The Houston Chronicle has printed stories almost daily about an impending crackdown on adult businesses under the city's decade-old adult business ordinance, which was recently given district court approval after a remand from the Fifth Circuit Court of Appeals.
But First Amendment attorney John Weston, who represents two of the largest adult cabarets in the city, continues to brand the ordinance unconstitutional, and has filed a motion with the Fifth Circuit for a stay of enforcement and/or an injunction against enforcement pending appeal.
"Nothing is over," Weston declared. "We think there are very, very major issues to be raised, including some matters that the district court just rendered decisions on that are the only ones in the history of the country that have ever been rendered in this fashion, and in the Fifth Circuit, the standard for getting a stay is basically, you just have to show that there are serious questions that you're raising, that the balance of hardships tips in favor of the party asking for relief, and that there's no serious hardship that would result to the other side in granting the motion."
"The city withheld enforcement while the case was still at the district court level," Weston explained, "because in addition to filing a motion for injunction or stay pending appeal, we also filed a motion to alter or amend the judgment, which has the effect of staying the judgment, and the judge then ultimately denied both motions simultaneously, which had the effect of leaving us essentially naked and subject to enforcement. The city has taken the position, in a letter that it wrote to us, saying that it opposed our motion for injunction or stay pending appeal, and would, unless stayed by the court, enforce. And the city is at least taking that position in public statements, and I assume that the city will proceed against one or more businesses at this time."
Whether the city actually does so will depend on how quickly the Fifth Circuit acts on Weston's motion, which is likely to be joined or adopted by a number of the other 193 individuals and businesses which originally sued the city over this ordinance back in 1997.
Part of the intricacy of this fight is that Houston doesn't actually have zones or zoning laws, though the state has allowed the city to enact various ordinances which have effects very similar to the zoning ordinances found in other jurisdictions.
However, one difficulty that the lack of zones – residential, commercial, industrial, etc. – has created for both sides of this conflict is how to define the areas where the city says it will allow adult businesses to locate. The city "solved" that problem by creating what it called "residential circles," which are defined as any area of the city with a 1,000 foot radius within which 75% or more of the buildings are residences.
One of the city's problems is that in the 10 years since the passage of the adult business ordinance, the city has never bothered to map out just where those "residential circles" are located. And since the '97 ordinance doubled the distance that adult businesses have to be "set back" from such "circles," as well as other so-called "sensitive uses," determining just what areas those "circles" encompass will be of crucial importance.
But that's only one of the enforcement-related problems the city still faces. Assuming that the city is able to require most if not all of its adult businesses to move from their current locations to new "approved" locations, according to Weston's motion, the city doesn't know where those locations are.
"The trial court relied on a novel theory that the existence of adequate 'alternative sites' can be proven solely by a city council's intent and reasonable belief, and that it is not necessary for a city to prove the existence of such sites in court," Weston's motion argues. "No other court in the nation has embraced that proposition... There have now been countless legal challenges to adult zoning ordinances based on their failure to provide an adequate number of alternative relocation sites. Not one such decision has ever allowed a city to meet this test merely demonstrating that it had a 'reasonable belief' that its ordinance provided a sufficient number of sites, regardless of whether it actually did. Every other case has been decided solely on the number of sites which were proven to have actually existed." [Emphasis in original. Citations removed here and below]
"This is the sort of thing that's absolutely empirically verifiable," Weston stated. "It doesn't matter whether the city thought there were adequate alternative sites, even if the information on which they relied was reasonable. The point is whether in fact there are. And the ordinance is not constitutional unless it provides adequate sites. That's historic, as far back as Renton [v. Playtime Theatres, a seminal adult zoning case]."
And of course, it will be impossible for the city to determine just where those sites are until it establishes where its "residential circles" are located.
Even more curious is the district court's ruling that it would consider evidence of whether there were sufficient alternative relocation sites at the time the ordinance was passed, rather than how many were available at the time of trial in December of last year, or now, when the city is intending to enforce its ordinance. Weston notes that this likewise is an unprecedented ruling.
Beyond all of the above, there's another monkey wrench that's been thrown into the legal works: The U.S. Supreme Court's 2002 decision, authored by Justice Anthony Kennedy, in City of Los Angeles v. Alameda Books. Note that this decision was after the Houston ordinance was originally argued but before the trial court rendered its most recent ruling.
"Another significant issue in this appeal will be whether existing Fifth Circuit rules on counting the number of sites comply with Justice Kennedy's requirement in City of Los Angeles v. Alameda Books that an adult zoning ordinance may not significantly reduce the number of adult businesses," Weston's motion states. "This Court has three specific rules which must be analyzed together to see if their combined effect satisfies Justice Kennedy's test. Those rules are: (1) a city need only prove the existence of one more alternative site than the number of adult businesses its zoning ordinance displaces; (2) none of the alternative sites a city relies on needs to be currently available; and (3) none of the proposed alternative sites needs to be commercially viable for an adult business. While any one of these three rules, standing alone, would not necessarily create a constitutional problem, the combination of all three of these rules appears to be in irreconcilable conflict with Justice Kennedy's requirement that an adult zoning scheme must 'leav[e] the quantity and accessibility of speech substantially intact.'"
In other words, if 100 adult businesses were required by the ordinance to relocate, according to the current ruling, the city need identify only 101 possible alternative sites that meet its set-back requirements, even if none of those sites is actually available, or, if available, that an adult business could actually be relocated to the site. (For instance, an "available" site might be in the middle of a swamp, with no roads, utilities or even solid ground in the area.) Leaving aside the question of how the city can know which sites are legitimate alternative sites, since it doesn't know where its "residential circles" are located, there may not be enough available and viable sites so as not to substantially reduce the quantity and accessibility of adult speech. That's a problem of enormous proportions.
And speaking of Alameda ... one question that was raised in the original lawsuit against the current ordinance was, on what basis did the city double its set-back requirement, which in some cases would now require a cabaret to be at least 1,500 feet from the nearest "sensitive use" or other adult business? Back in 1997, that was not a question that a court was required to deal with, but with remarks by Justice David Souter in his part concurrence/part dissent in City of Erie v. PAP'S A.M., that universe changed.
"The record before us now does not permit the conclusion that Erie's ordinance is reasonably designed to mitigate real harms," Souter wrote. "This does not mean that the required showing cannot be made, only that, on this record, Erie has not made it. I would remand to give it the opportunity to do so."
Although Justice Sandra Day O'Connor rejected that logic in her plurality opinion in Alameda, she did write, "In effect, Justice Souter asks the city to demonstrate, not merely by appeal to common sense, but also with empirical data, that its ordinance will successfully lower crime. Our cases have never required that municipalities make such a showing, certainly not without actual and convincing evidence from plaintiffs to the contrary." [Emphasis added] That statement implies that the parties challenging an ordinance should be permitted to present evidence contesting the ordinance's effectiveness. That's what Weston would like the Fifth Circuit to allow him to do in this case.
"This Court, in the first appeal, ruled that the limited evidence that had been allowed in the prior summary judgment proceeding (consisting only of the City's legislative record) was insufficient to warrant a decision overturning the Ordinance and it reversed on that basis," Weston's motion notes. "However, this Court did not have before it the type of expanded evidentiary showing that Alameda, for the first time, allowed plaintiffs to present in challenging such a law. On remand from the reversal of summary judgment, appellants asked the trial court to allow them to develop a new factual record of the type first allowed in Alameda, where plaintiffs could both discover and introduce evidence outside the legislative record in an attempt to rebut the legislative record... The trial court refused, holding that this Court had already considered and rejected appellants' Alameda Books argument."
It hadn't, of course, and that's the evidence Weston is now asking to be allowed to present.
"All Houston did was to create the usual laundry list of justifications that cities do when they want to justify an ordinance: Adult businesses cause this, they cause that, they do this, they do that," Weston explained, "and a court will generally say, 'Okay, if you go through the hoops, you're going to be able to sustain your legislation.' But Houston's legislators did something different: They passed an ordinance on the basis of the usual laundry list of stuff, and then they wanted to double it; their second ordinance was going to increase the distances. So they put in the usual laundry list, but there was nothing that tied their new ordinance to those facts, to the increase. There was nothing that justified in any sense why it was necessary to go from 500 to 1000 or 750 to 1500. They essentially used the same basis for the second that they did for the first; that's the point."
Finally, Weston's motion makes the point that no matter how the Fifth Circuit decides any of the issues he's raised, "this case is of such significance that it is inevitable that either the City or appellants will seek further review of any adverse ruling" because of the "unusually large number of significant constitutional issues." Therefore, he argues, the appeals court should maintain the status quo regarding adult businesses and restrain the city from enforcing its ordinance.
"As we've pointed out, 'Look, the kinds of things that you talk about here that you think are the terrible things, if they were so bad, how come you weren't enforcing the ordinance against all the people that weren't protected by the [prior] injunction for the last 10 years? And more importantly, you've got all the laws you need. If you're saying you're concerned about prostitution, Texas has some very strong anti-prostitution laws.' Basically, any problem they claim that this ordinance will correct, they already have the power to deal with without it."
The Fifth Circuit has no deadline by which it must consider Weston's motion, and as noted above, it took six years to issue its ruling on the original summary judgment. But the sooner it does act, the sooner Houston can enforce whatever legitimate rules are left to it ... and the sooner adult businesses can carry on without the cloud of impending disaster hanging over their heads.