FW/PBS, Inc. v. City of Dallas

837 F.2d 1298, 1988 WL 8689

• Court: Court of Appeals for the Fifth Circuit
• Decided: February 12, 1988
• Docket: No. 86-1723
• Status: Published

Opinions

PATRICK E. HIGGINBOTHAM, Circuit Judge:

In the early summer of 1986, the City of Dallas, Texas began to consider the regulation of the effects of sexually oriented businesses upon the community. After study of similar efforts by other metropolitan cities, the City Council passed a detailed ordinance that imposed licensing and zoning restrictions upon sexually oriented businesses. A variety of businesses that would be subject to its regulations attacked the Ordinance in three separate federal suits. Each of the three suits asked the district court to enjoin enforcement of the Ordinance and declare it unconstitutional. The suits were consolidated and the case was submitted for decision on motions for summary judgment filed by all parties. The district court, with exceptions not complained of here, upheld the Ordinance in a detailed written opinion.¹

These plaintiffs appeal urging that the district court erred in two main regards. First, plaintiffs allege that the licensing provisions are content-based regulations, a prior restraint upon activity protected by the first amendment, and invalid because they lack the required procedural protections for such regulation. Second, plaintiffs complain that the court was wrong to conclude that reasonable alternative locations are available for existing businesses forced to move by the Ordinance, an inadequacy that denied their rights under the first and fourteenth amendments. Plaintiffs also make more specific attacks to the Ordinance. They urge that the licensing scheme is unconstitutional because it fails to limit the discretion of the Chief of Police, the licensing official, and because it disqualifies persons based on their criminal record.

We are not persuaded that the district court erred in its rejection of the constitutional attack and affirm. Other and more narrow attacks upon specific provisions of this ordinance were also made. We will explain these contentions and our reasons for affirming their rejection in due course.

I

The Ordinance subjects sexually oriented businesses to zoning and licensing requirements. A business must be at léast 1000 feet from another sexually oriented business or a church, school, residential area, or park. Such businesses must also obtain a license issued by the Chief of Police and permit inspection of their premises when open or occupied. A license is not available to persons formerly convicted of specified crimes, such as promotion of prostitution. The Ordinance also requires that viewing rooms in adult theatres be configured to allow visual surveillance by management.

The Ordinance recites that its purpose is to promote health, safety and morals, and to prevent the “continued concentration of sexually oriented businesses.” It disclaims any purpose to deny “access by adults to sexually oriented materials protected by the First Amendment.”

The City attorney first presented the Ordinance to the Dallas City Plan Commission. The Plan Commission heard testimony from supporters as well as opponents of the Ordinance. The Commission considered studies of other cities regarding the relationship among concentrations of sexually oriented businesses, crime, and property values but did not conduct studies of Dallas itself. The Plan Commission did, however, consider a study of alternative locations within Dallas for the affected businesses. On the basis of its findings, the Plan Commission unanimously recommended that the City Council adopt the Ordinance.

The Council unanimously adopted the Ordinance after making a number of findings. It considered the same studies as well as a study conducted by the Dallas Police Department that concluded that crime rates are 90% higher in adult districts. The Council concluded that public health and safety required regulation of these businesses because they “are frequently used for unlawful sexual activities, including prostitution and sexual liaisons of a casual nature”; because there have been a substantial number of arrests for sex-related crimes near these businesses; and because the evidence that these businesses are associated with “urban blight” and declining property values is well documented.

II

We first examine the district court’s exercise of jurisdiction and the standing of the plaintiffs. Seven of the nine types of sexually oriented businesses regulated by the Ordinance are represented by at least one plaintiff. These plaintiffs include adult arcades, adult bookstores, adult video stores, adult cabarets, adult motels, adult motion picture theaters, and nude model studios. Only escort agencies and sexual encounter centers are not before the court, and we do not decide the constitutionality of the Ordinance as it applies to them. Nor do we decide whether the Ordinance constitutionally may reach businesses that sell sexually-oriented reading materials or videos solely for use off the business’ premises. Each of the book and video stores before us also offered on-premises consumption of sexually oriented materials.

There is no question but that this is a genuine and not a hypothetical controversy. The plaintiffs are subject to the terms of the Ordinance and obedience to its terms will limit business in ways that will result in economic loss as well as a loss of freedom to engage in acts that enjoy some measure of protection under the first amendment.

We also are not persuaded that there is a basis for abstention. There were no pending state proceedings, none have been instituted, and we are not pointed to any possible construction of the Ordinance by state courts that might make imprudent our exercise of jurisdiction.

Ill

Plaintiffs contend that the licensing scheme must fail for several related reasons. First, they argue that insisting on a license for sexually oriented businesses regulates the content of expression protected by the first amendment without the procedural protections of Freedman v. Maryland,2 and Fernandes v. Limmer.3 The Ordinance is said to suffer three procedural deficiencies: it places the burden of proof upon the licensee to prove that a license was wrongfully denied; it fails to provide for prompt determination of the appeal; and it fails to provide assurance of a “prompt final judicial determination.”

We are not persuaded that this ordinance requires such procedural safeguards for its validity. The argument assumes that the Ordinance licensing scheme regulates protected activity in a way that triggers the procedural requirements of Freedman. The ultimate issue in Freedman was the constitutionality of Maryland’s motion picture statute. Maryland made it unlawful to distribute or exhibit films unapproved by a Board of Censors. Maryland did not provide for judicial participation or otherwise assure prompt review in its procedure although its board could bar the showing of a film. The court held that this prior restraint can avoid constitutional infirmity only if hedged by procedural safeguards designed to obviate the dangers of a censorship system. The court concluded that these safeguards include the state’s shouldering of the burden of persuasion, a “procedure requiring a judicial determination ...,” and restriction of prior restraint to the shortest fixed period compatible with sound judicial resolution.⁴

We applied Freedman in Fernandes to strike down a regulation of the Dallas-Fort Worth Airport Authority denying followers of the Krishna religion a license to solicit at the airport. We rejected the suggestion that the regulation was sufficiently content-neutral to escape the procedural requirements of Freedman: “Although D/FW’s regulatory ordinance purports to be content-neutral, the consequences flowing from a permit denial here are essentially the same as those addressed in Freedman: to an unsuccessful permit applicant, the unavoidable delay posed by judicial review is tantamount to an effective denial of First Amendment rights.”⁵

A license from the airport authority was necessary in order to solicit for religious purposes in a public forum. There was no finding that the restraint of protected first amendment activity was narrowly tailored to the regulation of any untoward consequences and no findings that the protected conduct had consequences regulable by the state under its police power. Stated more directly, the airport authority was seen as controlling a religious group’s access to a public forum without justification. We concluded that Freedman's protections were required but absent.

In Fernandes we did not apply the time, place and manner analysis of Young v. American Mini Theatres, Inc.⁶ There the Supreme Court faced a zoning scheme similar to the Dallas Ordinance. It prohibited locating an adult theatre within 1,000 feet of any two other ‘regulated uses’ or within 500 feet of any residential zone. Although a majority of the Justices voted to uphold the regulation, five could not agree on a single rationale.

Four years after our decision in Fer-nandes, however, a majority of the Supreme Court settled on a time, place and manner rationale for zoning an activity that is sexually oriented but not obscene. In City of Renton v. Playtime Theatres, Inc.,7 the Court reviewed a zoning ordinance enacted by Renton, Washington that prohibited adult motion picture theatres from locating within 1,000 feet of any residential zone, single or multiple-family dwelling, church, park or school.⁸ Characterizing the City of Renton ordinance as a time, place or manner restriction, the Court found the first amendment satisfied because the city had a substantial interest in regulating sexually oriented businesses and did so without restricting alternative avenues of communication.⁹

We applied City of Renton to a licensing scheme substantially similar to the Dallas Ordinance in SDJ, Inc. v. City of Houston.¹⁰ On the basis of City of Renton, we upheld the Houston ordinance against a facial first amendment challenge. The opponents of the Houston Ordinance, however, made no attack to the procedural protections in the Ordinance. Nevertheless, the City of Renton and City of Houston decisions guide our analysis of the procedural protections the City of Dallas must provide here.

Most important, these decisions recognize that a city may regulate the effects of sexually oriented businesses without engaging in content-based regulation. The City of Renton Court found no reason to apply rigorous content-based analysis where a city’s “predominant concern” is to control the negative effects of a certain kind of business rather than to suppress a certain type of speech.¹¹ In addition, the Court held that sexually explicit materials deserve less first amendment protection than other kinds of speech.¹² In short, to the extent that Fernandes reaches Dallas’ present zoning regulation, it is limited by the City of Renton decision; the first amendment protection required for religious activity, including proselytizing and solicitation of money, is of a different order than the protection due sexually oriented businesses.

We find that the Dallas Ordinance, like the ordinance before the Court in Renton, regulates only the secondary effects of sexually oriented businesses. For this reason, the Ordinance need only meet the standards applicable to time, place, and manner restrictions and need not comply with Freedman’s more stringent limits on regulations aimed at content.

This is not to say that the lower level of protection provided in City of Renton inevitably excludes the procedures required by Fernandes. In this case, however, those procedures were not necessary insofar as the Dallas Ordinance regulates a business engaged in an activity subject only to the lesser protection. Fernandes procedures are less important when a regulation restricts the conduct of an ongoing commercial enterprise. What is being limited here is not a particular movie — as in Freedman —nor episodic solicitation efforts — as in Fernandes — but a long-term commercial business. The ongoing nature of the regulation provides a strong incentive for the business operators to seek review of licensing decisions, even if that review is not given immediately.¹³ We do not decide today whether Fernandes procedures apply to lesser-protected activities conducted outside the realm of an ongoing commercial enterprise.

We are also satisfied that the ordinance is valid on its face. Because the Ordinance in City of Renton was a content-neutral time, place or manner restriction, the Supreme Court required only that it be “designed to serve a substantial government interest” and allow for “reasonable alternative avenues of communication.”¹⁴ The Dallas Ordinance meets both those requirements. Like the City of Renton ordinance, the Dallas law was designed to serve the City’s interest in maintaining “the quality of urban life.”¹⁵ The City Council’s consideration of the criminal effects of concentrated sexually-oriented businesses was thorough, as was its review of the effects such concentrations have on property values. In short, Dallas has demonstrated that the Ordinance furthers a substantial government interest.

The Ordinance also allows reasonable alternative avenues of communication. In Basiardanes v. City of Galveston,¹⁶ we held that an ordinance restricting adult the-atres to locations that were “poorly lit, barren of structures suitable for showing films, and perhaps unsafe,” did not provide adequate alternative locations. Here, however, the City offered evidence that convinced the district court that the alternative sites are feasible locations and not just open areas on a city map. Putting aside the question of the deference the district court owed the findings of the City Council regarding alternative locations, it had evidence before it sufficient to sustain its findings. Plaintiffs suggest that such findings are inappropriate for deciding a motion for summary judgment. Perhaps that is so, and we express no opinion in this regard. However, the parties submitted the case for decision on the record and the record supports the district court’s findings regarding the number of alternative locations.

IV

We also are not convinced by the other constitutional attacks against the Ordinance’s licensing provisions. Appellants rely on several different constitutional provisions in their challenge: they attack three specific license requirements as prior restraints under the first amendment, they contend that the Ordinance’s grant of discretion to the police chief violated the first amendment’s prohibition on vagueness, and they argue that the Ordinance’s inspection-consent provision violates the fourth amendment’s limitations on searches as well as the first amendment. We deal with these attacks in turn.

A

As a threshold matter, we note that the City of Renton standard of review applies to the details of the licensing scheme — as opposed to the zoning rules — even though the licensing scheme may regulate aspects of the businesses’ operations other than location. The kind of speech affected by the license requirements and the city’s justification for enforcing them are the same for both kinds of restrictions. Whether a license is denied because the business is improperly located or because the business is improperly maintained, the effect is the same — the operator must refrain from the activity, and his only alternative is to comply with the Ordinance and obtain a license.¹⁷ Indeed, as the very title of the doctrine suggests, “time, place or manner” analysis cannot be limited solely to regulation of “place.”

On this basis we hold, in accordance with the prevailing view, that the first amendment does not prohibit the City of Dallas from requiring that viewing booths in adult theatres be open.¹⁸ Although this requirement is based on slightly different considerations than those that support the zoning requirements, the public purpose involved is no less substantial. The City could reasonably conclude that closed booths encourage illegal and unsanitary sexual activity in adult theatres. The substantial government interest in curbing such effects supports the open booth requirement as a valid restriction under City of Renton standards.

The owners of adult motels make a separate challenge to the Ordinance provision prohibiting rental of a motel room for less than ten hours at a time. The motel owners allege that the City made no finding that adult motels engender the same effects on property values and crime as do other sexually oriented businesses. Once again, however, we find the City’s interest to be self-evident and substantial. It is certainly within reason that short rental periods facilitate prostitution, one of the criminal effects with which the City Council was most concerned.

Appellants also attack the Ordinance provision that denies licenses to persons convicted of certain crimes.¹⁹ Arguably, it is awkward to analyze this occupational disability as a time, place or manner restriction within the City of Renton framework. This part of the Ordinance does not simply regulate the manner of protected activity, it denies the right of persons convicted of certain crimes to engage in the regulated businesses.

Proceeding in categorical terms sheds little light on the standard of review we should apply, although we can imagine three possibilities. First, we might subject the provision to the strict level of review reserved for content-based regulation and require the city to show that the provision is precisely drawn to serve a compelling interest.²⁰ Second, we might apply City of Renton’s approach and require that the provision serve a substantial government interest while leaving open alternative avenues of communication. Finally, although the provision might not be considered content neutral, the fact that it impinges on a lesser-protected category of speech might justify the application of some intermediate standard of review, particularly when the regulation is a form of disability commonly attending convictions.

A strong argument can be made that we need not determine which standard of review is most appropriate because the provision can in any event withstand strict scrutiny; that the city’s findings demonstrate a compelling interest in limiting the involvement of convicted persons in the operation of sexually oriented businesses; that by documenting the strong relationship between sexually-oriented businesses and sexually related crimes, the City established a compelling justification for barring those prone to such crimes from the management of these businesses. The argument would continue that the City’s findings conform with the well-accepted notion that the government may attach to criminal convictions disabilities aimed at preventing recidivism.²¹

While compelling necessity might be a proper standard to measure regulation disabling a person with full participatory rights of citizenship, on balance we are persuaded that only a substantial relationship need be shown between the conviction and the evil sought to be prevented. The courts have not engaged in such strict scrutiny and have not otherwise required compelling necessity to justify other occupational bars attending a criminal conviction, including those laced with activity protected by the first amendment such as labor organizing. In short, the City need only show that conviction and the evil to be regulated bear a substantial relationship.

We agree with the district court that the Ordinance now is well tailored sufficiently to achieve its ends. Ineligibility results only from offenses that are related to the kinds of criminal activity associated with sexually oriented businesses.²² In addition, the Ordinance permits licensing of former offenders after enough time has passed to indicate they are no longer criminally inclined and takes into account the seriousness of applicant’s offenses.²³ The relationship between the offense and the evil to be regulated is direct and substantial.

This result also is consistent with our decision in Fernandes. The ordinance challenged in Fernandes denied a permit to anyone convicted of an offense involving moral turpitude. Yet, in Fernandes there was no immediate relationship between crimes of moral turpitude and the purpose of the airport’s ordinance.²⁴

B

We also agree with the district court that the Ordinance does not give im-permissibly broad discretion to the Chief of Police in issuing, suspending, and revoking licenses. Among other things, the Ordinance empowers the Chief of Police to require “reasonably necessary” information in a license application, to deny a license for failure to comply with “applicable [health, fire and building] laws and ordinances,” and to revoke a license if the licensee gave “false or misleading information” in the application or has “knowingly” permitted illegal conduct on the premises.²⁵

As these examples demonstrate, the Ordinance relies on standards that are “susceptible of objective measurement” and thus consistent with the first amendment.²⁶ The factual basis necessary for each of these determinations is either implicitly obvious, as in what constitutes “false” information or information “reasonably necessary” for an application, or ascertainable through reference to other sources of law, as in what constitutes a violation of health laws or knowledge of illegal conduct.²⁷

C

Finally, plaintiffs attack the Ordinance provision permitting the inspection of a licensed business whenever the premises are occupied or open for business.²⁸ We reject the argument that this provision violates the fourth amendment prohibition against unreasonable searches. Under the administrative search doctrine, searches to enforce regulatory standards may be reasonable in light of the reduced expectation of privacy in a pervasively regulated business.²⁹

Communities long have been concerned about the effects of sexually oriented businesses and have attempted to cope with those effects through regulation. Indeed, in light of this history of regulation we rejected a facial fourth amendment attack to an ordinance permitting warrantless searches of licensed massage parlors.³⁰ We hold that sexually oriented businesses face a degree of regulation that renders the inspection provision presumptively reasonable.

Nor do we find the inspection provisions unduly burdensome under the first amendment. The power of the City to inspect for violations does not enhance the Ordinance’s suppressive effect, for the City may revoke a license only for non-compliance with substantive provisions that we have determined to be consistent with City of Renton standards. Rather, the City has a substantial interest in enforcing the Ordinance, and the inspection provision is well tailored to serve that interest.

AFFIRMED.

1 . See Dumas v. City of Dallas, 648 F.Supp. 1061 (N.D.Tex.1986).

2 . 380 U.S. 51, 85 S.Ct. 734, 13 L.Ed.2d 649 (1965).

3 . 663 F.2d 619 (5th Cir.1981), cert. dismissed, 458 U.S. 1124, 103 S.Ct. 5, 73 L.Ed.2d 1395 (1982).

4 .Id. 380 U.S. at 58-59, 85 S.Ct. at 738-39.

5 . 663 F.2d at 628.

6 . 427 U.S. 50, 96 S.Ct. 2440, 49 L.Ed.2d 310 (1976).

7 . 475 U.S. 41, 106 S.Ct. 925, 89 L.Ed.2d 29 (1986).

8 . Id. 106 S.Ct. at 925-27.

9 . Id. at 930-32.

10 . 837 F.2d 1268 (5th Cir. 1988).

11 . City of Renton, 106 S.Ct. at 930.

12 . Id. at 929-30 n. 2.

13 . Cf. Freedman, 380 U.S. at 59, 85 S.Ct. at 739 (noting that “[t]he exhibitor’s stake in any one picture may be insufficient to warrant a protracted and onerous course of litigation”).

¹⁴

15 . Id. at 930.

16 . 682 F.2d 1203, 1214 (5th Cir.1982).

17 .Contrary to Judge Thornberry’s dissent, see post at 2003, Fernandes did not hold that a licensing scheme may never be used to implement a valid time, place or manner restriction on speech activity. Rather, Fernandes held that the delay in judicial review of a license denial itself impermissibly infringed on the applicant’s right to speak for the duration of that delay. 663 F.2d at 628. The fact that this delay occurred in the context of licensing was not important to the court’s decision. More on point is the pre-Renton decision, Genusa v. City of Peoria, 619 F.2d 1203 (7th Cir.1980). There the court upheld a zoning provision scattering adult businesses pursuant to a finding by the City of Peoria that concentrations of such businesses eroded neighborhoods. Notably, Genusa accepted the proposition that licensing requirements be treated under the same analysis as zoning. See id. at 1212.

18 . See Wall Distributors, Inc. v. City of Newport News, 782 F.2d 1165, 1169 (4th Cir.1986); Ellwest Stereo Theatres, Inc. v. Wenner, 681 F.2d 1243, 1246 (9th Cir.1982).

19 . These included a variety of prostitution offenses: obscénity; sale, distribution, or display of harmful material to a minor; sexual performance by a child; possession of child pornography; public lewdness; indecent exposure; indecency with a child; sexual assault; aggravated sexual assault; and incest, solicitation of a child, or harboring a runaway child.

20 . See Consolidated Edison Co. v. Public Service Comm’n, 447 U.S. 530, 541, 100 S.Ct. 2326, 2335, 65 L.Ed.2d 319 (1980).

21 . Cf. De Veau v. Braisted, 363 U.S. 144, 158-59, 80 S.Ct. 1146, 1154, 4 L.Ed.2d 1109 (1960) (plurality opinion) ("Barring convicted felons from certain employments is a familiar legislative device to insure against corruption in specified, vital areas.”); 106 Forsyth Corp. v. Bishop, 482 F.2d 280, 281 (5th Cir.1973) (per curiam) (holding that the first amendment permits revocation of theatre license for violation of law against sexually explicit screenings), cert. denied, 422 U.S. 1044, 95 S.Ct. 2660, 45 L.Ed.2d 696 (1975).

22 . The district court scrutinized the list of crimes that would make an applicant ineligible for a license and invalidated those it found to have no relationship to the purpose of the Ordinance. These offenses included kidnapping, robbery, bribery, controlled substances violations, and "organized criminal activities.” Dumas, 648 F.Supp. at 1074.

23 . An individual convicted of a specified misdemeanor becomes eligible for a license two years after the conviction or end of confinement, whichever is later; for felonies or multiple misdemeanors the period is five years.

24 . See 663 F.2d at 630.

25 . Although the district court left these provisions standing, the court invalidated two sections of the Ordinance as unduly discretionary. One provision denied a license to applicants who have been "unable to operate or manage a sexually oriented business in a peaceful and law-abiding manner.” The other permitted issuance of a license to applicants who, although previously convicted of a crime, are “presently fit to operate a sexually oriented business." See Dumas, 648 F.Supp. at 1072-73. The district court struck these parts from the ordinance, so they are not before us.

26 . See Keyishian v. Board of Regents, 385 U.S. 589, 604, 87 S.Ct. 675, 684, 17 L.Ed.2d 629 (1967); Kunz v. New York, 340 U.S. 290, 71 S.Ct. 312, 95 L.Ed. 280 (1951).

27 . See SDJ, Inc, v. City of Houston, supra (upholding similar ordinance provision).

28 . Judge Thornberry would invalidate the requirement that licensed businesses comply with the City’s health, fire and building codes as a restraint of speech unrelated to the City's stated purposes. We do not reach this issue because the Appellants' only stated attack to the code-compliance requirement was that it vested too much discretion in City officials. We have dealt fully with this argument, but we will not consider others not presented to us.

29 . See United States v. Biswell, 406 U.S. 311, 316, 92 S.Ct. 1593, 1596, 32 L.Ed.2d 87 (1972); Marshall v. Barlow's, Inc., 436 U.S. 307, 313, 98 S.Ct. 1816, 1820-21, 56 L.Ed.2d 305 (1978).

30 . See Pollard v. Cockrell, 578 F.2d 1002, 1014 (5th Cir.1978).