Woodall v. City of El Paso

• Court: Court of Appeals for the Fifth Circuit
• Decided: May 20, 1992
• Docket: 90-8269
• Status: Published

Opinion

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 90-8269 _____________________

PHYLLIS WOODALL, ET AL.,

Plaintiffs-Appellants,

versus

THE CITY OF EL PASO, ET AL.,

Defendants-Appellees.

_______________________________________________________

Appeal from the United States District Court for the Western District of Texas _______________________________________________________ (April 21, 1992)

ON PETITION FOR REHEARING AND SUGGESTION FOR REHEARING EN BANC (Opinion January 9, 1992, 5th Cir. 1992, __ F.2d __ )

Before REAVLEY and JONES, Circuit Judges.*

PER CURIAM:

The court withdraws its discussion entitled "Unavailable

Land under Renton" contained in Part A of its opinion (950 F.2d

258) because the court regards that discussion unnecessary to

decide this case. The cross-reference from the remainder of the

opinion back to Part II.A (id. at 262) should also be considered

deleted.

* Chief Judge Charles Clark was a member of the original panel but resigned from the Court on January 15, 1992, and therefore, did not participate in this decision. This matter is being decided by quorum. 28 U.S.C. 46(d). We reiterate, however, our conclusion that the jury received

an inadequate instruction under the facts of this case. The

record offers no clue as to how the jury determined what land not

foreclosed to adult businesses by El Paso's ordinance was

physically or legally impossible for them to locate upon.1 It

appears that many acres offered by the city partook of such

disabling physical or legal characteristics, yet the jury's

findings bear no resemblance whatever to any conceivable theory

of inclusion or exclusion of such parcels.

In so holding, we do not endorse appellants' formulation

that land is not available for use by the adult businesses if it

would be "unreasonable" to expect adult businesses to relocate

there. Rather, the jury should have been instructed, in addition

to the substance of the charge given, that land with physical

characteristics that render it unavailable for any kind of

development, or legal characteristics that exclude adult

businesses, may not be considered "available" for constitutional

purposes under Renton. Renton held that "the First Amendment

requires only that [El Paso] refrain from effectively denying

[appellants] a reasonable opportunity to open and operate [adult

businesses] within the city. . . ." Renton, 475 U.S. at 54, 106

S.Ct. at 932. When Renton stated that the theater owners "must

fend for themselves in the real estate market, on an equal

footing with other prospective purchasers and lessees," id., the

1 The adult businesses made no contention on, and we do not address, the relationship between the economics of site location and the constitutionality of an adult business zoning ordinance.

2 Court obviously contemplated that there was a "market" in which

businesses could purchase or lease real property on which

business could be conducted. A real estate market that provides

no opportunity to compete cannot provide a reasonable opportunity

to do so. Cities that allocate only land that is completely

unsuitable from a legal or physical standpoint for adult business

use do exactly what the court proscribed in Renton: effectively

suppress protected speech.

The petition for rehearing is otherwise DENIED. A member of

the court in active service having requested a poll on the

reconsideration of this cause en banc, and a majority of the

judges in active service not having voted in favor of it,

rehearing en banc is DENIED.