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

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386015_1904%3A3

## Record

- **Collection:** Supreme Court brief
- **Document type:** Reply Brief
- **Published:** January 1, 2003
- **Citation:** 540 U.S. 982

## Text

. 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

|

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386015_1904%3A3. Public record. Not legal advice.