El Paso’s SOB Ordinance Affirmed

rsh web iconBryan S. Foster d/b/a Jaguars Gold Club v. City of El Paso, No. 08-10-00157-CV, Court of Appeals for Eighth District (February 20, 2013.)

Plaintiff Foster appeals the trial court’s granting of the City of El Paso’s motion for summary judgment related to the constitutional challenge to the City’s sexually-oriented business ordinance. Essentially, the Court of Appeals affirmed the dismissal noting the City considered proper legislative evidence and properly enacted its SOB ordinance.

In November 2006, an adult cabaret owner was convicted of engaging in organized criminal activity, which involved a prostitution ring operated out of her adult cabaret. The City investigated the licensing standards and negative secondary effects in order to update the ordinance. The City looked at 25 federal judicial opinions that discussed the negative secondary effects associated with SOBs. The City also considered 21 municipal land-use studies, crime reports, and affidavits that described the secondary effects occurring in and around such establishments. At a public meeting on April 23, 2007, the City considered a presentation detailing the negative secondary effects associated with SOBs, and heard numerous public comments.

On May 8, 2007, the City adopted a new sexually-oriented business ordinance which  required, in part, 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 for those working in such establishments.  The Plaintiff sued asserting the ordinance went too far and infringed on his constitutional rights.

The Court, in a 25 page opinion, held the City had proper governmental interests to target the negative secondary effects of SOBs. The Court held a city’s own findings and its reasonable belief that the experience of other jurisdictions is relevant to addressing the problem and may provide a sufficient evidentiary basis for an ordinance. The Court went through a detailed accounting of all the things the City did to examine the effects including all the studies reviewed, all the federal and state cases reviewed, local evidence, and even expert opinions. Despite a battle of the experts at the trial court level, the court found the City “relied on legislative evidence reasonably believed to be relevant for demonstrating a connection between speech and a substantial, independent government interest upon which [the Plaintiff] has failed to cast direct doubt, and that the City’s evidence fairly supports its rationale.” Foster v El Paso, No. 08-10-00157-CV , *11. The Court also determined that the ordinance does not prohibit expressive conduct but merely includes regulations requiring the licensing of SOBs.

The Plaintiff complained that the evidentiary bases relied upon by the City is flawed. He actually complained that “it is doubtful that any City legislator even looked at the over 1,600 pages” that comprise the record, that the record is deficient because it contains some studies that another jurisdiction deemed unreasonable to rely upon and were not relevant to local conditions, that the  City failed to consider evidence which would have satisfied the rules of evidence for admission, and that the record fails to show that the legislation has a remedial effect. He proceeded to argue that the trial court should have required the City to prove “the validity of the legislative predicate” at trial under “appropriate evidentiary conditions.”

The Court noted that the Plaintiff failed to pinpoint what evidence or elements are deficient and noted that the City can rely upon ANY evidence that is reasonably believed to be relevant to its goal of preventing the negative secondary effects of SOBs and is not required to pre-prove the efficacy of legislation designed to fulfill that purpose. The Court further found the Plaintiff’s challenge to the City’s expert is irrelevant because the City was justified in relying upon all the other evidence to support its ordinance.  In essence, the City was justified and properly enacted an ordinance targeted at the secondary negative effects of SOBs.  The Court affirmed the trial court’s dismissal of the Plaintiff’s claims.

If you wish to read the opinion, please click here.