# Opposition Brief — Woodall v. City of El Paso

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1995
- **Citation:** 516 U.S. 988

## Text

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 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

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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

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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

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“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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386012_2264%3A2. Public record. Not legal advice.