United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS March 18, 2004
FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 03-10337
RESTAURANT ASSOCIATES, INC.,
Plaintiff-Appellee,
versus
BOARD OF ADJUSTMENT, Of the City of Fort Worth, Texas; CITY OF
FORT WORTH, TEXAS,
Defendants-Appellants.
Appeal from the United States District Court
for the Northern District of Texas
(4:02-CV-328-Y)
Before SMITH, BARKSDALE, and CLEMENT, Circuit Judges.
PER CURIAM:*
Two issues are presented in this appeal by the City of Fort
Worth, Texas, and its Board of Adjustment from the summary judgment
awarded Restaurant Associates: whether the Board’s denial of a
certificate to Associates to operate a sexually oriented business
(SOB) was an abuse of discretion; and whether the ordinance
requiring the certificate is an unconstitutional prior restraint.
VACATED and RENDERED.
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
I.
In late 2001, Associates applied to the City’s Department of
Development for the requisite SOB certificate for 2300 Cobb Street.
It was denied because the Department’s Director concluded that, in
violation of section 5.200.B.2.a of the Fort Worth Zoning Code, the
location was within 1000 feet of a “religious institution”: the
Love Memorial Church of God in Christ, which meets in a chapel
inside the multi-purpose wing of the Salvation Army building at
1855 East Lancaster.
Associates appealed the certificate-denial to the Board, which
upheld the Director’s decision. Next, in state court, Associates
claimed the Board’s decision was illegal. See TEX. LOC. GOV’T CODE
ANN. § 211.011. The action was removed to federal court, based on
federal question jurisdiction over Associates’ prior restraint
claim.
On cross motions for summary judgment, the district court
granted judgment for Associates, holding the Board had abused its
discretion in denying the certificate because it acted arbitrarily
and unreasonably in concluding that the Church is a religious
institution pursuant to the ordinance. Accordingly, it was not
necessary for the district court to reach Associates’ prior
restraint claim.
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II.
A summary judgment is reviewed de novo, applying the same
standard of review as the district court. E.g., Daniels v. City of
Arlington, 246 F.3d 500, 502 (5th Cir.), cert. denied, 534 U.S. 951
(2001). Such judgment is proper if movant demonstrates there is no
genuine issue of material fact and is entitled to judgment as a
matter of law. FED. R. CIV. P. 56(c); e.g., Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986); Crawford v. Formosa Plastics
Corp., 234 F.3d 899, 902 (5th Cir. 2000).
Two issues are presented: whether the certificate-denial
violated Texas law; and whether the ordinance requiring the
certificate is an unconstitutional prior restraint. There are no
material fact issues; therefore, our review is limited to whether
either side is entitled to judgment as a matter of law. Restated,
the two issues are questions of law; and the record is sufficient
to address each.
A.
Because the state law claim (certificate-denial) is in federal
court through supplemental jurisdiction, 28 U.S.C. § 1367, Texas
law controls; in this instance, it also provides the standard of
review for the certificate-denial. (Because it was inadequately
briefed, we do not address Associates’ contention that the
“legislative model” is inapplicable because this action was removed
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to federal court.) Pursuant to Texas law, the standard of review
is quite narrow indeed:
The Board is a quasi-judicial body, and
the [state] district court sits only as a
court of review by writ of certiorari. TEX.
LOC. GOV’T CODE ANN. § 211.011(c). The only
issue for determination in a writ of
certiorari proceeding is the legality of the
Board’s order. A legal presumption exists in
favor of the Board’s order, and the party
attacking it has the burden of establishing
its illegality.
To establish that an adjustment board’s
order is illegal, the contesting party must
make a very clear showing that the board
abused its discretion, i.e., acted arbitrarily
and unreasonably, without reference to any
guiding rules or principles. The [state]
district court cannot put itself in the
adjustment board’s position or substitute its
discretion for that of the board.
SWZ, Inc. v. Bd. of Adjusment of the City of Fort Worth, 985 S.W.2d
268, 269-70 (Tex. App.—Fort Worth 1999 pet. denied) (emphasis
added; some citations omitted).
Citing Bd. of Adjustment v. Underwood, 332 S.W.2d 583 (Tex.
Civ. App.—San Antonio 1960, writ ref’d n.r.e.), Associates also
disputes applying the abuse of discretion standard of review
(which, as noted, the district court utilized), contending that we
may be less deferential to the Board because the question is one of
ordinance interpretation. Underwood held: a court is not bound by
the Board’s legal construction of an ordinance; on the other hand,
the abuse of discretion standard applies when reviewing the Board’s
application of an ordinance to facts. Id. at 585. Here, the
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certificate-denial was the application of the ordinance to the
facts; accordingly, we review only for abuse of discretion.
It is undisputed that the Church is within 1000 feet of the
proposed SOB; therefore, if the Church is a “religious
institution”, the proposed SOB is prohibited by the ordinance. A
religious institution is defined as “a building [discussed infra]
in which persons regularly assemble for religious worship and
activities intended primarily for purposes connected with such
worship or for propagating a particular form of religious belief”.
FORT WORTH TEX., ZONING ORDINANCES, app. A, Ch. 9, § 9.101 (emphasis
added).
Concerning the Church’s worship services and related
activities, the following undisputed facts were before the Board:
the Salvation Army has allowed the Church to use its chapel since
1995; the Church, led by an ordained Church of God in Christ
minister, is a Christian denomination with its own distinct
doctrines and history; services are held at the Church twice a week
(Friday night and Sunday morning); the pastor conducts a Bible
study at the Church on Wednesday night and has performed marriages
and memorial services on occasion; the pastor distributes business
cards with the Church’s worship schedule in hopes people will
attend; and worship bulletins are prepared for the services held at
the Church. In sum, the Church’s worship services and related
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activities are those typically associated with a religious
institution.
According to Associates, however, the Church is not a
religious institution because it is not a “building” as required by
the ordinance. A “building” is defined as a “structure having a
roof supported by columns or walls for the housing or enclosure of
persons, animals or chattels”. FORT WORTH TEX., ZONING ORDINANCES, app.
A, Ch. 9, § 9.101. The Board asserts that, for the certificate-
denial, it did not consider the entire Salvation Army building as
a “religious institution”; rather, it considered the building’s
multi-purpose wing, which contains only the chapel and a gymnasium.
(The district court held the Board abused its discretion because
the Salvation Army facility is only one building and the Church is
inside that facility and not itself a building.)
In the light of the narrow abuse of discretion standard of
review, we must review the Board’s decision based on the reasons it
gave for certificate-denial. Therefore, our inquiry is limited to
whether the Board abused its discretion in finding the multi-
purpose wing is a building, satisfying that element for a religious
institution.
With respect to the multi-purpose wing, the summary judgment
record shows: the Director of the Department of Development
testified that it meets the ordinance’s definition of a building
because it is a structure with a roof supported by walls; the
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chapel used by the Church is located within that part of the
Salvation Army building; that part also houses a gymnasium, which
is used for religious purposes; the architectural plans for that
part are on a separate page from the rest of the building and are
labeled “multi-purpose building”; that part is separated from the
rest of the building by an enclosed breezeway with a roof; a cross
design adorns the brick wall outside where the chapel is located,
but nowhere else on the Salvation Army building; within the chapel
are pews, crosses, and a lectern designed for worship; the primary
purpose of the Salvation Army building is as a homeless shelter;
less than three percent of the Salvation Army facility is devoted
to the chapel; there are no signs inside or outside the Salvation
Army building indicating that religious services are available; the
Salvation Army does not denominate the building as one where the
public may attend religious services; the Salvation Army receives
emergency shelter grant funding from the federal government, and
its regulations restrict the funds’ use in connection with worship
services; and the Salvation Army building has only one address and
one certificate of occupancy.
In sum, the summary judgment evidence arguably conflicts on
whether, under the ordinance’s definition, the multi-purpose wing
is a “building”. As discussed supra, however, given the applicable
abuse of discretion standard of review, we must defer to the
Board’s decision unless it was arbitrary or unreasonable. See SWZ,
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985 S.W.2d at 270; Southwest Paper Stock, Inc. v. Zoning Bd. of
Adjustment of the City of Fort Worth, 980 S.W.2d 802, 805 (Tex.
App.—Fort Worth 1998, pet. denied). Indeed, under this narrow
standard, we must defer to the decision even if the overwhelming
preponderance of the evidence is against it. Southwest Paper, 980
S.W.2d at 805. In this regard, the Board does not abuse its
discretion by basing its decision on conflicting evidence, as long
as some evidence of substantive and probative character exists to
support the decision. Id. at 805-06.
The Board’s decision that the multi-purpose wing is a building
pursuant to the ordinance is supported by the requisite evidence.
For example, as discussed, the architectural drawings label that
part a “multi-purpose building”; the multi-purpose wing is
separated from the rest of the Salvation Army building by a
breezeway; crosses adorn the outside of the multi-purpose building,
but not the Salvation Army building as a whole; and the Development
Director testified that the multi-purpose wing meets the
ordinance’s definition of a building.
Accordingly, the Board did not abuse its discretion in
concluding that the multi-purpose wing is a building. This is
consistent with Texas law. In SWZ, the Texas Court of Appeals
upheld the Board’s decision that a hall used for religious
activities and prayer meetings, which was a portion of a church
complex, qualified as a church under a predecessor Fort Worth
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zoning ordinance. SWZ, 985 S.W.2d at 271. The Court of Appeals
noted: “[T]he mere fact that the hall and the sanctuary are not
physically connected or part of the same structure is irrelevant to
our inquiry — as long as the hall meets the city’s definition of a
‘church’”. Id. Likewise, the Board’s decision that the Church is
a religious institution is not an abuse of discretion merely
because the multi-purpose wing is connected to the rest of the
Salvation Army building.
Hooters, Inc. v. City of Texarkana, Texas, 897 F. Supp. 946
(E.D. Tex. 1995), is not to the contrary. There, in granting
plaintiffs a preliminary injunction, the district court construed
the same predecessor ordinance and held that a prison room being
used for religious activities did not qualify as a church because
it was not a building. Critical to that decision was that the room
used for religious activities shifted regularly and thus, the court
would have to find either that the “building” moved or that the
entire prison was a church. Id. at 952.
B.
The other issue is Associates’ claim that the ordinance is an
unconstitutional prior restraint on freedom of speech, violative
of the First, through the Fourteenth, Amendment. As noted, because
the district court held the Board had abused its discretion, it did
not need to reach this constitutional issue. As discussed supra,
we can decide it without further development of the record.
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Ordinances regulating speech and contingent on the discretion
of an official are burdens on speech classified as prior
restraints. E.g., Chiu v. Plano Ind. Sch. Dist., 339 F.3d 273, 280
(5th Cir. 2003) (citing Staub v. City of Baxley, 355 U.S. 313
(1958)). A prior restraint is not unconstitutional per se; it will
be upheld if it has narrow, objective, and definite standards to
guide the licensing authority. Id. at 281 (citing Southeastern
Promotions, Ltd. v. Conrad, 420 U.S. 546, 558 (1975)). A
delegation scheme, as at issue here, is permissible if its
standards are “susceptible of objective measurement”. Keyishian v.
Bd. of Regents, 385 U.S. 589, 604 (1967).
Associates maintains, erroneously, that the Director’s
application of the term “building” to “a one room (chapel) in a
large facility” demonstrates unbridled discretion. As discussed,
the ordinance includes three components for a “religious
institution”: (1) a building; (2) in which persons regularly
assemble; (3) for religious worship and related activities. These
standards are objective and the Director’s discretion is not
unbridled. Further, the definition of “building” as a “structure
having a roof supported by columns or walls, for the housing or
enclosure of persons, animals, or chattel” contains definitive,
intelligible standards for the Director to follow. The standards
sufficiently limit the Director’s discretion.
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Our court has upheld similar ordinances against prior
restraint challenges. E.g., FW/PBS, Inc. v. City of Dallas, 837
F.2d 1298 (5th Cir. 1988) (upholding ordinance prohibiting license
for SOB if within 1000 feet of church because ordinance standards
were capable of objective measurement), rev’d on other grounds, 493
U.S. 215 (1990). SDJ, Inc. v. City of Houston, 837 F.2d 1268, 1277
(5th Cir. 1988), cert. denied, 489 U.S. 1052 (1989), upheld an
ordinance which provided that a permit to operate a SOB would issue
unless one of eight specific exceptions existed. One exception was
that “[t]he applicant’s enterprise is located within 750 feet of
any school, church, or licensed day care center”. Id. at 1277
n.28. Associates’ contention that SDJ is inapplicable because
plaintiffs there brought a facial, rather than an as applied,
challenge is unavailing.
In sum, the standards for issuing a certificate are capable of
objective measurement, and the Director’s application of the
ordinance here falls squarely within its objective criteria. There
is no unconstitutional prior restraint.
III.
For the foregoing reasons, the judgment is VACATED and
judgment is RENDERED for the Board and City.
VACATED and RENDERED
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