289 F.3d 358 (5th Cir. 2002), 00-11220, LLEH, Inc. v. Wichita County, Tex.

Docket Nº:00-11220
Citation:289 F.3d 358
Party Name:LLEH, Inc. v. Wichita County, Tex.
Case Date:April 22, 2002
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

Page 358

289 F.3d 358 (5th Cir. 2002)

LLEH, INC., Etc.; et al., Plaintiffs,

LLEH, Inc., doing business as Babe's; April Cooper; Anita Jackson; Sarah Blackstock, Plaintiffs-Appellees,

v.

WICHITA COUNTY, TEXAS, Defendant-Appellant.

No. 00-11220.

United States Court of Appeals, Fifth Circuit

April 22, 2002

Page 359

[Copyrighted Material Omitted]

Page 360

[Copyrighted Material Omitted]

Page 361

Gerald E. Hopkins (argued), Langtry, TX, for Plaintiffs-Appellees.

Page 362

Douglas L. Baker (argued), Wichita Falls, TX, for Defendant-Appellant.

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

Before DAVIS, WIENER, and BARKSDALE, Circuit Judges.

RHESA HAWKINS BARKSDALE, Circuit Judge:

Regarding the regulations by Wichita County, Texas, for sexually oriented businesses (SOBs), primarily at issue is whether, for the regulations' location restriction, studies of secondary effects for cities are relevant to such non-urban areas. Among other things, the regulations govern location, stage height, and layout, as well as mandate information disclosure and dancer-to-patron distance. Claiming the regulations pass First Amendment muster, the County appeals a bench trial judgment in favor of LLEH, Inc., and its employees. JUDGMENT ON THE MERITS AFFIRMED in PART and REVERSED in PART; JUDGMENT AWARDING ATTORNEY'S FEES and EXPENSES VACATED; REMANDED.

I.

In June 1999, William Essary, LLEH's sole owner, purchased from Pearl Carter property outside the city limits of Wichita Falls, in an unincorporated area of Wichita County, Texas. LLEH planned to open Babe's BYOB, a SOB, on the property. Learning of LLEH's plans after it had purchased the property and begun construction, the County decided to enact regulations governing the operation and location of SOBs in the County's unincorporated area. (The County attributes its late discovery to LLEH's failure to comply with Texas law, effective 1 September 1999, requiring certain intending SOB operators to post public notice of such intent.)

The County requested the District Attorney to investigate the requirements to formulate regulations. The District Attorney obtained, and considered, studies compiled by other jurisdictions detailing their reasons for, and experiences in, implementing SOB regulations. Those jurisdictions included: Cleburne and Houston, Texas; Garden Grove, California; Oklahoma City, Oklahoma; Newport News, Virginia; Bellevue, Washington; St. Croix County, Wisconsin; and Minnesota. (The County also considered a report prepared for the American Center for Law and Justice.)

Between October and December 1999, the County held public hearings on its intent to adopt the regulations. Among those participating were law enforcement officers, County citizens, a real estate appraiser, and LLEH (with counsel).

Babe's began doing business in early October 1999. On 6 December, the County enacted Order No. 99-12-579, entitled "The Regulations for Sexually Oriented Businesses in the Unincorporated Areas of Wichita County, Texas" (the Order), with a 10 December effective date. The Order requires a SOB to obtain a permit (SOBP) in order to conduct business in that part of the County covered by the Order. Additionally, in pertinent part, the Order provides:

SECTION IX--SOBP APPLICATION [location provision ]

....

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

....

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

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

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

....

SECTION X--EMPLOYEE IDENTIFICATION BADGE APPLICATION [disclosure provision ]

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

....

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

....

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

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

....

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

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

....

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

(Emphasis added.)

The Order also confers authority upon the District Attorney to seek to have enjoined violations of the Order.

SECTION VIII--INJUNCTION [injunction provision]

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

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

(Emphasis added.)

Babe's was in violation of the 1500 feet minimum distance from a dwelling (three

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houses). (Two of those houses are owned by Pearl Carter, who had sold the property to Essary.) Shortly after the Order's enactment, and because Babe's was already in operation, the Sheriff notified LLEH it would be given a 60-day grace period before the Order was enforced against it.

In February 2000, and apparently still within the grace period, LLEH filed an application under the Order's contingent SOBP provisions, designed to permit existing SOBs not in conformity with the Order's location provision to continue operating during an amortization period in order to recoup their investments. LLEH sought a contingent SOBP for an approximate eight-year period.

A series of checks by law enforcement officials during March and April 2000 revealed, however, that Babe's dancers were not complying with a number of the Order's provisions. The Sheriff obtained warrants for the arrest of dancers for, and management for allowing, violation of the buffer provision. On 30 March, the Sheriff's Office notified LLEH its SOBP application had been denied, citing numerous violations of the Order.

Earlier that March, LLEH filed this action, requesting injunctive and declaratory relief with respect to a number of the Order's provisions. During a 10 April conference with the district court, the County agreed not to enforce the Order until a 25 April hearing on LLEH's preliminary injunction request. At that hearing, enforcement of the buffer provision was preliminarily enjoined.

That May, the County heard the appeal of LLEH's SOBP denial. Later that month, the County agreed to both waive the location provision and reduce the buffer provision from six to three feet until November 2002--the point, according to the County, by which LLEH could recoup its initial investment. (As noted, LLEH maintained it needed a much longer period in which to do so.)

A bench trial was held in July, with judgment entered that September (2000). Relevant to this appeal, the district court: (1) held that the location, buffer, stage-height, demarcation, unobstructed-view, and disclosure provisions violated the First Amendment, failing the tests established in City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 106 S.Ct. 925, 89 L.Ed.2d 29 (1986), and/or United States v. O'Brien, 391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968); (2) amended the buffer provision from six to three feet; and (3) held the injunction provision unconstitutionally overbroad. LLEH, Inc. v. Wichita County, Texas, 121 F.Supp.2d 513 (N.D.Tex.2000) (LLEH).

Post-judgment, LLEH sought attorney's fees and expenses (fees). Approximately $43,000 was awarded.

II.

The County challenges most of the rulings against the Order, as well as the fees award.

A.

Following a bench trial, findings of fact are reviewed for clear error; legal issues, de novo. E.g., Joslyn Mfg. Co. v. Koppers Co., Inc., 40 F.3d 750, 753 (5th Cir. 1994). "[W]e may affirm for reasons other than those relied upon by the district court". Id. (citing Ballard v. United States, 17 F.3d 116, 118 (5th Cir. 1994)).

"Whether ... free speech rights have been infringed is a mixed question of law and fact." Int'l Soc'y for Krishna Consciousness of New Orleans, Inc. v. Baton Rouge, 876 F.2d 494, 496 (5th Cir. 1989) (citing Dunagin v. City of Oxford,

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718 F.2d 738, 748 n. 8 (5th Cir. 1983), cert. denied, 467 U.S. 1259, 104 S.Ct. 3553 (1984)). Accordingly, our "review is de novo ". Id. (quoting Dunagin, 718 F.2d at 748 n. 8).

"While it is now beyond question that nonobscene nude dancing is protected by the First Amendment, even if 'only marginally so,' it is also clear that the government can regulate such activity." J&B Entm't, Inc. v. City of Jackson, 152 F.3d 362, 369 (5th Cir. 1998)...

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