396 S.W.3d 244
Tex. App.2013Background
- Foster appeals a trial court summary judgment in favor of the City of El Paso challenging the city’s sexually-oriented business ordinance.
- The ordinance targets negative secondary effects of adult establishments, including lighting, line-of-sight, licensing, and hours restrictions.
- The City relied on multiple sources (federal opinions, municipal studies, crime reports) to justify the ordinance’s regulation of time, place, and manner of speech.
- Foster asserted numerous constitutional and statutory challenges, alleging violations of free speech, due process, equal protection, vagueness, and overbreadth, among others.
- The trial court granted summary judgment for the City after considering expert and local evidence; Foster appealed, challenging the evidentiary basis and the court’s rulings.
- The court applied O’Brien intermediate scrutiny, finding the ordinance content-neutral, narrowly tailored to address secondary effects, and a valid regulation of speech.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Did the City meet its summary-judgment burden on constitutionality? | Foster argues City failed to show no genuine issues of material fact. | Foster relied on conclusory and hearsay challenges; city evidence was reasonably believed to address secondary effects. | Yes; ordinance satisfied O’Brien test and summary judgment affirmed. |
| Was the prior temporary restraining-order ruling improperly influencing the merits? | Foster contends the TRO denial should not affect the merits. | City maintains this issue was waived or overshadowed by merits analysis. | Issue waived; merits upheld. |
| Did City prove all elements of its defenses to Foster's constitutional challenges? | Foster claims factual disputes and lack of framework for evaluation. | City argues Renton/Alameda standards permit reliance on existing evidence; no trial necessary for efficacy. | No genuine issues; defenses proven; summary judgment proper. |
| Were City’s expert methods flawed enough to strike them under Rule 702/Daubert? | Experts’ methodologies are unreliable; questioning admissibility undermines summary judgment. | Assuming error, still evidence can be reasonably believed to address the problem; not required to prove efficacy. | No error; denial of motion to strike affirmed. |
| Was the declaratory-judgment grant proper given a justiciable controversy? | City’s regulations were arbitrary; declaratory relief could resolve the rights and duties. | No justiciable controversy existed once merits were resolved. | No error; declaratory relief denied. |
Key Cases Cited
- United States v. O’Brien, 391 U.S. 367 (U.S. 1968) (four-prong test for regulation affecting symbolic speech)
- Renton v. Playtime Theatres, Inc., 475 U.S. 41 (U.S. 1986) (government may rely on evidence reasonably believed relevant to address secondary effects)
- Alameda Books, Inc. v. City of Los Angeles, 535 U.S. 435 (U.S. 2002) ( Renton-Alameda standard; local evidence can be non-local and still valid)
- City of Erie v. Pap’s A.M., 529 U.S. 277 (U.S. 2000) (recognizes secondary-effects rationale for content-neutral regulations)
- Fantasy Ranch Inc. v. City of Arlington, 459 F.3d 546 (5th Cir. 2006) (intermediate scrutiny applies to regulation of sexually-oriented businesses)