Reply Brief — City of San Antonio v. Encore Videos, Inc.

. Supreme Court, U.S.

/

ali OCT 15 200

OFFICE OF THE CLERK

No. 03-163

IN THE

Supreme Court of the United States

THE CITY OF SAN ANTONIO,

Petitioner,

¥.

ENCORE VIDEOS, INC.,

\ Respondent.

On Petition for a Writ of Certiorari

to the United States Court of A

for the Fifth Circuit \

REPLY BRIEF

ScoTT D. BERGTHOLD MICHAEL P. HODGE

LAW OFFICE OF DEPUTY Ciry ATTORNEY

ScoTT D. BERGTHOLD, PLLC Counsel of Record

6830 MCCUTCHEON ROAD DONALD S. BAYNE

CHATTANOOGA, TN 37421 ASST. CITY ATTORNEY

(423) 899-3025 P.O. BOX 839966

SAN ANTONIO, TX 78283

(210) 207-8766

/'3 ft

TABLE OF CONTENTS

Page

Be Fae PF Soy) 8 i>... ras oar li

pA ge ok. ee were rey 1

The Split in the Circuits is Clear................ ]

Il. The Lower Court Misconstrued the Scope of the

Ordinance and Relied Upon False Assumptions

FE Be I rk 5 05s K 6 KAS eee ss A

I. The Lower Court Misapplied Narrow Tailoring

Analysis in Contravention of City of Renton v.

Playtime Theatres, Inc., 475 U.S. 41 (1986) and

City of Los Angeles v. Alameda Books, Inc.,

re were saree 7

AGT 5.<h pe hax enna w nee Pree ee TS eee 9

TABLE OF AUTHORITIES

CASES: | Page(s)

Bigg Wolf Discount Video Movie Sales, Inc. v. .

Montgomery County, :

256 F Supp.2d 385 (D. Mid. BOGS) on. vc ccacvcsccess 3

City of Erie v. Pap’s A.M.,

S29 VS. S77 GD + 0-445 65 see ee ee ]

City of Los Angeles v. Alameda Books, Inc.,

535 U.S. 423 GR) 0 «sh 440554404 5 eee 1,7, 8,9

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

473 U.S. 41 CURRR) si neeucaveneens eras 1,7,8

FW/PBS, Inc. v. City of Dallas,

993 US. 293 (099Ee ci sctecaeeeene eee 5

ILQ Investments, Inc. v. City of Rochester,

25 F.3d 1413 (8? Cle. TOG) oso okkivy seecsees 1,2, 6

Malloy v. City of Lewisville,

848 S.W.2d 380 (Ct. App. Tex. 1993) .............. 7

Richland Bookmart, Inc. v. Nichols,

337 F.3d 695 OO" Ge, FO ik kv ks osc oc neeeeedess 1

United States v. Albertini,

OTE ULB. Gore es os de bao a eae eee eee 7,8

li

Virginia v. Hicks,

er 7

Ward v. Rock Against Racism,

eg ee rea vac eh eee es exe Kes 7,8

World Wide Video of Washington, Inc. v. City of Spokane,

227 F.Supp.2d 1143 (E.D. Wash. 2002) .......... 3,8

World Wide Video, Inc. v. Tukwila,

ee | rn 2

Young v. American Mini Theatres, Inc.,

a ee eee 4,8

Z.J. Gifts D-2, L.L.C. v. City of Aurora,

136 F.3d 683 (10™ Cir. 1998) ...............006- Be

STATUTES AND OTHER AUTHORITIES:

San Antonio Ordinance No. 87443 ................. 4,5

ili

ARGUMENT IN REPLY

Respondent’s brief in opposition to the petition offers two

arguments for denying the petition. The first argument,

however, simply demonstrates that the circuits are split on the

question presented. Respondent’s second argument — based on

a factual assumption made by the appeals court —- demonstrates

that this Court should grant certiorari to clarify that such

assumptions do not invalidate reasonable zoning standards for

sexually explicit businesses.

I. The Split in the Circuits is Clear.

This Court has repeatedly held that in enacting zoning

regulations for sexually oriented businesses, cities may rely

upon any evidence “reasonably believed to be relevant” to the

goal of preventing secondary effects. City of Les Angeles v.

Alameda Books, Inc., 535 U.S. 425, 438 (2002) (plurality

opinion); see also id. at 451 (Kennedy, J., concurring in

judgment); City of Erie v. Pap’s A.M., 529 U.S. 277, 283

(2000); City of Renton v. Playtime Theatres, Inc., 475 U.S. 41,

51-52 (1986).

The Sixth, Eighth, and Tenth Circuits have relied on this

standard to uphold zoning ordinances as applied to sexually

oriented book and video stores that do not have “peep-show”

booths on the premises. Richland Bookmart, Inc. v. Nichols,

137 F.3d 435, 437 (6th Cir. 1998); ILO Investments, Inc. v. City

of Rochester, 25 F.3d 1413, 1418 (8th Cir. 1994); Z.J. Gifts D-

2, L.L.C. v. City of Aurora, 136 F.3d 683, 687 (10th Cir. 1998).

In contrast, the Fifth Circuit invalidated San Antonio’s zoning

ordinance for an alleged failure to produce secondary effects.

evidence specific to “establishments that sell adult products

solely for off-site consumption.” Pet. App. 13a.

Encore purports to argue that no conflict exists, but then

proceeds to identify the conflict and contends that “these cases

need to be reevaluated in light of’ Alameda Books.

Respondent’s Brief in Opposition at 2. Moreover, the Fifth

Circuit noted the conflict between its position and that of the

Eighth and Tenth Circuits. Pet. App. 13a (following World

Wide Video, Inc. v. Tukwila, 816 P.2d 18, 21 (Wash. 1991) and

rejecting JLQ and Z.J. Gifts).

In enacting its zoning ordinance, the City of San Antonio

relied upon much of the same evidence that was found

sufficient for Rochester, Minnesota and Aurora, Colorado in

ILQ and Z.J. Gifts, respectively. For example, the legislative

record of all three ordinances included, inter alia, the

Indianapolis, Indiana study conducted in 1984. See ILQ, 25

F.3d at 1418; Z.J. Gifts, 136 F.3d at 687 n.1; Pet. App. 66a.

That study:

included a national survey of real estate appraisers. Of

the 507 responding appraisers, 80% opined that an adult

bookstore would reduce the value of residential

properties within one block of the site, and 72% opined

that an adult bookstore would reduce the value of

commercial properties within one block.

ILQ, 25 F.3d at 1418.

The JLQ decision, upon which the City also relied in

defending its ordinance, described the adverse impacts of adult

businesses, including an adult bookstore, found in a St. Paul,

Minnesota study:

The documented secondary effects included “discarded

pornographic literature allegedly found in the streets,

sidewalks, bushes and alleys near adult businesses.

Such literature is sexually very explicit, even on the

cover, and ... becomes available to minors even though

its sale to minors is prohibited.”

oe

Both the Eighth Circuit and the Tenth Circuit found that this

kind of information was “reasonably believed to be relevant” to

the problems that Rochester and Aurora sought to avoid by

requiring adult bookstores — even those without peep-show

booths for “on-premises” viewing of videos — to remain

rinimum distances from residences. Simply put, nothing in the

legislative evidence suggested that the depressive effect of adult

bookstores on nearby property values or the problem of

pornographic litter turned on the sub-category of adult bookstore

at issue. Rather, the JLQ and Z.J. Gifts courts permitted the

municipalities to make the logical inference that such effects flow

from the presence of a pornographic bookstore in the

neighborhood, regardless of whether the enterprise has booths or

mini-theaters for displaying its sexually explicit fare.

Not so in the Fifth Circuit. The “heightened specificity”

requirement applied to Saa Antonio’s legislative record by the

panel below is clearly at odds with the version of the Renton

standard applied by the Eighth and Tenth Circuits.

Additionally, it is contrary to the Renton standard as applied by

certain district courts after Alameda Books. See, e.g., World

Wide Video of Washington, Inc. v. City of Spokane, 227

F.Supp.2d 1143, 1155 (E.D. Wash. 2002) (upholding zoning

ordinance against “retail-only” adult bookstore’s challenge, and

finding that Alameda Books is consistent with both Z.J. Gifts

and [LQ Investments); Bigg Wolf Discount Video Movie Sales,

Inc. v. Montgomery County, 256 F.Supp.2d 385, 395 (D. Md.

2003) (following JLQ and upholding ordinance as applied to

adult bookstore without peep-show booths).

3

Despite Respondent’s protestations to the contrary, the

conflict in the circuits over the question presented is apparent,

and this Court should accept certiorari to resolve the conflict.

II. The Lower Court Misconstrued the Scope of the

Ordinance and Relied Upon False Assumptions About

Its Application. .

Encore seizes upon the unsupported assumption made by

the lower court that “even ordinary bookstores and video stores

with adult sections could be subjected to regulation....” Pet.

App. 13a; Respondent’s Bnef in Opposition at 10.

There is absolutely no evidence in the record, however, to

support the assumption that San Antonio’s ordinance will affect

mainstream bookstores. This is because no evidence suggests

that any “ordinary” bookstore in San Antonio has “more than

20% of its inventory” in materials “characterized by their

emphasis on ... specified anatomical areas or specified sexual

activities” or in “non-contraceptive instruments, devices, toys,

or paraphernalia designed for use in connection with specified

sexual activities....” Ordinance 87443, Pet. App. 70a-7 la.

The City, following Young v. American Mini Theatres, Inc.,

427 U.S. 50, 54 n.4 (1976), defined “specified anatomical

areas” to include “the human genitals, crevice of the buttocks,

pubic region, anus, and the areola of the post-puberty female

breast.” Pet. App. 74a. Similarly, the ordinance narrowly

defines “specified sexual activity” as:

[A]ctual or simulated human genitals in a state of

sexual stimulation or arousal, actual or simulated

human masturbation, sexual intercourse, sodomy,

fellatio, cunnilingus, fondling or other erotic touching

of human genitals, pubic region, buttock or female

breast, and excretory functions as part of or in

connection with the above described activity.

4

Ordinance 87443, Pet. App. 74a.

For inventory to count under the ordinance, it is not

sufficient that the item contain a picture with incidental nudity,

full frontal nudity, or an ultimate sex act. Rather, the magazine

or movie must be characterized by an emphasis upon such

depictions.

In construing a similar adult bookstore definition in the

Dallas ordinance, FW/PBS, Inc. v. City of Dallas, 493 U.S. 215,

255 n. 5 (1990) (Scalia, J., concurring in part and dissenting in

part), Justice Scalia noted that the ordinance “would be

interpreted to apply only to businesses that not only (1) offer

live nudity or hard-core sexual material, (2) as a constant and

intentional objective of their business, but also (3) seek to

promote it as such.” /d. at 261.

Encore attempts to distinguish the San Antonio definition

from the Dallas definition on the grounds that the Dallas

definition did not use a percentage of inventory, but rather

defined an adult bookstore as a commercial establishment that

has “as one of its principal business purposes” the sale of

materials “which depict or describe ‘specified sexual activities’

or ‘specified anatomical areas.’” Id. at 254 n. 5; see

Respondent’s Brief in Opposition at 9-10. This purported

distinction is unpersuasive.

First, a business that has “more than 20% of its inventory”

in hard-core sexual materials can hardly claim that the sale of

such materials is not “one of its principal business purposes.”

Second, the San Antonio ordinance is arguably more narrow

than the Dallas ordinance, since that ordinance covered

materials “which depict or describe” specified anatomical areas

and specified sexual activities, whereas the San Antonio

ordinance counts, toward the adult use classification, only

materials characterized by an emphasis upon displays of those

areas and activities. JLQ, 25 F.3d at 1419 (“The limiting term,

‘characterized by an emphasis’ on the sexually explicit, which

ILQ characterizes as overly broad, has been widely construed

since it was discussed and upheld in the Supreme Court's 1976

decision in American Mini Theatres’’).

Thus, there is no meaningful distinction between the instant

ordinance and Dallas ordinance. Neither encompasses

mainstream bookstores. Again, neither Encore nor the court

below pointed to any record evidence supporting its assumption

that “ordinary” bookstores — such as Barnes & Noble or

Waldenbooks — have greater than 20% of their inventory in sex

toys or materials characterized by an emphasis upon graphic

nudity and sex acts. No such evidence exists.

Encore asserts that “the quantity of speech will be reduced,”

Respondent’s Brief in Opposition at 9, but fails to give one

example, in the years since the ordinance’s passage, of how a

mainstream bookstore has been targeted or speech has been

reduced.

Moreover, Encore — which formerly operated in a valid

location — does not deny that a properly zoned adult bookstore

can have 100% of its inventory in sexually graphic material,

and that the ordinance provides adequate sites for adult

businesses. Pet. App. 49a.

Instead, Encore argues that the ordinance is unconstitutional

due to its potential impact on other businesses not before the

Court. In rejecting a similar challenge to an adult business

zoning ordinance, the Texas Court of Appeals held that:

In the absence of evidence that the main-line chain

bookstores in question had at least 20% of their “stock

and trade” devoted to sexuu.i: oriented material ... or

that they were dealing in sexually related instruments,

devices, or paraphernalia, the appellants have failed to

6

show that those stores fell within the application of the

ordinance.

Malloy v. City of Lewisville, 848 S.W.2d 380, 383 (Ct. App.

Tex. 1993).

Likewise, Encore has failed to show “from the text of [the

law] and from actual fact,” Virginia v. Hicks, 123 S. Ct. 2191,

2198 (2003), that any impermissible applications of the

ordinance have been advanced by the City.

III. The Lower Court Misapplied Narrow Tailoring

Analysis in Contravention of City of Renton v. Playtime

Theatres, Inc., 475 U.S. 41 (1986) and City of Los

Angeles v. Alameda Books, Inc., 535 U.S. 425 (2002).

Given the secondary effects evidence upon which the City

relied, the narrow scope of the San Antonio ordinance, and the

lack of evidence to support Respondent’s assumption, it is clear

that the decision below misapplied the narrow tailoring prong

of the time, place, and manner test.

Under that test, a regulation is narrowly tailored so long as

it “promotes a substantial government interest that would be

achieved less effectively absent the regulation.” United States

v. Albertini, 472 U.S. 675, 689 (1985). Provided that the

regulation is not “substantially broader than necessary,”’an

ordinance “will not be invalid simply because a court concludes

that the government’s interest could be adequately served by

some less-speech-restrictive alternative.” Ward v. Rock Against

Racism, 491 U.S. 781, 799 (1999).

Narrow tailoring “does not turn on a judge’s agreement”

with the legislative body “‘concerning the most appropriate

method for promoting significant government interests’ or the

degree to which those interests should be promoted.” Id.

(quoting Albertini, supra at 689).

These principles are well-established in the Court’s adult

business zoning cases. Renton held that “[the] city must be

allowed a reasonable opportunity to experiment with solutions

- to admittedly serious problems.” 475 U.S. at 52 (quoting

Young v. American Mini Theatres, Inc., 427 U.S. 50, 71 (1976)

(plurality opinion). In Alameda Books, the Court reiterated

Renton’s deferential “reasonably believe to be relevant”

standard for legislative evidence and emphasized that “courts

should not be in the business of second-guessing” the factual

determinations of city planners. Jd. at 451 (Kennedy, J.,

concurring in judgment).

In this case, the City’s ordinance does not sweep

substantially broader than necessary to serve its substantial

interest in protecting residences from the adverse effects of

adult bookstores. As detailed above, supra pp. 2-4, these

effects range from adverse impacts on property resale values to

the problem of pornographic litter. See World Wide Video of

Washington, Inc. v. Spokane Arcade, 227 F.Supp.2d 1143,

1158-59 (E.D. Wash. 2002). The City contends that these

problems are linked to the presence of an adult bookstore,

regardless of whether the store has peep show booths. This

inference is reasonable, and the lower court erred in rejecting it.

Alameda Books, 535 U.S. at 452 (Kennedy, J., concurring in

judgment).

Although the court below disagreed with the City’s planners

“concerning the most appropriate method for promoting

significant government interests,” the record offers no support

for its assumption that the City’s adult business ordinance

targets mainstream establishments.

Nor does narrow tailoring analysis permit invalidation of the

ordinance simply because the lower court would have set a

higher percentage of sexually graphic inventory for defining an

adult use or would have implemented a less restrictive measure

of addressing secondary effects. In essence, the lower court

imposed an empirical proof requirement — which was rejected

in Alameda Books, 535 U.S. at 439 (plurality) - and then

‘substituted its own assumption for the predictive judgment of

the City’s land use planners. In doing so, the court created a

circuit conflict and contravened both Renton and Alameda

Books. Accordingly, this Court should grant certiorari and

reverse.

CONCLUSION

For the foregoing reasons, the Petition for a Writ of

Certiorari should be granted.

Respectfully submitted,

MICHAEL P. HODGE

DEPUTY CITY ATTORNEY

Counsel of Record

DONALD S. BAYNE

ASSISTANT CiTy ATTORNEY

P.O. Box 839966

SAN ANTONIO, TX 78283

(210) 207-8766

SCOTT D. BERGTHOLD

LAW OFFICE OF

SCOTT D. BERGTHOLD, P.L.L.C.

6830 MCCUTCHEON ROAD

CHATTANOOGA, TN 37421

(423) 899-3025

|