Texas Court of Appeals upholds El Paso SOB ordinanceE.B.S. Enterprises v. City of El Paso, No. 8-10-00088-CV (Tx. Ct. App. Aug. 10, 2011) Excerpts: After an adult cabaret owner, in November 2006, was convicted of engaging in organized criminal activity, which involved a prostitution ring operated out of her adult cabaret, the City, in the early part of the following year, began investigating the conduct, licensing standards, and the negative secondary effects of adult establishments in an effort to update its sexually-oriented business ordinance. Specifically, the City looked at 25 federal judicial opinions issued by various courts, including the United States Supreme Court and the Fifth Circuit Court of Appeals, that discussed the negative secondary effects associated with sexually-oriented businesses. In addition, the City considered 21 municipal land-use studies, crime reports, and affidavits that described the secondary effects occurring in and around such establishments. And at a public meeting on April 23, 2007, the City heard a power point presentation, detailing the negative secondary effects associated with sexually-oriented businesses, as well as numerous public comments on their negative impacts . . . That new ordinance sought to require, among other things, that sexually oriented businesses have open, instead of closed, booths for customers viewing sexually-oriented videos, unobstructed employee views of the entire premises to which a patron is provided access for any purpose, overhead lighting fixtures sufficient to illuminate every place to which patrons are permitted, and employee licensing to work in such establishments. On June 20, 2007, two adult cabarets, Tequila Sunrise and Jaguar Gold Club, filed suit, contending that the ordinance violates numerous constitutional provisions and state law, and later filed an amended petition for injunctive relief. In August, the trial court held an extensive hearing on the plaintiffs’ motion for a temporary restraining order, and following that hearing, the court denied the temporary restraining order . . . on March 10, 2010, the trial court signed an order granting summary judgment in favor of the City. Appellants assert three arguments in contending that the trial court erred in granting the City’s motion for summary judgment. The first contests the relevancy of the City’s secondary effects evidence to enacting four provisions of the ordinance that apply to Appellants. The second complains that there was a genuine issue of material fact. And the third asserts that the ordinance is preempted by a State statute. We find no merit in any of the issues raised . . . In short, we find that the City relied on relevant studies, its on-going experience, and public comment when adopting the new sexually-oriented business ordinance . . . That evidence fully supported the City’s rationale for regulating sexually-oriented businesses and was thus legally sufficient to support the City’s adoption of its ordinance. Accordingly, we find that there was no genuine issue of material fact as to whether the City met its evidentiary burden to demonstrate that the ordinance was necessary to combat secondary effects of Appellants’ adult entertainment establishments.
|