LLEH Inc v. Wichita County, TX

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________

No. 00-11220
_____________________

LLEH, INC., Etc.; ET AL.,

Plaintiffs,

LLEH, INC., doing business as Babe’s; APRIL COOPER; ANITA
JACKSON; SARAH BLACKSTOCK,

Plaintiffs-Appellees,

versus

WICHITA COUNTY, TEXAS,

Defendant-Appellant.

Appeal from the United States District Court
for the Northern District of Texas

April 22, 2002
Before DAVIS, WIENER, and BARKSDALE, Circuit Judges.

RHESA HAWKINS BARKSDALE, Circuit Judge:

Regarding the regulations by Wichita County, Texas, for

sexually oriented businesses (SOBs), primarily at issue is whether,

for the regulations’ location restriction, studies of secondary

effects for cities are relevant to such non-urban areas. Among

other things, the regulations govern location, stage height, and

layout, as well as mandate information disclosure and dancer-to-

patron distance. Claiming the regulations pass First Amendment

muster, the County appeals a bench trial judgment in favor of LLEH,
Inc., and its employees. JUDGMENT ON THE MERITS AFFIRMED in PART

and REVERSED in PART; JUDGMENT AWARDING ATTORNEY’S FEES and EXPENSES

VACATED; REMANDED.

I.

In June 1999, William Essary, LLEH’s sole owner, purchased from

Pearl Carter property outside the city limits of Wichita Falls, in

an unincorporated area of Wichita County, Texas. LLEH planned to

open Babe’s BYOB, a SOB, on the property. Learning of LLEH’s plans

after it had purchased the property and begun construction, the

County decided to enact regulations governing the operation and

location of SOBs in the County’s unincorporated area. (The County

attributes its late discovery to LLEH’s failure to comply with Texas

law, effective 1 September 1999, requiring certain intending SOB

operators to post public notice of such intent.)

The County requested the District Attorney to investigate the

requirements to formulate regulations. The District Attorney

obtained, and considered, studies compiled by other jurisdictions

detailing their reasons for, and experiences in, implementing SOB

regulations. Those jurisdictions included: Cleburne and Houston,

Texas; Garden Grove, California; Oklahoma City, Oklahoma; Newport

News, Virginia; Bellevue, Washington; St. Croix County, Wisconsin;

and Minnesota. (The County also considered a report prepared for

the American Center for Law and Justice.)

2
 Between October and December 1999, the County held public

hearings on its intent to adopt the regulations. Among those

participating were law enforcement officers, County citizens, a real

estate appraiser, and LLEH (with counsel).

Babe’s began doing business in early October 1999. On 6

December, the County enacted Order No. 99-12-579, entitled “The

Regulations for Sexually Oriented Businesses in the Unincorporated

Areas of Wichita County, Texas” (the Order), with a 10 December

effective date. The Order requires a SOB to obtain a permit (SOBP)

in order to conduct business in that part of the County covered by

the Order. Additionally, in pertinent part, the Order provides:

SECTION IX — SOBP APPLICATION [location
provision]

....

(e) Applicants for a SOBP shall ... provide:

....

(4) A certification that the proposed
enterprise will be located:

(a) a minimum of one thousand five
hundred (1,500) feet from any
child care facility, school,
dwelling, hospital, public
building, public park, or
church or place of religious
worship[;]

(b) a minimum of one (1) mile from
a penal institution[.]

....

3
SECTION X — EMPLOYEE IDENTIFICATION BADGE
APPLICATION [disclosure provision]

(a) Any person who is employed in any capacity
at an enterprise ... is required to make
application with and obtain from the
County Sheriff an employee identification
badge.... The individual applicant shall
... provide the following information to
the County Sheriff:

....

(3) the city, county, and state of each
of the applicant’s residences for the
three (3) years immediately preceding
the date of the application,
indicating the dates of each
residence and including the present
mailing address of the applicant.

....

SECTION XXIV — OPERATING REQUIREMENTS FOR
ENTERPRISES [buffer, stage-height, demarcation,
and unobstructed-view provisions]

(a) The following shall be violations of these
regulations....

....

(13) for any person performing partially
nude or totally nude at an enterprise
to do so less than six (6) feet from
the nearest patron and on a stage
less than eighteen (18) inches above
floor level;

(14) for the owner or operator of an
enterprise to allow any location
within the enterprise to be used for
the purpose of partially nude or
totally nude live exhibitions unless
it is marked with clear indications
of the six (6) foot zone. The
absence of this demarcation will
create a presumption that there have

4
 been violations of these regulations
during performances in unmarked
areas[.]

....

(c) Except as otherwise provided herein[,] the
interior of an enterprise shall be
configured in such a manner that
inspecting law enforcement personnel have
an unobstructed view of every area of the
premises from any other area of the
premises, excluding restrooms, to which
any patron is allowed access for any
purpose.

(Emphasis added.)

The Order also confers authority upon the District Attorney to

seek to have enjoined violations of the Order.

SECTION VIII — INJUNCTION [injunction
provision]

(a) A person who violates these regulations is
subject to a suit to enjoin operation of
the enterprise pursuant to Section 243.010
of the Texas Local Government Code and is
also subject to prosecution for criminal
violations.

(b) The Criminal District Attorney is hereby
authorized to file suit to enjoin
violation of these regulations. A suit
may be initiated upon information received
from private citizens or any law
enforcement agency.

(Emphasis added.)

Babe’s was in violation of the 1500 feet minimum distance from

a dwelling (three houses). (Two of those houses are owned by Pearl

Carter, who had sold the property to Essary.) Shortly after the

Order’s enactment, and because Babe’s was already in operation, the

5
Sheriff notified LLEH it would be given a 60-day grace period before

the Order was enforced against it.

In February 2000, and apparently still within the grace period,

LLEH filed an application under the Order’s contingent SOBP

provisions, designed to permit existing SOBs not in conformity with

the Order’s location provision to continue operating during an

amortization period in order to recoup their investments. LLEH

sought a contingent SOBP for an approximate eight-year period.

A series of checks by law enforcement officials during March

and April 2000 revealed, however, that Babe’s dancers were not

complying with a number of the Order’s provisions. The Sheriff

obtained warrants for the arrest of dancers for, and management for

allowing, violation of the buffer provision. On 30 March, the

Sheriff’s Office notified LLEH its SOBP application had been denied,

citing numerous violations of the Order.

Earlier that March, LLEH filed this action, requesting

injunctive and declaratory relief with respect to a number of the

Order’s provisions. During a 10 April conference with the district

court, the County agreed not to enforce the Order until a 25 April

hearing on LLEH’s preliminary injunction request. At that hearing,

enforcement of the buffer provision was preliminarily enjoined.

That May, the County heard the appeal of LLEH’s SOBP denial.

Later that month, the County agreed to both waive the location

provision and reduce the buffer provision from six to three feet

6
until November 2002 — the point, according to the County, by which

LLEH could recoup its initial investment. (As noted, LLEH

maintained it needed a much longer period in which to do so.)

A bench trial was held in July, with judgment entered that

September (2000). Relevant to this appeal, the district court: (1)

held that the location, buffer, stage-height, demarcation,

unobstructed-view, and disclosure provisions violated the First

Amendment, failing the tests established in City of Renton v.

Playtime Theatres, Inc., 475 U.S. 41 (1986), and/or United States

v. O’Brien, 391 U.S. 367 (1968); (2) amended the buffer provision

from six to three feet; and (3) held the injunction provision

unconstitutionally overbroad. LLEH, Inc. v. Wichita County, Texas,

121 F. Supp. 2d 513 (N.D. Tex. 2000) (LLEH).

Post-judgment, LLEH sought attorney’s fees and expenses (fees).

Approximately $43,000 was awarded.

II.

The County challenges most of the rulings against the Order,

as well as the fees award.

A.

Following a bench trial, findings of fact are reviewed for

clear error; legal issues, de novo. E.g., Joslyn Mfg. Co. v.

Koppers Co., Inc., 40 F.3d 750, 753 (5th Cir. 1994). “[W]e may

affirm for reasons other than those relied upon by the district

7
court”. Id. (citing Ballard v. United States, 17 F.3d 116, 118 (5th

Cir. 1994)).

“Whether ... free speech rights have been infringed is a mixed

question of law and fact.” Int’l Soc’y for Krishna Consciousness

of New Orleans, Inc. v. Baton Rouge, 876 F.2d 494, 496 (5th Cir.

1989) (citing Dunagin v. City of Oxford, 718 F.2d 738, 748 n.8 (5th

Cir. 1983), cert. denied, 467 U.S. 1259 (1984)). Accordingly, our

“review is de novo”. Id. (quoting Dunagin, 718 F.2d at 748 n.8).

“While it is now beyond question that nonobscene nude dancing

is protected by the First Amendment, even if ‘only marginally so,’

it is also clear that the government can regulate such activity.”

J&B Entm’t, Inc. v. City of Jackson, 152 F.3d 362, 369 (5th Cir.

1998) (quoting Barnes v. Glen Theatre, Inc., 501 U.S. 560, 566

(1991); internal citations omitted). The test for reviewing such

regulations, however, is not as clear: the test for time, place,

or manner regulations, described in Renton, 475 U.S. at 47; or the

four-part test for incidental limitations on First Amendment

freedoms, established in O’Brien, 391 U.S. at 376-77.

Under Renton, “zoning ordinances designed to combat the

undesirable secondary effects of [SOBs] are to be reviewed under the

standards applicable to ‘content-neutral’ time, place, and manner

regulations”. 475 U.S. at 49 (emphasis added). “[Such] regulations

are acceptable so long as they are designed to serve a substantial

governmental interest and do not unreasonably limit alternative

8
avenues of communication”. Id. at 47. Additionally, they must be

narrowly tailored to achieve the government’s interest. See id. at

52. “A content-neutral time, place, or manner restriction must (1)

be justified without reference to the content of the regulated

speech; (2) be narrowly tailored to serve a significant or

substantial governmental interest; and (3) preserve ample

alternative means of communication.” TK’s Video, Inc. v. Denton

County, Texas, 24 F.3d 705, 707 (5th Cir. 1994). Along the same

line, O’Brien provides:

[A] government regulation [of expressive
conduct] is sufficiently justified [1] if it is
within the constitutional power of the
Government; [2] if it 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.

391 U.S. at 377.

Our court has reviewed SOB licensing and location provisions

under the Renton test. See, e.g., Woodall v. City of El Paso, 49

F.3d 1120, 1122-27 (5th Cir.) (1000-foot location provision), cert.

denied, 516 U.S. 988 (1995); Grand Brittain, Inc. v. City of

Amarillo, 27 F.3d 1068, 1069-70 (5th Cir. 1994) (per curiam) (1000-

foot location provision); TK’s Video, Inc., 24 F.3d at 707-11

(licensing, information disclosure, and internal layout provisions);

Lakeland Lounge of Jackson, Inc. v. City of Jackson, 973 F.2d 1255,

9
1257-60 (5th Cir. 1992) (250-foot/1000-foot location and light-

industrial zoning provisions), cert. denied, 507 U.S. 1030 (1993).

We have subsequently reviewed a public nudity ordinance and “no

touch” provision under the O’Brien test. See J&B Entm’t, Inc., 152

F.3d at 369-78; Hang On, Inc. v. City of Arlington, 65 F.3d 1248,

1253-55 (5th Cir. 1995).

Clark v. Community for Creative Non-Violence, 468 U.S. 288, 298

(1984), noted the tests’ similarities: “[O’Brien’s] four-factor

standard ... for validating a regulation of expressive conduct ...

is little, if any, different from the standard applied to time,

place, or manner restrictions”. In fact, in Barnes v. Glen Theatre,

Inc., 501 U.S. 560 (1991), concerning a challenge to a public

indecency law brought by two nude dancing establishments, a

plurality of the Court suggested the tests are interchangeable:

The “time, place, or manner” test was developed
for evaluating restrictions on expression
taking place on public property which had been
dedicated as a “public forum,” although we have
on at least one occasion applied it to conduct
occurring on private property. See Renton v.
Playtime Theatres, Inc., 475 U.S. 41 [(1986)].
In Clark we observed that this test has been
interpreted to embody much the same standards
as those set forth in United States v. O’Brien,
and we turn, therefore, to the rule enunciated
in O’Brien.

Id. at 566 (plurality opinion; internal citations omitted).

The district court apparently applied Renton in reviewing the

location provision; for the others, O’Brien. Because neither side

10
takes issue with the particular test applied to each of the

respective provisions, we will proceed as did the district court.

In any event, our holding for each provision is the same under

either test.

1.

The district court held the location provision unconstitutional

for want of relevant evidence of secondary effects: “Although the

County relie[d] upon many studies of secondary effects of other

cities, none of the studies [has] any relevance to the problem faced

by Wichita County” in an unincorporated, rural area with few

residential dwellings. LLEH, 121 F. Supp. 2d at 521 (emphasis

added).

The County’s interest, as identified in the Order’s preambulary

language, concerns combating SOBs’ deleterious effects and

protecting the health, safety, and welfare of SOB patrons and County

citizens. “A local government’s interest in preserving the quality

and character of neighborhoods and urban centers can, if properly

set forth, support restrictions on ... adult entertainment.” J&B

Entm’t, Inc., 152 F.3d at 371 (citing Renton, 475 U.S. at 50). “In

setting forth this interest, a local government may place great

weight upon the experiences of, and studies conducted by, other

local governments, as well as opinions of courts from other

jurisdictions.” Id. (citing Renton, 475 U.S. at 51).

The First Amendment does not require a city,
before enacting such an ordinance, to conduct

11
 new studies or produce evidence independent of
that already generated by other cities, 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 (emphasis added).

The district court held, and LLEH maintains, that the County’s

reliance on studies of secondary effects in urban areas is rendered

irrelevant by the rural characteristics of the County’s

unincorporated areas, particularly the low population and dearth or

absence of residences, schools, daycare centers, churches, and

playgrounds in the area around Babe’s.

To the extent the district court focused on the area in Babe’s

immediate vicinity, the court erred. “Regulations that burden

speech incidentally or control the time, place, and manner of

expression must be evaluated in terms of their general effect.”

United States v. Albertini, 472 U.S. 675, 688-89 (1985) (emphasis

added). Moreover, “[t]he First Amendment does not bar application

of a neutral regulation that incidentally burdens speech merely

because a party contends that allowing an exception in the

particular case will not threaten important government interests.”

Id. at 688 (emphasis added; citing Clark v. Community for Creative

Non-Violence, 468 U.S. 288, 296-297 (1984)).

Even if the area immediately surrounding Babe’s were the only

area in question, the studies relied upon by the County were still

relevant. The secondary effects that urban areas have experienced

12
(well documented in the relied-upon studies) are precisely what the

County is attempting to avoid. This is evinced by the Order’s

preambulary language. For example, the County sought to “minimize

and control ... adverse effects” and “deter the spread of urban and

rural blight”. (Emphasis added.)

Accordingly, it is logical that the County would: (1) review

the experiences of urban areas, as discussed in the studies; (2)

consider what measures those areas have employed to combat secondary

effects; and (3) tailor those corrective measures to the County’s

needs. By so doing, the County may, in its continued growth and

development, successfully sidestep many of the problems encountered

by urban areas. In this respect, the relied-upon studies are

“reasonably believed to be relevant” to the problems the County

seeks to address. See Renton, 475 U.S. at 51.

2.

The district court held the six-foot buffer and 18-inch stage

height provisions violated O’Brien’s fourth prong: “incidental

restriction on ... First Amendment freedoms [can be] no greater than

is essential to the furtherance of that interest”. O’Brien, 391

U.S. at 377.

LLEH stipulated that the Order satisfies the first and second

O’Brien prongs; and, the district court held these two provisions

satisfied the third. See LLEH, 121 F. Supp. 2d at 522-23. (The

district court also held these provisions, along with the

13
demarcation provision discussed infra, void for vagueness because

they apply to “partially nude” performances without defining that

term. The County does not contest this holding. The district court

suggested that “the County can remedy this simply by defining the

phrase, ‘Partially Nude’ as it has already done with ‘Nudity or

State of Nudity’ and ‘Semi-nude[,]’”, id. at 524; the County stated,

at oral argument, that it intends to do so.)

a.

Concerning the buffer provision and O’Brien’s fourth prong, the

district court stated: “[T]he regulation must go only so far as is

required to achieve the stated interest of deterring sexual contact

and touching”. Id. at 523-24 (emphasis added). It determined: the

provision “would effectively close the club”, id. at 523 n.19; and,

accordingly, only a less restrictive, three-foot buffer would be

constitutional, id. at 524.

The district court’s analysis runs contrary to the principle

that “an incidental burden on speech is no greater than is

essential, and therefore is permissible under O’Brien, so long as

the neutral regulation promotes a substantial government interest

that would be achieved less effectively absent the regulation”.

Albertini, 472 U.S. at 689 (emphasis added); see also Ward v. Rock

Against Racism, 491 U.S. 781, 798-99 (1989). “[S]uch regulations

[are not] invalid simply because there is some imaginable

alternative that might be less burdensome on speech”. Albertini,

14
472 U.S. at 689. Moreover, “[t]he validity of such regulations does

not turn on a judge’s agreement with the responsible decision maker

concerning the most appropriate method for promoting significant

government interests”. Id. Nor does it turn on “the degree to

which those interests should be promoted”. Ward, 491 U.S. at 800.

In addition, the district court’s finding that the six-foot

buffer would effectively close Babe’s is not controlling. “The

[provision] does not ban all [partially or totally nude dancing],

but instead focuses on the source of the evils the [County] seeks

to eliminate ... and eliminates them without at the same time

banning or significantly restricting a substantial quantity of

speech that does not create the same evils.” Id. at 800 n.7. The

six-foot buffer may have a significant impact on Babe’s; but, as

noted supra, “[r]egulations that burden speech incidentally or

control the time, place, and manner of expression must be evaluated

in terms of their general effect”. Albertini, 472 U.S. at 688-89

(emphasis added; internal citation omitted); see also DLS, Inc. v.

City of Chattanooga, 107 F.3d 403, 413 (6th Cir. 1997) (reviewing

a similar six-foot buffer requirement and noting that, to the extent

economic impact is considered in determining whether a regulation

is sufficiently narrow, “we consider the economic effects of the

ordinance in the aggregate, not at the individual level; if the

ordinance were intended to destroy the market for adult cabarets,

it might run afoul of the First Amendment, but not if it merely has

15
adverse effects on the individual theater”). In this light, the

buffer provision satisfies O’Brien’s narrow tailoring prong.

b.

The district court held the 18-inch stage-height provision did

not satisfy O’Brien’s fourth prong: “The interest of deterring

sexual contact and touching has already been satisfied with the

three foot buffer zone [substituted by the district court for the

Order’s six-foot zone]. Accordingly, this requirement is arbitrary

and does not serve the interest of the County in light of the three

foot buffer zone”. LLEH, 121 F. Supp. 2d at 524.

Again, it is not within a court’s province to base its ruling

on its determination of “the most appropriate method for promoting

[the] government interest[]”. Albertini, 472 U.S. at 689. Because

the County’s interests would be achieved less effectively absent the

stage-height provision, that provision satisfies O’Brien’s fourth

prong.

3.

The district court held the demarcation provision fails to

satisfy two of the O’Brien prongs: the second, for want of

“evidence of secondary effects that this rule is intended to

ameliorate”, LLEH, 121 F. Supp. 2d at 524 (emphasis added); and the

fourth, because it is not “narrow enough ... when [the court-

substituted] three-foot buffer zone is already in place”, id. at

525.

16
 “Our appropriate focus is not an empirical enquiry into the

actual intent of the enacting legislature, but rather the existence

or not of a current governmental interest in the service of which

the challenged application of the statute may be constitutional.”

Barnes v. Glen Theatre, Inc., 501 U.S. 560, 582 (1991) (Souter, J.,

concurring) (citing McGowan v. Maryland, 366 U.S. 420 (1961)). (As

noted, LLEH stipulated that the Order satisfies the second prong.)

The demarcation provision is simply a manifestation of the

buffer provision; it furthers the same substantial interests and

merely gives definition to the buffer provision. Accordingly, it

imposes no further restriction on speech. O’Brien’s second and

fourth prongs are satisfied.

4.

The district court held the unobstructed-view provision is not

sufficiently narrow to satisfy O’Brien’s fourth prong. Our court

has upheld similar provisions. At issue in TK’s Video, Inc., 24

F.3d at 705, was, inter alia, a provision that provided:

The interior of the premises shall be
configured in such a manner that there is an
unobstructed view from a manager’s station of
every area of the premises to which any patron
is permitted access for any purpose excluding
restrooms.... The view required in this
subsection must be by direct line of sight from
the manager’s station.

Id. at 723. After explaining that the provision was relevant to an

interest in protecting against “illegal and unsanitary sexual

17
activity”, we held: “The design and layout regulations narrowly

respond to a substantial governmental interest”. Id. at 711; see

also FW/PBS, Inc. v. City of Dallas, 837 F.2d 1298, 1304 (5th Cir.

1988) (“[I]n accordance with the prevailing view, ... the first

amendment does not prohibit the City of Dallas from requiring that

viewing booths in adult theatres be open”.).

The district court focused on the particular hardships that

might arise out of compliance with the unobstructed-view provision.

After discussing how costly compliance would prove, the court noted

LLEH had voluntarily installed surveillance cameras with a monitor

at the Babe’s manager’s station. The district court reasoned that,

if LLEH installed two additional cameras, along with additional

monitors at the manager’s station, the County’s interest in law

enforcement could be served. Consequently, it concluded, the

provision was not sufficiently narrow to satisfy O’Brien’s fourth

prong.

Again, a regulation with incidental burdens on speech is not

invalid “simply because there is some imaginable alternative that

might be less burdensome on speech”. Albertini, 472 U.S. at 689.

Such a regulation satisfies O’Brien’s fourth prong “so long as the

neutral regulation promotes a substantial government interest that

would be achieved less effectively absent the regulation”. Id. at

689 (emphasis added).

18
 At trial, the County asserted “that cameras can be manipulated

and the[ir] images [can be] misleading”. LLEH, 121 F. Supp. 2d at

528. The court dismissed this point because the County “fail[ed]

to show the Court how a view from one side of a crowded room, ‘with

the naked eye,’ can be any less misleading”. Id. We conclude,

however, that the County’s interest would be achieved less

effectively absent the unobstructed view provision.

Moreover, as noted, the “[r]egulations that burden speech

incidentally or control the time, place, and manner of expression

must be evaluated in terms of their general effect”. Albertini, 472

U.S. at 688-89 (emphasis added; internal citation omitted). The

district court erred to the extent it focused on the impact the

unobstructed view provision had on Babe’s alone.

5.

The disclosure provision held violatiave of O’Brien’s fourth

prong requires that, in order to obtain the necessary employee

identification badge to work at a SOB, the applicant provide certain

information to the Sheriff, including, inter alia, “the city,

county, and state of each of the applicant’s residences for the

three (3) years immediately preceding the date of the application,

indicating the dates of each residence and including the present

mailing address of the applicant”. (Emphasis added.) The

application form used by the Sheriff to collect the information

19
employs that same language, then provides spaces to list the date

and applicant’s address.

At trial, a Sheriff’s representative answered “yes” when asked

if the application form requests “the current residential address

of the applicant”. Without explanation, the district court

determined the disclosure provision and/or the application itself

required the applicant to list not only the “current address [but

also] phone information” and held that the requirement to list such

information “is not narrowly tailored to advance the County’s

interest”. LLEH, 121 F. Supp. 2d at 525 (emphasis added). (LLEH

maintains the district court also held the provision

unconstitutionally overbroad. The court ruled solely on the O’Brien

narrowness prong. Id. at 525 n.23.)

Neither the provision nor the application form requests a

telephone number. As to the address, the County has repeatedly

conceded that applicants should not have to list their current

residential address. Moreover, counsel for the County confirmed at

oral argument here that the County plans to amend the provision in

this regard. In the light of these concessions, it is not clear why

the County raised the disclosure provision as an issue on appeal.

In any event, we need not review this aspect of the district court’s

opinion. We understand the district court’s holding as pertaining

only to a current residential address and telephone number.

6.

20
 The injunction provision held unconstitutionally overbroad

states: “A person who violates [the Order] is subject to a suit to

enjoin operation of the enterprise”. (Emphasis added.) The

provision authorizes the District Attorney “to file suit to enjoin

violation of [the Order]”. Relying on Universal Amusement Co., Inc.

v. Vance, 587 F.2d 159, 168-73 (5th Cir. 1978), the district court

held the provision overbroad because it “authorizes a suit to enjoin

free speech” or “to enjoin ... protected activity”. LLEH, 121 F.

Supp. 2d at 527.

Universal Amusement concerned a statute that provided:

The habitual use ... of any premises,
place or building or part thereof, for any of
the following uses shall constitute a public
nuisance and shall be enjoined at the suit of
either the State or any citizen thereof:

....

(3) For the commercial manufacturing,
commercial distribution, or commercial
exhibition of obscene material[.]

587 F.2d at 165 n.11. Our court held the provision

“unconstitutional insofar as it authorizes injunctions against the

future exhibition of unnamed films[,] ... for it amounts to a prior

restraint on materials not yet declared obscene”. Id. at 169

(emphasis added).

Universal Amusement is inapposite. The provision at issue here

authorizes suit to enjoin “violations” of the provisions upheld in

this appeal. In the light of our above holdings, the risk of

21
actions seeking to enjoin “free speech” or “protected activity” is

substantially diminished, if not eliminated, because we have

concluded that the “speech” and “activity” at issue in the

provisions is properly regulated. Any overbreadth in the injunction

provision is not “substantial ... in relation to the [provision’s]

plainly legitimate sweep”. Broadrick v. Oklahoma, 413 U.S. 601, 615

(1973).

B.

Approximately $43,000 was awarded pursuant to 42 U.S.C. §

1988(b), which provides: “In any action or proceeding to enforce

a provision of section [1983] of this title, the court, in its

discretion, may allow the prevailing party ... a reasonable

attorney’s fee as part of the costs....” (Emphasis added.) The

County requests that we either vacate the award or remand for

reconsideration.

“[A] plaintiff ‘prevails’ when actual relief on the merits of

his claim materially alters the legal relationship between the

parties by modifying the defendant’s behavior in a way that directly

benefits the plaintiff”. Farrar v. Hobby, 506 U.S. 103, 111-12

(1992) (emphasis added). In the light of our disposition of this

appeal, the only points on which LLEH might be considered to have

“prevailed” are: (1) in having the term “partially nude” adjudged

vague (it is unclear whether the County conceded this at trial); (2)

in having it adjudged that the County may not request a current

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residential address, which it conceded pre-trial; and (3) in having

a provision (not at issue here) pertaining to on-premises alcohol

consumption adjudged preempted by Texas law, which the County also

apparently conceded pre-trial. Because the district court is better

suited to determine both whether LLEH is a prevailing party in the

light of our resolution of this appeal and what, if any, fees would

be reasonable, we vacate the award and remand for reconsideration.

III.

For the foregoing reasons, we REVERSE the district court’s

holdings as to the Order’s location, buffer, stage-height,

demarcation, unobstructed-view, and injunction provisions. We do

not reach its holdings on either the vagueness of the term

“partially nude” or the disclosure provision. We VACATE the fees

and expenses award. This case is REMANDED for further proceedings

consistent with this opinion, including entry of judgment on the

merits and reconsideration of fees.

JUDGMENT ON THE MERITS AFFIRMED in PART, REVERSED in PART;
JUDGMENT AWARDING ATTORNEY’S FEES and EXPENSES VACATED;
REMANDED

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