Fantasy Ranch v. City of Arlington TX, et a

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

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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

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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.

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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

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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)).

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 “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