Encore Videos Inc v. City of San Antonio

REVISED NOVEMBER 13, 2002
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________
m 00-51119
_______________
ENCORE VIDEOS, INC.,
Plaintiff-Appellant,
VERSUS
CITY OF SAN ANTONIO,
Defendant-Appellee.
_________________________
Appeal from the United States District Court
for the Western District of Texas
_________________________
October 29, 2002
Before SMITH and EMILIO M. GARZA,
Circuit Judges, and CUMMINGS,*
District Judge.
JERRY E. SMITH, Circuit Judge:
I.
Appellant Encore Videos, Inc. (“Encore
Videos”), operates a sexually oriented retail
video store in San Antonio, Texas. In April
* District Judge of the Northern District of
Texas, sitting by designation.

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2
1995, the city council enacted Ordinance
#82135, which forbids sexually oriented bus-
inesses from locating within 1000 feet of resi-
dential areas. Encore Videos’ store is within
1000 feet of a residential area, although sepa-
rated by the Loop 410 highway. Encore
Videos provides only sales for off-premises
viewing; customers cannot view the videos at
the store.
In September 1997, Encore Videos sued,
challenging the ordinance on First Amendment
grounds. In response, the city amended and
reenacted the ordinance to impose procedural
safeguards required by FW/PBS, Inc. v. City of
Dallas, 493 U.S. 215 (1990). The new law,
Ordinance #87443, took effect in March 1998.
Encore Videos filed an amended complaint
challenging the new ordinance on federal and
Texas state constitutional grounds.
The district court granted the city’s motion
for summary judgment and denied Encore
Videos’. Encore Video [sic], Inc. v. City of
San Antonio, No. Civ. A. SA-97-CA1139FB,
2000 WL 33348240 (W.D. Tex. Oct. 2,
2000). Encore Videos appeals, arguing that
the ordinance offends by the First Amendment
and the state Constitution. We reverse and
remand.
II.
A.
Before addressing the merits of the First
Amendment claim, we must determine whether
the ordinance should be analyzed as a prior
restraintSSas advocated by Encore VideosSSor
as a time, place, and manner regulation. As a
general rule, “a law subjecting the exercise of
First Amendment freedoms to the prior
restraint of a license, without narrow,
objective, and definite standards to guide the
licensing authority,” is a presumptively
unconstitutional “prior restraint.”
Shuttlesworth v. City of Birmingham, 394
U.S. 147, 150-51 (1969). Zoning regulations
restricting the location of adult entertainment
businesses are considered time, place, and
manner regulations, however, if they do not
ban them throughout the whole of a
jurisdiction and are “designed to combat the
undesirable secondary effects of such business-
es” rather than to restrict the content of their
speech per se.1 Relevant harmful secondary
effects of adult businesses include crime,
reduction of economic activity, and lowered
property values. Lakeland Lounge, 973 F.2d
at 1257.
There is no evidence of improper censorial
motives on the part of the city council. Where
“nothing in the record . . . suggests imper-
missible motives on the part” of the enacting
legislature, a local government seeking to use
the secondary effects justification need show
only that “(1) the drafters of the ordinance did
rely upon studies of secondary effects,” and
(2) a “majority” of the city council members
received “some information about the
secondary effects.” Lakeland Lounge, 973
F.2d at 1259.
In an opinion rejecting a First Amendment
challenge to Ordinance #82135, the
predecessor to Ordinance #87443, we held
that the city “relied on studies provided by the
City Council relating to secondary effects.”
NATCO, Inc. v. City of San Antonio, No. 98-
50645, slip op. at 6 (5th Cir. June 2, 1999)
(unpublished). In this circuit, unpublished
opinions issued on or after January 1, 1996,
1 City of Renton v. Playtime Theatres, Inc., 475
U.S. 41, 49 (1986); see also Lakeland Lounge,
Inc. v. City of Jackson, 973 F.2d 1255, 1257-58
(5th Cir. 1992) (same).

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3
generally are not binding precedent, although
parties may cite them, and they have
“persuasive value.” 5TH CIR. R. 47.5.4.
NATCO’s factual findings on the exact point at
issue surely carry “persuasive” weight. Id.
They also have been endorsed by the district
court a quo. In any event, there is no reason
to go against the factual findings of NATCO
on this point, and we follow them here.
Even a content-neutral regulation may be
considered a prior restraint if it gives
government officials “unbridled discretion” to
restrict protected speech.2 But Ordinance
#87443 does not fall into this category,
because the Director of Building Inspections
may deny a sexually oriented business’s permit
application only if the applicant seeks to utilize
a location within 1000 feet of a residential
neighborhood, another sexually oriented
business, or several other precisely specified
types of properties. San Antonio Ordinance
#87443 § 2(a)-(f).
B.
1.
To pass constitutional muster, a time, place
and manner regulation must be “content-neu-
tral, . . . narrowly tailored to serve a significant
government interest, and leave open ample
alternative channels of communication.”
Frisby v. Schultz, 487 U.S. 474, 481 (1988)
(internal citations omitted). In City of Renton,
475 U.S. at 47, the Court created some
confusion as to the appropriate test by stating
that “time, place, and manner regulations are
acceptable so long as they are designed to
serve a substantial governmental interest and
do not unreasonably limit alternative avenues
of communication.” This phrasing seems to
eliminate the requirement of narrow tailoring.
Nonetheless, later Supreme Court decisions
on time, place, and manner regulations have
continued to apply the narrow tailoring
standard.3 A leading post-City of Renton
secondary effects decision of this court also
applied it. See SDJ, Inc. v. City of Houston,
837 F.2d 1268, 1273 (5th Cir. 1988).4 We
therefore conclude that the requirement of
narrow-tailoring remains in force.
Encore Videos argues that the San Antonio
ordinance fails to meet the first three of the
four requirements of the time, place, and man-
ner test. We address each in turn.
2 See, e.g., Lakewood v. Plain Dealer Pub. Co.,
486 U.S. 750, 757 (1992) (invalidating regulation
that “plac[es] unbridled discretion in the hands of
a government official or agency”); Southeastern
Promotions, Ltd. v. Conrad, 420 U.S. 546, 553
(1975) (same).
3 See, e.g., Ward v. Rock Against Racism, 491
U.S. 781, 796 (1989); Frisby, 487 U.S. at 481; Cf.
Int’l Eateries of Am., Inc. v. Broward County,
Fla., 941 F.2d 1157, 1162 (11th Cir. 1991)
(advancing several reasons why narrow tailoring
requirement survives City of Renton).
4 The more recent Lakeland Lounge decision,
which also dealt with First Amendment challenges
to a “secondary effects” ordinance, did not mention
the narrow-tailoring requirement, but neither did it
explicitly repudiate it. See Lakeland Lounge, 973
F.2d at 1257 (holding that zoning ordinance
restricting the location of adult businesses must be
content-neutral, “‘designed to serve a substantial
governmental interest’ and may ‘not unreasonably
limit alternative avenues of communication’”)
(quoting City of Renton, 475 U.S. at 47). Because
Lakeland Lounge did not state that the standards it
imposed were the only ones required, it is not
directly inconsistent with SDJ or with post-City of
Renton Supreme Court opinions applying the time,
place, and manner test.

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2.
The first requirement is content neutrality.
“‘The principal inquiry in determining content
neutrality, in speech cases generally and in
time, place, and manner cases in particular, is
whether the government has adopted a
regulation of speech because of disagreement
with the message it conveys.’” Hill v.
Colorado, 530 U.S. 703, 719 (2000) (quoting
Ward, 491 U.S. at 791). Although Encore
Videos claims that Ordinance #87443 is
“content-based,” it provides no evidence to
support that assertion.
The inquiry here is similar to that applied to
the question of secondary effects motivation,
described in part II.A, infra. It is not certain,
however, whether the two tests require the
same degree of proof of improper motive
before a regulation fails them. Even so, an or-
dinance for which the record discloses zero
proof of improper motive surely passes both
tests.
3.
We next consider the requirement that the
ordinance serve a substantial government in-
terest. “A city’s ‘interest in attempting to pre-
serve the quality of urban life is one that must
be accorded high respect.’” City of Renton,
475 U.S. at 50 (quoting Young v. Am. Mini-
Theatres, 427 U.S. 50, 71 (1976) (plurality
opinion)). “Local governments . . . can restrict
adult businesses in order to control the bad
‘secondary effects’SSsuch as crime,
deterioration of their retail trade, and a
decrease in property valuesSSthat the
establishments bring.” Lakeland Lounge, 973
F.2d at 1257. There is, therefore, no doubt
that the secondary effects that the San Antonio
ordinance seeks to remedy are important
enough to be considered a substantial
government interest under the time, place, and
manner test.
We have interpreted the substantial
government interest standard as requiring not
only a showing of the importance of the
interest, but also a demonstration that the
challenged statute, at least to some degree, is
effective in serving that interest.5 This
approach arguably conflicts with City of Ren-
ton, which mandates only that a statute be
“designed to serve a substantial government
interest” and does not require evidence of
effectiveness. City of Renton, 475 U.S. at 47
(emphasis added). City of Renton does require
proof of the existence of the secondary effects
that the challenged ordinance seeks to
eliminate but does not consider the question of
proof of effectiveness in combating them. Id.
at 50-52. This court’s caselaw also may be in
tension with other Supreme Court time, place,
and manner cases that require evidence of
effectiveness and necessity only as a part of the
narrow-tailoring prong of the time, place, and
manner test. See, e.g., Frisby, 487 U.S. at
484-87. Nonetheless, J&B Entertainment is
binding on us unless overruled en banc.
Fortunately, this question has little practical
5 See J&B Entertainment, Inc. v. City of
Jackson, 152 F.3d 362, 371 (5th Cir. 1998)
(holding that “Renton teaches us that [to pass the
substantial interest test] the government must
produce some evidence of adverse secondary
effects” that the ordinance works to eliminate); see
also Flanigan’s Enter., Inc. v. Fulton County,
Ga., 242 F.3d 976, 985 (11th Cir. 2001) (holding
that “to meet their burden” under the substantial
interest prong, “the Defendants must have some
factual basis for the claim” that adult entertainment
activities restricted by the challenged statute “result
. . . in undesirable community conditions”) (internal
citations omitted), cert. denied, 122 S. Ct. 2356
(2002).

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significance for the present case. Evidence of
effectiveness too weak to survive scrutiny
under J&B Entertainment’s version of the sub-
stantial interest standardSSwhich requires only
that the “government must present sufficient
evidence to demonstrate ‘a link between the
regulation and the asserted governmental
interest’ under a ‘reasonable belief’ stan-
dard”SSsurely will also fail to meet the
requirements of the much more stringent
narrow tailoring prong. See J&B
Entertainment, 152 F.3d at 372.6 We
therefore choose not to address any apparent
inconsistency in the caselaw and, instead, will
consider the relevance of the ordinance’s
effectiveness under the narrow tailoring
prong.7
4.
The ordinance’s constitutionality under the
time, place, and manner test therefore turns on
the narrow tailoring prong. It fails to meet this
test and therefore is unconstitutional.
a.
i.
The recent decision in City of Los Angeles
v. Alameda Books, Inc., 535 U.S. 425, 122 S.
Ct. 1728 (2002) sheds important new light on
the application of the narrow tailoring prong
to secondary effects cases. We begin our anal-
ysis with that decision, issued after the district
court had entered judgment in the instant case.
Alameda Books is difficult to apply,
because no single opinion garnered the votes
of a majority of Justices. The Court split 4-1-
4, with Justice Kennedy writing a concurring
opinion. The Court upheld, against a summary
judgment motion, an ordinance that prohibited
“‘the establishment of more than one adult
entertainment business in the same building,
structure or portion thereof.’” Id. at 1731
(quoting Los Angeles Municipal Code § 12.70
(1983)). The city had adopted the ordinance
to combat the alleged harmful secondary
effects of adult businesses.
Justice O’Connor’s plurality opinion, joined
by three other Justices, concluded that the
ordinance should survive summary judgment
despite an absence of evidence specifically
demonstrating that forbidding multiple adult
businesses to operate under one roof reduces
secondary effects. The plurality reasoned that
the city should not be required “to
demonstrate, not merely by appeal to common
sense, but also with empirical data, that its or-
dinance will successfully lower crime.”
Alameda Books, 535 U.S. at ___, 122 S. Ct. at
1736. Instead, “a municipality considering an
innovative solution” to secondary effects prob-
lems need not have specific data “that could
demonstrate the efficacy of its proposal
because the solution would, by definition, not
have been implemented previously.” 122 S.
Ct. at 1736.
Justice Kennedy’s concurring opinion
adopts a very different view. He holds that, to
survive summary judgment, “a city must ad-
vance some basis to show that its regulation
has the purpose and effect of suppressing sec-
ondary effects, while leaving the quantity and
accessibility of speech substantially intact.”
Id. at 1742 (Kennedy, J., concurring)
(emphasis added). Justice Kennedy took
special care to emphasize that, although “[i]t is
6 The J&B Entertainment court, 152 F.3d at
372, claimed that the requirement of “a link be-
tween the regulation and the asserted governmental
interest” is a direct quotation from City of Renton.
It is not.
7 See infra part II.B.4.

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6
no trick to reduce secondary effects by
reducing speech or its audience . . . a city may
not attack secondary effects indirectly by
attacking speech.” Id. Nonetheless, he
concluded that the ordinance could survive
summary judgment because the city plausibly
could claim that its “ordinance will cause two
businesses to split rather than one to close,
that the quantity of speech will be
substantially undiminished, and that total
secondary effects will be significantly
reduced.” Id. (emphasis added).8
Finally, the dissenting opinion of Justice
Souter, joined by two other Justices in full and
by Justice Breyer with respect to part II,
asserted that the Court should have affirmed
the Ninth Circuit’s decision striking down the
ordinance. Id. at 1747 (Souter, J., dissenting).
In a portion of his dissent joined by Justice
Breyer and the other dissenters, Justice Souter
contended that the ordinance should be
overturned because there was no evidence to
support the city’s claim that requiring adult
businesses operating under the same roof to
separate actually reduces secondary effects.
Id. at 1748-49 (Souter, J., dissenting).
In Alameda Books, the city had relied on a
1977 study concluding that concentrations of
adult businesses generally increase secondary
effects such as crime. Id. Justice Souter,
however, concluded that this study was
insufficient, because it did not provide “any
evidence to support even the simple
proposition that an otherwise lawfully located
adult bookstore combined with video booths
will produce any criminal effects” or
demonstrate that such effects could be reduced
by dispersing the two establishments. Id. at
1748-49.
Justice Souter rejected Justice Kennedy’s
claim that the city’s weak evidence could sur-
vive summary judgment because the burden
the ordinance imposes on speech might turn
out to be minimal. Id. at 1749 n.8. Such an
approach, he concluded, “turns intermediate
scrutiny on its head,” because it focuses on the
degree to which the challenged ordinance bur-
dens speech rather than on the “asserted
governmental interest.” Id. Justice Souter still
would require that the burden on speech be
“no greater than necessary to further that
interest” and would require stronger proof of
the ordinance’s efficacy in reducing secondary
effects than would be required by either Justice
Kennedy or the plurality. Id.
ii.
“When a fragmented Court decides a case
and no single rationale explaining the result en-
joys the assent of five justices, the holding of
the Court may be viewed as that position taken
by those Members who concurred in the
judgments on the narrowest grounds.” Marks
v. United States, 430 U.S. 188, 193 (1977)
(quotations omitted). Where, however, there
is an area of common agreement between “[a]t
least five justices,” that conclusion is valid as
law even if some of the Justices endorsing the
proposition in question were in dissent. Snead
v. Redland Aggregates Ltd., 998 F.2d 1325,
1333 n.10 (5th Cir. 1993).9
8 See also Alameda Books, 122 S. Ct. at 1743
(concluding that ordinance survived summary judg-
ment only because “[d]ispersing two adult bus-
inesses under one roof is reasonably likely to cause
a substantial reduction in secondary effects while
reducing speech very little”).
9 Snead was based on an interpretation of Dun
& Bradstreet, Inc. v. Greenmoss Builders, Inc.,
472 U.S. 749 (1985), a 3-2-4 decision similar to
(continued...)

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7
In Alameda Books, there is an area of
agreement between Justice Kennedy and the
four dissenters that is sufficient to determine
the outcome of the present case. Justice Sou-
ter, joined by three other Justices with respect
to this part of his dissent, concluded that the
burden on speech imposed by a secondary ef-
fects ordinance must be proven to be “no
greater than necessary to further th[e city’s]
interest” in combating secondary effects. Ala-
meda Books, 122 S. Ct. at 1749 n.8 (Souter,
J., dissenting). In his separate opinion, Justice
Kennedy goes even further: He would require
the city to provide evidence showing that “the
quantity of speech will be substantially
undiminished, and that total secondary effects
will be significantly reduced” by the challenged
ordinance. Id. at 1742 (Kennedy, J.,
concurring). Justice Kennedy and the
dissenters therefore agree that the city at least
must provide evidence that the burden on
speech imposed by an ordinance is “no greater
than necessary to further th[e city’s] interest”
in combating secondary effects. Alameda
Books, 122 S. Ct. at 1749 n.8 (Souter, J.,
dissenting).10
b.
The standard derived from Alameda Books
is supported by earlier Supreme Court time,
place, and manner decisions. A time, place,
and manner regulation meets the narrow tai-
loring standard if it “targets and eliminates no
more than the exact source of the evil it seeks
to remedy.” Frisby, 487 U.S. at 485.
Although government need not choose the
“least intrusive means” to advance its
legitimate interests, it “may not regulate
expression in such a manner that a substantial
portion of the burden on speech does not serve
to advance its goals.” Ward, 491 U.S. at 799.
This court has taken a more permissive ap-
proach than has the Supreme Court with re-
spect to the specific instance of statutes
regulating adult businesses for the purpose of
combating secondary effects: “[A]n ordinance
is sufficiently well tailored if it effectively
promotes the government’s stated interest.”
SDJ, 837 F.2d at 1276. The SDJ court further
opined that “narrow tailoring is less important
when the potential for overbreath burdens a
category of speech subject to less than full
First Amendment protection; sexually-oriented
expression falls into such a category.” Id.
SDJ, however, predates Frisby and Ward,
which, without mentioning any exceptions for
statutes regulating sexually-oriented
expression, reassert a restrictive narrow-
9(...continued)
the 4-1-4 split in Alameda Books. Snead based its
holding on a point of agreement between Justice
White, one of the two Justices who wrote separate
concurring opinions, and the four dissenters.
Snead, 998 F.2d at 1325 n.10.
10 The existence of this area of agreement be-
tween five Justices differentiates the present case
from Hopwood v. Texas, 78 F.3d 932 (5th Cir.
1996). There, we refused to follow Justice Pow-
ell’s single-Justice concurring opinion in Regents
of Univ. of Cal. v. Bakke, 438 U.S. 265 (1978),
because his “argument in Bakke garnered only his
own vote and has never represented the view of a
majority of the Court in Bakke or any other case.”
(continued...)
10(...continued)
Hopwood, 78 F.3d at 944. Justice Powell’s view
that diversity represents a compelling state interest
justifying racial preferences under the strict
scrutiny test represented the view of “only one
Justice.” Id. By contrast, in Alameda Books there
is an important area of agreement shared by five
Justices.

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8
tailoring test for all time, place, and manner
regulations . Ward, 491 U.S. at 799; Frisby,
487 U.S. at 485. Alameda Books likewise
gives no indication that the narrow-tailoring
standard is any less stringent in secondary
effects cases than in other time, place, and
manner cases.
Indeed, Justice Kennedy’s and Justice Sou-
ter’s approaches in Alameda Books may be
even more restrictive than that adopted in ear-
lier time, place, and manner decisions. Justice
Souter and the three other dissenting Justices
concluded that the burden on speech must be
“no greater than necessary to further th[e
city’s] interest” in combating secondary
effects. Alameda Books, 122 S. Ct. at 1749
n.8 (Souter, J., dissenting) (emphasis added).
This potentially is a more stringent
requirement than that of earlier time, place,
and manner cases, which give localities some
leeway in regulating more speech than strictly
necessary to achieve their legitimate interests,
so long as the excess falls short of being “a
substantial portion of the burden on speech”
imposed by the challenged ordinance. Ward,
491 U.S. at 799. As discussed above, Justice
Kennedy’s view is even more restrictive than
Justice Souter’s.11 Because Ordinance #87443
fails to meet the standards of the earlier Fris-
by-Ward test, we need not decide the difficult
issue of whether Alameda Books made that
standard more stringent.
Although usually only an en banc court can
overrule earlier panel decisions, a panel may
“disregard the precedent set by a prior panel”
if there is an “intervening Supreme Court
decision which changes the law.” Ruiz v. Es-
telle, 666 F.2d 854, 857 n.5 (5th Cir. 1982).12
This is precisely the situation here; intervening
Supreme Court decisions have clarified the
narrow tailoring standard applicable to time,
place, and manner regulations in a way that
closes the door on the position adopted in
SDJ.
c.
To establish that Ordinance #87443 passes
the narrow tailoring test, the city relies on
three studies of the secondary effects of adult
businesses, all conducted in other cities: one
in Seattle in 1989, another in Austin, Texas, in
1986, and the third in Garden Grove,
California, in 1991. The city is “entitled to
rely on the experiences . . . of other cities . . .
so long as whatever evidence the city relies
upon is reasonably believed to be relevant to
the problem that the city addresses.” City of
Renton, 475 U.S. at 51-52.
The studies either entirely exclude
establishments that provide only take-home
videos and books (as is the case with the
Seattle study)13 or include them but do not
differentiate the data collected from such
businesses from evidence collected from
enterprises that provide on-site adult
11 See discussion supra part II.B.4.a.i.
12 SDJ, 837 F.2d at 1276, relied on United
States v. Albertini, 472 U.S. 675 (1985), for sup-
port. But although Albertini did hold that a time,
place, and manner regulation is “permissible . . . so
long as the neutral regulation promotes a sub-
stantial government interest that would be achieved
less effectively absent the regulation,” it limited
that conclusion to cases challenging “incidental
burden[s] on speech [that are] no greater than
essential.” Id. at 688. SDJ’s reliance on Albertini
is therefore misplaced.
13 The Seattle study was limited to cabarets that
provide live adult entertainment.

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9
entertainmentSSas may have been the case
with the Austin and Garden Grove studies.14
Off-site businesses differ from on-site ones,
because it is only reasonable to assume that the
former are less likely to create harmful
secondary effects because of the fact that
consumers of pornography are not as likely to
linger in the area and engage in public alcohol
consumption and other undesirable activities.
The question whether the kind of studies
relied on by the city constitute adequate proof
is one that has divided federal circuit courts
and state supreme courts. The Eighth and
Tenth Circuits have endorsed the position ad-
vocated by the city here.15 By contrast, the
supreme courts of Washington and Delaware
have taken positions similar to Encore
Videos’.16
The reasoning of the Washington Supreme
Court is persuasive. It points out that the or-
dinance at issueSSwhich placed restrictions on
all video stores whose inventory consisted of
ten percent or more adult materialsSSis broad
enough to “include ‘mainstream’ video stores
that have restricted adult sections.” World
Wide Video, 816 P.2d at 21. Ordinance
#87443 is only slightly less extreme: It
restricts the location of any bookstore or video
store “where more than 20% of its inventory”
consists of adult materials. San Antonio Ordi-
nance #87443 § 1(2).
The Washington court based its decision on
the fact that none of the studies cited by the
city gave separate consideration to the effects
of businesses that have such a small proportion
of adult materials in their inventory. World
Wide Video, 816 P.2d at 21. That court
veiwed, as problematic, the inclusion of enter-
prises with a low percentage of pornographic
material in their inventory, because many, if
not most, of those enterprises offer the
objectionable material only for off-site use, and
there is no proof that this causes secondary ef-
fects. “[The city] has not shown that adult
businesses with predominantly ‘take-home’
merchandise (which clearly are [sic] covered
by the ordinance) have the same harmful sec-
ondary effects traditionally associated with
adult movie theaters and peep shows . . . .”
Id.
Given the potentially sweeping implications
of the ordinances in World Wide Video and the
instant case, we must require at least some
substantial evidence of the secondary effects of
establishments that sell adult products solely
for off-site consumption. Otherwise, even
ordinary bookstores and video stores with
adult sections could be subjected to regulation
that restricts their First Amendment rights
without evidence that they cause “secondary
effects.”
14 Based on the evidence in the record, it is
difficult to tell whether the Austin and Garden
Grove studies excluded off-site entertainment bus-
inesses entirely or lumped them in with the rest.
The Austin study covered two “adult book stores”
and one “adult film store” among the six adult
businesses studied, but failed to indicate whether
these three businesses provide any on-site
entertainment. The Garden Grove study focused
on a total of seven adult businesses but neglected to
indicate whether any of them provided exclusively
off-site entertainment.
15 Z.J. Gifts, L.L.C. v. City of Aurora, 136 F.3d
683, 687 (10th Cir. 1998); ILQ Inv., Inc. v. City of
Rochester, 25 F.3d 1413, 1418 (8th Cir. 1994).
16 World Wide Video, Inc. v. City of Tukwila,
816 P.2d 18, 21-22 (Wash. 1991); Richardson v.
Wile, 535 A.2d 1346, 1350 (Del. 1988).

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10
Such a state of affairs surely conflicts with
the requirement that government “may not
regulate expression in such a manner that a
substantial portion of the burden on speech
does not serve to advance its goals.” Ward,
491 U.S. at 799. It also conflicts with the
minimal requirement accepted by Justice Ken-
nedy and the four dissenters in Alameda
Books: that the burden on speech imposed by
a secondary effects ordinance be “no greater
than necessary to further th[e city’s] interest”
in combating secondary effects. Alameda
Books, 122 S. Ct. at 1749 n.8 (Souter, J.,
dissenting).17
Under Alameda Books, therefore, the city,
to meet its burden, must provide at least some
evidence of secondary effects specific to adult
businesses that sell books or videos solely for
off-site entertainment. Because there is no
such evidence in the record, we must strike
down the zoning provision of Ordinance
#87443.
III.
A.
Under FW/PBS, 493 U.S. at 227-28, a
content-neutral “licensing scheme” for
expression that “does not present the grave
‘dangers of a censorship system’” must have
two “essential” procedural “safeguards”:
“[T]he licensor must make the decision
whether to issue the license within a specified
and reasonable time period during which the
status quo is maintained, and there must be the
possibility of prompt judicial review in the
17As previously noted, Justice Kennedy’s for-
mulation is even more restrictive than the one
adopted by the dissenters. Nonetheless, he agreed
with the majority that the challenged ordinance
should survive summary judgment, but only be-
cause the city plausibly could claim that its “ordi-
nance will cause two businesses to split rather than
one to close, that the quantity of speech will be
substantially undiminished, and that total sec-
ondary effects will be significantly reduced.” Ala-
meda Books, 122 S. Ct. at 1742 (Kennedy, J., con-
curring).
This narrow exception does not apply to the evi-
dence in the present case. In Alameda Books, the
businesses could sa tisfy the ordinance merely by
separatingSSeven if one afterwards moved next
door. Here, by contrast, the requirement that adult
businessesSSincluding even general bookstores
with an adult sectionSSmay not locate within 1000
feet of a residential area effectively closes off large
portions of the city to them, ensuring that “the
quantity of speech” will not “remain substantially
undiminished.” Id. Even if this part of Justice
Kennedy’s opinion did favor the city here, we
would not be required to follow it, because it is not
supported by any of the other eight Justices, even
in part. The stand-alone opinion of “only one
justice” is not binding precedent. Hopwood, 78
(continued...)
17(...continued)
F.3d at 944.
The Tenth and Eighth Circuit decisions do not
give the present ordinance much support. Both are
highly conclusional in their analysis and make little
effort to justify their conclusions by reference to
authority. See Z.J. Gifts, 136 F.3d at 687 (holding,
without explaining why, that the on-site/off-site
distinction is immaterial, because “the record fully
supports the city’s regulation of sexually oriented
businesses providing both on- and off-site viewing
of sexually explicit materials”); ILQ Inv., 25 F.3d
at 1418 (rejecting the distinction because “that
simply is not the law,” without giving more than a
cursory explanation why).
The Eighth Circuit does attempt to buttress its
position by citing Ward and Albertini. Id. The
ILQ Investments court, however, misstates these
decisions’ elaboration of the narrow-tailoring test.
See discussion of Ward, supra part II.B.3.b.

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11
event that the license is erroneously denied.”18
Like the present case, FW/PBS involved a
zoning and licensing ordinance for adult
businesses. Id. at 220-21. Encore Videos
claims that Ordinance #87443 violates both of
the procedural requirements imposed by
FW/PBS. Even though we decide in favor of
Encore Videos on its challenge to the
ordinance’s zoning requirement, we must
address the FW/PBS procedural issue, because
Encore Videos will remain subject to
Ordinance #87443’s procedural requirements
even if one of the substantive elements is held
to be unconstitutional.19
B.
We reject Encore Videos’ argument that
Ordinance #87443 violates FW/PBS’s
requirement that “the licensor must make the
decision whether to issue the license within a
specified and reasonable time.” FW/PBS, 493
U.S. at 228. The ordinance requires the
Director of Building Inspections to “issue or
deny a certificate of occupancy to a sexually
oriented business not more than thirty (30)
business days subsequent to the date of the
application’s submission of an application
therefor.” San Antonio Ordinance #87443 §
2(f)(4). A license may not be approved until a
series of inspections have been performed, and
there is no time limit for the completion of the
inspections.20
At first glance, the city’s licensing system
seems analogous to that which the Supreme
Court found unconstitutional in FW/PBS. The
ordinance challenged in that case also had a
thirty-day deadline, combined with a system of
required inspections for which there was no
separate time limit. The ordinance was struck
down because it “provide[d] no means by
which an applicant may ensure that the
business is inspected within the 30 day time
period.” FW/PBS, 493 U.S. at 227.
The city and the district court here
distinguish FW/PBS, however, on the ground
that the permit system in question here assigns
18 Although the portion of Justice O’Connor’s
opinion for the Court laying out these standards
won the support of only three Justices, three others
endorsed a concurring opinion by Justice Brennan
that argued for even stronger procedural
protections. FW/PBS, 493 U.S. at 238-42 (Bren-
nan, J., concurring). “When a fragmented Court
decides a case and no single rationale explaining
the result enjoys the assent of five justices, the
holding of the Court may be viewed as that position
taken by those Members who concurred in the
judgments on the narrowest grounds.” Marks v.
United States, 430 U.S. at 193. Thus, Justice
O’Connor’s opinion must be considered binding
precedent.
19 The relevance of FW/PBS is not affected by
Thomas v. Chicago Park Dist., 534 U.S. 316, 322
(2002), which held that the procedural
requirements of Freedman v. Maryland, 380 U.S.
51 (1965), elaborated in FW/PBS, do not apply to
“a licensing scheme . . . [that] is not subject-matter
censorship but content-neutral time, place, and
manner regulation of the use of a public forum.”
The present case does not concern “regulation of
the use of a public forum.” Id. Like FW/PBS and
unlike ThomasSSwhich addressed a demonstration
permit system for public parksSSthis case address-
es a licensing scheme for adult businesses. Thom-
(continued...)
19(...continued)
as did not overrule FW/PBS or even hint that its
scope has been narrowed.
20 See San Antonio Uniform Building Code
§ 109.3 (requiring that a “certificate of occupancy”
be issued only “[a]fter the building official inspects
the building or structure and finds no violation of
the provisions of this code or other laws which are
enforced by the code enforcement agency”).

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12
the task of inspection to the same official who
is required to issue or deny a license within
thirty days.21 The Director of Building
Inspections therefore is able to control the
inspection process and ensure that it is
completed within the thirty-day period. By
contrast, the system invalidated in FW/PBS
assigned the task of inspection to three
separate agencies, none of which was under
the control of the chief of police, the official
tasked with enforcing the thirty-day deadline
for issuing a permit. Id.
This is a matter of first impression and is a
close call.22 Nonetheless, based on the record
before us, we conclude that Ordinance #87443
does not violate the promptness requirement
of FW/PBS. It is certainly plausible to argue
that the director’s deadline for issuing a permit
also constrains his discretion with respect to
the scheduling of inspections. Likewise,
placing the responsibility for both meeting the
thirty-day deadline and carrying out the
inspections in the hands of the same official
makes it more likely that the deadline will be
met than was the case under the system of
divided responsibility reviewed in FW/PBS.
Because there is no evidence in the record
suggesting that the Director of Building
Inspections either cannot or will not be able to
process adult business permit applications
within the thirty-day limit, we reject Encore
Videos’ argument on this point. This
determination, however, does not necessarily
extend to other cases in which the record
might reveal evidence of delays in excess of
the statutory deadline.
C.
The circuits are split on the question wheth-
er FW/PBS’s requirement of “prompt judicial
review in the event that the license is er-
roneously denied” requires merely prompt ac-
cess to judicial review or a prompt judicial
decision. FW/PBS, 493 U.S. at 228. Five cir-
cuits, including this one, have held that prompt
access is sufficient. TK’s Video, Inc. v.
Denton County, 24 F.3d 705, 709 (5th Cir.
1994).23 Three others have adopted the more
stringent requirement of a prompt final
decision.24 Ordinance #87443 requires prompt
21 Encore Video, 2000 WL 33348240, at *5-*6;
see also City News & Novelty, Inc. v. City of Wau-
kesha, 604 N.W.2d 870, 880 (Wis. Ct. App. 1999)
(endorsing a similar argument), cert. granted, 530
U.S. 1242 (2000), cert. dism’d, 531 U.S. 278
(2001).
22 This court did once briefly consider the
question. In Crystal Cinema v. City of Lubbock,
No. 97-10597 (5th Cir. July 16, 1998)
(unpublished), we held that the city’s permit system
for adult businesses was constitutional despite the
fact that it failed to create a separate deadline for
the completion of required inspections. The gen-
eral forty-five-day deadline for consideration of
applications was deemed sufficient, even though
not all the agencies involved were under the au-
thority of the City Secretary, the official
responsible for issuing permits and denials within
the specified time.
As an unpublished opinion, Crystal Cinema is
not binding precedent. 5TH CIR. R. 47.5.4.
Moreover, it fails even to consider the relevance of
FW/PBS to this issue.
23 See Boss Capital, Inc. v. City of Casselberry,
187 F.3d 1251, 1256 (11th Cir. 1999); Beal v.
Stern, 184 F.3d 117, 129 (2d Cir. 1999); Graff v.
City of Chicago, 9 F.3d 1309, 1324-25 (7th Cir.
1993) (en banc); Jews for Jesus v. Mass. Bay
Transp. Auth., 984 F.2d 1319, 1327 (1st Cir.
1993).
24 See Nightclubs, Inc. v. City of Paducah, 202
(continued...)

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13
access to judicial review but does not provide
a time limit for a decision.25
The Supreme Court recently passed up an
opportunity to resolve this split.26 We
therefore follow our own precedent and decide
in favor of the city on this question. See TK’s
Video, 24 F.3d at 709.
The judgment is REVERSED and
REMANDED for appropriate further pro-
ceedings in accordance with this opinion.27
24(...continued)
F.3d 884, 892 (6th Cir. 2000); Baby Tam & Co. v.
City of Las Vegas, 154 F.3d 1097, 1101-02 (9th
Cir. 1998); 11126 Baltimore Blvd., Inc. v. Prince
George’s County, Md., 58 F.3d 988, 998-1000
(4th Cir. 1995) (en banc).
25 See San Antonio Ordinance #87443 § 2(f)(7)
(providing for immediate access to judicial review
but not imposing a time limit for decision).
26 See Thomas, 534 U.S. at 325 (noting that the
Court does not reach the issue despite the fact that
it was one of the questions on which writ of cer-
tiorari had been granted)
27 Because we strike down the locational re-
striction of Ordinance #87443 on First Amendment
grounds, we need not address Encore Videos’
argument that the ordinance violates the Texas
constitution.

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