REVISED NOVEMBER 13, 2002
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT _______________
m 00-51119 _______________
ENCORE VIDEOS, INC.,
Plaintiff-Appellant,
VERSUS
CITY OF SAN ANTONIO,
Defendant-Appellee.
_________________________
Appeal from the United States District Court for the Western District of Texas _________________________
October 29, 2002
Before SMITH and EMILIO M. GARZA, JERRY E. SMITH, Circuit Judge: Circuit Judges, and CUMMINGS,* District Judge. I. Appellant Encore Videos, Inc. (“Encore * Videos”), operates a sexually oriented retail District Judge of the Northern District of video store in San Antonio, Texas. In April Texas, sitting by designation. 1995, the city council enacted Ordinance unconstitutional “prior restraint.” #82135, which forbids sexually oriented bus- Shuttlesworth v. City of Birmingham, 394 inesses from locating within 1000 feet of resi- U.S. 147, 150-51 (1969). Zoning regulations dential areas. Encore Videos’ store is within restricting the location of adult entertainment 1000 feet of a residential area, although sepa- businesses are considered time, place, and rated by the Loop 410 highway. Encore manner regulations, however, if they do not Videos provides only sales for off-premises ban them throughout the whole of a viewing; customers cannot view the videos at jurisdiction and are “designed to combat the the store. undesirable secondary effects of such business- es” rather than to restrict the content of their In September 1997, Encore Videos sued, speech per se.1 Relevant harmful secondary challenging the ordinance on First Amendment effects of adult businesses include crime, grounds. In response, the city amended and reduction of economic activity, and lowered reenacted the ordinance to impose procedural property values. Lakeland Lounge, 973 F.2d safeguards required by FW/PBS, Inc. v. City of at 1257. Dallas, 493 U.S. 215 (1990). The new law, Ordinance #87443, took effect in March 1998. There is no evidence of improper censorial Encore Videos filed an amended complaint motives on the part of the city council. Where challenging the new ordinance on federal and “nothing in the record . . . suggests imper- Texas state constitutional grounds. missible motives on the part” of the enacting legislature, a local government seeking to use The district court granted the city’s motion the secondary effects justification need show for summary judgment and denied Encore only that “(1) the drafters of the ordinance did Videos’. Encore Video [sic], Inc. v. City of rely upon studies of secondary effects,” and San Antonio, No. Civ. A. SA-97-CA1139FB, (2) a “majority” of the city council members 2000 WL 33348240 (W.D. Tex. Oct. 2, received “some information about the 2000). Encore Videos appeals, arguing that secondary effects.” Lakeland Lounge, 973 the ordinance offends by the First Amendment F.2d at 1259. and the state Constitution. We reverse and remand. In an opinion rejecting a First Amendment challenge to Ordinance #82135, the II. predecessor to Ordinance #87443, we held A. that the city “relied on studies provided by the Before addressing the merits of the First City Council relating to secondary effects.” Amendment claim, we must determine whether NATCO, Inc. v. City of San Antonio, No. 98- the ordinance should be analyzed as a prior 50645, slip op. at 6 (5th Cir. June 2, 1999) restraintSSas advocated by Encore VideosSSor (unpublished). In this circuit, unpublished as a time, place, and manner regulation. As a opinions issued on or after January 1, 1996, general rule, “a law subjecting the exercise of First Amendment freedoms to the prior restraint of a license, without narrow, 1 City of Renton v. Playtime Theatres, Inc., 475 objective, and definite standards to guide the U.S. 41, 49 (1986); see also Lakeland Lounge, licensing authority,” is a presumptively Inc. v. City of Jackson, 973 F.2d 1255, 1257-58 (5th Cir. 1992) (same).
2 generally are not binding precedent, although acceptable so long as they are designed to parties may cite them, and they have serve a substantial governmental interest and “persuasive value.” 5TH CIR. R. 47.5.4. do not unreasonably limit alternative avenues NATCO’s factual findings on the exact point at of communication.” This phrasing seems to issue surely carry “persuasive” weight. Id. eliminate the requirement of narrow tailoring. They also have been endorsed by the district court a quo. In any event, there is no reason Nonetheless, later Supreme Court decisions to go against the factual findings of NATCO on time, place, and manner regulations have on this point, and we follow them here. continued to apply the narrow tailoring standard.3 A leading post-City of Renton Even a content-neutral regulation may be secondary effects decision of this court also considered a prior restraint if it gives applied it. See SDJ, Inc. v. City of Houston, government officials “unbridled discretion” to 837 F.2d 1268, 1273 (5th Cir. 1988).4 We restrict protected speech.2 But Ordinance therefore conclude that the requirement of #87443 does not fall into this category, narrow-tailoring remains in force. because the Director of Building Inspections may deny a sexually oriented business’s permit Encore Videos argues that the San Antonio application only if the applicant seeks to utilize ordinance fails to meet the first three of the a location within 1000 feet of a residential four requirements of the time, place, and man- neighborhood, another sexually oriented ner test. We address each in turn. business, or several other precisely specified types of properties. San Antonio Ordinance #87443 § 2(a)-(f). 3 See, e.g., Ward v. Rock Against Racism, 491 U.S. 781, 796 (1989); Frisby, 487 U.S. at 481; Cf. B. Int’l Eateries of Am., Inc. v. Broward County, 1. Fla., 941 F.2d 1157, 1162 (11th Cir. 1991) To pass constitutional muster, a time, place (advancing several reasons why narrow tailoring and manner regulation must be “content-neu- requirement survives City of Renton). tral, . . . narrowly tailored to serve a significant 4 government interest, and leave open ample The more recent Lakeland Lounge decision, alternative channels of communication.” which also dealt with First Amendment challenges Frisby v. Schultz, 487 U.S. 474, 481 (1988) to a “secondary effects” ordinance, did not mention (internal citations omitted). In City of Renton, the narrow-tailoring requirement, but neither did it 475 U.S. at 47, the Court created some explicitly repudiate it. See Lakeland Lounge, 973 confusion as to the appropriate test by stating F.2d at 1257 (holding that zoning ordinance that “time, place, and manner regulations are restricting the location of adult businesses must be content-neutral, “‘designed to serve a substantial governmental interest’ and may ‘not unreasonably limit alternative avenues of communication’”) 2 See, e.g., Lakewood v. Plain Dealer Pub. Co., (quoting City of Renton, 475 U.S. at 47). Because 486 U.S. 750, 757 (1992) (invalidating regulation Lakeland Lounge did not state that the standards it that “plac[es] unbridled discretion in the hands of imposed were the only ones required, it is not a government official or agency”); Southeastern directly inconsistent with SDJ or with post-City of Promotions, Ltd. v. Conrad, 420 U.S. 546, 553 Renton Supreme Court opinions applying the time, (1975) (same). place, and manner test.
3 2. manner test. The first requirement is content neutrality. “‘The principal inquiry in determining content We have interpreted the substantial neutrality, in speech cases generally and in government interest standard as requiring not time, place, and manner cases in particular, is only a showing of the importance of the whether the government has adopted a interest, but also a demonstration that the regulation of speech because of disagreement challenged statute, at least to some degree, is with the message it conveys.’” Hill v. effective in serving that interest.5 This Colorado, 530 U.S. 703, 719 (2000) (quoting approach arguably conflicts with City of Ren- Ward, 491 U.S. at 791). Although Encore ton, which mandates only that a statute be Videos claims that Ordinance #87443 is “designed to serve a substantial government “content-based,” it provides no evidence to interest” and does not require evidence of support that assertion. effectiveness. City of Renton, 475 U.S. at 47 (emphasis added). City of Renton does require The inquiry here is similar to that applied to proof of the existence of the secondary effects the question of secondary effects motivation, that the challenged ordinance seeks to described in part II.A, infra. It is not certain, eliminate but does not consider the question of however, whether the two tests require the proof of effectiveness in combating them. Id. same degree of proof of improper motive at 50-52. This court’s caselaw also may be in before a regulation fails them. Even so, an or- tension with other Supreme Court time, place, dinance for which the record discloses zero and manner cases that require evidence of proof of improper motive surely passes both effectiveness and necessity only as a part of the tests. narrow-tailoring prong of the time, place, and manner test. See, e.g., Frisby, 487 U.S. at 3. 484-87. Nonetheless, J&B Entertainment is We next consider the requirement that the binding on us unless overruled en banc. ordinance serve a substantial government in- terest. “A city’s ‘interest in attempting to pre- Fortunately, this question has little practical serve the quality of urban life is one that must be accorded high respect.’” City of Renton, 5 475 U.S. at 50 (quoting Young v. Am. Mini- See J&B Entertainment, Inc. v. City of Theatres, 427 U.S. 50, 71 (1976) (plurality Jackson, 152 F.3d 362, 371 (5th Cir. 1998) opinion)). “Local governments . . . can restrict (holding that “Renton teaches us that [to pass the adult businesses in order to control the bad substantial interest test] the government must ‘secondary effects’SS such as crime, produce some evidence of adverse secondary deterioration of their retail trade, and a effects” that the ordinance works to eliminate); see also Flanigan’s Enter., Inc. v. Fulton County, decrease in property valuesSSthat the Ga., 242 F.3d 976, 985 (11th Cir. 2001) (holding establishments bring.” Lakeland Lounge, 973 that “to meet their burden” under the substantial F.2d at 1257. There is, therefore, no doubt interest prong, “the Defendants must have some that the secondary effects that the San Antonio factual basis for the claim” that adult entertainment ordinance seeks to remedy are important activities restricted by the challenged statute “result enough to be considered a substantial . . . in undesirable community conditions”) (internal government interest under the time, place, and citations omitted), cert. denied, 122 S. Ct. 2356 (2002).
4 significance for the present case. Evidence of because no single opinion garnered the votes effectiveness too weak to survive scrutiny of a majority of Justices. The Court split 4-1- under J&B Entertainment’s version of the sub- 4, with Justice Kennedy writing a concurring stantial interest standardSSwhich requires only opinion. The Court upheld, against a summary that the “government must present sufficient judgment motion, an ordinance that prohibited evidence to demonstrate ‘a link between the “‘the establishment of more than one adult regulation and the asserted governmental entertainment business in the same building, interest’ under a ‘reasonable belief’ stan- structure or portion thereof.’” Id. at 1731 dard”SSsurely will also fail to meet the (quoting Los Angeles Municipal Code § 12.70 requirements of the much more stringent (1983)). The city had adopted the ordinance narrow tailoring prong. See J&B to combat the alleged harmful secondary Entertainment, 152 F.3d at 372.6 We effects of adult businesses. therefore choose not to address any apparent inconsistency in the caselaw and, instead, will Justice O’Connor’s plurality opinion, joined consider the relevance of the ordinance’s by three other Justices, concluded that the effectiveness under the narrow tailoring ordinance should survive summary judgment prong.7 despite an absence of evidence specifically demonstrating that forbidding multiple adult 4. businesses to operate under one roof reduces The ordinance’s constitutionality under the secondary effects. The plurality reasoned that time, place, and manner test therefore turns on the city should not be required “to the narrow tailoring prong. It fails to meet this demonstrate, not merely by appeal to common test and therefore is unconstitutional. sense, but also with empirical data, that its or- dinance will successfully lower crime.” a. Alameda Books, 535 U.S. at ___, 122 S. Ct. at i. 1736. Instead, “a municipality considering an The recent decision in City of Los Angeles innovative solution” to secondary effects prob- v. Alameda Books, Inc., 535 U.S. 425, 122 S. lems need not have specific data “that could Ct. 1728 (2002) sheds important new light on demonstrate the efficacy of its proposal the application of the narrow tailoring prong because the solution would, by definition, not to secondary effects cases. We begin our anal- have been implemented previously.” 122 S. ysis with that decision, issued after the district Ct. at 1736. court had entered judgment in the instant case. Justice Kennedy’s concurring opinion Alameda Books is difficult to apply, adopts a very different view. He holds that, to survive summary judgment, “a city must ad- vance some basis to show that its regulation 6 has the purpose and effect of suppressing sec- The J&B Entertainment court, 152 F.3d at ondary effects, while leaving the quantity and 372, claimed that the requirement of “a link be- tween the regulation and the asserted governmental accessibility of speech substantially intact.” interest” is a direct quotation from City of Renton. Id. at 1742 (Kennedy, J., concurring) It is not. (emphasis added). Justice Kennedy took special care to emphasize that, although “[i]t is 7 See infra part II.B.4.
5 no trick to reduce secondary effects by adult bookstore combined with video booths reducing speech or its audience . . . a city may will produce any criminal effects” or not attack secondary effects indirectly by demonstrate that such effects could be reduced attacking speech.” Id. Nonetheless, he by dispersing the two establishments. Id. at concluded that the ordinance could survive 1748-49. summary judgment because the city plausibly could claim that its “ordinance will cause two Justice Souter rejected Justice Kennedy’s businesses to split rather than one to close, claim that the city’s weak evidence could sur- that the quantity of speech will be vive summary judgment because the burden substantially undiminished, and that total the ordinance imposes on speech might turn secondary effects will be significantly out to be minimal. Id. at 1749 n.8. Such an reduced.” Id. (emphasis added).8 approach, he concluded, “turns intermediate scrutiny on its head,” because it focuses on the Finally, the dissenting opinion of Justice degree to which the challenged ordinance bur- Souter, joined by two other Justices in full and dens speech rather than on the “asserted by Justice Breyer with respect to part II, governmental interest.” Id. Justice Souter still asserted that the Court should have affirmed would require that the burden on speech be the Ninth Circuit’s decision striking down the “no greater than necessary to further that ordinance. Id. at 1747 (Souter, J., dissenting). interest” and would require stronger proof of In a portion of his dissent joined by Justice the ordinance’s efficacy in reducing secondary Breyer and the other dissenters, Justice Souter effects than would be required by either Justice contended that the ordinance should be Kennedy or the plurality. Id. overturned because there was no evidence to support the city’s claim that requiring adult ii. businesses operating under the same roof to “When a fragmented Court decides a case separate actually reduces secondary effects. and no single rationale explaining the result en- Id. at 1748-49 (Souter, J., dissenting). joys the assent of five justices, the holding of the Court may be viewed as that position taken In Alameda Books, the city had relied on a by those Members who concurred in the 1977 study concluding that concentrations of judgments on the narrowest grounds.” Marks adult businesses generally increase secondary v. United States, 430 U.S. 188, 193 (1977) effects such as crime. Id. Justice Souter, (quotations omitted). Where, however, there however, concluded that this study was is an area of common agreement between “[a]t insufficient, because it did not provide “any least five justices,” that conclusion is valid as evidence to support even the simple law even if some of the Justices endorsing the proposition that an otherwise lawfully located proposition in question were in dissent. Snead v. Redland Aggregates Ltd., 998 F.2d 1325, 1333 n.10 (5th Cir. 1993).9 8 See also Alameda Books, 122 S. Ct. at 1743 (concluding that ordinance survived summary judg- 9 ment only because “[d]ispersing two adult bus- Snead was based on an interpretation of Dun inesses under one roof is reasonably likely to cause & Bradstreet, Inc. v. Greenmoss Builders, Inc., a substantial reduction in secondary effects while 472 U.S. 749 (1985), a 3-2-4 decision similar to reducing speech very little”). (continued...)
6 In Alameda Books, there is an area of b. agreement between Justice Kennedy and the The standard derived from Alameda Books four dissenters that is sufficient to determine is supported by earlier Supreme Court time, the outcome of the present case. Justice Sou- place, and manner decisions. A time, place, ter, joined by three other Justices with respect and manner regulation meets the narrow tai- to this part of his dissent, concluded that the loring standard if it “targets and eliminates no burden on speech imposed by a secondary ef- more than the exact source of the evil it seeks fects ordinance must be proven to be “no to remedy.” Frisby, 487 U.S. at 485. greater than necessary to further th[e city’s] Although government need not choose the interest” in combating secondary effects. Ala- “least intrusive means” to advance its meda Books, 122 S. Ct. at 1749 n.8 (Souter, legitimate interests, it “may not regulate J., dissenting). In his separate opinion, Justice expression in such a manner that a substantial Kennedy goes even further: He would require portion of the burden on speech does not serve the city to provide evidence showing that “the to advance its goals.” Ward, 491 U.S. at 799. quantity of speech will be substantially undiminished, and that total secondary effects will be significantly reduced” by the challenged This court has taken a more permissive ap- ordinance. Id. at 1742 (Kennedy, J., proach than has the Supreme Court with re- concurring). Justice Kennedy and the spect to the specific instance of statutes dissenters therefore agree that the city at least regulating adult businesses for the purpose of must provide evidence that the burden on combating secondary effects: “[A]n ordinance speech imposed by an ordinance is “no greater is sufficiently well tailored if it effectively than necessary to further th[e city’s] interest” promotes the government’s stated interest.” in combating secondary effects. Alameda SDJ, 837 F.2d at 1276. The SDJ court further Books, 122 S. Ct. at 1749 n.8 (Souter, J., opined that “narrow tailoring is less important dissenting).10 when the potential for overbreath burdens a category of speech subject to less than full First Amendment protection; sexually-oriented 9 (...continued) expression falls into such a category.” Id. the 4-1-4 split in Alameda Books. Snead based its holding on a point of agreement between Justice SDJ, however, predates Frisby and Ward, White, one of the two Justices who wrote separate which, without mentioning any exceptions for concurring opinions, and the four dissenters. statutes regulating sexually-oriented Snead, 998 F.2d at 1325 n.10. expression, reassert a restrictive narrow- 10 The existence of this area of agreement be- tween five Justices differentiates the present case 10 from Hopwood v. Texas, 78 F.3d 932 (5th Cir. (...continued) 1996). There, we refused to follow Justice Pow- Hopwood, 78 F.3d at 944. Justice Powell’s view ell’s single-Justice concurring opinion in Regents that diversity represents a compelling state interest of Univ. of Cal. v. Bakke, 438 U.S. 265 (1978), justifying racial preferences under the strict because his “argument in Bakke garnered only his scrutiny test represented the view of “only one own vote and has never represented the view of a Justice.” Id. By contrast, in Alameda Books there majority of the Court in Bakke or any other case.” is an important area of agreement shared by five (continued...) Justices.
7 tailoring test for all time, place, and manner telle, 666 F.2d 854, 857 n.5 (5th Cir. 1982).12 regulations . Ward, 491 U.S. at 799; Frisby, This is precisely the situation here; intervening 487 U.S. at 485. Alameda Books likewise Supreme Court decisions have clarified the gives no indication that the narrow-tailoring narrow tailoring standard applicable to time, standard is any less stringent in secondary place, and manner regulations in a way that effects cases than in other time, place, and closes the door on the position adopted in manner cases. SDJ.
Indeed, Justice Kennedy’s and Justice Sou- c. ter’s approaches in Alameda Books may be To establish that Ordinance #87443 passes even more restrictive than that adopted in ear- the narrow tailoring test, the city relies on lier time, place, and manner decisions. Justice three studies of the secondary effects of adult Souter and the three other dissenting Justices businesses, all conducted in other cities: one concluded that the burden on speech must be in Seattle in 1989, another in Austin, Texas, in “no greater than necessary to further th[e 1986, and the third in Garden Grove, city’s] interest” in combating secondary California, in 1991. The city is “entitled to effects. Alameda Books, 122 S. Ct. at 1749 rely on the experiences . . . of other cities . . . n.8 (Souter, J., dissenting) (emphasis added). so long as whatever evidence the city relies This potentially is a more stringent upon is reasonably believed to be relevant to requirement than that of earlier time, place, the problem that the city addresses.” City of and manner cases, which give localities some Renton, 475 U.S. at 51-52. leeway in regulating more speech than strictly necessary to achieve their legitimate interests, The studies either entirely exclude so long as the excess falls short of being “a establishments that provide only take-home substantial portion of the burden on speech” videos and books (as is the case with the imposed by the challenged ordinance. Ward, Seattle study)13 or include them but do not 491 U.S. at 799. As discussed above, Justice differentiate the data collected from such Kennedy’s view is even more restrictive than businesses from evidence collected from Justice Souter’s.11 Because Ordinance #87443 enterprises that provide on-site adult fails to meet the standards of the earlier Fris- by-Ward test, we need not decide the difficult 12 issue of whether Alameda Books made that SDJ, 837 F.2d at 1276, relied on United standard more stringent. States v. Albertini, 472 U.S. 675 (1985), for sup- port. But although Albertini did hold that a time, Although usually only an en banc court can place, and manner regulation is “permissible . . . so overrule earlier panel decisions, a panel may long as the neutral regulation promotes a sub- “disregard the precedent set by a prior panel” stantial government interest that would be achieved less effectively absent the regulation,” it limited if there is an “intervening Supreme Court that conclusion to cases challenging “incidental decision which changes the law.” Ruiz v. Es- burden[s] on speech [that are] no greater than essential.” Id. at 688. SDJ’s reliance on Albertini is therefore misplaced. 13 The Seattle study was limited to cabarets that 11 See discussion supra part II.B.4.a.i. provide live adult entertainment.
8 entertainmentSSas may have been the case all video stores whose inventory consisted of with the Austin and Garden Grove studies.14 ten percent or more adult materialsSSis broad Off-site businesses differ from on-site ones, enough to “include ‘mainstream’ video stores because it is only reasonable to assume that the that have restricted adult sections.” World former are less likely to create harmful Wide Video, 816 P.2d at 21. Ordinance secondary effects because of the fact that #87443 is only slightly less extreme: It consumers of pornography are not as likely to restricts the location of any bookstore or video linger in the area and engage in public alcohol store “where more than 20% of its inventory” consumption and other undesirable activities. consists of adult materials. San Antonio Ordi- nance #87443 § 1(2). The question whether the kind of studies relied on by the city constitute adequate proof The Washington court based its decision on is one that has divided federal circuit courts the fact that none of the studies cited by the and state supreme courts. The Eighth and city gave separate consideration to the effects Tenth Circuits have endorsed the position ad- of businesses that have such a small proportion vocated by the city here.15 By contrast, the of adult materials in their inventory. World supreme courts of Washington and Delaware Wide Video, 816 P.2d at 21. That court have taken positions similar to Encore veiwed, as problematic, the inclusion of enter- Videos’.16 prises with a low percentage of pornographic material in their inventory, because many, if The reasoning of the Washington Supreme not most, of those enterprises offer the Court is persuasive. It points out that the or- objectionable material only for off-site use, and dinance at issueSSwhich placed restrictions on there is no proof that this causes secondary ef- fects. “[The city] has not shown that adult businesses with predominantly ‘take-home’ 14 merchandise (which clearly are [sic] covered Based on the evidence in the record, it is difficult to tell whether the Austin and Garden by the ordinance) have the same harmful sec- Grove studies excluded off-site entertainment bus- ondary effects traditionally associated with inesses entirely or lumped them in with the rest. adult movie theaters and peep shows . . . .” The Austin study covered two “adult book stores” Id. and one “adult film store” among the six adult businesses studied, but failed to indicate whether Given the potentially sweeping implications these three businesses provide any on-site of the ordinances in World Wide Video and the entertainment. The Garden Grove study focused instant case, we must require at least some on a total of seven adult businesses but neglected to substantial evidence of the secondary effects of indicate whether any of them provided exclusively establishments that sell adult products solely off-site entertainment. for off-site consumption. Otherwise, even 15 ordinary bookstores and video stores with Z.J. Gifts, L.L.C. v. City of Aurora, 136 F.3d adult sections could be subjected to regulation 683, 687 (10th Cir. 1998); ILQ Inv., Inc. v. City of Rochester, 25 F.3d 1413, 1418 (8th Cir. 1994). that restricts their First Amendment rights without evidence that they cause “secondary 16 World Wide Video, Inc. v. City of Tukwila, effects.” 816 P.2d 18, 21-22 (Wash. 1991); Richardson v. Wile, 535 A.2d 1346, 1350 (Del. 1988).
9 Such a state of affairs surely conflicts with Under Alameda Books, therefore, the city, the requirement that government “may not to meet its burden, must provide at least some regulate expression in such a manner that a evidence of secondary effects specific to adult substantial portion of the burden on speech businesses that sell books or videos solely for does not serve to advance its goals.” Ward, off-site entertainment. Because there is no 491 U.S. at 799. It also conflicts with the such evidence in the record, we must strike minimal requirement accepted by Justice Ken- down the zoning provision of Ordinance nedy and the four dissenters in Alameda #87443. Books: that the burden on speech imposed by a secondary effects ordinance be “no greater III. than necessary to further th[e city’s] interest” A. in combating secondary effects. Alameda Under FW/PBS, 493 U.S. at 227-28, a Books, 122 S. Ct. at 1749 n.8 (Souter, J., content-neutral “licensing scheme” for dissenting).17 expression that “does not present the grave ‘dangers of a censorship system’” must have two “essential” procedural “safeguards”: 17 As previously noted, Justice Kennedy’s for- “[T]he licensor must make the decision mulation is even more restrictive than the one whether to issue the license within a specified adopted by the dissenters. Nonetheless, he agreed and reasonable time period during which the with the majority that the challenged ordinance status quo is maintained, and there must be the should survive summary judgment, but only be- possibility of prompt judicial review in the cause the city plausibly could claim that its “ordi- nance will cause two businesses to split rather than one to close, that the quantity of speech will be 17 substantially undiminished, and that total sec- (...continued) ondary effects will be significantly reduced.” Ala- F.3d at 944. meda Books, 122 S. Ct. at 1742 (Kennedy, J., con- curring). The Tenth and Eighth Circuit decisions do not give the present ordinance much support. Both are This narrow exception does not apply to the evi- highly conclusional in their analysis and make little dence in the present case. In Alameda Books, the effort to justify their conclusions by reference to businesses could sa tisfy the ordinance merely by authority. See Z.J. Gifts, 136 F.3d at 687 (holding, separatingSSeven if one afterwards moved next without explaining why, that the on-site/off-site door. Here, by contrast, the requirement that adult distinction is immaterial, because “the record fully businessesSSincluding even general bookstores supports the city’s regulation of sexually oriented with an adult sectionSSmay not locate within 1000 businesses providing both on- and off-site viewing feet of a residential area effectively closes off large of sexually explicit materials”); ILQ Inv., 25 F.3d portions of the city to them, ensuring that “the at 1418 (rejecting the distinction because “that quantity of speech” will not “remain substantially simply is not the law,” without giving more than a undiminished.” Id. Even if this part of Justice cursory explanation why). Kennedy’s opinion did favor the city here, we would not be required to follow it, because it is not The Eighth Circuit does attempt to buttress its supported by any of the other eight Justices, even position by citing Ward and Albertini. Id. The in part. The stand-alone opinion of “only one ILQ Investments court, however, misstates these justice” is not binding precedent. Hopwood, 78 decisions’ elaboration of the narrow-tailoring test. (continued...) See discussion of Ward, supra part II.B.3.b.
10 event that the license is erroneously denied.”18 B. Like the present case, FW/PBS involved a We reject Encore Videos’ argument that zoning and licensing ordinance for adult Ordinance #87443 violates FW/PBS’s businesses. Id. at 220-21. Encore Videos requirement that “the licensor must make the claims that Ordinance #87443 violates both of decision whether to issue the license within a the procedural requirements imposed by specified and reasonable time.” FW/PBS, 493 FW/PBS. Even though we decide in favor of U.S. at 228. The ordinance requires the Encore Videos on its challenge to the Director of Building Inspections to “issue or ordinance’s zoning requirement, we must deny a certificate of occupancy to a sexually address the FW/PBS procedural issue, because oriented business not more than thirty (30) Encore Videos will remain subject to business days subsequent to the date of the Ordinance #87443’s procedural requirements application’s submission of an application even if one of the substantive elements is held therefor.” San Antonio Ordinance #87443 § to be unconstitutional.19 2(f)(4). A license may not be approved until a series of inspections have been performed, and there is no time limit for the completion of the 18 Although the portion of Justice O’Connor’s inspections.20 opinion for the Court laying out these standards won the support of only three Justices, three others At first glance, the city’s licensing system endorsed a concurring opinion by Justice Brennan seems analogous to that which the Supreme that argued for even stronger procedural Court found unconstitutional in FW/PBS. The protections. FW/PBS, 493 U.S. at 238-42 (Bren- ordinance challenged in that case also had a nan, J., concurring). “When a fragmented Court thirty-day deadline, combined with a system of decides a case and no single rationale explaining required inspections for which there was no the result enjoys the assent of five justices, the separate time limit. The ordinance was struck holding of the Court may be viewed as that position taken by those Members who concurred in the down because it “provide[d] no means by judgments on the narrowest grounds.” Marks v. which an applicant may ensure that the United States, 430 U.S. at 193. Thus, Justice business is inspected within the 30 day time O’Connor’s opinion must be considered binding period.” FW/PBS, 493 U.S. at 227. precedent. The city and the district court here 19 The relevance of FW/PBS is not affected by distinguish FW/PBS, however, on the ground Thomas v. Chicago Park Dist., 534 U.S. 316, 322 that the permit system in question here assigns (2002), which held that the procedural requirements of Freedman v. Maryland, 380 U.S. 51 (1965), elaborated in FW/PBS, do not apply to 19 (...continued) “a licensing scheme . . . [that] is not subject-matter as did not overrule FW/PBS or even hint that its censorship but content-neutral time, place, and scope has been narrowed. manner regulation of the use of a public forum.” 20 The present case does not concern “regulation of See San Antonio Uniform Building Code the use of a public forum.” Id. Like FW/PBS and § 109.3 (requiring that a “certificate of occupancy” unlike ThomasSSwhich addressed a demonstration be issued only “[a]fter the building official inspects permit system for public parksSSthis case address- the building or structure and finds no violation of es a licensing scheme for adult businesses. Thom- the provisions of this code or other laws which are (continued...) enforced by the code enforcement agency”).
11 the task of inspection to the same official who also constrains his discretion with respect to is required to issue or deny a license within the scheduling of inspections. Likewise, thirty days.21 The Director of Building placing the responsibility for both meeting the Inspections therefore is able to control the thirty-day deadline and carrying out the inspection process and ensure that it is inspections in the hands of the same official completed within the thirty-day period. By makes it more likely that the deadline will be contrast, the system invalidated in FW/PBS met than was the case under the system of assigned the task of inspection to three divided responsibility reviewed in FW/PBS. separate agencies, none of which was under the control of the chief of police, the official Because there is no evidence in the record tasked with enforcing the thirty-day deadline suggesting that the Director of Building for issuing a permit. Id. Inspections either cannot or will not be able to process adult business permit applications This is a matter of first impression and is a within the thirty-day limit, we reject Encore close call.22 Nonetheless, based on the record Videos’ argument on this point. This before us, we conclude that Ordinance #87443 determination, however, does not necessarily does not violate the promptness requirement extend to other cases in which the record of FW/PBS. It is certainly plausible to argue might reveal evidence of delays in excess of that the director’s deadline for issuing a permit the statutory deadline.
21 C. Encore Video, 2000 WL 33348240, at *5-*6; The circuits are split on the question wheth- see also City News & Novelty, Inc. v. City of Wau- er FW/PBS’s requirement of “prompt judicial kesha, 604 N.W.2d 870, 880 (Wis. Ct. App. 1999) review in the event that the license is er- (endorsing a similar argument), cert. granted, 530 roneously denied” requires merely prompt ac- U.S. 1242 (2000), cert. dism’d, 531 U.S. 278 (2001). cess to judicial review or a prompt judicial decision. FW/PBS, 493 U.S. at 228. Five cir- 22 This court did once briefly consider the cuits, including this one, have held that prompt question. In Crystal Cinema v. City of Lubbock, access is sufficient. TK’s Video, Inc. v. No. 97-10597 (5th Cir. July 16, 1998) Denton County, 24 F.3d 705, 709 (5th Cir. (unpublished), we held that the city’s permit system 1994).23 Three others have adopted the more for adult businesses was constitutional despite the stringent requirement of a prompt final fact that it failed to create a separate deadline for decision.24 Ordinance #87443 requires prompt the completion of required inspections. The gen- eral forty-five-day deadline for consideration of applications was deemed sufficient, even though 23 See Boss Capital, Inc. v. City of Casselberry, not all the agencies involved were under the au- 187 F.3d 1251, 1256 (11th Cir. 1999); Beal v. thority of the City Secretary, the official Stern, 184 F.3d 117, 129 (2d Cir. 1999); Graff v. responsible for issuing permits and denials within City of Chicago, 9 F.3d 1309, 1324-25 (7th Cir. the specified time. 1993) (en banc); Jews for Jesus v. Mass. Bay Transp. Auth., 984 F.2d 1319, 1327 (1st Cir. As an unpublished opinion, Crystal Cinema is 1993). not binding precedent. 5TH CIR. R. 47.5.4. 24 Moreover, it fails even to consider the relevance of See Nightclubs, Inc. v. City of Paducah, 202 FW/PBS to this issue. (continued...)
12 access to judicial review but does not provide a time limit for a decision.25
The Supreme Court recently passed up an opportunity to resolve this split.26 We therefore follow our own precedent and decide in favor of the city on this question. See TK’s Video, 24 F.3d at 709.
The judgment is REVERSED and REMANDED for appropriate further pro- ceedings in accordance with this opinion.27
24 (...continued) F.3d 884, 892 (6th Cir. 2000); Baby Tam & Co. v. City of Las Vegas, 154 F.3d 1097, 1101-02 (9th Cir. 1998); 11126 Baltimore Blvd., Inc. v. Prince George’s County, Md., 58 F.3d 988, 998-1000 (4th Cir. 1995) (en banc). 25 See San Antonio Ordinance #87443 § 2(f)(7) (providing for immediate access to judicial review but not imposing a time limit for decision). 26 See Thomas, 534 U.S. at 325 (noting that the Court does not reach the issue despite the fact that it was one of the questions on which writ of cer- tiorari had been granted) 27 Because we strike down the locational re- striction of Ordinance #87443 on First Amendment grounds, we need not address Encore Videos’ argument that the ordinance violates the Texas constitution.