Opinion
Civil Action No. 4:02-CV-458-Y (Consolidated with 4:02-CV-471-Y).
March 29, 2005
Pending before the Court is defendant City of Kennedale, Texas ("Kennedale")'s Motion for Summary Judgment [doc. # 94-1]. Also pending before the Court is the Motion for Partial Summary Judgment [doc. # 115-1] of plaintiff-intervenor Reliable Consultants, Inc., d/b/a/ "Dreamer's" (hereinafter, "Reliable"). Having carefully considered the motions, responses, and replies, the Court concludes that both motions should be PARTIALLY GRANTED and PARTIALLY DENIED.
I. RELEVANT BACKGROUND
Reliable and plaintiff Beverly van Dusen, d/b/a B V Video Enterprises d/b/a "New Video" (hereinafter, "B V") operate sexually oriented businesses on property in Tarrant County, Texas, Kennedale annexed in 1999. Kennedale's ordinances at the time of annexation, as well as those enacted afterward (collectively, "the ordinances"), prohibited Dreamer's, New Video, and three other sexually oriented businesses from operating in their current locations. The ordinances do not ban sexually oriented businesses altogether, but provide that such businesses may not operate within 800 feet of a residential district, a church or synagogue, a school or licensed day-care center, a public library, another sexually oriented business, or within specified overlay districts. The ordinances also require any sexually oriented businesses to obtain a license to operate. The affected businesses were given a three-year amortization period from the date of annexation in which to recoup their investments and relocate their businesses. An appeal for an extension of time was also possible, though neither Reliable nor B V applied for such an extension.
On May 20, 2002, H and A Land Corporation, d/b/a/ Showtime Cabaret ("H and A"), one of the sexually oriented businesses impacted by the annexation, brought suit in this Court against Kennedale seeking a temporary restraining order and preliminary injunction against Kennedale's enforcement of the ordinances. On May 23, Dingler Dingler Construction Company, d/b/a Fantasy Foxx ("Dingler"), intervened as a plaintiff in the action; Reliable intervened as a plaintiff on May 24. B V, collectively with Southern Salvage Inc., d/b/a Log Cabin Adult Bookstore ("Southern Salvage"), brought a separate suit against Kennedale on May 24 that was later consolidated with H and A's suit on June 11. Kennedale later settled its disputes with H and A, Dingler, and Southern Salvage, and their claims against Kennedale were dismissed with prejudice by the Court. While Dingler and Southern Salvage ceased operation of their businesses, H and A was permitted to continue its operation following an agreement to make aesthetic changes to its facility and to add a pizza restaurant within the building.
H and A's claims were dismissed on December 4, 2002. Southern Salvage's claims were dismissed with prejudice on January 13, 2004, while Dingler's claims were dismissed with prejudice on January 14.
Reliable's complaint requests a declaratory judgment that Kennedale's ordinances are unconstitutional on their face because they impose a prior restraint on the exercise of the right to free expression, impose improper time, place, and manner restrictions, constitute a taking of private property, and are content-based restrictions on speech. Reliable also seeks a permanent injunction, just compensation for the taking of its private property, and attorneys' fees. B V's complaint alleges that Kennedale's ordinances are unconstitutional on their face and void for vagueness and overbreadth, constitute violations of freedom of expression because they are prior restraints, are content-based, limit alternative avenues of communication, and violate the Equal Protection and Due Process Clauses of the Fourteenth Amendment. B V requests preliminary and permanent injunctions, a declaration that Kennedale's ordinances are unconstitutional pursuant to the First, Fifth, Eighth, Ninth, and Fourteenth Amendments to the Constitution, and attorney's fees.
Kennedale filed a motion for summary judgment as to both Reliable and B V (collectively, "Plaintiffs")'s claims. Reliable moved for partial summary judgment as to its request for a declaration regarding its prior-restraint claims, its claim that the ordinances constitute improper time, place, and manner restrictions, and its claim that the ordinances constitute content-based restrictions on speech. B V has not moved for summary judgment on any of its claims.
II. SUMMARY JUDGMENT STANDARD
Summary judgment is proper when the record establishes "that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." FED. R. CIV. P. 56(c). An issue is considered "genuine" if "it is real and substantial as opposed to merely formal, pretended, or a sham." Bazan v. Hidalgo Cty., 246 F.3d 481, 489 (5th Cir. 2001) (citing Wilkinson v. Powell, 149 F.2d 335, 337 (5th Cir. 1945)). Facts are considered "material" if they "might affect the outcome of the suit under governing law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). To determine whether there are any genuine issues of material fact, the Court must first consult the applicable substantive law to ascertain what factual issues are material. Lavespere v. Niagra Mach. Tool Works, 910 F.2d 167, 178 (5th Cir. 1990). Next, the Court must review the evidence on those issues, viewing the facts in the light most favorable to the nonmoving party. Id.; Newell v. Oxford Mgmt. Inc., 912 F.2d 793, 795 (5th Cir. 1990); Medlin v. Palmer, 874 F.2d 1085, 1089 (5th Cir. 1989).
In making its determination on the motion, the Court must look at the full record including the pleadings, depositions, answers to interrogatories, admissions on file, and affidavits. See FED. R. CIV. P. 56(c); Williams v. Adams, 836 F.2d 958, 961 (5th Cir. 1988). Rule 56, however, "does not impose on the district court a duty to sift through the record in search of evidence to support" a party's motion for, or opposition to, summary judgment. Skotak v. Tenneco Resins, Inc., 953 F.2d 909, 915-16 n. 7 (5th Cir. 1992). Thus, parties should "identify specific evidence in the record, and . . . articulate" precisely how that evidence supports their claims. Forsyth v. Barr, 19 F.3d 1527, 1536 (5th Cir. 1994). Further, the Court's function is not to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial. See Anderson, 477 U.S. at 249.
To prevail on a motion for summary judgment, the moving party has the initial burden of demonstrating that there is no genuine issue as to any material fact and that he is entitled to judgment as a matter of law. See Celotex Corp v. Catrett, 477 U.S. 317, 323 (1986). A defendant moving for summary judgment may submit evidence that negates a material element of the plaintiff's claim or show that there is no evidence to support an essential element of the plaintiff's claim. See Celotex Corp., 477 U.S. at 322-24; Crescent Towing and Salvage Co. v. M/V Anax, 40 F.3d 741, 744 (5th Cir. 1994); Lavespere, 910 F.2d at 178.
To negate a material element of the plaintiff's claim, the defendant must negate an element that would affect the outcome of the action. See Anderson, 477 U.S. at 247. If the defendant moves for summary judgment alleging no evidence to support an essential element of the plaintiff's claim, the defendant need not produce evidence showing the absence of a genuine issue of fact on that essential element. Rather, the defendant need only show that the plaintiff, who bears the burden of proof, has adduced no evidence to support an essential element of his case. See Celotex, 477 U.S. at 325; Teply v. Mobil Oil Corp., 859 F.2d 375, 379 (5th Cir. 1988).
When the moving party has carried its summary-judgment burden, the respondent must go beyond the pleadings and by his own evidence set forth specific facts showing there is a genuine issue for trial. Arbaugh v. YH Corp., 380 F.3d 219, 222 (5th Cir. 2004) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986)); see also FED. R. CIV. P. 56(e). This burden is not satisfied by creating some metaphysical doubt as to the material facts, by conclusory allegations, by unsubstantiated assertions, or by only a scintilla of evidence. See Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994). If the evidence is merely colorable or is not significantly probative, summary judgment may be granted. See Anderson, 477 U.S. at 249-50.
III. ANALYSIS
The First Amendment protects sexually explicit speech, whether film, video, print, or symbolic, that is not obscene. TK's Video v. Denton County, 24 F.3d 705, 707 (5th Cir. 1994) (citing Mitchell v. Commission on Adult Entertainment Establishments, 10 F.3d 123, 130 (3rd Cir. 1993)). Society's interest in protecting such speech, however, "is of a wholly different, and lesser, magnitude than the interest in untrammeled political debate." Young v. American Mini Theatres, Inc., 427 U.S. 50, 70 (1976) (plurality opinion). Given this distinction, restrictions on sexually oriented businesses are permissible under certain circumstances. City of Renton v. Playtime Theatres, Inc., 475 U.S. 41 (1986).
A. Prior Restraint
Reliable argues that the ordinances are so restrictive in providing reasonable alternative sites for relocation that they impose a prior restraint on its First Amendment rights. Where an ordinance imposes a total ban on sexually oriented businesses it may constitute a prior restraint. See Encore Videos, Inc. v. City of San Antonio, 330 F.3d 288, 290-91 (5th Cir. 2003). Reliable bases its argument on the fact that two of the sexually oriented businesses impacted by the ordinances have ceased operation.
This fact, alone, cannot support Reliable's prior-restraint argument. The ordinances clearly do not ban sexually oriented businesses altogether, but instead provide that such businesses may not operate within certain designated areas and within certain range of residential districts, churches or synagogues, schools or licensed day-care centers, public libraries, or other sexually oriented businesses. Furthermore, the fact that H and A was allowed to continue its operation within Kennedale demonstrates that there is not a total ban on the operation of adult-entertainment businesses within the city. The Court therefore concludes that Kennedale is entitled to summary judgment on Reliable's prior-restraint claim.
The Court notes that B V's complaint contains several prior-restraint allegations, none of which were addressed by Kennedale in its motion for summary judgment. Consequently, because Kennedale wholly fails to address the allegations in B V's complaint, the Court grants Kennedale's summary-judgment motion only as to Reliable's prior-restraint claims and not as to B V's.
B. Content-Based versus Content-Neutral Time, Place, and Manner Restrictions
Kennedale contends that the ordinances should be analyzed as time, place, and manner regulations. "Zoning regulations restricting the location of adult entertainment businesses are considered time, place, and manner regulations . . . if they do not ban [adult-entertainment] businesses throughout the whole of a jurisdiction and are `designed to combat the undesirable secondary effects of such businesses' rather than to restrict the content of their speech per se." Encore Videos, 330 F.3d at 291 (quoting Renton, 475 U.S. at 49) (citing Lakeland Lounge v. Jackson, 973 F.2d 1255, 1257-58 (5th Cir. 1992)). Harmful "secondary effects" of sexually oriented businesses include crime, reduction of economic activity, and lowered property values. Id. The Court has already determined that the present ordinances do not ban sexually oriented businesses throughout all of Kennedale, and will therefore focus its inquiry on whether the ordinances are aimed at combating secondary effects.
"Where `nothing in the record . . . suggests impermissible motives on the part' of the enacting legislature, a local government seeking to use the secondary-effects justification need show only that `(1) the drafters of the ordinance did rely upon studies of secondary effects,' and (2) a `majority' of the city council members received `some information about the secondary effects.' Id. (quoting Lakeland Lounge, 973 F.2d at 1259). The record here reflects that this standard has been satisfied. Nothing in the record suggests an impermissible motive, and the ordinances themselves indicate that Kennedale reviewed other cities' studies, as well as its own survey, of secondary effects in enacting the ordinances. (Def.'s App. in Support of Mot. for Summ. J. at 1-2a, 31, 48, 91, 97 (Ordinances)). The studies that were reviewed and the information received regarding those studies was also provided to city-council members. (Def.'s App. to Reply to Pl.'s Resp. to Def.'s Mot. for Summ. J. at 449-50 (Olson Aff.)). The Court will therefore analyze the ordinances as time, place, and manner restrictions.
Time, place, and manner restrictions on speech violate the First Amendment unless they are content-neutral, are designed to serve a substantial governmental interest, do not unreasonably limit alternative avenues of communication, and are narrowly tailored. See Encore Videos, 330 F.3d at 291-92.
The Court notes Kennedale's advancement of the standard articulated in United States v. O'Brien, 391 U.S. 367 (1968). But O'Brien typically applies to adult-entertainment cases where regulations are imposed on the manner in which speech can occur, such as restrictions on public nudity, rather than to regulations on the location where such expression can take place, such as the zoning ordinance at issue here. See City of Erie v. Pap's A.M., 529 U.S. 277, 289 (2000); Barnes v. Glen Theatre, Inc., 501 U.S. 560 (1991); J B Entertainment v. City of Jackson, 152 F.3d 362 (5th Cir. 1998). Cases involving circumstances similar to the present dispute apply the Renton standard articulated in Encore Videos. See City of L.A. v. Alameda Books, 535 U.S. 425 (2002); Renton, 475 U.S. at 41; Encore Videos, 330 F.3d at 288; N.W. Enters. v. City of Houston, 352 F.3d 162 (5th Cir. 2003); Lakeland Lounge, 973 F.2d at 1255; SDJ, Inc. v. Houston, 837 F.2d 1268 (5th Cir. 1988). The Court will therefore apply the Renton standard articulated in Encore Videos rather than the O'Brien standard.
(1) Content-Neutrality
"The principal inquiry in determining content neutrality, in speech cases generally and in time, place, and manner cases in particular, is whether the government has adopted a regulation of speech because of disagreement with the message it conveys." Hill v. Colorado, 530 U.S. 703, 719 (2000) (quoting Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989)). This inquiry "requires courts to verify that the `predominate concerns' motivating the ordinance `were with the secondary effects of adult [speech], and not with the content of [such speech].'" Almeda Books, 535 U.S. at 440-41 (quoting Renton, 475 U.S. at 47). In essence, the Court must ask whether the ordinances aim to regulate the content or the consequences of sexually explicit speech. TK's Video, 24 F.3d 705 at 707. Proof of the efficacy of the ordinance is not required. N.W. Enters., 352 F.3d at 174. Should the Court determine that a regulation is content based, it is presumptively invalid and subject to strict scrutiny. Alameda Books, 535 U.S. at 434 (citing Simon Schuster, Inc. v. Members of N.Y. State Crime Victims Bd., 502 U.S. 105, 115, 118 (1991); Arkansas Writers' Project, Inc. v. Ragland, 481 U.S. 221, 230-231 (1987)).
This inquiry "is similar to that applied to the question of secondary effects motivation." Encore Videos, 330 F.3d at 292. A court must look to whether the challenged ordinances "address [the] secondary effects of adult speech, as demonstrated by the legislative record." N.W. Enters., 352 F.3d at 174.
Such evidence should only be examined at the second stage of the court's inquiry, i.e., when analyzing whether the ordinances are designed to serve a substantial governmental interest. Almeda Books, 535 U.S. at 440-41 (citing Renton, 475 U.S. at 50-52).
The ordinances at issue here either specifically state, or amend and adopt the findings of prior ordinances that state, that the Kennedale city council seeks to minimize and control the adverse secondary effects of sexually oriented businesses. (Def.'s App. to Mot. for Summ. J. at 2-3, 31-32, 48, 79, 91-92, 97-98 (Ordinances)). Although merely mentioning "secondary effects," or its functional equivalent, within an ordinance's preamble "may not save a statute `formulated without specific attention to specific secondary effects,'" see J B Entertainment, 152 F.3d at 374 (quoting Lakeland Lounge, 973 F.2d at 1259), the ordinances here include the requisite degree of specificity. The ordinances demonstrate that Kennedale not only made specific findings of the adverse effects generally associated with sexually oriented businesses, but also that Kennedale sought to remedy specific adverse effects, namely, increased crime, decreased property values, sexual-crime activity, and the spread of sexually transmitted diseases. See supra note 7; J B Entertainment, 152 F.3d at 374 ("No explanation of what specific secondary effects motivated [the city] to enact the Ordinance appears in its text, and the City Council failed to make any specific legislative findings prior to enactment"). The record also reflects that, in enacting the ordinances, Kennedale relied upon studies conducted for other cities, statements made at public hearings, a survey conducted by Kennedale's attorney, and other information compiled by Kennedale's attorney that was presented to the Kennedale city council. ( Id. at 2-3, 31-32, 91-92, 97-98; App. to Def.'s Reply to Pl.'s Resp. to Def.'s Mot. for Summ. J. at 386-96 (Hearing Minutes), 449-53 (Olson Aff.), 454-56 (Miller's 2nd Aff.)). Furthermore, Ordinance No. 108 specifically states that the ordinance is directed not at limiting protected speech but rather at controlling the adverse effects associated with such expression. ( Id. at 2-4).
Ordinance No. 108 imposes licensing and locational requirements on sexually oriented businesses; its preamble states Kennedale's findings regarding such businesses and its reasons for imposing zoning restrictions on them. (App. to Def.'s Mot. for Summ. J. at 2-3). Ordinance No. 186 adopts the findings in Ordinance No. 108 and amends the regulations contained therein. ( Id. at 30-46). Ordinance No. 187 amends the zoning restrictions for the overlay districts established in the Kennedale zoning ordinance and given treatment in Ordinance No. 186, which amended Ordinance No. 108. ( Id. at 34, 48-50). Ordinance No. 226 amends Ordinance Nos. 186 and 187, which amended Ordinance No. 108. ( Id. at 79). Ordinance No. 231 amends the regulations in Ordinance No. 187. ( Id. at 86). Ordinance Nos. 252 and 269 adopt the findings made in Ordinance Nos. 108 and 186 and also finds, based upon the results of a survey conducted by the city attorney's office, that take-home only establishments have adverse effects on surrounding property values. ( Id. at 91-92). Because all of these ordinances either relate back or specifically amend Ordinance No. 108, the Court will treat the findings, statements, and conclusions reached in Ordinance No. 108's preamble as applying to all of the ordinances. Only Ordinance No. 210, which merely reclassifies, zones, or re-zones all of the property within Kennedale, does not specifically relate back to Ordinance No. 108. ( Id. at 72-77).
The preamble to Ordinance No. 108 states, in relevant part:
WHEREAS, the City Council of the City of Kennedale, Texas, heretofore adopted regulations restricting the location of sexually oriented businesses within the City of Kennedale based upon studies, reports, and findings regarding the harmful effects of sexually oriented businesses on surrounding land uses; and
WHEREAS the city council deems it necessary and advisable to amend these regulations . . .; and
WHEREAS, studies, reports, and findings conducted by the cities of Austin, El Paso, and Indianapolis regarding the harmful effects of sexually oriented businesses on surrounding land uses have been presented to and reviewed by the city council; and
WHEREAS, studies, reports, and findings conducted by the cities of Los Angeles, Las Vegas, Houston, Amarillo, and Beaumont were presented to the city council and made part of the public record; and
WHEREAS, the city finds that churches, synagogues, licensed day care centers, public parks, schools and public libraries are centers of family oriented activities and therefore enhance the quality of life in surrounding areas; and
WHEREAS, there is convincing documented evidence that sexually oriented businesses, because of their very nature, have a deleterious effect on surrounding land uses, causing increased crime and the downgrading of property values; and
WHEREAS, the city council desires to minimize and control these adverse effects and thereby protect the health, safety, and welfare of the citizenry; protect the citizens from increased crime, preserve the quality of life; preserve the property values and the character of surrounding neighborhoods; and deter the spread of urban blight; and . . .
WHEREAS, the city council finds that sexually oriented businesses are frequently used for activities such as prostitution or sexual liaisons of a casual nature; and
WHEREAS, the concern over sexually transmitted diseases is a legitimate health concern of the city which demands reasonable regulation of sexually oriented businesses in order to protect the health and well-being of the citizens; and
WHEREAS, the city council finds that these amendments will promote the public health, safety, morals and general welfare of the citizens of the city; and
WHEREAS, the city council finds that these amendments have neither the purpose nor effect of imposing a limitation or restriction on the content of any communicative materials, including sexually oriented materials, nor do these amendments have the effect of restricting or denying access by adults to sexually oriented materials protected by the First Amendment . . .
(App. to Def.'s Mot. for Summ. J. at 2-3).
The record therefore demonstrates that the ordinances are predominantly concerned with and seek to address the secondary effects from, rather than the content of, the form of speech regulated. Moreover, it is important to note that the ordinances do not directly regulate speech, but rather regulate the locations where such speech may occur. See Hill, 530 U.S. at 719. As such, the Court concludes that the ordinances were not adopted because of disagreement with the message conveyed and therefore constitute content-neutral regulations. See SDJ, 837 F.2d at 1268; Lakeland Lounge, 973 F.2d at 1258-59. Summary judgment on this question is therefore awarded to Kennedale.
Resolution of this issue in Kennedale's favor, in effect, denies Reliable's motion for summary judgment as to the seventh "count" in its complaint and grants summary judgment on the issue to Kennedale.
(2) Substantial Governmental Interest Plus Narrow Tailoring
Although these are separate factors in the analysis, Encore Videos recognized that, were an ordinance to fail the more stringent requirements of the narrow-tailoring prong, then the ordinance's underlying premise would almost surely also fail to qualify as a substantial governmental interest. Encore Videos, 330 F.3d at 293. For this reason, and also because the particular facts of this case make it practical to do so, the Court will analyze these factors in tandem.
Kennedale must be able to demonstrate a connection between the speech regulated and its substantial interest in the ordinances' enactment. Almeda Books, 535 U.S. at 438. Courts have routinely held that "[a] city's `interest in attempting to preserve the quality of urban life is one that must be accorded high respect,'" Renton, 475 U.S. at 50, 52 (quoting Young, 427 U.S. at 71), and that courts must "allow cities a `reasonable opportunity to experiment with solutions' to address the secondary effects of protected speech." Almeda Books, 535 U.S. at 439-41 (quoting Renton, 475 U.S. at 52 (quoting Young, 427 U.S. at 71)). Attempting to control the secondary effects of adult-entertainment businesses by restricting the businesses themselves is one such permissible solution. Lakeland Lounge, 973 F.2d at 1257; see also Encore Videos, 330 F.3d at 293. The diminution of secondary effects that Kennedale's ordinances seek to achieve may therefore be important enough to be said to further a substantial government interest. See Encore Videos, 330 F.3d at 293.
In determining whether a city has a substantial interest in its regulation, however, a court cannot "hypothesize . . . an objective or accept a [city's] naked assertion" of importance, but instead must "intrude into the regulatory decision process to the extent that [it] insist[s] upon objective evidence of purpose — a study or findings." SDJ, 837 F.2d at 1274. This insistence upon some form of objective proof "reduces the risk that a purported effort to regulate effect is a mask for regulation of content[ — t]hat is, evidence of legitimate purpose is supported by proof that secondary effects actually exist and are the result of the business subject to the regulation." Id. A city may rely on "any evidence that is `reasonably believed to be relevant,'" but may not use "shoddy data or reasoning" in doing so. Almeda Books, 535 U.S. at 438 (quoting Renton, 475 U.S. at 51-52). Furthermore,
[t]he municipality's evidence must fairly support the municipality's rationale for its ordinance. If [the] plaintiffs fail to cast direct doubt on this rationale, either by demonstrating that the municipality's evidence does not support its rationale or by furnishing evidence that disputes the municipality's factual findings, the municipality meets the standard set forth in Renton. If [the] plaintiffs succeed in casting doubt on a municipality's rationale in either manner, the burden shifts back to the municipality to supplement the record with evidence renewing support for a theory that justifies its ordinance. See, e.g., Erie v. Pap's A.M., 529 U.S. 277, 298 (2000) (plurality opinion).Almeda Books at 438-39.
Kennedale has relied on several studies demonstrating that adult-entertainment businesses have adverse secondary effects on their surrounding communities. All of these studies were conducted in other cities: a 1986 study conducted in Austin; one from El Paso conducted in 1986; Los Angeles's 1976 study; a 1978 Las Vegas study; an Amarillo study conducted in 1977; Beaumont's 1982 study; a 1980's study conducted in Houston; a 1984 study from Indianapolis; and a 1986 Oklahoma City study (collectively, "the predicate studies"). (App. to Def.'s Reply to Pl.'s Resp. to Def.'s Mot. for Summ. J. at 109-385; App. to Pl.'s Mot. in Limine at 91-194). Kennedale is "entitled to rely on the experiences . . . of other cities . . . so long as whatever evidence the city relies upon is reasonably believed to be relevant to the problem that the city addresses." Renton, 475 U.S. at 51-52; see also Alameda Books, 535 U.S. at 438; Encore Videos, 330 F.3d at 294. The predicate studies all conclude that adult-entertainment businesses have adverse secondary effects on their surrounding communities, including adverse effects upon crime levels and property values.
Kennedale also relies upon an informal survey of real-estate appraisers prepared by April Virnig, Kennedale's legal counsel. Three hundred eighteen surveys were sent out to licensed real-estate appraisers in Tarrant County who were listed on a website; only thirty-six of the surveys sent out were returned, which constitutes an 11.3 percent return rate.
Though others assisted her in its formulation, Virnig prepared the main portion of the survey herself. Virnig is not a specialist in social science, in the field of statistics, or in conducting surveys. (App. to Pl.'s Mot. in Limine at 15-50; App. to Pl.'s Mot. in Limine at 171). Furthermore, the survey was not drafted or administered in a scientific manner. Virnig and Kennedale's city staff merely committed to paper some questions regarding an adult-entertainment video store, mailed that list of questions to the appraisers listed on a website, and then waited for the appraisers to respond voluntarily and without incentive. ( Id. at 15-50)
In administering and evaluating the survey, no effort was made to ensure representative sampling, no sample group of appraisers was retained to review the survey, no attention was given to the difference between or the comparative utility of open-ended and closed-ended questions, no control group was formed, no mechanisms were installed to protect against coverage error, and no measures were put in place to ensure that the person who responded to the survey was actually the person to whom the survey was sent. ( Id.) In addition, although the responses to some of the questions strongly indicated that sexually oriented businesses have a deleterious effect upon residential- and commercial-property values, the overall responses to other questions were less supportive of Kennedale's position. Thus, not only was the process in conducting the survey lacking in scientific rigor, but the results were also less than compelling for Kennedale due to the survey's low response rate, the answers to some of the questions posed, and the comments made at the end of the survey.
For instance, in response to the question "Would you expect the average value of COMMERCIAL property located within 500 feet of an adult video store to be affected by its proximity?," 23 answered yes and 10 answered no. In response to the question "Would you expect the average value of COMMERCIAL property located within 1000 feet of an adult video store to be affected by its proximity?," 19 responded yes and 14 responded no.
While the failure to conduct the survey without much, if any, scientific rigor may not be enough alone to lead the Court to determine that Kennedale could not reasonably rely upon the survey's results, that fact coupled with the weak return and the mixed results contained therein forces the Court to question Kennedale's reasonableness in relying on the survey. Kennedale cannot use "shoddy data or reasoning" in justifying its ordinances. Almeda Books, 535 U.S. at 438 (quoting Renton, 475 U.S. at 51-52). But the weaknesses in the survey's formulation and administration, the low response rate, and the sometimes tepid support it offers to Kennedale's position, make it appear that Kennedale has done so.
Even assuming, however, that Kennedale were able to demonstrate that it has a substantial interest in regulating businesses such as Dreamer's and New Video, Kennedale is unable to show that the ordinances have been narrowly tailored. To be narrowly tailored, an ordinance must regulate only speech that actually serves the government's substantial interest in its being regulated. As recently articulated by the Fifth Circuit,
[a] time, place, and manner regulation meets the narrow tailoring standard if it "targets and eliminates no more than the exact source of the evil it seeks to remedy." Frisby [ v. Schultz, 487 U.S. 474, 485 (1988)]. Although [the] government need not choose the "least intrusive means" to advance its legitimate interests, it "may not regulate expression in such a manner that a substantial portion of the burden on speech does not serve to advance its goals." Ward, 491 U.S. at 799.Encore Videos, 330 F.3d at 293. The ordinances here fail this narrow-tailoring standard because they regulate expression that is not included within their justification for the regulation.
The ordinances generally impose restrictions upon "sexually oriented businesses," which is defined as
an adult arcade, adult bookstore, adult cabaret, adult motel, adult movie theater, adult video store, love parlor, nude modeling studio or other commercial enterprise, the primary business of which is the offering of a service or the selling, renting or exhibiting of devices or any other items intended to provide sexual stimulation or sexual gratification to its customers, and which is distinguished by or characterized by an emphasis on matter depicting, describing or relating to specified sexual activities or specified anatomical areas, or whose employees or customers appear in a state of nudity.
(App. to Def.'s Mot. for Summ. J. at 8). The ordinances therefore apply equally to those establishments offering on-site entertainment, where individuals can view sexually explicit materials or activity at the establishment itself, and those offering only materials for off-site consumption, where patrons may only purchase sexually explicit materials for off-premises use.
Reliable's bookstore, Dreamer's, sells sexually explicit but non-obscene video cassette tapes, DVD recordings, magazines, other print material, novelties, clothing, and other general merchandise. Dreamer's does not offer any on-site entertainment of any kind — it is a take-home-only business, which means that none of the materials sold there may be viewed or consumed on premises. The store offers no live entertainment, viewing booths, or theaters.
Since Kennedale justifies the ordinances on its desire to combat the adverse secondary effects of "sexually oriented businesses," Kennedale must be able to demonstrate that the ordinances address those problems. Encore Videos, 330 F.3d at 294. To establish that the ordinances satisfy this narrow-tailoring standard, Kennedale relies on the predicate studies it reviewed, the survey conducted by Virnig, and statements made at public hearings. This evidence, however, does not sufficiently support Kennedale's broad regulation of sexually oriented businesses. None of the predicate studies differentiate between on-site and off-site adult-entertainment businesses in either the collection of data or in the studies' resulting opinions. All of the studies simply lump all forms of sexually oriented businesses into one category when analyzing their impact upon surrounding communities.
Such a general treatment of adult-entertainment businesses is not sanctioned within the Fifth Circuit:
Off-site businesses differ from on-site ones, because it is only reasonable to assume that the former are less likely to create harmful secondary effects. If consumers of pornography cannot view the materials at the sexually oriented establishment, they are less likely to linger in the area and engage in public alcohol consumption and other undesirable activities." See World Wide Video, Inc. v. City of Tukwila, 117 Wn.2d 382, 816 P.2d 18, 21 (Wash. 1991) . . . But see Z.J. Gifts, L.L.C. v. City of Aurora, 136 F.3d 683, 687 (10th Cir. 1998) . . .; ILQ Invs., Inc. v. City of Rochester, 25 F.3d 1413, 1418 (8th Cir. 1994).Id. at 295. Where an ordinance is as extensive as the ordinances at issue here, the Court "must require at least some substantial evidence of the secondary effects of establishments that sell adult products solely for off-site consumption." Id. (citing Alameda Books, 525 U.S. at 438) (emphasis added). Thus, "[i]n order to meet the narrow tailoring requirement, [Kennedale must] . . . provide at least some substantial evidence of secondary effects specific to adult businesses that sell books or videos solely for off-site entertainment." Id. (emphasis added) (citing Ward, 491 U.S. at 799 (holding that the government "may not regulate expression in such a manner that a substantial portion of the burden on speech does not serve to advance its goals")).
Neither the predicate studies nor the public comments submitted as evidence satisfy this requirement. As already discussed, none of the predicate studies differentiate between sexually oriented businesses that offer on-site and off-site materials. There are surveys attached to the Indianapolis and Oklahoma City studies focusing on a "bookstore"; but neither of these surveys give a definition for "bookstore" or in any way indicate that "bookstore" refers only to those establishments selling off-site materials. (App. to Pl.'s Mot. in Limine at 170-78, 189-191). "Bookstore" can be and has been interpreted to include many forms of on-site entertainment, and the term, alone, does not connote solely businesses that offer printed materials for exclusive off-site consumption. See United States v. Jenkins, 46 F.3d 447, 449 (5th Cir. 1995) (involving 17 adult bookstores that provided on-site peep machines exhibiting pornographic videotapes); Almeda Books, 535 U.S. at 429, 432 (involving bookstore where patrons could view videotapes on-site for a fee).
Furthermore, while Kennedale may rely on the experiences of other cities in enacting regulations, that evidence must "be relevant to the problem that the city addresses." Renton, 475 U.S. at 51-52. The predicate studies are not relevant to the problem addressed by Kennedale because Kennedale seeks to restrict all sexually oriented businesses, both on- and off-site, by relying on evidence that fails to take the substantial differences between those types of establishments into account.
Kennedale's reliance on the comments made at public hearings suffers from the same lack of specificity that their reliance on the predicate studies does. Although some of the comments made at the public hearings indicate that Kennedale's citizens were concerned with adverse secondary effects from the adult-entertainment businesses in operation at that time, none of those comments indicate whether they refer to on-site- or off-site-entertainment establishments exclusively, or even collectively. (App. to Def.'s Reply to Pl.'s Resp. to Def.'s Mot. for Summ. J. at 386-396).
Consequently, because neither the predicate studies nor the public comments constitute evidence, let alone substantial evidence, of secondary effects specific to off-site adult businesses, the only evidence left for Kennedale to rely upon in regulating Dreamer's is the survey conducted by Virnig.
Even assuming that the casual manner with which the survey was conducted, combined with its low rate of return, would constitute "substantial evidence," the survey also fails to sufficiently distinguish between on- and off-site adult-entertainment establishments. The preamble of the survey sets out for its respondents certain definitions and factual assumptions, the relevant portion of which states:
For purposes of this survey, an adult video store is defined as a commercial establishment which as one of its principal business purposes offers for sale or rental for any form of consideration photographs, films, motion pictures, video cassettes, video reproductions, slides or other visual representations which are distinguished or characterized by an emphasis on matters depicting or describing specified sexual activities or specified anatomical areas.
Adult videos may be rented or purchased, but may not be viewed at the store.
(App. to Pl.'s Mot. in Limine at 84). While the definition of "adult video store" indicates that "photographs, films, motion pictures, video cassettes, video reproductions, slides or other visual representations . . ." are offered "for sale or rental for any form of consideration," only videos are specifically limited by the definition to off-site consumption, thereby wholly excluding from the off-site limitation all of the other types of materials that may be bought or rented. Thus, a respondent could easily assume that the definition would allow photographs, slides, films, motion pictures, and other visual representations to be viewed on-site. The results of a survey that does not precisely enquire as to the secondary effects of adult businesses that allow only off-site consumption of their inventory cannot constitute "substantial evidence" of the secondary effects of those businesses.
Owing primarily to the fundamental flaw in the survey's enquiry, but also because of the survey's shoddy methodology, the Court concludes that Kennedale has failed to provide the Court with substantial evidence upon which Kennedale could be said to have reasonably relied in regulating off-site sexually oriented businesses. The ordinances, therefore, are neither narrowly tailored nor supported by a substantial governmental interest as applied to such off-site businesses. The Court therefore concludes that the ordinances are unconstitutional as applied to Reliable, and that Reliable is entitled to summary judgment on this issue.
To establish that Kennedale has a substantial interest in regulating both on- and off-site sexually oriented businesses, there must be some "evidence of legitimate purpose . . . supported by proof that secondary effects actually exist and are the result of the business subject to the regulation." SDJ, 837 F.2d at 1274. Kennedale, however, has no evidence indicating that off-site only adult businesses result in the same adverse secondary effects that on-site adult businesses do. Reliable has therefore cast doubt on Kennedale's evidence demonstrating its "substantial interest" in the regulation, and the burden is on Kennedale to "supplement the record with evidence renewing support for a theory that justifies its ordinance." Almeda Books, 535 U.S. at 438-39. Kennedale has failed to do so.
Because the ordinances must fail on narrowly tailored and substantial-interest grounds, the Court need not examine whether Kennedale's ordinances offered alternative avenues of communication.
(3) Reliable's Claim for a Permanent Injunction
Reliable seeks summary judgment on the third claim in its complaint, which requests a permanent injunction prohibiting Kennedale from enforcing the ordinances that are unconstitutional as applied to Reliable. The Court finds that such an injunction is warranted.
The standard for a permanent injunction is essentially the same as for a preliminary injunction. See Icee Distribs. v. JJ Snack Foods Corp., 325 F.3d 586, 587 n. 34 (5th Cir. 2003); Dresser-Rand Co. v. Virtual Automation Inc., 361 F.3d 831, 847 (5th Cir. 2004) (citing Amoco Prod. Co. v. Village of Gambell, 480 U.S. 531, 546 n. 12 (1987)). To obtain a permanent injunction, a plaintiff must therefore show: (1) actual success on the merits; (2) an irreparable injury if the injunction is not granted; (3) injury to the plaintiff if the injunction is not granted outweighs the injury to the defendant if it is granted; and (4) the granting of the permanent injunction will not disserve the public interest. See Harris County v. Carmax Auto Superstores Inc., 177 F.3d 306, 312 (5th Cir. 1999) (quoting White v. Carlucci, 862 F.2d 1209, 1211 (5th Cir. 1989)); Doe v. KPMG, L.L.C., 325 F.Supp.2d 746, 751 (N.D. Tex. 2004); Millennium Rests. Group, Inc. v. City of Dallas, 191 F.Supp.2d 802, 809 (N.D. Tex. 2002).
As already discussed, Reliable has demonstrated actual success on the legal merits of its claim that the ordinances, as applied to Reliable, are unconstitutional. Furthermore, non-obscene sexually explicit speech, whether film, video, print, or symbolic is protected by the First Amendment. TK's Video, 24 F.3d at 707 (citing Mitchell, 10 F.3d at 130). "[W]hen a case involves infringement of First Amendment rights, there is a strong presumption that the plaintiff will be irreparably injured if an injunction is not issued." Millennium, 191 F.Supp.2d at 810 (granting preliminary injunction against city's ordinance restricting sexually-expressive speech). As stated by the Supreme Court: "[t]he loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury." Elrod v. Burns, 427 U.S. 347, 373 at (1976). The Court therefore concludes that Reliable would suffer irreparable injury were an injunction not granted.
The harm to Reliable in closing Dreamer's also outweighs the harm to Kennedale in allowing Dreamer's to remain in operation. Although Kennedale argues that its ordinances are aimed at restricting the adverse secondary effects associated with sexually oriented businesses, Kennedale has only weak and methodologically impaired evidence to show that such adverse secondary effects are actually the product of off-site businesses such as Dreamer's. Kennedale's evidence on this point is anemic, and there is no indication that Kennedale will actually suffer harm by allowing Dreamer's to continue operating. Dreamer's has operated in its current location for twenty-five years and currently has no sites to which it may relocate. The harm to Reliable in forcing it to close Dreamer's therefore outweighs any potential harm to Kennedale in allowing it to remain open. Furthermore, Kennedale remains free to amend its ordinances, and, in the meantime, has police power to control any secondary effects that may result from allowing Dreamer's to remain in operation. See Millennium, 191 F.Supp.2d at 810. Given these facts, the Court concludes that Reliable would suffer greater harm from the enforcement of the ordinances than Kennedale will in being enjoined against their enforcement.
Finally, since Kennedale remains free to enforce its criminal regulations and laws and those ordinances that remain in compliance with the First Amendment, and may use its police power in doing so, the Court also concludes that the pubic interest will not be disserved by granting the injunction. See id. Nor does the injunction prevent Kennedale from amending its ordinances to come within the requirements of the Constitution, if it can do so. Since the factors necessary for entering a permanent injunction have been satisfied, the Court concludes that such a remedy is warranted.
(4) Kennedale's Time, Place, and Manner Regulation as Applied to B V
B V did not move for summary judgment. Kennedale argues that Renton has been satisfied as to B V because New Video offers on-site entertainment. Kennedale, however, offers no evidence to support this allegation, and only cites to B V's complaint as support for its argument. B V's complaint only states that New Video sells, rents, exhibits, and distributes books, magazines, newspapers, and videotapes to consenting adults only; there is no indication of whether New Video is an on- or off-site business.
The Court must review the facts in the light most favorable to the plaintiff when reviewing Kennedale's motion for summary judgment. Lavespere, 910 F.2d at 178. The Court therefore must deny Kennedale's motion as to B V on this issue. As there is neither evidence as to whether Kennedale had a substantial interest in regulating the type of business B V operates, because the Court does not know what type of business that is, nor substantial evidence of narrow tailoring, the Court cannot conclude that there is no genuine issue of fact regarding those issues. Consequently, Kennedale's motion on this question as to B V must be denied.
However, since it appears that resolution of this issue will turn on whether B V operates an on-site or off-site business (assuming, of course, that resolution of whether the ordinances provide sufficient alternative avenues of communication will not also be dispositive), the Court notes that it will entertain a motion for leave by either or both parties for a second summary judgment motion that properly addresses whether New Video is an on-site site or off-site adult-entertainment business. Either party may also include within any such second motion for summary judgment arguments regarding B V's prior-restraint claims.
Any such motions for leave must be filed no later than May 2, 2005, and the underlying summary-judgment motion(s) must be fully self-contained, meaning they may not refer for their arguments or evidence to any other motions or appendices already submitted to the Court.
C. Fifth Amendment and the Takings Clause
Reliable argues that the ordinances have produced a regulatory taking of its property without just compensation both because the ordinance requires Reliable to relocate and because the amortization period begins enforcement of the ordinance prior to the expiration of Reliable's license to operate. The Takings Clause of the Fifth Amendment provides that private property [shall not] be taken for public use, without just compensation." U.S. CONST. amend. V. Where a regulation "denies all economically beneficial or productive use of land," it may constitute a regulatory taking pursuant to the Fifth Amendment. Lucas v. S.C. Coastal Council, 505 U.S. 1003, 1015 (1992) (citation omitted). The ordinances here do not prevent all reasonable uses of Reliable's property, and therefore do not constitute a taking. See SDJ, Inc. v. Houston, 837 F.2d 1268, 1278 (5th Cir. 1988); N.W. Enters., 352 F.3d at 186. Kennedale is entitled to summary judgment on these claims.
D. B V's Remaining Claims
(1) Vagueness and Overbreadth
The first claim for relief in B V's complaint asserts that several of the definitions included in the ordinances are void for vagueness and overbreadth. Kennedale argues that the ordinances are clear in their meaning and precise in their definitions.
While "[t]he vagueness doctrine protects individuals from laws lacking sufficient clarity of purpose or precision in drafting," J B Entertainment, 152 F.3d at 356 (citing Erznoznik v. City of Jacksonville, 422 U.S. 205 (1975)), "`[o]verbroad legislation need not be vague, indeed it may be too clear; its constitutional infirmity is that it sweeps protected activity within its proscription.'" Id. (citing M.S. News Co. v. Casado, 721 F.2d 1281, 1287 (10th Cir. 1983)).
B V has never indicated why the challenged portions of the ordinances are void for vagueness and overbreadth, and wholly failed to address these issues in defending itself against Kennedale's motion for summary judgment. When the moving party has carried its summary-judgment burden, the respondent must go beyond the pleadings and by his own evidence set forth specific facts showing there is a genuine issue for trial. Arbaugh, 380 F.3d at 222 (citing Celotex, 477 U.S. at 324); see also FED. R. CIV. P. 56(e). Not only has B V not adduced any evidence showing there is a genuine issue for trial, but it also wholly failed to respond to Kennedale's arguments. Consequently, the Kennedale's motion for summary judgment on this issue must be granted.
(2) Equal-Protection and Due-Process Claims
Kennedale moves for summary judgment on B V's claims pursuant to the Equal Protection and Due Process Clauses of the Fourteenth Amendment. B V wholly failed to respond to Kennedale's arguments on these issues. Consequently, the Court concludes that Kennedale should be granted summary judgment on these claims.
III. CONCLUSION
Therefore, it is ORDERED that Kennedale's Motion for Summary Judgment [doc. # 94-1] is PARTIALLY GRANTED and PARTIALLY DENIED. Kennedale is hereby awarded summary judgment on "counts" two, four, five, and seven of Reliable's complaint. Kennedale is further awarded summary judgment as to B V's first, third, and fourth causes of action.
It is further ORDERED that Reliable's Motion for Partial Summary Judgment [doc. # 115-1] is PARTIALLY GRANTED and PARTIALLY DENIED. Reliable is hereby awarded summary judgment on count three of its complaint.
The Court notes that this order resolves all of the claims made in Reliable's complaint.
It is further ORDERED that Kennedale is PERMANENTLY ENJOINED from enforcing against Reliable those portions of the ordinances found in the above-styled and numbered cause to be unconstitutionally applied to Reliable.
It is further ORDERED that, inasmuch as the Court has now granted summary judgment on all claims asserted by Reliable, the Court finds no just reason for delaying the entry of final judgment as to these claims and hereby DIRECTS the clerk of the Court to enter the Rule 54(b) Final Judgment issued separately this same day.