Foster v. City of El Paso

• Decision Date: 20 February 2013
• Docket Number: No. 08–10–00157–CV.,08–10–00157–CV.
• Citation: 396 S.W.3d 244
• Parties: Bryan S. FOSTER d/b/a Jaguar's Gold Club, Appellant, v. CITY OF EL PASO, Appellee.
• Court: Texas Court of Appeals

396 S.W.3d 244

Bryan S. FOSTER d/b/a Jaguar's Gold Club, Appellant,

v.CITY OF EL PASO, Appellee.

No. 08–10–00157–CV.

Court of Appeals of Texas,

El Paso.

Feb. 20, 2013.

Luke Lirot, Law Office of Luke Lirot, Clearwater, FL, Paul F. Grajeda, Attorney at Law, El Paso, TX, for Appellant.

Kenneth A. Krohn, Assistant City Attorney, El Paso, TX, Scott D. Bergthold, Law Office of Scott D. Bergthold, P.L.L.C., Chattanooga, TN, for Appellee.

Before McCLURE, C.J., RIVERA, and ANTCLIFF, JJ.

OPINION

GUADALUPE RIVERA, Justice.

Appellant, Bryan S. Foster doing business as Jaguar's Gold Club (Foster),¹ appeals the trial court's summary judgment in favor of the City of El Paso, Appellee, stemming from Foster's challenge to the constitutionality of the City's sexually-oriented business ordinance. Foster also appealsthe trial court's denial of his motion to strike the City's expert testimony.

BACKGROUND

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.² Thereafter, in the early part of 2007, the City began investigating the conduct, licensing standards, and the negative secondary effects of adult establishments in an effort to update its sexually-oriented business ordinance. 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. 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 sexually-oriented businesses, and heard numerous public comments regarding the negative impacts of those establishments.

On May 8, 2007, the City adopted a new sexually-oriented business ordinance (“the ordinance”).³ The ordinance identified judicial opinions and municipal studies upon which the City relied in adopting the ordinance, and included a statement that the City found that sexually-oriented businesses are associated with “a wide variety of adverse secondary effects,” which include “personal and property crimes, prostitution, potential spread of disease, lewdness, public indecency, obscenity, illicit drug use and drug trafficking, negative impacts on surrounding properties, urban blight, litter, and sexual assault and exploitation.” The ordinance declared that each of the foregoing negative secondary effects constitutes a harm against which the City has a substantial government interest in preventing or abating. To address these concerns, the new ordinance requires, 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.

On June 20, 2007, Foster filed original and supplemental petitions seeking declaratory and injunctive relief, attorney's fees, and a jury trial of his claims that the ordinance violates numerous constitutional provisions and state law. In twelve “counts,” Foster asserts that the City's sexually-oriented business ordinance violates the Texas Constitution ⁴ and is unconstitutional,both facially and as applied, because it allegedly: (1) abridges and restrains his rights to free expression; (2) constitutes a prior restraint on such expression; (3) has an impermissible chilling effect upon constitutionally-protected speech and expression; (4) denies equal protection of the law; (5) is “arbitrary and capricious as applied to [Foster's] businesses;” (6) is an unlawful exercise of the state's police power because “there is no substantial relationship to the protection of the public health and welfare or any legitimate governmental objective, resulting in the fact that there has been no proper predicate for the basis of the challenged legislation;” (7) is vague and indefinite and fails to set out distinct criteria; (8) lacks adequate procedural safeguards; (9) manifests an improper purpose in that the ordinance is not content-neutral and not unrelated to the suppression of free speech; (10) contains restrictions that are overbroad and far greater than are essential to the furtherance of the alleged government interest; (11) grants unbridled discretion to administrative officials in the enforcement of its provisions; and (12) was adopted without competent, substantial evidence and the evidence upon which the City relied in adopting the ordinance was not reasonably related to the perceived ills which the City purported to address nor to any legitimate government objective.

Foster further complained that the ordinance lacks “any methodologically sound or proper legislative basis or predicate, imposes an unreasonable and unnecessary limitation on expression and constitutionally protected activities,” fails to provide adequate alternative avenues of communication or to advance any legitimate governmental interest, and is “unconstitutionally vague and overbroad” in violation of the Texas Constitution. Foster brought the action to address the constitutional validity of the ordinance's provisions, asserted that the ordinance violates Sections 8, 19, and 29 of Article 1 of the Texas Constitution and his rights thereunder, sought injunctive relief from the enforcement of the ordinance's provisions, and sought a declaratory judgment finding the ordinance to be unconstitutional because its provisions denies Foster's rights to free speech and expression, due process, equal protection, and adequate procedural safeguards as guaranteed by the Texas Constitution.

In August 2007, the trial court held an extensive hearing on Foster's motion for a temporary restraining order. With one narrow exception that we need not address in resolving the matters before us, the trial court denied the temporary restraining order based on “decisions by Texas courts, the United States Supreme Court, and the United States Court of Appeals for the Fifth Circuit [that] have repeatedly rejected constitutional challenges to ordinances like the one at issue here....”

Following discovery, the City moved for summary judgment on grounds that the ordinance was a constitutional regulation of the time, place, and manner in which sexually-oriented businesses must operate in the city. ⁵ In support of its motion, the City explained that the United States Supreme Court, the United States Court of Appeals for the Fifth Circuit, and Texas appellate courts have rejected constitutional challenges like those in Foster's petition.

Foster filed a lengthy response to the City's motion for summary judgment, objected to the City's evidence, and attached expert evidence in support thereof.⁶ On March 10, 2010, the trial court granted summary judgment in favor of the City.

DISCUSSION

In Issues One, Two, Three, Four, Six, and Seven, Foster contends that the trial court erred in granting the City's motion for summary judgment. In Issue Five, Foster asserts that the trial court erred in denying his motion to strike the City's expert witness.

Standard of Review

We review a trial court's decision to grant a motion for summary judgment de novo. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex.2005); E.B.S. Enterprises, Inc. v. City of El Paso, 347 S.W.3d 404, 407 (Tex.App.-El Paso 2011, pet. denied). Summary judgment is appropriate when there is no genuine issue as to any material fact and judgment should be granted in favor of the movant as a matter of law. Tex. R. Civ. P. 166a(c); E.B.S. Enterprises, Inc., 347 S.W.3d at 407;Melendez v. Padilla, 304 S.W.3d 850, 852 (Tex.App.-El Paso 2010, no pet.). In determining whether there are disputed issues of material fact, we take as true all evidence favorable to the nonmovant and indulge every reasonable inference in the nonmovant's favor. Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548–49 (Tex.1985); E.B.S. Enterprises, Inc., 347 S.W.3d at 407. “A defendant who conclusively negates at least one of the essential elements of a cause of action or conclusively establishes an affirmative defense is entitled to summary judgment.” Frost Nat. Bank. v. Fernandez, 315 S.W.3d 494, 508 (Tex.2010).

On appeal, we determine whether the defendant, in seeking summary judgment, fulfilled his initial burden (1) to establish as a matter of law that there remained no genuine issue of material fact as to one or more essential elements of the plaintiff's cause of action or (2) to establish his affirmative defense to the plaintiff's cause of action as a matter of law. Cathey v. Booth, 900 S.W.2d 339, 341 (Tex.1995); Casso v. Brand, 776 S.W.2d 551, 556 (Tex.1989); Nixon, 690 S.W.2d at 548–49;Miller v. LandAmerica Lawyers Title of El Paso, 362 S.W.3d 842, 845 (Tex.App.-El Paso 2012, no pet.).

Constitutionality of the Ordinance

When reviewing the validity of a city ordinance, we presume the ordinance is valid. City of Brookside Village v. Comeau, 633 S.W.2d 790, 792 (Tex.1982); Ex parte Woodall, 154 S.W.3d 698, 701 (Tex.App.-El Paso 2004, pet. ref'd). A party attacking an ordinance bears an extraordinary burden to show “that no conclusive or even controversial or issuable fact or condition existed” which would authorize the municipality's passage of the ordinance. Comeau, 633 S.W.2d at 792–93. If reasonable minds may differ regarding whether a particular ordinance has a substantial relationship to the public health, safety, morals, or general welfare, no clear abuse of discretion is shown and the ordinance must stand as a valid exercise of the City's police power. See Quick v....