OPINION
Appellant 8100 North Freeway Ltd. appeals the trial court’s order granting the temporary injunction request of appellee the City of Houston. Because we find that the trial court did not abuse its discretion in issuing the temporary injunction, we affirm.
BACKGROUND
The City regulates sexually oriented businesses (SOBs) and requires them to meet certain criteria to obtain permits, which are necessary for legal operation. 8100 operates a business, originally called Adult Video Megaplexxx, consisting of an adult bookstore and adult arcade that features small booths with doors where adults may privately view sexually explicit videos. A portion of the City’s SOB ordinance specifically regulates adult arcades and requires, among other things, minimal lighting levels inside the booths and a direct line of sight between the manager and the booth patron. These requirements were enacted to discourage sexual activity in arcade booths.
See Rosenblatt v. City of Hous.,
Megaplexxx then changed its business model in an attempt to avoid being subject to the ordinance. It changed its name to Tryst, A Lover’s Boutique, and began offering several new types of inventory, including condoms, oils, lingerie, costumes, and adult novelties. 8100 expanded the video arcade from nine to twenty-eight viewing rooms and added more viewing channels, for a total of sixty-three channels showing various types of adult videos and sixty-four channels offering mainstream movies. By making these changes, 8100 attempted to cast itself as a “fifty/fifty” business rather than an adult arcade requiring a permit.
The City brought suit against 8100 for operating an adult arcade without a permit and sought injunctive relief. The trial court granted the City’s request for a temporary injunction on March 5, 2009, and ordered that the arcade area be locked and that 8100 cease from operating its arcade devices. 8100 filed its appeal the same day, but to date, no permanent injunction hearing has been held.
ANALYSIS
A. Legal Standards
The purpose of a temporary injunction is to preserve the status quo pending a trial on the merits.
Butnaru v. Ford Motor Co.,
B. The Primary Business Standard Does Not Apply
In its first issue, 8100 argues that the trial court erred in granting a temporary injunction because the SOB ordinance regarding adult arcades applies only to entities whose primary business is to provide sexual stimulation or gratification and, because its inventory of movies is over fifty percent non-adult, its primary arcade business is not sexual.
Local Government Code chapter 243, entitled “Municipal and County Authority to Regulate Sexually Oriented Business,” defines a sexually oriented business as follows:
[A] sex parlor, nude studio, modeling studio, love parlor, adult bookstore, adult movie theater, adult video arcade, adult movie arcade, adult video store, adult motel, 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 the customer.
8100 contends that because article II’s definition of
adult arcade
refers back to chapter 243 and chapter 243’s definition of SOB includes the notion of primary business, it is subject to article II’s regulation only if its primary business is to provide sexual stimulation or gratification. We disagree. Chapter 243’s definition contains a list of establishments that are categorically considered SOBs and then contains a catch-all for other businesses not listed but whose primary business is providing sexual stimulation or gratification.
See Meijas v. State,
No. 04-01-00048-CR,
C. Injunctive Relief Was Proper
8100 raises several issues regarding the propriety of injunctive relief in this case. In its fifth issue, 8100 asserts that the trial court abused its discretion in issuing the injunction because the ordinance does not authorize injunctive relief for a violation of article II. Article III of the SOB ordinance specifically states that “[t]he city attorney is hereby authorized to file suit to enjoin the violation of this article.” Houston, Tex., Rev. Ordinanoes ch. 28, art. Ill, § 28-134. Article II, however, is silent on the issue of authority to pursue an injunction. Based on this, 8100 argues that the City is not authorized to seek an injunction for violation of article II. This argument overlooks the significance of chapter 243 of the Local Government Code. Chapter 243 authorizes municipalities to regulate SOBs and then specifically states that a municipality “may sue in the district court for an injunction to prohibit the violation of a regulation adopted under this chapter.” Tex. Loo. Gov’t Code Ann. § 243.010(a) (West 2005);
see also Smartt v. City of Laredo,
In its sixth issue, 8100 contends that the trial court abused its discretion in ordering injunctive relief because the relief goes beyond preserving the status quo. The goal of a temporary injunction is to preserve the status quo, and the status quo in this context is the last actual, peaceable, uncontested state of affairs that preceded the pending controversy.
See Law v. William Marsh Rice Univ.,
In its eighth issue, 8100 claims that the trial court abused its discretion in issuing the temporary injunction because the injunction constitutes an unlawful prior restraint on protected First Amendment activities. The United States Supreme Court has rejected this argument, holding that the closure of an adult bookstore for failure to comply with a local ordinance was not an unlawful prior restraint because the order did not prohibit the defendants from disseminating particular materials and because the order was not based on an advance-determination that the distribution of certain materials is prohibited.
See Arcara v. Cloud Books, Inc.,
In its ninth issue, 8100 argues that the trial court erred in denying its request to impose a stay on the enforcement of the temporary injunction pending appeal. 8100 states in its brief that “[t]his issue may be moot,” and we agree. 8100 filed a motion to stay in this court and then withdrew that motion before our ruling based on the City’s agreement not to enforce the injunction pending appeal. Further, appellate review of the appeal is now complete. Thus; any issue of a stay pending appeal is moot.
See Maloy v. City of Lewisville,
Finally, in its reply brief, 8100 asserts that the trial court’s injunction order is overbroad because it requires the entire arcade section to be locked, rendering it unusable for other purposes such as a lingerie area. By failing to raise this issue in its opening brief, 8100 has waived it.
See Zamarron v. Shinko Wire Co.,
D. No Advance Ruling on the Merits
In its second and third issues, 8100 makes various arguments as to why the SOB ordinance is unenforceable and unconstitutional, including that it is vague and overbroad and provides for unfettered police discretion. We conclude that we cannot address these issues because they are beyond the scope of our review.
A temporary injunction hearing and a trial on the merits have different functions:
[0]ur system of procedure is such that legal rights cannot be finally determined upon a hearing relating to the wisdom or expediency of issuing a status quo order. Deliberate action is essential for the accurate determination of legal rights and upon occasion this can be secured only by issuing a temporary decree protecting a status quo. Ordinarily, the hearing upon the temporary injunction is not a substitute for, nor does it serve the same purpose as the hearing on the merits.
Tom James of Dall., Inc. v. Cobb,
The issue before the trial court was whether the City was entitled to a temporary injunction, not whether the ordinance was enforceable or constitutional. Indeed, the trial court found that 8100 was operating a business in violation of article II, but it did not issue any rulings regarding the constitutionality or enforceability of the ordinance. In its second and third issues, 8100 does not argue that the trial court abused its discretion in issuing the temporary injunction; rather, it argues that the ordinance upon which it is based is unenforceable and unconstitutional. These issues are dispositive of 8100’s defenses in the underlying litigation and therefore are not appropriate subjects for appellate review in this interlocutory appeal.
4
We will not issue an advance ruling on the merits by addressing these issues before the trial court has done so.
See Brar v. Sedey,
CONCLUSION
The trial court did not abuse its discretion in issuing a temporary injunction against 8100. We affirm the trial court’s order.
SULLIVAN, J., not participating.
Notes
. 8100 points to other cases in which courts have discussed the primary business standard.
See 4330 Richmond Ave. v. City of Hous.,
No. Civ.A. 91-0665,
. Because we have concluded that the primary business standard does not apply in this context, we need not address 8100's fourth and seventh issues, both of which involve defining the primary business standard.
. 8100 argues that perhaps the City intentionally omitted any reference to injunctive relief in article II based on concerns over suppression of speech protected by the First Amendment, but that argument fails because article III, which specifically covers adult bookstores and materials therein protected by the First Amendment, provides for injunctive relief.
.
See San Miguel,