N.W. Enterprises Inc. v. City of Houston

372 F.3d 333, 2004 U.S. App. LEXIS 10593, 2004 WL 1187765

• Court: Court of Appeals for the Fifth Circuit
• Decided: May 28, 2004
• Docket: Nos. 98-20255, 98-20885
• Status: Published

Opinion

PER CURIAM:

The court, having carefully considered the petitions for rehearing and rehearing en banc filed on behalf of sexually oriented businesses and entertainers in this case, GRANTS them IN PART and DENIES IN PART as follows:

1. We agree with the argument of FTU appellees that the district court lacked jurisdiction to enter an order of reconsideration in August 1998, partially reversing the injunctive relief that it granted on February 18,1998, because this court had already obtained appellate jurisdiction over the same issues through the City’s timely filed notice of appeal. The specifics of this jurisdictional reasoning need not be related here.

Because FTU is correct, it follows that the introductory paragraph of Section IV and a part of IV.C of the panel opinion, see 352 F.3d at 192, 196-97, must be vacated only to the extent that those discussions appear to “affirm” the district court decision, entered on reconsideration, which upheld the requirement that SOB entertainers wear and conspicuously display a city-issued identification card while performing. Instead, the proper disposition is that we REVERSE the court’s earlier-issued injunction against enforcement of that requirement. See N.W. Enterpries, Inc., et al. v. City of Houston, 27 F.Supp.2d 754 at 848-50 (S.D.Tex.1998) (striking the provision). We REVERSE, and VACATE the injunction, because that provision of the Ordinance, viewed under a standard of intermediate scrutiny, is narrowly tailored to serve a substantial governmental interest in ensuring that all entertainers are properly licensed and that their licensure can be ascertained without interrupting the performances. More precisely, we concur that “an important goal of the new Ordinance was to allow police officers to enforce the law in adult businesses from a distance, without having to get themselves involved in illegal activity.” See 27 F.Supp.2d at 908. We uphold this aspect of the Ordinance essentially for the reasons stated by the district court in its (ineffective) reconsideration order. See 27 F.Supp.2d at 907-09 and 914-17.¹

2. In all other respects, the Petitions for Rehearing are DENIED, and no member of this panel nor judge in regular active service on the court having requested that the court be polled on Rehearing En Banc

* (Fed. RApp. P. and 5th CiR. R. 35), the Petitions for Rehearing En Banc are also DENIED.

1 . FTU additionally argues that before upholding this provision, we ought to permit further briefing, as this precise issue was not briefed on the merits on appeal. At this point, given the hundreds of pages of briefing already presented to this court, and the incredibly thorough briefing before and reasoning of the district court in the case, including on this precise issue, further substantive briefing would be a waste of time.

Judge Smith did not participate in the consideration of the Petitions for Rehearing En Banc.