (ADULT BUSINESSES), OF THE

EL PASO CITY CODE, CLARIFYING THE ACTIVITIES

PROHIBITED BY THIS SECTION. THE PENALTY

BEING AS PROVIDED IN SECTION 20.68.010.A

OF THE EL PASO CITY CODE.

BE IT ORDAINED BY THE CITY COUNCIL OF THE

CITY OF EL PASO:

1. That Title 20 (Zoning), Section 20.08.080

(Adult Businesses), of the El Paso City Code, be amended to

read as follows:

A. No person shall own, operate or conduct any

business in an adult bookstore, adult motion

picture theater or nude live entertainment club

that is located within one thousand feet of the

following:

a A church.

= A public or private elementary or

secondary school.

3. A nursery school, kindergarten, child

care center, day nursery or day care

center.

4. A university, college, vocational or

business school;

A boundary of any residential district.

A public park adjacent to a residential

district.

ial ts

32a

The property line of a lot devoted to

any residential use.

Another adult bookstore, adult motion

picture theater or nude live

entertainment club.

B. For purposes of this section, the following

definitions shall apply:

1.

Conduct Any Business.

Any person who does any one or more

of the following shall be deemed to be

conducting business:

(a) Operates a cash register, cash

drawer or other depository on the adult

business premises where cash funds or

records of credit card or other credit

transactions generated in any manner

by the operation of the establishment

or the activities conducted therein are

kept;

(b) displays or takes orders from any

customer for any merchandise, goods,

entertainment or other services offered

on the adult business premises;

(c) delivers or provides to any

customer any merchandise, goods,

entertainment or other services offered

on the adult business premises;

(d) acts as a door attendant to

regulate the entry of customers or

other persons into the business

c.

For

33a

premises; and

(e) supervises or manages other

persons in the performance of any of-

the foregoing activities on the business

premises.

Entertainment.

Any act or performance, such as a

play, skit, reading, revue, pantomime,

scene, song, dance, musical rendition

or striptease, whether performed by

employees, agents, contractors or

customers. The term ‘entertainment’

shall also mean bartenders, waiters,

waitresses or other employees

exposing ‘specified anatomical areas’

or engaging in ‘specified sexual

activities’ in the presence of

customers.

Operator.

The manager or other natural person

principally in charge of an adult

business regulated in this section.

Owner or Owners.

The proprietor if a sole proprietorship,

all partners (general and limited) if a

partnership, or all officers, directors

and persons holding ten percent (10%)

of the outstanding shares if a

corporation.

the purposes of this _ section,

measurements shall be made in a straight line,

34a

from the nearest portion of the building or

structure used as a part of the premises of a

regulated use to the nearest property line of

any uses listed in subsection A of this section.

Any adult bookstore, adult motion picture

theater or nude live entertainment club

lawfully in existence on February 10, 1987,

and not in compliance with the zoning

provisions of the City Code, shall be deemed

a nonconforming use and shall comply with

all of the provisions of the zoning code

regulating such uses by February 10, 1988.

In the case of any such uses being located

within one thousand feet of each other, the

use first established and continually operating

shall be allowed to continue to operate at its

location, provided such use complies with all

other provisions of the zoning code.

The subsequent establishment of any use set

forth in subsection A of this section within

one thousand feet of a previously existing use

regulated by this section shall not render such

use a nonconforming or unlawful use.

The regulations in this zoning code of adult

bookstores, adult motion picture theaters and

nude live entertainment clubs are intended to

be land use controls meant to regulate the

harmful secondary effects of such uses only,

and shall not be construed as being intended

to limit access by adults to sexually oriented

material, activity or expression, protected by

the First Amendment of the United States

Constitution.

35a

G. Signage. The owner or operator of an adult

entertainment use may erect, construct and

maintain signs allowed by and conforming

with Chapter 20.66 of the City Code. No

signs shall contain photographs, silhouettes,

drawings or pictorial representations of any

manner, and may contain only the name of the

regulated establishment.

H. If any section, subsection, clause or any

portion of the regulations in this zoning code

regulating adult bookstores, adult motion

picture theaters and nude live entertainment

clubs is held to be invalid or unconstitutional

by the decision of any court of competent

jurisdiction, such decision shall not affect the

validity of the remaining portions of this code

regulating such uses.

PASSED AND APPROVED this 22nd day of

_March_, 1988.

/S/

Mayor

ATTEST:

_LS/

City Clerk

APPROVED AS TO FORM:

SL

Assistant City Attorney

36a

APPROVED AS TO CONTENT:

/S/

Department of Planning,

Research and Development

ZNG6:003

37a

APPENDIX E

IN THE UNITED STATES “OURT OF APPEALS

FOR THE FIFi i CIRCUIT

No. 93-8674

PHYLLIS WOODALL, ET AL.,

Plaintiffs,

PHYLLIS WOODALL, ET AL.,

Plaintiffs-Appellees,

versus

THE CITY OF EL PASO, ET AL.,

Defendants,

THE CITY OF EL PASO,

Defendant-Appellant.

No. 93-8739

PHYLLIS WOODALL, ET AL.,

Plaintiffs,

PHYLLIS WOODALL, JEANNIE COUTTA d/b/a/

THE NAKED HAREM, JEDIJO, INC.,

SMD ENTERPRISES, INC.,

d/b/a The Lamplighter d/b/a Red Flame

and MARC DIEDRICH, President,

Plaintiffs-Appellants,

versus

THE CITY OF EL PASO, ET AL.,

Defendants-Appellees.

Appeals from the United States District Court

for the Western District of Texas

38a

ON SUGGESTION FOR REHEARING EN BANC

(Opinion 04/14/95, 5 Cir., __ F.2d __)

(June 22, 1995)

Before HIGGINBOTHAM, SMITH and PARKER, Circuit

Judges. ~ oe

PER CURIAM:

(X) Treating the Suggestion for Rehearing En Banc as a

Petition for Panel Rehearing, the Petition for Panel

Rehearing is DENIED. No member of the panel nor Judge

in regular active service of the Court having requested that

the Court be polled on rehearing en banc (FRAP and Local

Rule 35), the Suggestion for Rehearing En Banc is DENIED.

() Treating the Suggestion for Rehearing En Banc as a

Petition for Panel Rehearing, -the Petition for Panel

Rehearing is DENIED. The Court having been polled at the

request of one of the members of the Court and a majority of

the Judges who are in regular active service not having voted

in favor (FRAP and Local Rule 35), the Suggestion for

Rehearing En Banc is DENIED.

ENTERED FOR THE COURT:

/s/_ Robert Parker

United States Circuit Judge