Encore Videos, Inc. v. City of San Antonio

Full title: ENCORE VIDEOS, INC., Plaintiff-Appellant, v. CITY OF SAN ANTONIO…

Court: United States Court of Appeals, Fifth Circuit

Date published: Dec 4, 2003

352 F.3d 938 (5th Cir. 2003)

Opinion

No. 00-51119.

December 4, 2003.

Arthur Myron Schwartz, Michael W. Gross (argued), Schwartz Goldberg, Denver, CO, for Plaintiff-Appellant.

Donald S. Bayne (argued), Michael P. Hodge, San Antonio, TX, for Defendant-Appellee.

Doreen Eva McGookey and James Bickford Pinson, Asst. City Attys., Dallas, TX, for City of Dallas, Amicus Curiae.

G. Randall Garrou, Weston, Garrou DeWitt, Los Angeles, CA, for FTU, Inc., DAJO, Inc., Ice Embassy, Inc. and Texas Richmond Corp., Amici Curiae.

Beatrice A. Mladenka-Fowler, Mladenka-Fowler Associates, Houston, TX, for City of Houston, Amicus Curiae.

Appeal from the United States District Court for the Western District of Texas; Samuel Fred Biery, Jr., Judge.

Before SMITH and EMILIO M. GARZA, Circuit Judges, and CUMMINGS,^_ District Judge.

_ District Judge of the Northern District of Texas, sitting by designation.

BY THE COURT:

We clarify our opinion, 330 F.3d 288, by stating the following: The opinion does not overrule SDJ, Inc. v. City of Houston, 837 F.2d 1268 (5th Cir. 1988). Indeed, no panel has the power to overrule the opinion of a previous panel. Patterson v. Mobil Oil Corp., 335 F.3d 476, 485 (5th Cir. 2003). In addition, the ordinance at issue was found not to be narrowly tailored because of both its failure to make an on-site/off-site distinction and its low 20% inventory requirement.