United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT August 2, 2006
Charles R. Fulbruge III
No. 04-11337 Clerk
FANTASY RANCH INC. doing business as Fantasy Ranch
Plaintiff-Appellant,
COWTOWN EXPOSITION, INC. doing business as X.T.C. Tan;
TAZZ MAN INC. doing business as Hardbody’s of Arlington,
Texas, doing business as Peep-Tom’s; HARRY FREEMAN,
doing business as Flash Dancer
Intervenor-Plaintiffs-Appellants,
versus
CITY OF ARLINGTON, TEXAS,
THERON BOWMAN, Chief of Police
Defendants-Appellees.
Appeals from the United States District Court
for the Northern District of Texas
Before GARWOOD, BENAVIDES, and OWEN, Circuit Judges.
GARWOOD, Circuit Judge:
Appellants challenge the City of Arlington’s recently enacted
Sexually Oriented Business Ordinance as an unconstitutional
restriction of their expressive liberties. We affirm the trial
court’s judgment sustaining the ordinance.
1
FACTS AND PROCEEDINGS BELOW
A. Plaintiff-appellant Fantasy Ranch, Inc. ("Fantasy Ranch"),
and intervenor plaintiffs-appellants, Cowtown Exposition, Inc.,
Tazz Man Inc., and Harry Freeman, are sexually oriented businesses
("SOBs") that feature topless dancing and operate under renewable
licenses granted by defendant-appellee the City of Arlington, Texas
("the City"). Defendant-appellee Theron Bowman is the City's Chief
of Police; as such, he is charged with enforcing the ordinances
that the Arlington SOBs claim violate the Constitution. In October
2002, Bowman, acting pursuant to the City's Sexually Oriented
Business Ordinance ("the SOB Ordinance") as it then-existed,
notified Fantasy Ranch by letter of his intent to suspend its
license to operate as a SOB for three days. According to the
letter, Fantasy Ranch's license was subject to a temporary
suspension under § 4.05 of the SOB Ordinance, which at that time
required suspension of a SOB's license if "the [City's] Chief of
Police determine[d] that [a SOB] licensee, operator or an employee
. . . ha[d] . . . on five (5) or more occasions within any one (1)
year period of time, violated [the City's prohibition on touching
between topless dancers and patrons] and ha[d] been convicted or
placed on deferred adjudication or probation for the violations."
Although Fantasy Ranch requested and received a hearing on the
proposed suspension, its objections failed, and in December 2002
the Deputy Chief of Police (before whom the hearing was conducted)
2
ordered that the three-day license suspension go forward beginning
January 26, 2003. Before the suspension took effect, Fantasy Ranch
filed this lawsuit in the Northern District of Texas.
B. The City's Sexually Oriented Business Ordinance
Like many cities, Arlington maintains a series of ordinances
that regulate SOBs through a combination of zoning restrictions,
licensing requirements, and criminal laws. The appellants’ claims
focus on two groups of provisions in the City's current SOB
Ordinance: (1) the "Proximity Provisions," which consist of (a) a
buffer zone and stage height provision, (b) a floor demarcation
provision, and (c) a tipping provision; and (2) the "Licensing
Provisions," which define the procedure and substance governing
suspension and revocation of a SOB's business license.
1. The Proximity Provisions
First among the Proximity Provisions are buffer zone and stage
height requirements, which prohibit a "licensee, operator or
employee" of a SOB from:
“knowingly allow[ing], in a Sexually Oriented Business
another to appear in a state of nudity, unless the person
is an employee [of the SOB] who, while in a state of
nudity, is on a stage (on which no customer is present)
at least eighteen (18) inches above the floor, and is:
(1) at least six (6) feet from any customer . . . ; or
(2) physically separated from customers by a solid clear
transparent unbreakable glass or plexiglass wall with no
openings that would permit physical contact with
customers.”
Arlington, Tex., Ordinance 03-044, § 6.03(B) (April 15, 2003).
3
Second is the SOB Ordinance's demarcation provision, which mandates
that a "licensee, operator or employee [of a SOB] . . . prominently
and continuously display a two inches wide glow-in-the-dark line on
the floor of the [SOB] marking a distance of six feet from each
unenclosed stage on which an employee in a state of nudity may
appear." Id. § 6.04(B). Third, the SOB Ordinance regulates the
tipping of nude dancers by prohibiting customers or patrons from
tipping a nude SOB employee "directly" but permitting tipping of a
nude SOB employee through either "a tip receptacle, located more
than six (6) feet from the nearest point of the performance stage
where [the SOB] employee is in a state of nudity, or . . . an
employee that is not in a state of nudity, as part of the
customer's bill." Id. § 6.03(C).
The City contends that the Proximity Provisions are designed
to alleviate the negative secondary effects that flow from
violations of its no-touch ordinance, which has long prohibited
touching between nude SOB employees and SOB customers. According
to the City's findings listed in the ordinance enacting the
Proximity Provisions, the no-touch provision, standing alone, did
not effectively prevent touching between nude SOB employees and
their customers. The City explains that the Proximity Provisions
were intended to address the no-touch provision's inadequacy by
further limiting activities that allow and often result in a close
proximity between nude SOB employees and their customers. In
4
support of the Proximity Provisions, the City amassed the following
evidentiary record which included: (1) references respecting the
Proximity Provisions to (a) judicial decisions addressing similar
ordinances from other cities and discussing the adverse secondary
effects addressed by those ordinances, and (b) studies conducted
in other jurisdictions on the adverse secondary effects of SOBs;
(2) reports of numerous no-touch violations at SOBs within the
City; (3) testimony regarding the effectiveness of stage height
requirements in enforcing a no-touch rule; and (4) a report
prepared by the City's expert witness, Dr. Goldsteen, concluding
that the Proximity Provisions would effectively prevent touching
between nude employees and patrons.
2. The Licensing Provisions
The Licensing Provisions set out the procedural and
substantive scheme governing suspension and revocation of a SOB's
license to do business. See Arlington, Tex., Sexually Oriented
Business Ordinance § 4.01. It is the alleged procedural and
substantive invalidity of these provisions that originally prompted
this lawsuit. Since initiation of this case, however, the City has
amended the Licensing Provisions significantly. Because of these
amendments, the district court concluded that all of Fantasy
Ranch's challenges to the previous Licensing Provisions are moot.
To review the district court's judgment on this point, then,
requires an understanding of how the pre-amendment version of the
5
Licensing Provisions compares with the post-amendment version.
a. The Pre-amendment Licensing Provisions
Prior to their amendment by the City, and at the time that
Fantasy Ranch originally filed this suit, the Licensing Provisions
required that a SOB's license be temporarily suspended
if the [City's] Chief of Police determine[d] that a
licensee(s), operator(s), or employee(s) of a licensee
ha[d] . . . [o]n five (5) or more occasions within any
one (1) year period of time, violated [the no-touch]
provisions [of the SOB Ordinance] and ha[d] been
convicted or placed on deferred adjudication or probation
for the violations."
Arlington, Tex., Sexually Oriented Business Ordinance § 4.05(A)(1),
amended by Arlington, Tex. Ordinance 03-041, § 4.05(A)(1) (April 1,
2003). Following the fourth such temporary suspension, the
pre-amendment Licensing Provisions required that the City revoke
the SOB's license. Id. § 4.06(A)(1). Once a SOB received notice
that the Chief of Police had determined that its license was
subject to a temporary suspension for five no-touch violations, the
pre-amendment Licensing Provisions granted the SOB the right to
challenge that notice of suspension either in writing to the City's
"Chief of Police" or by requesting a hearing before the "Chief of
Police" —— a term that the Licensing Provisions defined to include,
inter alia, the "Deputy Chief of Police." Id. § 4.07. The
pre-amendment Licensing Provisions did not define the procedural or
substantive rules and standards according to which the Chief of
6
Police (or his deputy) was to render his decision. If the Chief of
Police ordered a temporary suspension of the SOB's license to
proceed, the pre-amendment Licensing Provisions permitted that SOB
to appeal the suspension to a Texas state court, and the suspension
would not go into effect until after the conclusion of that appeal.
Id. §§ 4.05(A), 4.09.
b. The Post-amendment Licensing Provisions
On April 1, 2003, after Fantasy Ranch filed this lawsuit to
challenge the constitutionality of the SOB Ordinance's
pre-amendment Licensing Provisions, the City enacted Ordinance No.
03-041, which significantly amended the Licensing Provisions to
incorporate more substantive and procedural protections for SOBs.
Specifically, under the post-amendment Licensing Provisions, the
Chief of Police could suspend a SOB's license because of that SOB's
employees having been convicted of five violations within any one
year of the no-touch or Proximity Provisions only if the SOB had
been given notice of the citations for those violations within
three business days following the issuance of the citation.
Arlington, Tex., Ordinance 03-041, § 4.05(A)(1). In addition, the
amended Licensing Provisions created an affirmative defense for
SOBs faced with such a possible license suspension: "It shall be
an affirmative offense [sic] to [a] suspension [arising out of five
violations of the no-touch or Proximity provisions] if [the SOB]
shows by a preponderance of the evidence that it was powerless to
7
prevent [the no-touch or Proximity] violation[s]." Id. § 4.05(B).
Moreover, the post-amendment Licensing Provisions more clearly
delineate the procedural and substantive rules governing the Chief
of Police's resolution of a SOB's challenge to a notice of
suspension. Specifically, the amended Licensing Provisions (1)
provide for an evidentiary hearing before an administrative law
judge (rather than before the Chief of Police or his deputy) and
grant that judge the responsibility of ruling on procedural and
evidentiary questions that arise during the hearing; and (2) define
what evidence the Chief of Police may consider when deciding
whether to suspend the SOB's license. Id. §§ 4.07. Finally,
certain aspects of the Licensing Provisions were unaffected by
Ordinance No. 03-041. Namely, the post-amendment Licensing
Provisions continue to permit an aggrieved SOB to appeal its
license suspension to state court, and the provisions still provide
that the license suspension is stayed pending the outcome of that
appeal. Id. § 4.09. In addition, under the post-amendment
Licensing Provisions, four temporary license suspensions still
result in revocation of a SOB's license on the fifth violation.
Id. § 4.06(A)(1).
C. Procedural History
In January 2003, after Fantasy Ranch's administrative
challenge to the City's proposed suspension of its license failed,
but before the three-day suspension ordered by Chief Bowman was to
8
go into effect, Fantasy Ranch filed suit in the Northern District
of Texas seeking declaratory judgment that the license suspension
and revocation scheme created by the pre-amendment Licensing
Provisions (1) violated the First Amendment by (a) operating as a
prior restraint, and (b) failing to satisfy the requirements for
content-neutral speech-inhibiting regulations set forth in United
States v. O'Brien, 88 S.Ct. 1673 (1968); and (2) violated the
procedural component of the Due Process Clause. Two months later,
in March 2003, Fantasy Ranch moved for summary judgment on all of
these claims.
On April 1, 2003, before the City responded to Fantasy Ranch's
motion for summary judgment, the City enacted the first of four
amendments to the SOB Ordinance that directly impact this case.
The City first enacted Ordinance No. 03-041, which, as explained
supra, amended the Licensing Provisions by enhancing the procedural
and substantive protections afforded to SOBs during the license
suspension and revocation process. Based on these enhanced
protections, the City filed its first amended answer to Fantasy
Ranch's original complaint, asserting that Ordinance No. 03-041's
changes to the Licensing Provisions rendered all of Fantasy Ranch's
claims challenging the pre-amendment Licensing Provisions moot. In
addition, the City's first amended answer asserted that it would
not ever enforce the temporary suspension of Fantasy Ranch's
license that it had ordered under the pre-amendment Licensing
9
Provisions.1
On April 15, 2003, just two weeks after enacting Ordinance No.
03-041, the City again amended its SOB Ordinance by enacting
Ordinance No. 03-044. That amendment established the above
described Proximity Provisions of which the Arlington SOBs now
complain. Prior to the enactment of the ordinance, the City's SOB
Ordinance only (1) prohibited touching between nude dancers and
their customers, and (2) required that signs be placed at the
entrances to SOBs informing customers of the no-touch rule.
Arlington, Tex., Ordinance 03-044, §§ 6.03(B)-(C), 6.04(B). As
discussed supra, the City found the additional Proximity
Provisions to be necessary because the existing no-touch and
signage rules did not effectively prevent touching between nude
dancers and patrons. Specifically, the City, in enacting these
additional provisions, expressly found that SOBs "have not complied
with the ‘no touch' provisions, [and] have flagrantly disregarded
them and/or encouraged employees and customers to violate the ‘no
touch' provision." Id. § 1.03 ¶ 29. Moreover, according to these
formal findings of the City, "[c]ompelling signage at the entrances
of [SOBs] has not been effective in halting ‘no touch' violations."
1
During oral argument before this court, the City repeated
this promise, and also expressly agreed that it would not only
not try to enforce this suspension but also that it would not
ever try to use it as one of the four predicate temporary
suspensions necessary under the ordinance to permanently suspend
an SOB’s license.
10
Id. § 1.03 ¶ 31.
On May 1, 2003, in response to the amendment of the
Licensing Provisions and the addition of the Proximity Provisions,
Fantasy Ranch filed an amended complaint in which it (1) disputed
the City's assertion that all of its claims attacking the
pre-amendment Licensing Provisions were moot, and (2) asserted new
claims challenging the post-amendment Licensing Provisions, arguing
essentially that those provisions suffer from the same
constitutional infirmities as the pre-amendment Licensing
Provisions. The next month, on June 23, 2003, Fantasy Ranch filed
a supplemental complaint in which it again asserted new claims,
this time challenging the Proximity Provisions, arguing that those
provisions violate the First Amendment.
With the enactment of the Proximity Provisions, other SOBs
became interested in the litigation and, on June 27, 2003, the
district court granted intervenor Plaintiffs-Appellants Tazz Man,
Inc., Cowtown Exposition, Inc., and Harry Freeman leave to
intervene. The intervenor SOBs limited their challenges to the
constitutionality of the Proximity Provisions and, therefore, are
not parties to Fantasy Ranch's due process and related First
Amendment challenges to the Licensing Provisions.
When the dust settled, the district court had before it
constitutional claims challenging the pre- and post-amendment
11
Licensing Provisions and the Proximity Provisions.2 Fantasy Ranch
alone challenged the pre-amendment Licensing Provisions, arguing
(1) that those provisions (a) effected a prior restraint in
violation of the First Amendment, and (b) prior to Fantasy Ranch's
license being temporarily suspended, failed to provide Fantasy
Ranch with the process it was constitutionally due; and (2) that
its claims were not mooted by either the City's amendment of the
Licensing Provisions or the City's pledge not to enforce its
temporary suspension of Fantasy Ranch's license. Also alone,
Fantasy Ranch challenged the post-amendment Licensing Provisions,
essentially arguing that those provisions failed for the same
reasons as the pre-amendment Licensing Provisions. Finally, all of
the Arlington SOBs challenged the Proximity Provisions, arguing
that those provisions are unconstitutional restrictions on symbolic
speech.
In February 2004, the Arlington SOBs moved for summary
judgment on all of their claims, and in March 2004 the City
cross-moved for summary judgment. Five months later, in August
2004, the district court issued a memorandum opinion and order
granting summary judgment to the City, denying the Arlington SOBs'
motion for summary judgment, and holding the Proximity Provisions
constitutional. The district court's August 2004 opinion did not,
however, address Fantasy Ranch's constitutional claims directed at
2
Other claims by the Arlington SOBs were also before the
district court, but those claims are not relevant to this appeal.
12
the pre- and post-amendment versions of the Licensing Provisions;
rather, the district court waited until its final judgment, which
was issued in September 2004, to resolve those claims. In that
judgment, the court held (without further elaboration) that "[i]n
regards to . . . Fantasy Ranch's causes of action attacking the
Constitutionality of § 4.05 and § 4.07 [the Licensing Provisions],
as set forth in its pleadings . . . , the claims are moot and . .
. the statutory provisions at issue are Constitutional."
DISCUSSION
I. The Proximity Provisions
We first address the appellants’ First Amendment challenge to
the ordinance’s Proximity Provisions, and hold that those
provisions satisfy the four-part test set forth in O’Brien for
content-neutral restrictions on symbolic speech.
We review the district court’s grant of summary judgment de
novo, applying the same legal standard as the district court. Vela
v. City of Houston, 276 F.3d 659, 666 (5th Cir. 2001). “Summary
judgment is appropriate only if ‘the pleadings, depositions,
answers to interrogatories, and admissions on file, together with
the affidavits, if any,’ when viewed in the light most favorable to
the non-movant, ‘show that there is no genuine issue as to any
material fact.’” TIG Ins. Co. v. Sedgwick James of Washington, 276
F.3d 754, 759 (5th Cir. 2002) (quoting Anderson v. Liberty Lobby
Inc., 106 S.Ct. 2505 (1986)).
13
“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.”
LLEH, Inc. v. Wichita County, Texas, 289 F.3d 358, 365 (5th Cir.
2002) (citations omitted). Indeed, nude dancing falls only “within
the outer ambit of the First Amendment’s protection.” City of Erie
v. Pap’s A.M., 120 S.Ct. 1382, 1391 (2000) (plurality opinion); see
also Barnes v. Glen Theatre, Inc., 111 S.Ct. 2456 (1991) (plurality
opinion).
A. Strict or Intermediate Scrutiny
We must first determine, then, what level of scrutiny applies,
a question that depends on whether the government’s predominate
purpose in enacting the regulation is related to the suppression of
expression itself. Pap’s A.M., 120 S.Ct. at 1391 (plurality
opinion). If the government’s interest is indeed related to the
suppression of content, then that regulation of symbolic speech is
subject to strict scrutiny. See Texas v. Johnson, 109 S.Ct. 2533
(1989). If, however, the government’s predominate purpose is
unrelated to the suppression of expression, such that the
regulation can be “justified without reference to the content of
the regulated speech,” then intermediate scrutiny applies. Clark
v. Community for Creative Non-Violence, 104 S.Ct. 3065, 3069
(1984); see also O’Brien.
The City of Arlington contends that its ordinance is “content
14
neutral,” arguing that it targets only negative secondary effects
of speech, not content. The appellants counter that the ordinance
is “content based,” arguing that the ordinance’s predominate
interest is, in fact, the suppression of their erotic message, a
message which, they further contend, has never been shown by the
City to produce any negative secondary effects.
Courts routinely apply intermediate scrutiny to government
regulation of sexually oriented businesses, and we again do so
today. See Pap's A.M., 120 S.Ct at 1391 (“government restrictions
on public nudity . . . should be evaluated under the framework set
forth in O'Brien for content-neutral restrictions on symbolic
speech.”); see also N.W. Enterprises Inc. v. City of Houston, 352
F.3d 162, 173 (5th Cir. 2003); LLEH v. Wichita County, Tex., 289
F.3d 358, 364 (5th Cir.2002); Encore Videos, Inc. v. City of San
Antonio, 330 F.3d 288, 291 (5th Cir. 2003). In LLEH v. Wichita
County, for example, this court applied O’Brien’s intermediate
scrutiny to a public lewdness ordinance that was nearly identical
to the one at issue here, reversing the district court’s bench-
trial judgment in favor of a sexually oriented business, and
holding that a six-foot buffer requirement, an 18-inch stage height
requirement, and a demarcation requirement were all constitutional
under O’Brien.3 And, in Pap’s A.M., a divided Supreme Court upheld
3
We acknowledge that in LLEH none of the parties challenged
on appeal the O’Brien intermediate scrutiny standard applied by
15
an ordinance that banned all public nudity and, as a consequence,
required the City’s erstwhile nude dancers to wear pasties and g-
strings during their performances. 120 S.Ct. 1383 (2000). In
deciding to apply O’Brien’s intermediate scrutiny, the Court
reasoned that the ordinance was “on its face a general prohibition
on public nudity,” and noted that the City of Erie’s “asserted
interest in combating the negative secondary effects associated
with adult entertainment establishments . . . is unrelated to the
suppression of the erotic message conveyed by nude dancing.” Id. at
1391–92, 1394.
We acknowledge that in Pap’s A.M. the Court was persuaded of
the ordinance’s content neutrality by two related considerations,
only one of which is present here. First, the Court noted that
“the ordinance . . . is aimed at combating crime and other negative
secondary effects caused by the presence of adult entertainment
establishments . . . and not at suppressing the erotic message
conveyed by this type of nude dancing,” a consideration which is
also present here, since, as we discuss below, the City of
Arlington’s ordinance is also aimed predominately at secondary
effects. The second consideration relied upon in Pap’s A.M.,
however, was that the City of Erie’s ordinance banned “all public
nudity,” and that the ordinance was therefore content neutral
because it was facially neutral. Pap’s A.M., 120 S.Ct. at 1391
the district court. Id., 289 F.3d at 366.
16
(“The ordinance here . . . is on its face a general prohibition on
public nudity. . . . It does not target nudity that contains an
erotic message.”); see also Barnes v. Glen Theatre, Inc., 111 S.Ct.
2456, 2461 (1991) (“Indiana’s public indecency statute . . .
predates barroom nude dancing and was enacted as a general
prohibition.”). By this second consideration, facial neutrality,
the City of Arlington’s ordinance is not content neutral, because
it targets only sexually oriented businesses.
We understand, of course, that the City of Arlington’s
targeted ordinance “might simply reflect the fact that [Arlington]
had recently been having a public nudity problem not with
streakers, sunbathers or hot dog vendors . . . but with lap
dancers.” Pap’s A.M., 120 S.Ct. at 1401 (Scalia, J. concurring).
Indeed, it would seem mere pretext if the City of Arlington, in the
name of facial neutrality, also required nude-ballet buffer zones,
thereby invoking and eradicating a non-existent public nuisance.
We therefore hold that an ordinance such as the one before us
is content neutral so as long as the ordinances’s predominate
concern is for secondary effects, a holding supported by our sister
circuits and a careful reading of a fractured Court.4 The Sixth
4
In City of Los Angeles v. Alameda Books, 122 S.Ct. 1728
(2002), at least five Justices acknowledged that SOB zoning
ordinances were actually content based, yet nevertheless applied
intermediate scrutiny, explaining, in Justice Kennedy's
concurrence, that “the ordinance is not so suspect that we must
employ the usual rigorous analysis that content-based laws demand
in other instances.” The reasons given for the ordinance there
17
and Ninth Circuits, for example, while upholding buffer-zone and
stage-height requirements similar to the one here, have classified
such provisions as content neutral. In Deja Vu, Inc. v. Nashville,
the Sixth Circuit held that a three-foot buffer zone and an
eighteen-inch stage-height requirement were subject to intermediate
scrutiny, explaining that “[w]e have previously recognized that
ordinances aimed at regulating adult entertainment businesses
constitute content-based regulations, but that ‘a distinction may
be drawn between adult [businesses] and other kinds of [businesses]
without violating the government's paramount obligation of
neutrality’ when the government seeks to regulate only the
secondary effects of erotic speech, and not the speech itself.”).
274 F.3d 377, 391 (6th Cir. 2001) (citations omitted). Likewise,
in Kev, Inc. v. Kitsap County, the Ninth Circuit held that (1) a
ten-foot buffer zone, (2) a two-foot stage-height requirement, and
(3) a no tipping rule were all subject to intermediate scrutiny,
explaining that “[t]he stated purpose of the County’s ordinance is
to alleviate undesirable social problems that accompany erotic
dance studios, not to curtail the protected expression—namely, the
dancing. . . . Thus, we conclude that the ordinance is content-
being “not so suspect,” however, may be unique to zoning
regulations. See Alameda Books, 122 S.Ct. at 1740–41 (explaining
that zoning regulations merit a presumption of validity since
they have historically targeted secondary effects, not content).
Cf. G.M. Enterprises, Inc. v. Town of St. Joseph, 350 F.3d 631,
637 (7th Cir. 2003) (suggesting that intermediate scrutiny might
apply to similar content-based restrictions on symbolic speech).
18
neutral because it is justified without ‘reference to the content
of the regulated speech.’” 793 F.2d 1053, 1059 (9th Cir. 1986).
Indeed, Pap’s A.M itself provides support for this approach.
For although the court there emphasized that “Erie’s ordinance is
on its face a content-neutral restriction on conduct,” the
plurality also remarked, “Even if the City thought that nude
dancing . . . constituted a particularly problematic instance of
public nudity, the regulation is still properly evaluated as a
content-neutral restriction because the interest in combating the
secondary effects associated with those clubs is unrelated to the
suppression of the erotic message conveyed by nude dancing.” Pap’s
A.M., 120 S.Ct at 1394. (emphasis added). And, in a separate
concurrence, Justice Scalia , joined by Justice Thomas, made a
similar point, noting that “even were I to conclude that the City
of Erie had specifically singled out the activity of nude dancing,
I still would not find that this regulation violated the First
Amendment unless I could be persuaded . . . that is was the
communicative character of nude dancing that prompted the ban.”
Pap’s A.M., 120 S.Ct at 1402 (Scalia, J. concurring). Finally,
while discussing the secondary effects doctrine in the context of
zoning ordinances, Justice Kennedy has explained, “The ordinance
may identify the speech based on content, but only as a shorthand
for identifying the secondary effects . . . .” City of Los Angeles
v. Alameda Books, Inc., 122 S.Ct 1728, 1742 (2002). See also
19
R.A.V. v. City of St. Paul, 112 S.Ct. 2538, 2546 (1992) (noting
that a “valid basis for according differential treatment to even a
content-defined subclass of proscribable speech is that the
subclass happens to be associated with . . . ‘secondary effects’ of
the speech, so that the regulation is ‘justified without reference
to the content of the . . . speech.’”).
Applying this result to our case, we agree with the district
court’s ruling that because the City of Arlington’s SOB ordinance
is predominately targeted to the prevention of secondary effects,
not to the suppression of symbolic expression, it is entitled to
intermediate scrutiny. The purpose of Ordinance No. 03-044, even
as the appellant sees it,5 is to better enforce the City’s
previously enacted “no touch” rule, a rule that itself targeted the
very same secondary effects that continue to trouble the City today
— prostitution, assault, drug dealing, and even the touching
itself. The content of the erotic speech affected by this
ordinance (that message which is allegedly conveyed by dancing nude
within six feet of a person) is, according to the appellant’s
expert, a message of “comfort/support, friendliness, trust,
inclusion, immediacy, humanity, play, affection, sensuality,
desirability, [and] love.” It is easy to imagine a regulation that
5
The appellants argue in their brief to this court that
“[t]he predominate concern of Ordinance No. 03-044 was, and
remains today, the conduct-generated adverse effects of
touching.”
20
might directly target such a message, especially when it is
communicated between strangers for a fee; however, this particular
ordinance’s stated purpose is to eradicate certain negative
secondary effects that flow from this particular form of symbolic
speech,6 particularly the physical contact between dancer and
patron that we have already held to be unprotected by the First
Amendment, see Hang On, Inc. v. City of Arlington, 65 F.3d 1248
(5th Cir. 1995), and the crimes which that touching encourages and
facilitates. As the Pap’s A.M. plurality explained, “If States are
to be able to regulate secondary effects, then de minimis
intrusions on expression such as those at issue here cannot be
sufficient to render the ordinance content based.” Pap’s A.M, 120
S.Ct. at 1394. Here, the ordinance attempts to control secondary
effects while leaving the “quantity and accessibility of speech
substantially intact.” Alameda Books, 122 S.Ct at 1742.7
6
See Arlington, Tex., Ordinance 03-044, § 1.02 (“Purpose and
Intent It is the purpose of this Chapter to regulate Sexually
Oriented Businesses to promote the health, safety, morals and
general welfare of the citizens of the City . . . . The
provisions of this Chapter have neither the purpose nor effect of
imposing a limitation or restriction on the content of any
communicative materials . . . .”); see also id. § 1.03 (“Findings
Based on evidence concerning the adverse secondary effects of
Sexually Oriented Businesses on the community . . . .”).
7
As proof of the City’s content-based motives, appellants
draw our attention to the ordinance as originally enacted, which
included a provision allowing City officials to ban particular
dance movements. We disagree that such a provision suffices as
to proof of illicit motive of the later enacted ordinance. The
provision in question was ultimately rejected. Moreover, the
provision might have been understood as an attempt to enforce the
21
The appellants urge, however, that because the alleged
secondary effects result only from actual physical contact, not
from mere proximity, the City could not realistically hope to
eradicate them by going, literally, above and beyond the “no-touch”
rule and enacting buffer zone and stage-height requirements.
The appellants’ argument is flawed. This stage of the
analysis—whether there is content neutrality—is simply the wrong
place to dispute either the existence of the secondary effects or
the efficacy of the challenged ordinance. Presently, we are
concerned only with the ordinance’s stated purpose; if the
government’s interest is unrelated to expression, then intermediate
scrutiny applies. See Pap’s A.M., 120 S.Ct at 1396 (“O’Brien, of
course, required no evidentiary showing at all that the threatened
“no-touch” rule through the elimination of dance movements that
might result in incidental contact between dancer and patron.
More importantly, “this [c]ourt will not strike down an otherwise
constitutional statute on the basis of an alleged illicit
motive.” Pap’s A.M., 120 S.Ct at 1392; see also Barnes, 111
S.Ct. at 2469 (“At least as to the regulation of expressive
conduct, ‘we decline to void [a statute] essentially on the
ground that it is unwise legislation which [the legislature] had
the undoubted power to enact and which could be reenacted in its
exact form if the same or another legislator made a “wiser”
speech about it.’”(Souter, J., concurring) (quoting O'Brien, 88
S.Ct. at 1683). For example, the O’Brien court ignored the
following legislative history which, if credited, may have called
into question the relevant statute’s content neutrality: “The
[Senate] committee has taken notice of the defiant destruction
and mutilation of draft cards by dissident persons who disapprove
of national policy. If allowed to continue unchecked this
contumacious conduct represents a potential threat to the
exercise of the power to raise and support armies.” O’Brien, 88
S.Ct. 1637, 1684 (1968) (appendix).
22
harm was real.”). Application of O’Brien’s intermediate scrutiny,
however, gives those challenging the ordinance an opportunity to
convince the court that the ordinance does not actually further any
substantial government interests, or, relatedly, that no
substantial government interests exist. See N.W. Enterprises, 352
F.3d at 176 (“[T]he constitutional standard of review depends only
upon the City’s predominate legislative concern, not its pre-
enactment proof that the ordinance would work . . . .”).
B. Applying O’Brien
Because we conclude that Ordinance No. 03-044 is content
neutral, it is a constitutional restriction on symbolic speech if
it satisfies the four factor test from O’Brien. Applying the
O’Brien standard here, we conclude that the City of Arlington’s
ordinance passes the test. A public nudity ordinance that
incidentally impacts protected expression should be upheld if (1)
it is within the constitutional power of the government; (2) it
furthers an important or substantial government interest; (3) the
governmental interest is unrelated to the suppression of free
expression; and (4) the incidental restriction on first amendment
freedoms is no greater than is essential to the furtherance of that
interest.
The first prong of O’Brien, which is unchallenged by
appellants, is whether the ordinance is within the constitutional
power of the Arlington City Council. Even if challenged, this
23
prong would easily be satisfied, since ordinances aimed at
protecting the health and safety of citizens are squarely within
the City’s police powers. Pap’s A.M., 120 S.Ct. at 1395. The
second prong of O’Brien is whether the regulation furthers an
important or substantial government interest. The Court has
identified two distinct questions packaged within this second
prong. See Pap’s A.M., 120 S.Ct. 1397 (describing the two questions
as, first, “whether there is a substantial government interest . .
. i.e. whether the threatened harm is real,” and, second, “whether
the regulation furthers that interest”). The appellants challenge
the ordinance on both grounds, arguing first that a question of
material fact exists as to whether “prostitution transactions,
narcotics transactions, and assault result from proximity between
dancer and patron during performances,” and second that, even if
these do exist, a question of material fact exists as to whether
Ordinance No. 03-044 will ameliorate the problem.
Both of these challenges raise questions of evidence that we
evaluate using the standard described in City of Renton v. Playtime
Theatres, Inc., 106 S.Ct. 925 (1986), as modified by Alameda Books.
See Pap’s A.M., 120 S.Ct. at 1395 (“[T]he evidentiary standard
described in Renton controls here . . . .”); Alameda Books, Inc.,
122 S.Ct. 1728, 1733 (“We granted certiorari to clarify the
standard for determining whether an ordinance serves a substantial
government interest under Renton.”) (citations omitted). The
24
Renton evidentiary standard, as reaffirmed in Alameda Books,
provides that “a municipality 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, 122 S.Ct. at 1736 (quoting Renton, 106 S.Ct. at
931); see also N.W. Enterprises Inc. v. City of Houston, 352 F.3d
162, 180 (5th Cir. 2003). Justice Kennedy’s concurrence noted that
“[t]he First Amendment does not require a city, before enacting
such an ordinance, to conduct new studies or produce evidence
independent of that already generated by other cities . . . .”
Alameda Books, 122 S.Ct. at 1743 (quoting Renton, 106 S.Ct. at
931).8 However, the plurality cautioned that the government cannot
rely on “shoddy data or reasoning,” explaining that:
the municipality’s evidence must fairly support the
municipality’s rationale . . . . If plaintiffs fail to
cast direct doubt on this rationale, either by
demonstrating that the municipality’s evidence does not
support its rationale or by furnishing evidence that
disputes the municipality’s factual findings, the
municipality meets the standards set forth in Renton. If
plaintiffs succeed in casting doubt on a municipality’s
rationale in either manner, the burden shifts back to the
municipality to supplement the record with evidence
renewing support for a theory that justifies its
ordinance.”
Alameda Books, 122 S.Ct. at 1736 (plurality opinion) (citing Pap's
A.M., 120 S.Ct. at 1395-96); see also Alameda Books, 122 S.Ct. at
8
In Pap's A.M., the Court held that a municipality's own
findings and “reasonable belief that the experience of other
jurisdictions is relevant to the problem it is addressing” were a
sufficient evidentiary basis. 120 S.Ct. at 1395.
25
1742-44 (Kennedy, J., concurring).
The City of Arlington’s summary-judgment evidence fairly
supports its rationale by demonstrating a connection between speech
and a substantial, independent government interest. The record
before use includes a report by the City’s expert, Dr. Joel B.
Goldsteen; several studies, conducted both within the City of
Arlington and in other communities; as well as data cited in
numerous courts opinions, all of which demonstrate a connection
between dancer-patron touching and unsavory secondary effects.
Also in the record are findings that the City’s prior “no touch”
ordinance had been consistently flouted and that attempts to
enforce it had been costly and not adequately effective.
Faced with the “no touch” ordinance’s failure to achieve its
purpose, the City enacted the current version of the Ordinance,
including proximity provisions, demarcation requirements, and a no
tipping rule, which the City believes are necessary to insure
compliance with the “no touch” rule and to thereby eliminate the
secondary effects that it targets. The City supports this belief
with a Los Angeles Police Department study of criminal acts that
are associated with close proximity between dancer and patron.
Indeed, the appellants’ own expert, Dr. Hanna, admits the very fact
upon which the City’s inference rests, noting that “[c]loseness and
interaction between a performer and an individual patron permit the
dancer to show special interest in the patron . . . . This occurs
26
through eye contact, pupil dilation and . . . incidental touch . .
. .” (emphasis added).
The appellants respond, however, that the ordinance’s pre-
enactment record contains no empirical support for the City’s
alleged link between proximity and the targeted secondary effects.
They point to their deposition of the City’s expert, Dr. Goldsteen,
who conceded that, pre-enactment, he was unaware of “any empirical
studies which gauge the level of secondary effects which occur
inside a gentlemen’s club which is correlated to the distance
between dancer and patron,” and that he had not read “any report .
. . of that nature prior to [his] report to the city council . . .
.” Further, appellants note that their own expert, Bruce
McLaughlin, concluded that “[n]othing in Goldsteen’s report or in
the materials which he could have examined establishes a
correlation between dancer-patron proximity, let alone a causal
relationship between such proximity, and adverse secondary
effects.” Echoing the appellant’s concern for pre-enactment
justification, McLaughlin concluded, “The Arlington City Council
had before it nothing whatsoever with respect to proximity of
dancers and patrons other than Goldsteen’s conjecture and
speculation.”
The appellant’s focus on the City Council’s pre-enactment
rationale is misplaced, since “[o]ur appropriate focus is not an
empirical enquiry into the actual intent of the enacting
27
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.” LLEH, 289 F.3d
at 368 (emphasis added) (quoting Barnes v. Glen Theatre, Inc., 111
S.Ct. 2456, 2469 (1991) (Souter, J., concurring)); see also N.W.
Enterprises, 352 F.3d at 175 (“[T]he City need not demonstrate that
the City Council actually relied upon evidence of negative
secondary effects . . . . A local government can justify a
challenged ordinance based both on evidence developed prior to the
ordinance's enactment and that adduced at trial.”).
The appellants further argue, in the alternative, that the
post-enactment rationale offered by the City is “shoddy,” and
contend that even if the City has met its burden of demonstrating
a rationale for regulating proximity, they’ve cast sufficient doubt
upon that rationale, as described in Alameda Books, to shift the
burden back to the City to supplement the record and thereby
preclude summary judgment. See, e.g., Peek-A-Boo Lounge v. Manatee
County, 337 F.3d 1251, 1270–71 (11th Cir. 2003) (reversing a
summary judgment in favor of the County because the Peek-A-Boo
Lounge had “successfully cast doubt on the County's rationale by
placing into the record substantial and unanswered factual
challenges.”). In support of this claim, the appellants point to
an affidavit by their expert, Joe Morris, who, after collecting
data from open records requests to the Arlington police department
28
and the municipal court, reported that there were no arrests,
citations, or police calls for prostitution, solicitation, assault,
or narcotics at any of the City of Arlington’s adult cabarets from
July 1, 2002 through July 1, 2003.
We find this evidence, even when viewed in a light most
favorable to the plaintiff, plainly insufficient to preclude
summary judgment. Indeed, “[a]lthough this evidence shows that
[the City] might have reached a different and equally reasonable
conclusion regarding the relationship between adverse secondary
effects and sexually oriented businesses, it is not sufficient to
vitiate the result reached in the [City’s] legislative process.”
G.M Enterprises, Inc. v. Town of St. Joseph, 350 F.3d 631, 639 (7th
Cir. 2003) (affirming summary judgment in favor of the Town’s five-
foot buffer and eighteen-inch stage-height requirement despite
meaningful countervailing evidence presented by the plaintiffs).
At best, Joe Morris’s report suggests that no arrests at strip
clubs had occurred for prostitution, drugs, or assault, a fact that
is likely of little comfort to the City of Arlington, which passed
this ordinance at least in part because dancer–patron proximity in
a dimly-lit room made such crimes difficult to police. Ultimately,
we are not empowered by Alameda to second-guess the empirical
assessments of a legislative body, nor are we expected to submit
such assessments to a jury for re-weighing; instead, the relevant
“material fact” that must be placed at issue is whether the
29
ordinance is supported by evidence that can be “reasonably believed
to be relevant to the problem.” See Renton, 106 S.Ct. at 931
(emphasis added); see also N.W. Enterprises, 352 F.3d at 180;
Alameda Books, 122 S.Ct. at 1743 (Kennedy, J., concurring) (“[T]he
Los Angeles City Council knows the streets of Los Angeles better
than we do.”). Because no such issue of material fact exists, we
hold that Ordinance No. 03-044 satisfies the second prong of
O’Brien.
The Ordinance also satisfies the third prong of O’Brien
because, as discussed supra, the City’s interest is unrelated to
the suppression of free expression. See Pap’s A.M., 120 S.Ct. at
1397.
The fourth and final prong of O’Brien is also satisfied here,
since the restriction on expressive conduct is no greater than is
essential to the furtherance of the City’s interest. In reaching
this conclusion, we are largely bound by (and in any event agree
with) our prior opinion in LLEH, in which we held that an ordinance
with identical buffer-zone, stage-height, and demarcation
requirements satisfied O’Brien’s fourth prong. The LLEH court
explained that “such regulations are not invalid simply because
there is some imaginable alternative that might be less burdensome
on speech” so long as the “regulation promotes a substantial
government interest that would be achieved less effectively absent
the regulation.” LLEH, 289 F.3d at 367 (quoting United States v.
30
Albertini, 105 S.Ct. 2897, 2906 (1985)) (emphasis omitted). The
only relevant difference between this ordinance and the one at
issue in LLEH is that the Arlington ordinance also contains a six-
foot tipping restriction. This restriction also satisfies prong
four, however, because it “is simply a manifestation of the buffer
provision; it furthers the same substantial interests . . . . [I]t
imposes no further restriction on speech.” LLEH, 289 F.3d at
368–69 (discussing the demarcation requirement).
Appellants respond, first, that LLEH’s narrow-tailoring
standard was overruled by Justice Kennedy’s concurrence in Alameda
Books, and, second, that under either standard the ordinance is
unconstitutional, since it completely bans a unique form of
expression, proximate nude dancing.
We disagree with the appellants’ contention that LLEH is no
longer good law. The question of narrow tailoring was not before
the Court in Alameda Books; rather, the Court “granted certiorari
to clarify the standard for determining whether an ordinance serves
a substantial government interest under Renton.” Alameda Books, 122
S.Ct. at 1733 (citations omitted). That question is relevant only
to issues discussed above respecting O’Brien prongs two and three.
But even if Justice Kennedy’s concurrence has tightened the
narrow tailoring standard of Renton,9 it is not clear that this
9
The appellants refer to the following language from Justice
Kennedy’s concurrence: "[A] city must advance some basis to show
31
purportedly new standard, which was formulated for zoning cases,
would apply here, in a symbolic-speech case. Indeed, only two
years before Alameda Books, in a symbolic-speech case, a plurality
that included Justice Kennedy applied the very same “loose” narrow-
tailoring requirement that we do today, holding “[t]he fourth
O’Brien factor [is] that the restriction is no greater than is
essential to the furtherance of the government interest,” and
concluding “since this is a content-neutral restriction, least
restrictive means analysis is not required.” Pap’s A.M., 120 S.Ct.
at 1386, 1397. In any event, the ordinance before us satisfies
even the more strict standard proposed by appellants.
Thus we also disagree with the appellants’ second argument,
presented through their expert witness, Dr. Hanna, that the
ordinance enacts a complete ban on proximate nude dancing.10 The
Supreme Court rejected a very similar argument when it was made by
the dissenters in Pap’s A.M., who argued that a pasties and G-
string requirement completely silenced the erotic message
that its regulation has the purpose and effect of suppressing
secondary effects, while leaving the quantity and accessibility
of speech substantially intact. . . . [A] city may not attack
secondary effects indirectly by attacking speech." Alameda
Books, 122 S.Ct. at 1742.
10
Dr. Hanna’s “proximate nude dancing” theory could
presumably not validly preclude a touching ban, as such bans
having been universally upheld, but would (in appellants’ view)
preclude any distance restriction, so that nude dancers could not
constitutionally be forbidden from coming within even an inch (or
less) from patrons so long as they did not actually touch them.
32
associated with fully nude dancing. The plurality responded,
“[S]imply to define what is being banned as the ‘message’ is to
assume the conclusion. . . . Any effect on the overall expression
is de minimis.” Pap’s A.M, 120 S.Ct. at 1393. Moreover, in
Colacurcio, the Ninth Circuit rejected an identical argument, made
through the very same Dr. Hanna, while holding that a ten-foot
buffer zone, a two-foot stage-height requirement, and a tipping ban
were all sufficiently narrow-tailored. Colacurcio v. City of Kent,
163 F.3d 545, 555-57 (9th Cir. 1998), cert. denied, 529 U.S. 1053
(2000).
Here too we hold that the effect on the overall expression is
de minimis, as the City of Arlington has muted only that portion of
the expression that occurs when the six-foot line is crossed, while
leaving the erotic message largely intact. Indeed, in Barnes, all
nine members of the Supreme Court agreed that a buffer zone would
meet narrow tailoring requirements. Writing for the dissent,
Justice White argued that the ordinance at issue, which banned all
public nudity, was “not narrowly drawn.” Barnes v. Glen Theatre,
Inc., 111 S.Ct. 2456, 2475 (1991). The dissenters continued, “If
the State is genuinely concerned with prostitution and associated
evils . . . it can adopt restrictions that do not interfere with
the expressiveness of nonobscene nude dancing performances. For
instance, the State could perhaps require that, while performing,
nude performers remain at all times a certain minimum distance from
33
spectators . . . .” Id. (emphasis added). Accordingly, we hold
that the proximity provisions of the challenged ordinances satisfy
all four prongs of O’Brien, and thus are a constitutional
regulation of symbolic speech.
II. Prior Restraint
Fantasy Ranch also contends that the ordinance’s license-
revocation provision is incompatible with the First Amendment
because it imposes a prior restraint on symbolic speech. In
Universal Amusement Co., Inc. v. Vance, this court held that a
Texas nuisance statute, which authorized the one-year revocation of
an adult theater’s license on the basis of a prior finding of
obscenity, constituted an impermissible prior restraint, “since the
state would be enjoin[ing] the future operation of [a business]
which disseminates presumptively First Amendment protected
materials solely on the basis of the nature of the materials which
were sold . . . in the past.” 587 F.2d 159, 166 (5th Cir. 1978)
(en banc) (internal quotations omitted).11
The license revocation provision in this case differs from a
prior restraint in two respects. “First, the [revocation] would
impose no restraint at all on the dissemination of particular
materials, since respondents are free to carry on their . . .
business at another location, even if such locations are difficult
11
See also, e.g., Entertainment Concepts, Inc. III v.
Maciejewski, 631 F.2d 497, 506 (7th Cir. 1980).
34
to find,” and, “second, the closure order sought would not be
imposed on the basis of an advance determination that the
distribution of particular materials is prohibited — indeed, the
imposition of the closure order has nothing to do with any
expressive conduct at all.” Arcara v. Cloud Books, Inc., 106 S.Ct.
3172, 3177 n.2 (1986).
Unlike the provision in Vance, which prohibited the showing of
any film for one year, Fantasy Ranch is not prohibited from
obtaining another SOB license (for another location) during the
pendency of any license suspension or revocation. This is because
Fantasy Ranch’s license revocation would have been related, not to
an advance determination that the content of its speech would be
prohibited, but to the adverse secondary effects generated by
Fantasy Ranch at its particular extant location.
To the extent that the license revocation provision does
burden Fantasy Ranch’s expressive liberties, we find that burden
justified. In Freedman v. Maryland, 85 S.Ct. 734 (1965), the
Supreme Court established three procedural safeguards to protect
against the suppression of constitutionally protected speech by a
censorship board. “First, any restraint before judicial review
occurs can be imposed only for a specified brief period during
which the status quo must be maintained; second, prompt judicial
review of that decision must be available; and third, the censor
must bear the burden of going to court to suppress the speech and
35
must bear the burden of proof in court.” N.W. Enterprises, 352
F.3d at 193–94 (citing Freedman, 85 S.Ct. at 739).
The Arlington Ordinance contains all three safeguards, first,
providing for a stay of suspension pending the appeals process, §§
4.07(B)(3), 4.09; second, providing a hearing before an
administrative law judge with an appeal to a Texas district court,
§§ 4.07(B)(5), 4.09; and third, placing the burden of proof on the
City, § 4.07(A). In fact, by this last provision, the City has
provided for more procedural protection than our case law requires.
Indeed, in N.W. Enterprises we held that the burden of proof need
not be placed upon the City in cases where the licensing involved
“the ministerial, nondiscretionary act of reviewing the general
qualifications of license applicants” and not the “presumptively
invalid direct censorship of expressive material.” 352 F.3d at 194
(citing FW/PBS, Inc. v. City of Dallas, 110 S.Ct. 596 (1990)
(plurality opinion); see also Encore Videos, Inc. v. City of San
Antonio, 310 F.3d 812, 823 (5th Cir.2002); TK's Video, Inc. v.
Denton County, Texas, 24 F.3d 705 at 707, 708 (5th Cir. 1994);
MacDonald v. City of Chicago, 243 F.3d 1021, 1035-36 (7th
Cir.2001). The presumption of censorship does not apply here
because the City of Arlington’s revocation procedures do not
require it to pass judgment on the content of an SOB’s speech;
rather, the procedures enumerate non-speech related criminal
violations on which a license revocation or suspension must be
36
predicated. Arlington, Tex., Ordinance 03-044, § 4.06.
Moreover, these enumerated violations are “‘plainly correlated
with the side effects that can attend [adult] businesses, the
regulation of which was the legislative objective . . . [E]nds and
means are substantially related[,] . . . assur[ing] a level of
scrutiny appropriate to the protected character of the activities
and sluic[ing] regulation away from content, training it on
business offal.’” N.W. Enterprises, 352 F.3d at 196 (quoting TK's
Video, 24 F.3d at 710). Accordingly, we hold that the Ordinance’s
license revocation provision does not impose an unconstitutional
prior restraint on speech.
III. Due Process
Fantasy Ranch appeals the district court’s dismissal as moot
of its due process claims against the City’s pre-amendment
ordinance. A court may conclude that voluntary cessation has
rendered a case moot if the party urging mootness demonstrates that
“there is no reasonable expectation . . . that the alleged
violation will recur,” and that “interim relief or events have
completely and irrevocably eradicated the effects of the alleged
violation.” County of Los Angeles v. Davis, 99 S.Ct. 1379, 1383
(1979).
The City’s amended ordinance addresses all the issues raised
by Fantasy Ranch’s pre-amendment complaint, leaving Fantasy Ranch
only with the claim that the Arlington City Council might one day
37
amend the ordinance to reenact the offending provisions. As the
Fourth Circuit has noted, however, “statutory changes that
discontinue a challenged practice are ‘usually enough to render a
case moot, even if the legislature possesses the power to reenact
the statute after the lawsuit is dismissed.’” Valero Terrestrial
Corp. v. Paige, 211 F.3d 112, 116 (4th Cir.2000) (quoting Native
Village of Noatak v. Blatchford, 38 F.3d 1505, 1510 (9th
Cir.1994)); see also National Black Police Ass'n v. District of
Columbia, 108 F.3d 346, 349 (D.C.Cir.1997) (“the mere power to
reenact a challenged law is not a sufficient basis on which a court
can conclude that a reasonable expectation of recurrence exists”).
We hold, therefore, that Fantasy Ranch’s challenge to the pre-
amendment ordinance is moot.
Fantasy Ranch also challenges the post-amendment ordinance,
specifically, its provision for revoking an SOB license after four
suspensions, because that revocation provision does not expressly
exclude from its four-suspension limit any suspensions that were
imposed under the pre-amendment ordinance. Indeed, Fantasy Ranch
notes that it already has one (and only one) such pre-amendment
suspension in its name. However, in open court, the City has
promised to neither enforce that three-day suspension imposed under
the pre-amendment scheme, nor apply it toward the four total that
are necessary to revoke an SOB license, and Fantasy Ranch’s counsel
agreed that this satisfied its concerns in that particular respect.
38
We accordingly also hold that this due-process challenge to the
post-amendment ordinance is likewise moot. To the extent that
Fantasy Ranch makes other due process challenges to the post-
amendment ordinance we reject them, essentially for the reasons
stated in part II above.12
The judgment of the district court is accordingly
AFFIRMED.
12
We also note that Fantasy Ranch has identified nothing in
the ordinance that deprives them of notice or a hearing, although
they allege, incorrectly, that the ordinance provides no notice
to the club when a dancer has been cited for a violation. In
fact, the ordinance provides that “[t]he City shall send to a
Sexually Oriented Business written notice of each citation issued
to an operator or employee of the business . . . . The notice
will be sent within three (3) business days of the issuance of
the citation . . . .” Arlington, Tex., Ordinance 03-044, § 7.02.
Moreover, contrary to Fantasy Ranch’s claim, the ordinance
provides an adequate tribunal, consisting of a hearing before an
administrative law judge and an appeal before a Texas district
court. Arlington, Tex., Ordinance 03-044, §§ 4.07, 4.09. See
also part B2b above (The Post-Amendment Licensing Provisions).
39