347 S.W.3d 404
Tex. App.2011Background
- City of El Paso adopted a new sexually-oriented business ordinance on May 8, 2007 addressing secondary effects of adult establishments, citing studies, reports, and judicial opinions.
- Ordinance required visible booths, unobstructed employee views, adequate lighting, and employee licensing for sexually-oriented businesses.
- Two adult cabarets filed suit in June 2007 challenging the ordinance as unconstitutional; a later consolidated suit followed from four adult book-video stores.
- Trial court held a TRO hearing and ultimately granted summary judgment for the City on March 10, 2010.
- Appellants challenged the sufficiency of the City’s evidentiary basis and argued the motion failed to tailor its reasoning to their specific establishments; the City argued the grounds were clear and tied to secondary effects.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether City’s motion clearly set out proper grounds for summary judgment | Appellants argue the motion lacked tailored grounds. | City asserts its motion identified constitutional bases and tailored evidence. | Issue One overruled; grounds sufficiently set forth. |
| Whether there is a genuine issue of material fact about the necessity of the ordinance to combat secondary effects | Appellants contend City failed to prove relevance of external studies and that expert affidavits create a fact issue. | City relied on relevant studies, local evidence, and affidavits; no material fact dispute. | Issue Two overruled; no genuine issue of material fact. |
| Whether the ordinance is preempted by state statute | Appellants claim Section 243.010(b) precludes the penalty scheme. | Preemption not properly raised below; motion only addressed general constitutionality. | Issue Three overruled; preemption not reached. |
Key Cases Cited
- Renton v. Playtime Theatres, Inc., 475 U.S. 41 (1986) (reliance on evidence deemed relevant to regulate secondary effects ok)
- Erie v. Pap’s A.M., 529 U.S. 277 (2000) (evidence and tailoring to governmental interest allowed)
- TK's Video, Inc. v. Denton County, 24 F.3d 705 (5th Cir. 1994) (licensing can be narrowly tailored to curb secondary effects)
- Fantasy Ranch Inc. v. City of Arlington, 459 F.3d 546 (5th Cir. 2006) (city relied on studies and opinions linking secondary effects to regulation)