COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
BRYAN S. FOSTER D/B/A JAGUAR’S '
GOLD CLUB, No. 08-10-00157-CV
'
Appellant, Appeal from the
'
v. 34th District Court
'
CITY OF EL PASO, of El Paso County, Texas
'
Appellee. ' (TC# 2007-2900)
OPINION
Appellant, Bryan S. Foster doing business as Jaguar’s Gold Club (Foster),1 appeals the
trial court’s summary judgment in favor of the City of El Paso, Appellee, stemming from Foster’s
challenge to the constitutionality of the City’s sexually-oriented business ordinance. Foster also
appeals the trial court’s denial of his motion to strike the City’s expert testimony.
BACKGROUND
In November 2006, an adult cabaret owner was convicted of engaging in organized
criminal activity, which involved a prostitution ring operated out of her adult cabaret. 2
Thereafter, in the early part of 2007, the City began investigating the conduct, licensing standards,
and the negative secondary effects of adult establishments in an effort to update its
sexually-oriented business ordinance. The City looked at 25 federal judicial opinions issued by
various courts, including the United States Supreme Court and the Fifth Circuit Court of Appeals,
1
Jose F. Fong, doing business as Tequila Sunrise, and Foster, as plaintiffs, initiated the proceedings. Because Foster
alone appeals the trial court’s summary judgment order, we restrict our references to Foster.
2
See Woodall v. State, No. 08-07-00015-CR, 2011 WL 6748490, at *1 (Tex.App. – El Paso Dec. 22, 2011, no pet.)
(not designated for publication).
that discussed the negative secondary effects associated with sexually-oriented businesses. The
City also considered 21 municipal land-use studies, crime reports, and affidavits that described the
secondary effects occurring in and around such establishments. At a public meeting on April 23,
2007, the City considered a presentation detailing the negative secondary effects associated with
sexually-oriented businesses, and heard numerous public comments regarding the negative
impacts of those establishments.
On May 8, 2007, the City adopted a new sexually-oriented business ordinance (“the
ordinance”).3 The ordinance identified judicial opinions and municipal studies upon which the
City relied in adopting the ordinance, and included a statement that the City found that
sexually-oriented businesses are associated with “a wide variety of adverse secondary effects,”
which include “personal and property crimes, prostitution, potential spread of disease, lewdness,
public indecency, obscenity, illicit drug use and drug trafficking, negative impacts on surrounding
properties, urban blight, litter, and sexual assault and exploitation.” The ordinance declared that
each of the foregoing negative secondary effects constitutes a harm against which the City has a
substantial government interest in preventing or abating. To address these concerns, the new
ordinance requires, in part, that sexually-oriented businesses have open, instead of closed, booths
for customers viewing sexually-oriented videos, unobstructed employee views of the entire
premises to which a patron is provided access for any purpose, overhead lighting fixtures sufficient
to illuminate every place to which patrons are permitted, and employee licensing for those working
in such establishments.
3
El Paso, Tex., Ordinance No. 016624 (May 8, 2007) as amended and codified in The City of El Paso, Texas , Code of
Ordinances ch. 5.09.
2
On June 20, 2007, Foster filed original and supplemental petitions seeking declaratory and
injunctive relief, attorney’s fees, and a jury trial of his claims that the ordinance violates numerous
constitutional provisions and state law. In twelve “counts,” Foster asserts that the City’s
sexually-oriented business ordinance violates the Texas Constitution 4 and is unconstitutional,
both facially and as applied, because it allegedly: (1) abridges and restrains his rights to free
expression; (2) constitutes a prior restraint on such expression; (3) has an impermissible chilling
effect upon constitutionally-protected speech and expression; (4) denies equal protection of the
law; (5) is “arbitrary and capricious as applied to [Foster’s] businesses;” (6) is an unlawful exercise
of the state’s police power because “there is no substantial relationship to the protection of the
public health and welfare or any legitimate governmental objective, resulting in the fact that there
has been no proper predicate for the basis of the challenged legislation;” (7) is vague and indefinite
and fails to set out distinct criteria; (8) lacks adequate procedural safeguards; (9) manifests an
improper purpose in that the ordinance is not content-neutral and not unrelated to the suppression
of free speech; (10) contains restrictions that are overbroad and far greater than are essential to the
furtherance of the alleged government interest; (11) grants unbridled discretion to administrative
officials in the enforcement of its provisions; and (12) was adopted without competent, substantial
evidence and the evidence upon which the City relied in adopting the ordinance was not
4
Appellant complains in “Counts” I, II, III, and X that the ordinance violates Article I, Section 8 of the Texas
Constitution, which provides:
Every person shall be at liberty to speak, write or publish his opinions on any subject, being
responsible for the abuse of that privilege; and no law shall ever be passed curtailing the liberty of
speech or of the press. In prosecutions for the publication of papers, investigating the conduct of
officers, or men in public capacity, or when the matter published is proper for public information,
the truth thereof may be given in evidence. And in all indictments for libels, the jury shall have the
right to determine the law and the facts, under the direction of the court, as in other cases. TEX.
CONST. art. 1, § 8.
In his remaining “Counts,” Appellant asserts without specification that the ordinance violates the rights guaranteed
him by the Texas Constitution.
3
reasonably related to the perceived ills which the City purported to address nor to any legitimate
government objective.
Foster further complained that the ordinance lacks “any methodologically sound or proper
legislative basis or predicate, imposes an unreasonable and unnecessary limitation on expression
and constitutionally protected activities,” fails to provide adequate alternative avenues of
communication or to advance any legitimate governmental interest, and is “unconstitutionally
vague and overbroad” in violation of the Texas Constitution. Foster brought the action to address
the constitutional validity of the ordinance’s provisions, asserted that the ordinance violates
Sections 8, 19, and 29 of Article 1 of the Texas Constitution and his rights thereunder, sought
injunctive relief from the enforcement of the ordinance’s provisions, and sought a declaratory
judgment finding the ordinance to be unconstitutional because its provisions denies Foster’s rights
to free speech and expression, due process, equal protection, and adequate procedural safeguards
as guaranteed by the Texas Constitution.
In August 2007, the trial court held an extensive hearing on Foster’s motion for a
temporary restraining order. With one narrow exception that we need not address in resolving the
matters before us, the trial court denied the temporary restraining order based on “decisions by
Texas courts, the United States Supreme Court, and the United States Court of Appeals for the
Fifth Circuit [that] have repeatedly rejected constitutional challenges to ordinances like the one at
issue here . . . .”
Following discovery, the City moved for summary judgment on grounds that the ordinance
was a constitutional regulation of the time, place, and manner in which sexually-oriented
4
businesses must operate in the city.5 In support of its motion, the City explained that the United
States Supreme Court, the United States Court of Appeals for the Fifth Circuit, and Texas appellate
courts have rejected constitutional challenges like those in Foster’s petition.
Foster filed a lengthy response to the City’s motion for summary judgment, objected to the
City’s evidence, and attached expert evidence in support thereof.6 On March 10, 2010, the trial
court granted summary judgment in favor of the City.
DISCUSSION
In Issues One, Two, Three, Four, Six, and Seven, Foster contends that the trial court erred
in granting the City’s motion for summary judgment. In Issue Five, Foster asserts that the trial
court erred in denying his motion to strike the City’s expert witness.
Standard of Review
We review a trial court=s decision to grant a motion for summary judgment de novo.
Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005); E.B.S. Enterprises, Inc. v.
City of El Paso, 347 S.W.3d 404, 407 (Tex.App. – El Paso 2011, pet. denied). Summary
judgment is appropriate when there is no genuine issue as to any material fact and judgment should
be granted in favor of the movant as a matter of law. TEX. R. CIV. P. 166a(c); E.B.S.
Enterprises, Inc., 347 S.W.3d at 407; Melendez v. Padilla, 304 S.W.3d 850, 852 (Tex.App. –El
Paso 2010, no pet.). In determining whether there are disputed issues of material fact, we take as
true all evidence favorable to the nonmovant and indulge every reasonable inference in the
5
Even speech that is protected under the First Amendment is not equally permissible in all places and at all times, and
it may be subject to reasonable time, place, or manner restrictions. Snyder v. Phelps, 131 S.Ct. 1207, 1218, 179
L.Ed.2d 172 (2011).
6
On November 27, 2007, four adult book-video stores filed a separate but nearly identical suit challenging the City’s
ordinance. Their suit was consolidated with this one. In a separate appeal, we affirmed the trial court’s summary
judgment in favor of the City and against the adult book-video stores. E.B.S. Enterprises, Inc. v. City of El Paso, 347
S.W.3d 404, 413 (Tex.App. – El Paso 2011, pet. denied).
5
nonmovant’s favor. Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex. 1985); E.B.S.
Enterprises, Inc., 347 S.W.3d at 407. “A defendant who conclusively negates at least one of the
essential elements of a cause of action or conclusively establishes an affirmative defense is entitled
to summary judgment.” Frost Nat. Bank. v. Fernandez, 315 S.W.3d 494, 508 (Tex. 2010).
On appeal, we determine whether the defendant, in seeking summary judgment, fulfilled
his initial burden (1) to establish as a matter of law that there remained no genuine issue of material
fact as to one or more essential elements of the plaintiff’s cause of action or (2) to establish his
affirmative defense to the plaintiff’s cause of action as a matter of law. Cathey v. Booth, 900
S.W.2d 339, 341 (Tex. 1995); Casso v. Brand, 776 S.W.2d 551, 556 (Tex. 1989); Nixon, 690
S.W.2d at 548–49; Miller v. LandAmerica Lawyers Title of El Paso, 362 S.W.3d 842, 845
(Tex.App. – El Paso 2012, no pet.).
Constitutionality of the Ordinance
When reviewing the validity of a city ordinance, we presume the ordinance is valid. City
of Brookside Village v. Comeau, 633 S.W.2d 790, 792 (Tex. 1982); Ex parte Woodall, 154 S.W.3d
698, 701 (Tex.App. – El Paso 2004, pet. ref’d). A party attacking an ordinance bears an
extraordinary burden to show “that no conclusive or even controversial or issuable fact or
condition existed” which would authorize the municipality’s passage of the ordinance. Comeau,
633 S.W.2d at 792–93. If reasonable minds may differ regarding whether a particular ordinance
has a substantial relationship to the public health, safety, morals, or general welfare, no clear abuse
of discretion is shown and the ordinance must stand as a valid exercise of the City’s police power.
See Quick v. City of Austin, 7 S.W.3d 109, 117 (Tex. 1998). If the evidence reveals an issuable
fact in this respect, the ordinance must stand. Id.
6
In its summary-judgment motion, the City countered Foster’s claims that the ordinance is
unconstitutional by presenting a defensive claim that the ordinance is constitutional in its entirety
when scrutinized under the United States Supreme Court’s analysis in United States v. O’Brien,
391 U.S. 367, 377, 88 S.Ct. 1673, 1679, 20 L.Ed.2d 672 (1968).7 The City renews its contentions
in this appeal.
In United States v. O’Brien, the United States Supreme Court established a four-pronged
test for the purpose of determining whether a government regulation is justified and determined
that a regulation does not impinge on First Amendment freedom of expression if: (1) the regulation
is within the constitutional power of the government; (2) the regulation furthers an important or
substantial governmental interest; (3) if the governmental interest is unrelated to the suppression of
free expression; and (4) if the incidental restriction on alleged First Amendment freedoms is no
greater than is essential to the furtherance of that interest. Id.; Fantasy Ranch Inc. v. City of
Arlington, Texas, 459 F.3d 546, 554 (5th Cir. 2006).
If the government’s predominant purpose in enacting the regulation is related to the
suppression of symbolic speech, we apply a strict level of scrutiny. Fantasy Ranch, 459 F.3d at
554. However, we apply an intermediate level of scrutiny where the government’s predominate
purpose is unrelated to the suppression of expression, that is, where the regulation is ‘“justified
without reference to the content of the regulated speech’ . . . .” Fantasy Ranch, 459 F.3d at 554
(citations omitted). When reviewing government regulation of sexually-oriented businesses,
courts routinely employ intermediate scrutiny. Fantasy Ranch, 459 F.3d at 555 (citations
7
Claims by adult businesses that the ordinance regulating the time, place and manner of conduct of business violated
their freedom of speech rights are determined under the same standard for both the United States and Texas
Constitutions. Woodall v. City of El Paso, 49 F.3d 1120 (5th Cir.), cert. denied, 516 U.S. 988, 116 S.Ct. 516, 133
L.Ed.2d 425 (1995).
7
omitted). Included among the sufficient governmental interests that justify content-neutral
regulations are the prevention of harmful secondary effects and the protection of morals and public
order. See City of Erie v. Pap’s A.M., 529 U.S. 277, 120 S.Ct. 1382, 1391-92, 1395-96, 146
L.Ed.2d 265 (2000); Barnes v. Glen Theatre, Inc., 501 U.S. 560, 566-69, 111 S.Ct. 2456, 115
L.Ed.2d 504 (1991) (plurality).
The City’s ordinance asserts an interest in and is targeted to combatting the negative
secondary effects of sexually-oriented businesses. Because the City’s predominant purpose in
enacting the ordinance is unrelated to the suppression of First Amendment expression, we find the
ordinance to be content-neutral and subject to an intermediate degree of scrutiny. Fantasy Ranch,
459 F.3d at 554-58.
Application of the O’Brien Test
Because the City’s ordinance is content-neutral, we must apply the four-prong O’Brien test
to determine whether it is a constitutional restriction on symbolic speech under the First
Amendment. Fantasy Ranch, 459 F.3d at 558. We find that it is.
Prong One
The enactment of the ordinance is clearly within the constitutional power of the City
Council because the ordinance is directed at protecting the health and safety of its citizens, and the
Supreme Court has recognized such effort as being squarely within a City’s police powers. City
of Erie 529 U.S. 277, 120 S.Ct. at 1395; Fantasy Ranch, 459 F.3d at 558. Thus, the City’s
ordinance satisfies the first prong of the O’Brien test. O’Brien, 391 U.S. at 377, 88 S.Ct. at 1679.
Prong Two
The second prong of O’Brien encompasses two distinct questions: (1) whether there is a
8
substantial government interest; and (2) whether the regulation furthers that interest. City of Erie,
529 U.S. at 300, 120 S.Ct at 1396-97; Fantasy Ranch, 459 F.3d at 558. A challenge to either of
these questions raises a question of evidence. Fantasy Ranch, 459 F.3d at 559. In making such
evidentiary determinations, we apply the standard set forth by the Supreme Court in City of Renton
v. Playtime Theatres, Inc., 475 U.S. 41, 106 S.Ct. 925, 89 L.Ed.2d 29 (1986), as later modified by
City of Los Angeles v. Alameda Books, Inc., 535 U.S. 425, 451, 122 S.Ct. 1728, 1743, 152 L.Ed.2d
670 (2002); Fantasy Ranch, 459 F.3d at 559.
Under the Renton-Alameda standard, “a [city] may rely on any evidence that is ‘reasonably
believed to be relevant’ for demonstrating a connection between speech and a substantial,
independent government interest.” Alameda Books, 535 U.S. at 438, 122 S.Ct. at 1736 (plurality
opinion); Renton, 475 U.S. at 51-52, 106 S.Ct. at 931 (emphasis added). Such evidence may
include the experiences of other cities and detailed findings summarized in judicial opinions, but a
city is not required under the First Amendment, prior to enacting its ordinance, “to conduct new
studies or produce evidence independent of that already generated by other cities . . . .” Renton,
475 U.S. at 50-52, 106 S.Ct. at 930-31. A city’s own findings and its reasonable belief that the
experience of other jurisdictions is relevant to addressing the problem may provide a sufficient
evidentiary basis to meet this standard. City of Erie, 529 U.S. at 297, 120 S.Ct at 1395.
However, the Supreme Court has recognized that the character of this evidence need not be local.
Renton, 475 U.S. at 50-52, 106 S.Ct. at 930-31; Schleuter v. Fort Worth, 947 S.W.2d 920, 926-27
(Tex.App. – Fort Worth 1997, pet. denied). Nor must secondary-effects evidence consist of
empirical data or scientific studies. City of Erie, 529 U.S. at 300, 120 S.Ct. at 1397.
A city’s evidence must fairly support its rationale. Alameda Books, 535 U.S. at 438, 122
9
S.Ct. at 1736. A city’s rationale meets the Renton-Alameda standard “[i]f plaintiffs fail to cast
direct doubt on this [city’s] rationale, either by demonstrating that the [city’s] evidence does not
support its rationale or by furnishing evidence that disputes the [city’s] factual findings . . . .”
Alameda Books, 535 U.S. at 438-39, 122 S.Ct. at 1736, citing City of Erie, 529 U.S. at 298, 120
S.Ct. at 1395-96. When a plaintiff successfully casts doubt on a city’s rationale, the municipality
bears the burden of supplementing the record with evidence that will renew support for a theory
that justifies the municipality’s ordinance. Alameda Books, 535 U.S. at 439, 122 S.Ct. at 1736,
citing City of Erie, 529 U.S. at 298-99, 120 S.Ct. at 1395-96.
The record on appeal contains evidence from the City’s experts, Professors George Tita,
Ph.D., and Richard McCleary, Ph.D, professors of criminology, who discuss and explain that the
negative secondary effects of sexually-oriented businesses are well-established, such that there is a
“statistically significant negative impact with respect to the location of a sexually oriented
business and the surrounding community,” in part, because an abundance of people solicit
prostitution and drugs in relation to adult businesses. Foster countered this evidence with reports
from Dr. Judith Lynne Hanna, whose expertise is in the field of dance, and Dr. Randy Fisher, who
is a social psychologist, each of whom presented opinions critical of the analysis provided by the
City’s experts. In a jointly prepared report, the City’s experts, Drs. Tita and McCleary, criticize
the analyses in and methodology of Dr. Hanna’s and Dr. Fisher’s reports.
In addition to investigator affidavits reporting unsanitary conditions at more than eighteen
sexually-oriented businesses in El Paso, Texas, in 2007, the legislative record presented to the El
Paso City Counsel includes: (1) judicial cases identifying the negative secondary effects of
sexually-oriented businesses and determining the constitutional status of regulations enacted to
10
address such effects; (2) summaries of key reports concerning the negative secondary
consequences of sexually-oriented businesses; (3) at least twenty-one studies and reports from
nineteen cities and the State of Minnesota regarding sexually-oriented businesses and their
secondary effects; (4) the indictment, judgment, and verdict in an El Paso County case where an
adult cabaret owner was convicted of operating a prostitution ring from her cabaret; (5) a 1986 El
Paso, Texas report regarding the effects of adult entertainment businesses on neighborhoods; and
(6) a print out of the April 23, 2007, presentation made to the El Paso City Council regarding the
secondary effects of sexually-oriented businesses. Although not required to do so, the City took
into consideration expert and local evidence in addition to all of the previously noted evidence.
Alameda, 535 U.S. at 439, 122 S.Ct. at 1736. With this sufficient evidentiary basis, the El Paso
City Council clearly identified within its ordinance the targeted negative secondary effects of
sexually-oriented businesses. See Fantasy Ranch, 459 F.3d at 559.
Joining in the United States Supreme Court’s recognition that the “City Council is in a
better position than the Judiciary to gather and evaluate data on local problems,” we find the City
relied on legislative evidence reasonably believed to be relevant for demonstrating a connection
between speech and a substantial, independent government interest upon which Foster has failed
to cast direct doubt, and that the City’s evidence fairly supports its rationale. Alameda Books, 535
U.S. at 438, 122 S.Ct. at 1736, citing City of Erie, 529 U.S. at 297-98, 120 S.Ct. at 1395-96;
Renton, 475 U.S. at 51-52, 106 S.Ct. at 931. Prong Two of O’Brien is satisfied.
Prong Three
Under the third prong of O’Brien, the City’s interest must be unrelated to the suppression
of free expression. O’Brien, 391 U.S. 377, 88 S.Ct. at 1679; Fantasy Ranch Inc., 459 F.3d at 554.
11
Because we have already determined that the City’s interest is not related to the suppression of free
expression, Prong Three of O’Brien is satisfied. O’Brien, 391 U.S. at 377, 88 S.Ct. at 1679;
Fantasy Ranch Inc., 459 F.3d at 554.
Prong Four
The fourth prong of O’Brien requires that the incidental restriction on alleged First
Amendment freedoms be no greater than is essential to the furtherance of an important or
substantial government interest. O’Brien, 391 U.S. at 377, 88 S.Ct. at 1679. To be well-tailored,
an ordinance must effectively promote the government’s stated interest while not infringing
significantly upon the protected conduct. 2300, Inc. v. City of Arlington, Texas, 888 S.W.2d 123,
128 (Tex.App. – Fort Worth 1994, no writ). As the City correctly asserted in its
summary-judgment motion, Article I, Section 8 of the Texas Constitution provides no greater
protection than the First Amendment right to freedom of expression. Id. at 127.
The El Paso ordinance does not prohibit expressive conduct but includes regulations
requiring the licensing of sexually-oriented businesses, restricting operation of such businesses
between the hours of 2 a.m. and 6 a.m., requiring illumination of the internal and external premises
and line-of-sight requirements between employees and patrons, signage requirements, loitering
restrictions, a provision prohibiting nudity, a requirement that employees who appear in a
semi-nude condition maintain a distance of six feet from patrons while the employee is on an
eighteen-inch stage, and restrictions barring persons under the age of 18 years from employment or
patronage at such businesses.
We find the ordinance strives to target secondary effects while leaving substantially intact
the quantity and accessibility of speech. Alameda Books, 122 S.Ct. at 1742. Moreover, the
12
ordinance’s incidental restriction on First Amendment freedoms is no greater than is essential to
the furtherance of the important or substantial government interest. O’Brien, 391 U.S. at 377, 88
S.Ct. at 1679. We conclude that the City’s ordinance satisfies the fourth prong of O’Brien.
Because the ordinance satisfies the four-prong O’Brien test, we find the City’s ordinance is not a
constitutional restriction on symbolic speech under the First Amendment. Fantasy Ranch, 459
F.3d at 558.
Issues
We now turn to Foster’s summary-judgment based complaints. In Issue One, Foster
complains that the trial court’s grant of summary judgment was erroneous because the City failed
to meet its summary-judgment burden of proof. In support of this issue, Foster first asserts that
the City failed to establish as a matter of law that there was no genuine issue of material fact as to
at least one essential element of each of Foster’s claims as a matter of law and summary judgment
was, thus, precluded. See TEX. R. CIV. P. 166a. Without direct or analogous citation to
authority, Foster then asserts that a full evidentiary evaluation in a trial setting is required to
determine the sufficiency and efficacy of the restrictions imposed by the ordinance.
Relying upon the Fifth Circuit’s opinion in Basiardanes v. City of Galveston, 682 F.2d
1203, 1213-14 (5th Cir. 1982), Foster argues that mimicking other sexually-oriented business
ordinances upheld as constitutional provides an insufficient basis for the City’s purportedly
conclusory assertion that its ordinance is valid under the rules of evidence and also contends that
the City was required to establish the efficacy of the ordinance’s restrictions.
First, Foster misrepresents the City’s summary-judgment burden. When the validity of an
ordinance is challenged, as here, summary judgment is appropriate where the justification for the
13
ordinance is even fairly debatable. Baccus v. City of Dallas, 450 S.W.2d 389, 391-92
(Tex.Civ.App. – Dallas 1970, writ ref’d n.r.e.) (summary judgment of valid ordinance proper).
We also find Foster’s reliance upon the Fifth Circuit’s opinion in Basiardanes v. City of
Galveston, a case abrogated four years later by the Supreme Court in City of Renton v. Playtime
Theatres, Inc., to be misplaced. City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 106 S.Ct.
925, 89 L.Ed.2d 29 (1986). In Renton, the Supreme Court determined that the Washington court
of appeals erred in ruling that the City of Renton’s ordinance addressing its zoning interests was
enacted without benefit of the city conducting its own studies relating to Renton’s particular
problems and needs and that the city’s justifications for its ordinance were ‘“conclusory and
speculative.’” Renton, 475 U.S. at 50, 106 S.Ct. at 930-31 (internal citations omitted). The
Supreme Court instead held that a city is entitled to rely on the experiences of other cities in
enacting, in that case, an adult-theater zoning ordinance, and that the First Amendment does not
require that a City conduct new studies or produce independent evidence before enacting
content-neutral time, place, and manner regulations to address the undesirable secondary effects of
sexually-oriented businesses “so long as whatever evidence the city relies upon is reasonably
believed to be relevant to the problem that the city addresses.” Renton, 475 U.S. at 51-52, 106
S.Ct. at 931.
Drawing upon the Supreme Court’s reasoning in Renton, and Justice Kennedy’s
subsequent concurring opinion in City of Los Angeles v. Alameda Books, Inc., 535 U.S. 425, 451,
122 S.Ct. 1728, 1743, 152 L.Ed.2d 670 (2002), the Fifth Circuit has more recently determined that
courts are not empowered “to second-guess the empirical assessments of a legislative body, nor . .
. expected to submit such assessments to a jury for re-weighing . . . .” Fantasy Ranch Inc., 459
14
F.3d at 561, citing Renton, 106 S.Ct. at 931 and Alameda Books, Inc. 122 S.Ct. at 1743 (Kennedy,
J., concurring). Thus, Foster’s argument that a full evidentiary trial is required fails under this
authority.
Foster’s assertion that the efficacy of the ordinance’s restrictions must be determined at
trial likewise fails. As part of its analysis in Ben’s Bar, Inc. v. Village of Somerset, 316 F.3d 702,
721 (7th Cir. 2003), the Seventh Circuit, in addressing Justice Kennedy’s concurring opinion and
the Supreme Court’s plurality opinion in Alameda, recognized that while a municipality’s
rationale must be premised upon the theory that its ordinance may reduce the costs of secondary
effects, the municipality need not prove the efficacy of its rationale prior to implementation of the
ordinance.
Foster generally asserts that the City’s statements in support of its summary-judgment
motion are nothing more than conclusory, and that the City’s expert affidavits contain hearsay
within hearsay and “are simply not sufficient to base a summary judgment upon” because his own
experts established that “any researcher or legitimate social scientist” would admit that the City’s
expert reports are without scientific validity. Foster fails to identify any statement within the
City’s summary-judgment motion or supporting evidence which is conclusory or hearsay. Foster
also fails to provide citation to any portion of the appellate record where such statements exist.8
Thus, Foster’s hearsay and conclusory-statement complaints are inadequately briefed. TEX. R.
APP. P. 38.1(i); see Valadez v. Avitia, 238 S.W.3d 843, 845 (Tex.App. – El Paso 2007, no pet.) (an
appellate court has no duty, or even right, to perform an independent review of the record and
applicable law to determine if there was error).
Foster contends that the City circumvented the legal requirements of proving its
8
The clerk’s record contains more than 1,000 pages of documents.
15
summary-judgment motion with admissible evidence as would be required at trial, such as
affidavits, depositions, interrogatories, and other discovery. Again, Foster does not specify the
summary-judgment evidence about which he complains, does not set forth the reasons why that
evidence is inadmissible under the rules of evidence, does not cite in his argument the rules of
evidence which would bar such evidence, and does not cite or to any portion of the record where
such offensive evidence may be found. TEX. R. APP. P. 38.1(i); see Valadez, 238 S.W.3d at 845.
Issue One is overruled.
In Issue Two, Foster asserts that the trial court’s summary judgment was erroneous
because it allegedly “placed significance on the earlier decision” regarding Foster’s request for a
temporary restraining order. Without citing to the record, Foster asserts that the trial court’s
rejection of his attempts to obtain preliminary injunctive relief, and its conclusion that he could not
demonstrate neither a probable right to the relief sought, nor a legally-cognizable injury should
have had no impact on his right to a trial on the merits of his claims.
Foster fails to set forth a cogent argument with proper citation to the record and an analysis
identifying how the trial court, in granting the City’s motion for summary judgment, placed
significance upon its previous denial of his request for a temporary restraining order or preliminary
injunctive relief. Instead, Foster complains that “it is doubtful that any City legislator even
looked at the over 1,600 pages” that comprise the record, that the record is deficient because it
contains some studies that another jurisdiction deemed unreasonable to rely upon and were not
relevant to local conditions, and that the record fails to show that the legislation has a remedial
effect. Foster also complains that the City recruited an advocate who has assisted “scores of
communities seeking to restrict sexually oriented businesses,” instead of compiling local evidence.
16
An issue presented in an appellant’s brief is sufficient if it directs the reviewing court’s
attention to the complained-of error but when a party fails to cite legal authority or provide a
substantive analysis of the legal issue presented, the complaint is waived. See TEX. R. APP. P.
38.1(i); Valadez, 238 S.W.3d at 845. Because Foster provides no analysis regarding his
complaints about the trial court’s allegedly improper reliance upon its prior temporary-restraining
order decision, we find that he has waived this issue. Id. We have resolved against Foster’s
contention that the City was required to show the ordinance’s efficacy, and we need not address it
again. Issue Two is overruled.
In Issue Three, Foster asserts two bases for challenging the trial court’s grant of summary
judgment. Foster first complains that the City failed to conclusively prove all elements of its
defenses to Foster’s constitutional challenges. Foster also argues that the summary-judgment
evidence showed that genuine issues of material fact existed regarding the City’s arguments.
Foster specifically contends that: (1) the City could not possibly disprove or prove such
elements because of “the conflicting nature” of the expert-witness reports; (2) the City failed to
provide the trial court “with a proper framework for the evaluation of constitutional challenges;”
(3) it is “well-settled” that ordinances regulating adult entertainment are content based unless it is
shown that the legislation is designed to target the secondary effects of adult businesses; (4) it is
“ridiculous to automatically assume such restrictions will reduce crime or protect property
values;” (5) the ordinance is a total ban on expressive nudity and of all persons convicted for
certain offenses; (6) the ordinance cannot be shown to advance a governmental interest absent a
trial; and (7) the content-neutrality construct is a “ridiculous fiction” and the “secondary effects”
construct is a pretext that has “done violence to the First Amendment rights of affected individuals
17
since its inception.”
Only one of these contentions, that the government’s interest must be demonstrated at trial,
is supported by citation to authority. After acknowledging that Renton does not require the City
to conduct new studies or produce evidence that is independent of other cities’ evidence and
studies as long as the evidence upon which the City relies is reasonably believed to be relevant to
the problems that the City is attempting to address, Foster states, “This is where the dispute lies,”
and again proceeds to argue that the trial court should have required the City to prove “the validity
of the legislative predicate” at trial under “appropriate evidentiary conditions.” Foster contends
that “[n]umerous authorities also indicate the error of granting summary judgment in these types of
contested proceedings,” but fails to provide any citation to the “numerous” authorities in support
of this proposition.
Foster does not cite to the record or provide any substantive analysis specific to the record
or ordinance before us to demonstrate how the City failed to prove all elements of its defenses to
his constitutional challenges or how the summary-judgment evidence showed that genuine issues
of material fact exist. See TEX. R. APP. P. 38.1(i); Valadez, 238 S.W.3d at 845. Issue Three is
overruled.
In Issue Four, Foster contends that the summary judgment in favor of the City was
erroneous because the City’s experts relied upon flawed and unreliable research methodology.
Without citation to authority, Foster asserts that “summary judgment is not favored in adult
entertainment cases.” Foster fails to discuss how the research methodology is flawed and instead
notes that “it is simply not appropriate to gauge these factual disputes in a summary judgment.”
Foster cites a footnote passage from Peek-A-Boo quoting Alameda Books for the standard that the
18
government is required to “advance some basis to show that its regulation has the purpose and
effect of suppressing secondary effects, while leaving the quantity and accessibility of speech
substantially intact.” Peek-A-Boo Lounge of Bradenton, Inc. v. Manatee County, 337 F.3d 1251,
1267 n.15 (11th Cir. 2003), quoting Alameda Books, 122 S.Ct. at 1742. (Kennedy, J., concurring).
Foster asserts that the City’s experts “admitted” the absence of evidence to show that
similar legislation adopted in other jurisdictions had any beneficial impact on the alleged problems
the legislation was designed to prevent. Based upon recitations in his brief, Foster contends that
the legislative and court records present no evidence to show any connection between the
ordinance and the secondary effects it was enacted to address, that there is grave doubt that the
City’s reliance upon “the studies and cases referenced” in the ordinance is reasonable, and that the
ordinance is neither narrowly tailored nor serves a substantial governmental interest.
Foster has failed to address the flawed and unreliable research methodology argument
upon which he bases his fourth issue. As we have recognized, a City is not required to conduct
new studies nor must it produce evidence that is independent of that produced by other cities.
Renton, 475 U.S. at 51, 106 S.Ct. at 931; Alameda Books, Inc., 535 U.S. at 438-39, 122 S.Ct. at
1736; City of Erie, 529 U.S. at 297-98, 120 S.Ct. at 1395. A city is permitted to rely upon any
evidence that is reasonably believed to be relevant to its goal of preventing the negative secondary
effects of sexually-oriented businesses and is not required to pre-prove the efficacy of legislation
designed to fulfill that purpose. Alameda Books, 535 U.S. at 438, 122 S.Ct. at 1736; see also
World Wide Video of Washington, Inc. v. City of Spokane, 368 F.3d 1186, 1195-96 (9th Cir. 2004)
(both anecdotal evidence and reported experience may provide a legitimate basis for finding
negative secondary effects); Daytona Grand, Inc. v. City of Daytona Beach, 490 F.3d 860, 880
19
(11th Cir. 2007) (a city may, but is not required, to justify its ordinances with scientific studies or
empirical evidence).
The record contains evidence the City may have reasonably believed to be relevant to its
goal of preventing the negative secondary of the businesses through the regulations adopted in its
ordinance. No less than three of the studies relied upon by the City were aimed at
sexually-oriented businesses’ operations in urban areas.
Before passing an ordinance that required a line-of-sight for video booths in Phoenix, the
municipality’s study concluded that sex crimes occurred six times as frequently in areas with adult
businesses as compared with other areas, and that most of those crimes occurred at the adult
establishment. See Ellwest Stereo Theatres, Inc. v. Wenner, 681 F.2d 1243, 1245 (9th Cir. 1982)
(upholding ordinance requiring that all viewing areas must be visible from a continuous main aisle
and cannot be obscured by a curtain, door, wall, or other enclosure).
Similarly, after its study reflected prostitution and blatant open sexual contact between
people with complete anonymity in adult bookstores, as well as public lewdness, narcotics-related
offenses, and criminal indecent exposure in adult cabarets, the City of Houston passed an
ordinance regulating lighting and visibility, and banning private viewing areas. See N.W.
Enterprises Inc. v. City of Houston, 352 F.3d 162, 172 (5th Cir. 2003) (upholding ordinance’s
provisions on interior lighting, design, and layout).
Before enacting an ordinance regulating adult businesses’ hours of operation, the City of
Dallas learned from its study that adult businesses experience higher crime in the area, loitering by
unsavory people, including prostitutes, and parking problems, noise, disturbances that often turn
violent, and an increase in the occurrence of sexual offenses, assaults, and unruly behavior both
20
inside and outside of the establishments, requiring police presence.
Although not required to consider local evidence, the City did so before enacting the
ordinance. Investigator Raul Acosta investigated, obtained, and presented evidence of unsanitary
conditions at a number of El Paso sexually-oriented businesses in El Paso. By affidavit, Acosta
stated that he had examined with a blacklight the doors and walls of private booths at various adult
establishments, where he observed within the booths stains consistent with acid phosphate, an
enzyme that is present in human semen, and observed soiled tissues outside the premises, on
interior floors, and in containers. Acosta explained that when he entered booths and bathrooms at
some of the establishments, other patrons watched him and attempted to enter the area that Acosta
was occupying, even if the area displayed a sign or light indicating that the booth was occupied.
When Acosta visited several adult cabarets, dancers offered and agreed to perform sexual acts in
exchange for payment.
We find the City reasonably relied on relevant studies, its on-going experience, and public
comment when adopting the new sexually-oriented business ordinance. See Renton, 475 U.S. at
51-52, 106 S.Ct. at 930-31 (municipality may rely on any evidence “reasonably believed to be
relevant”); Fantasy Ranch Inc., 459 F.3d at 559 (noting that city relied on studies and numerous
court opinions “all of which demonstrate a connection between dancer-patron touching and
unsavory secondary effects”). That evidence fully supported the City’s rationale for regulating
sexually-oriented businesses and was legally sufficient to support the City’s adoption of the
ordinance. Accordingly, we find that there was no genuine issue of material fact regarding
whether the City had met its evidentiary burden to demonstrate that the ordinance was necessary to
combat secondary effects of Appellants’ adult entertainment establishments. Issue Four is
21
overruled.
In Issue Five, Foster contends the trial court erred in denying his motion to strike the
opinions of the City’s experts, Drs. Richard McCleary and George E. Tita, “pursuant to Rule 702
of the Texas Rules of Evidence, Daubert v. Merrell Dow Pharms., Inc. . . . and its progeny, and E.I.
du Pont de Nemours & Co. v. Robinson . . . and its progeny, and other Texas state court
authorities.”9 See Daubert v. Merrell Dow Pharms., Inc. 509 U.S. 579, 590-92, 113 S.Ct. 2786,
125 L.Ed.2d 469 (1993); E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549, 553-56
(Tex. 1995). He likewise asserts that the arguments set forth in his motion to strike such opinions
also support his “position that summary judgment was totally improper . . . .”
Foster bases his contentions upon the assertion that the City’s experts relied on flawed and
unreliable research methodology to reach the conclusion that Foster’s business causes secondary
effects, and asserts that they raise a genuine issue of material fact. Foster focuses primarily upon
the efficacy of the legislation in addressing the negative secondary effects of sexually-oriented
businesses, and challenges the admissibility of the experts’ testimony because they allegedly
conceded that the ordinance’s regulations had not been shown to be effective at reducing alleged
disproportionate secondary effects. For the reasons set forth in Issue Four as well as those that
follow, we disagree.
In addressing this issue, we are faced with a recitation of expert testimony for which there
is no citation to the record. See TEX. R. APP. P. 38.1(i); Valadez, 238 S.W.3d at 845. Also,
Foster argues the City must address disproportionate secondary effects rather than negative
secondary effects. As previously noted, the City was permitted to rely on evidence reasonably
9
Although Foster cites these cases, he fails to provide citation to the portions of those cases that allegedly support his
contentions at trial and on appeal.
22
believed to be relevant to the goal of preventing the negative secondary effects of
sexually-oriented businesses but was not required to specifically produce or rely upon
expert-witness testimony. Renton, 475 U.S. at 51-52, 106 S.Ct. at 931. Assuming, without
deciding, that the City’s expert witnesses’ testimony should have been excluded under Daubert
and Robinson, “the relevant ‘material fact’ that must be placed at issue is whether the ordinance is
supported by evidence that can be ‘reasonably believed to be relevant to the problem.’” Fantasy
Ranch, 459 F.3d at 561, citing Renton, 475 U.S. at 51-52, 106 S.Ct. at 931 (emphasis omitted);
N.W. Enterprises, 352 F.3d at 180; Alameda Books, 535 U.S. at 451-52, 122 S.Ct. at 1743
(Kennedy, J., concurring); see also Daubert. 509 U.S. at 590-92, 113 S.Ct. at 2795-96; Robinson,
923 S.W.2d at 553-56. We have found that it is.
Foster has failed to demonstrate that the trial court erred in denying his motion to strike the
opinions of Drs. McCleary and Tita for their reliance upon allegedly flawed and unreliable
research methodology. Issue Five is overruled.
In Issue Six, Foster complains that the trial court’s grant of summary judgment on his
request for declaratory relief was error. Foster complains that the City: (1) did not set forth the
burden of proof for a declaratory judgment; (2) failed to address which essential element of
Foster’s claims it was disproving; and (3) instead of addressing Foster’s claims, chose to seek
summary judgment based on its pleaded affirmative defenses and other pleas. Noting that a
declaratory judgment is proper where a justiciable controversy exists regarding the rights and
status of parties and if the declaration will resolve the controversy, Foster contends that a
justiciable controversy exists because the City adopted arbitrary and overreaching regulations that
were based upon flawed expert theories. Bonham State Bank v. Beadle, 907 S.W.2d 465, 467
(Tex. 1995). According to Foster, the requested declaration would have resolved the controversy
23
because the trial court could have declared the rights and obligations of the parties and committed
error when it failed to do so.
The trial court considered the City’s motion for summary judgment which set forth the
standards and elements for challenging each of Foster’s constitutional claims, and the trial court
found, as we have, that the ordinance survives constitutional scrutiny. Upon adjudication of those
claims, no justiciable controversy existed, and the trial court correctly denied Foster’s request for
declaratory relief. Beadle, 907 S.W.2d at 467 (declaratory judgment is appropriate only if a
justiciable controversy exists as to the rights and status of the parties and the controversy will be
resolved by the declaration sought); Schecter v. Wildwood Developers, L.L.C., 214 S.W.3d 117,
121 (Tex.App. – El Paso 2006, no pet.). Because the trial court did not err, Issue Six is overruled.
In Issue Seven, Foster argues that the trial court erred in granting summary judgment
because the ordinance is unconstitutionally overbroad and constitutes a prior restraint. As we
have already concluded that the ordinance is constitutional under O’Brien and is neither
unconstitutionally vague or overbroad, we address Foster’s prior-restraint complaint.
The City argues that Foster has waived this issue because he failed to present or secure a
ruling thereon in the summary-judgment proceedings. The Rules of Civil Procedure provide that
issues not expressly presented to the trial court by written motion, answer, or other response shall
not be considered on appeal as grounds for reversal. TEX. R. CIV. P. 166a(c). Foster did not file
his own motion for summary judgment and in his summary-judgment response, Foster states that it
is premature to address prior restraint until an evidentiary hearing is conducted. Because these
complaints as raised on appeal were not brought to the trial court’s attention, we cannot consider
them. TEX. R. CIV. P. 166a(c). Significantly, because the ordinance satisfies the O’Brien test,
it is constitutionally sound. O’Brien, 391 U.S. at 377, 88 S.Ct. at 1679. Issue Seven is overruled.
24
CONCLUSION
As Foster has failed to establish that the trial court erred in granting summary judgment in
favor of the City and in denying his motion to strike the City’s expert witnesses, the trial court’s
judgment is affirmed.
GUADALUPE RIVERA, Justice
February 20, 2013
Before McClure, C.J., Rivera, and Antcliff, JJ.
Antcliff, J., not participating
25
Bryan S. Foster D/B/A Jaguars Gold Club v. City of El Paso
Combined Opinion