UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 00-11220

_____________________

LLEH, INC., Etc.; ET AL.,

Plaintiffs,

LLEH, INC., doing business as Babe’s; APRIL COOPER; ANITA

JACKSON; SARAH BLACKSTOCK,

Plaintiffs-Appellees,

versus

WICHITA COUNTY, TEXAS,

Defendant-Appellant.

Appeal from the United States District Court

for the Northern District of Texas

April 22, 2002

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, st u dies of secondary

effects for cities are re levant to such non-urban areas. Among

other things, the regulations govern location, stage height, and

layout, as well as mandate information disclosure and dancer-topatron distance. Claiming the regulations pass First Amendment

muster, the County appeals a bench trial judgment in favor of LLEH,2

Inc., and its employees. J UDGMENT ON THE MERITS AFFIRME D 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 constructi on, 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, imple menting 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.)3

Between Octo ber and December 1999, the County held public

hearings on i ts 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

— S OBP APPLICATION [ l ocation

provision ]

....

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

....

(4) A certifica tion that the proposed

enterprise will be located:

(a) a minimum of one tho usand five

hundred (1,500) feet from any

child care facility, school,

dwelling

, hospital, public

building, public park, or

c hurch or place of religiou s

worship[;]

(b) a minimum of one (1) mile from

a penal institution[.]

....4 SECTION X

— EMPLOYEE IDE NTIFICATION BADGE

APPLICATION [ disclosure provision ]

(a) Any person who is employed in any capacity

at an enterprise

... is required to make

application with and obta in from the

County Sheriff an employee identification

badge.... The individua l applicant shall

... p rovide the following information t o

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 i ncluding the present

mailing address of the applicant

.

....

SECTION XXIV

— OPERATING REQ UIREMENTS FOR

ENTERPRISES [ buffer, stage-height, demarcation,

and unobstructed-view provisions ]

(a) The following shall be violations of these

regulations....

....

(13) for any per son 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 purpos e 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 have5 been violations of these regulations

during performances in unmarked

areas[.]

....

(c) Except as otherwise provided herein[,] the

interior of an enterprise shall be

configure d 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.

S ECTION VIII

— INJUNCTION [injuncti o n

provision]

(a) A person who violates these regulations is

s ubject to a suit to enjoin operatio n of

the enterprise pursuant to Section 243.010

of the Texas Local Government Code and is

also subject to prosecution for cri minal

violations.

(b) The Criminal District At torney is hereby

authorized t o file suit t o enjoin

violation of these regulations

. A suit

may be initiated upon information received

fromprivate citizens or any law

enforcement agency.

(Emphasis added.)

Babe’s was in violation of the 1500 feet minimum distance from

a dwelling (three houses). (Two of those houses are owned by Pearl

Carter, who had sold the proper ty to Essary.) Shortly after the

Order’s enactment, and because Babe’s was already in operation, the6

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 ap plication under the Order’s c ontingent SOBP

provisions, designed to permit existing SOBs not in conformity with

the Order’s location provision to continue operating during an

amortization period in orde r 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

a llowing, 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 fi led this action, requesting

injunct ive 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 t hat month, the County agreed to both waive the location

provision and red uce the buffer provision from six to three feet7

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 Jul y, 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 i n City of Renton v.

Playtime Theatres, Inc.

, 475 U.S. 41 (1986), and/or U nited States

v. O’Brien

, 391 U.S. 367 (1968); (2) amended the buf fer provision

from six to thr ee feet; and (3) held the injunction provision

unconstitutionally overbroad. L LEH, 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, d e novo

. E.g., Joslyn Mfg. Co . v.

Koppers Co., Inc.

, 40 F.3d 750, 753 (5th Cir. 1994). “[W]e may

aff irm for reasons other than those relied upon by the district8

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.” I nt’l Soc’y for Krishna Consci ousness

of New Orleans, Inc. v. Baton Rouge

, 876 F.2d 494, 496 (5th Cir.

1989) (citing Dunagin v. City of Oxford

, 718 F.2d 738, 748 n.8 (5th

Cir. 1983), cert. denied

, 467 U.S. 1259 (1984)). Accordingly, our

“review is de novo ”. I d. (quoting Dunagin

, 718 F.2d at 7 48 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) (quoting Barnes v. Glen Theatre, Inc.

, 5 01 U.S. 560, 566

(1991); internal citations omitted). The test for reviewing such

regulations, however, is not as clear: the test for time, place,

or manner regulations, described in Renton, 475 U.S. at 47; or the

four-part test for incidental limitations on First Amendment

freedoms, established in O’Brien , 391 U.S. at 376-77.

Under Renton

, “zoning ordinances designed to combat the

undesirable secondary effects of [SOBs] are to be reviewed under the

standards applicable to ‘content-neutral’ time, place, a nd manner

regulations”. 475 U.S. at 49 (emphasis added). “[Such] regulations

are acceptable so long as they are designed to serve a substantial

governmental intere s t and do not unreasonably limit alternative9

avenues of communication”. I d. at 47. Additionally, they must be

narrowly tailored to achieve the government’s interest. S ee id. at

52. “A content-neutral time, place, or manner restriction must (1)

be justified without reference to the content of the regulated

speech; (2) be narrowly tailored to serve a significant or

substantial governmental interest; and (3) preserve ample

alternative me ans of communication.” T K’s Video, Inc. v. Denton

County, Texas , 24 F.3d 705, 707 (5th Cir. 1994). Along the same

line, O’Brien provides:

[A] government regulation [of expressive

conduct] is sufficiently justified [1] if it is

within the constitutional power of the

Government; [2] if it furthers an important or

substantial governmental inter est; [3] if the

governmental interest is unrelated to the

suppression of free expression; and [4] if the

inc idental restriction on alleged First

Amendment freedoms is no greater than is

essential to the furtherance of that interest.

391 U.S. at 377.

Our court has reviewed SOB licensing and l ocation provisions

under the Renton test. S e e, e.g.

, W oodall v. City of El Paso

, 49

F.3d 1120, 1122-27 (5th Cir.) (1000-foot location provision), cert.

denied

, 516 U.S. 988 (1995); G rand Brittain, Inc. v. City of

Amarillo

, 27 F.3d 1068, 1069-70 (5th Cir. 1994) (per curiam) (1000-

foot location prov ision); TK’s Video, Inc.

, 24 F.3d at 707-11

(licensing, information disclosure, and internal layout provisions);

Lakeland Lounge of Jackson, Inc. v. City of Jackson

, 973 F.2d 1255,10

1257-60 ( 5 th Cir. 1992) (250-foot/1000-foot location and lightindustrial zoning provisions), cert. denied

, 507 U.S. 1030 (1993).

We have subsequently reviewed a public nudity ordinance and “no

touch” provision under the O’Brien test. S ee J&B Entm’t, Inc.

, 152

F.3d at 369-78; Hang On, Inc. v. City of Arlington , 65 F.3d 1248,

1253-55 (5th Cir. 1995).

Clark v. Community for Creative Non-Violence

, 468 U.S. 288, 298

(1984) , noted the tests’ similarities: “[ O ’Brien’s ] four-factor

standard

... for validating a regulation of expressive conduct

...

is little, if any, different from the standard applied to time,

place, or manner restrictions”. In fact, in B arnes v. Glen Theatre,

Inc.

, 501 U.S. 560 (1991 ), concerning a challenge to a public

indecency law brou ght by two nude dancing establishments, a

plurality of the Court suggested the tests are interchangeable:

The “time, place, or manner” test was developed

for evaluating restrictions o n expression

taking place on public property which had been

dedicated as a “public forum,” although we have

on at least one occasion applied it to conduct

occurring on private property. S ee Renton v.

Playtime Theatres, Inc.

, 475 U.S. 41 [(1986)].

In Clark we observed that this test has been

interpreted to embody much the same standards

as those set forth in United States v. O’Brien

, and we turn, therefore, to the rule enunciated

in O’Brien

.

Id. at 566 (plurality opinion; internal citations omitted).

The district court apparently applied Renton in reviewing the

location provision; for the others, O’Brien

. Because neither side11

takes issue with the particular test applied to e ach of the

respective provisions, we will proceed as did the district court.

In any event, our holding for each provision is the same under

either test.

1.

The district court held the location provision unconstitutional

for want of relevant evidence of secondary effects: “Although the

County relie[d] upon many studies of secondary effects of other

cities

, none of the studies [has] any relevance to the problem faced

by Wichita County” in an unincorporated , rural area with few

residential dwellings. LLEH, 1 21 F. Supp. 2d at 521 (emphasis

added).

The County’s interest, as identified in the Order’s preambulary

language, concerns combating SOBs’ deleterious effects and

protecting the health, safety, and welfare of SOB patrons and County

citizens. “A local government’s interest in preserving the quality

and character of neighborhoods and urban centers can, if properly

set forth, support restrictions on

... adult entertainment.” J &B

Entm’t, Inc.

, 152 F.3d at 371 (citing Renton

, 475 U.S. at 50). “In

setting forth this interest, a local government may place great

weight upon the e xperiences of, and studies conducted by, other

local governments, as well as opinions of courts from other

jurisdictions.” Id. (citing Renton , 475 U.S. at 51).

The First Amendment does not requir e a city,

before enacting such an ordinance, to conduct12 new studies or produce evidence independent of

that already generated by other cities, so long

as whatever evidence the city relies upon is

reasonably believed to be relevant to the

problem that the city addresses

.

Renton , 475 U.S. at 51-52 (emphasis added).

The district court held, and LLEH maintains, that the County’s

reliance on studies of secondary effects in urban areas is rendered

irrelevant by the rural charac teristics of the County’s

unincorporated areas, particularly the low population and dearth or

absence of residenc es, schools, daycare centers, churches, and

playgrounds in the area around Babe’s.

To the extent the district court focused on the area in Babe’s

immediate vicinity, the cou rt erred. “Regulations that burden

speech incidentally or control the time, place, and manner of

expression must be evalu ated in terms of their g eneral effect.”

United States v. Albertini

, 472 U.S. 675, 688-89 (1985) (emphasis

added). Moreover, “[t]he First Amendment does not bar application

of a neutral regulation that incidenta lly burdens speech merely

because a party contends that allowing an exception i n the

particular case will not threaten important government interests.”

Id. at 688 (emphasis added; citing Clark v. Community for Creative

Non-Violence , 468 U.S. 288, 296-297 (1984)).

Even if the area immediately surrounding Babe’s were the only

area in question, the studies relied upon by the County were still

relevant. The secondary effects that urban areas have experienced13

(well documented in the relied-upon studies) are precisely what the

Coun ty is attempting to a void

. This is evinced by the Order’s

preambulary language. For example, the County sought to “minimize

and control

... adverse effects” and “ deter the spread of urban and

rural blight”. (Emphasis added.)

Accordingly, it is logical that the County would: (1) review

the experiences of urban areas, as discussed in the studies; (2)

consider what measures those areas have employed to combat secondary

effects; and (3) tailor those corrective measures to the County’s

needs. By so doing, the County may, i n its continued growth and

development

, successfully sidestep many of the problems encountered

by urba n areas. In this respect, the relied-upon studies are

“reasonably believed to be relevant” to the problems the County

seeks to address. See Renton , 475 U.S. at 51.

2.

The district court held the six-foot buffer and 18-inch stage

height provisions violated O’Brien’s fourth pro n g: “incidental

restriction on

... First Amendment freedoms [can be] no greater than

is essential to the furtherance of tha t interest”. O ’Brien

, 391

U.S. at 377.

LLEH stipulated that the Order satisfies the first and second

O’Brien prongs; and, the district court held these two provisions

satisfied the third. S ee LLEH , 121 F. Supp. 2d at 522-23. (The

district court also held these provisions, along with the14

demarcation provision discussed infra

, void for vagueness because

they apply to “partially nude” perfo rmances without defining that

term. The County does not contest this holding. The district court

suggested that “the County can remedy this simply by defining the

phrase, ‘Partially Nude’ as it has already done with ‘Nudity or

State of Nudity’ and ‘Semi-nude[,]’”, id. at 524; the County stated,

at oral argument, that it intends to do so.)

a.

Concerning the buffer provision and O’Brien’s fourth prong, the

district court stated: “[T]he regulation must go o nly so far as is

required to achieve the stated interest of deterring sexual contact

and touching”. I d. at 523-24 (emphasis added). It determined: the

provision “would effectively close the club”, id. at 523 n.19; and,

accordingly, only a less restrictive, three -foot buffer would be

constitutional, id. at 524.

The district court’s analysis runs contrary to the principle

that “an incidental b urden on speech is no greater than is

essential, and therefore is permissible under O’Brien

, so long as

the neutral regulat ion promotes a substantial government interest

that would be achie ved less effectively absent the regulation ”

.

Albertini

, 472 U.S. at 689 (emphasis added); see also Ward v. Rock

Against Racism

, 491 U.S. 781, 798-99 (1989). “[S]uch regulations

[are not] invalid simply because there is so me imaginable

alternative that might be less burdensome on speech”. A lbertini

,15

472 U.S. at 689. Moreover, “[t]he validity of such regulations does

not turn on a judge’s agreement with the responsible decision maker

concerning the most appropriate method for promoting significant

government inte rests”. I d. N or does it turn on “the degree to

which those interests should be promoted”. Ward , 491 U.S. at 800.

In addition, the district court’s finding that the six-foot

buffer would effectively close Babe’s is not controlling. “The

[provision] does not ban all [partially or totally nude dancing],

but inst ead focuses on the source of the evils the [County] seeks

to eliminate

... and el iminates them without at the same time

banning or significantly restricting a su bstantial quantity of

speech that does not create the same evils.” I d. at 800 n.7. The

six-foot buffer may have a significant impact on Babe’s; but, as

noted s upra

, “[r]egulations that burden speech incidentally or

control the time, place, and manner of expression must be evaluated

in terms of their general effect”. A lbertini, 472 U .S. at 688-89

(emphasis added; internal citation omitted); see also DLS, Inc. v.

City of Chattanooga

, 107 F.3d 403, 413 (6th Cir. 1997) (reviewing

a similar six-foot buffer requirement and noting that, to the extent

economic impact is considered in determini ng whether a regulation

i s sufficiently narrow, “we consider the economic effects of the

ordinance in the aggr egate, not at the individual level; if the

ordinance were intended to destroy the market for adult cabarets,

it might run afoul of the First Amendment, but not if it merely has16

adverse effects on the individual theater”). In this light, the

buffer provision satisfies O’Brien’s narrow tailoring prong.

b.

The district court held the 18-inch stage-height provision did

not satisfy O’Brien’ s fourth prong: “The interest of deterring

sexual contact and touching has already been satisf ied with the

three foot buffer zone [substituted by the district cour t for the

Order’s six-foot zone]. Accordingly, this requirement is arbitrary

and does not serve the interest of the County in light of the three

foot buffer zone”. LLEH , 121 F. Supp. 2d at 524.

Again, it is not within a court’s province to base its ruling

on its determination of “the most appropriate method for promoting

[the] government interest[]”. A lbertini

, 472 U.S. at 689. Because

the County’s interests would be achieved less effectively absent the

stage-height provision, that provision satisfies O’Brien’s fourth

prong.

3.

The district court held the demarcation provi sion fails to

satisfy two of the O’Brien prongs: the second, for want of

“evi dence of secondary effects that this rule is i ntended to

ameliorate”, LLEH

, 121 F. Supp. 2d at 524 (emphasis added); and the

fourth, because it is not “narrow enough ... when [the courtsubstituted] three-foot buff er zone is already in place”, i d

. at

525.17

“Our appropriate focus is not an empirical enquir y into the

actual intent of the enacting legislature, but rather the existence

or not of a current governmental interest in the service of which

the challenged application of the statute may b e constitutional.”

Barnes v. Glen Theatre, Inc.

, 501 U.S. 560, 582 (1991) (Souter, J.,

concurring) (citing McGowan v. Maryland

, 366 U.S. 420 (1961)). (As

noted, LLEH stipulated that the Order satisfies the second prong.)

The demarca tion provision is simply a manifestation of the

buffer provision; it furthers the same substantial interests and

merely gives definition to the buffer provision. Accordingly, it

imposes no further rest riction on speech. O ’Brien’s second and

fourth prongs are satisfied.

4.

The district court held the unobstructed-view provision is not

sufficiently narrow to satisfy O’Brien’s fourth prong. Our court

has upheld similar provisions. At issue in T K’s Video, Inc.

, 24

F.3d at 705, was, inter alia , a provision that provided:

The interior of the premises shall be

configured in such a manner that there is an

unobstructed view from a manager’s station of

every area of the premises to which any patron

is permitted access for any purpose excluding

restrooms.... Th e view required in this

subsection must be by direct line of sight from

the manager’s station.

Id. at 723. After explaining that the provision was relevant to an

interest in protecting against “illega l and unsanitary sexual18

activity”, we held: “The design and layout regulations narrowly

respond to a substantial governme ntal interest”. I d. at 711 ; see

also FW/PBS, Inc. v. City of Dallas

, 837 F.2d 1298, 1304 (5th Cir.

1988) (“[I]n accordance with the prevailing view, ... the first

amendment does not prohibit the City of Dallas from requiring that

viewing booths in adult theatres be open”.).

The district court focused on the particular hardships that

might arise out of compliance with the unobstructed-view provision.

After discussing how costly compliance would prove, the court noted

LLEH had voluntarily installed surveillance cameras with a monitor

at the Babe’s manager’s station. The district court reasoned that,

i f LLEH installed two additional cameras, along with addi tional

monitors at the manager’s station, th e County’s interest in law

enforcement could be served. Consequently, it concluded, the

provision was not sufficiently narrow to satisfy O’Brien’s fou rth

prong.

Again, a regulation with incidental burdens on speech is not

invalid “simply because there is some imaginable alternative that

might be less burdensome on speech”. Albertini , 472 U.S. at 689.

Such a regulation satisfies O’Brien’s fourth prong “so long as the

neutral regulation promotes a substantial government interest that

would be achieved less effectively absent the regulation ”. I d. at

689 (emphasis added).19

At trial, the County asserted “that cameras can be manipulated

and the[ir] images [can be] misleading”. L LEH

, 121 F. Supp. 2d at

528. The court dismissed this point because the County “fail[ed]

to show the Court how a view from one side of a crowded room, ‘with

the naked eye,’ can be any less misleading”. I d. We conclude,

however, that the County’ s interest would be achieved less

effectively absent the unobstructed view provision.

Moreover, as noted, the “[r]e gulations that burden speech

incidentally or control the time, place, and manner of expression

must be evaluated in terms of their general effect”. A lbertini, 472

U.S. at 688-89 (emphasis added; internal citation omitted). The

di s trict court erred to the extent it focused on the impact the

unobstructed view provision had on Babe’s alone.

5.

The disclosure provision held violatiave of O’Brie n’s fourth

prong requires that, in order to obtain the necessary employee

identification badge to work at a SOB, the applicant provide certain

information to the Sheriff, includin g, i nter alia

, “the city,

co unty, 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 inclu ding the present

mailing addr ess of the applicant”. (Emphasis added.) The

application form used by the Sheriff to collect the information20

employs that same language, then provides spaces to li st the date

and applicant’s address.

At trial, a Sheriff’s representative answered “yes” when asked

if the application form requests “the current resi dential address

of the applicant”. Without explanation, the district court

deter mined the disclosure provision and/or the application itself

required the applicant to list not only the “curr ent address [ but

also] phone information ” and held that the requirement to list such

information “is not narrowly tailored to advance the County’s

interest”. L LEH

, 121 F. Supp. 2d at 525 (emphasis add ed). (LLEH

maintains the district court also held the provision

unconstitutionally overbroad. The court ruled solely on the O ’Brien

narrowness prong. Id. at 525 n.23.)

Neither the provision nor the application form requests a

telephone number. As to the address, the County has repeatedly

conceded that applicants should not have to list their current

residential address. Moreover, counsel for the County confirmed at

oral argument here that the County plans to amend the provision in

this regard. In the light of these concessions, it is not clear why

the County raised the disclosure provision as an issue on appeal.

In any event, we need not review this aspect of the district court’s

opinion. We understand the district court’s holding as pertaining

only to a current residential address and telephone number.

6.21

T he injunction provision held unconstitutionally overbroad

states: “A person who v iolates [the Order] is subject to a suit to

enjoin operation of the enterprise”. (Emphasis added.) The

provision authorizes the District Attorney “to file suit to enjoin

violation of [the Order]”. Relying on U niversal Amusement Co., Inc.

v. Vance

, 587 F.2d 159, 168-73 (5th Cir. 1978), the district court

held the provision overbroad because it “authorizes a suit to enjoin

free speech” or “to enjoin

... protected activity”. L LEH

, 121 F.

Supp. 2d at 527.

Universal Amusement concerned a statute that provided:

The habitual use

... of any premises,

place or building or part thereof, for any of

the following uses shall constitute a public

nuisance and shall be enjoined at th e suit of

either the State or any citizen thereof:

....

(3) For the commercial manufacturing,

commercial distribution, or commercial

exhibition of obscene material[.]

587 F.2d at 165 n.11. Our court held the provision

“unconstitutional insofar as it authorizes injunctions against the

future exhibition of unnamed films[,]

... for it amounts to a prior

restraint on materials n ot yet declared obscene ”. I d. at 169

(emphasis added).

Universal Amusement is inapposite. The provision at issue here

authorizes suit to enjoin “violations” of the provisions upheld in

this appeal. In the light of our above holdings, the risk of22

actions seeking to enjoin “free speech” or “protected activity” is

substantially diminished, if not eliminated, because we have

concluded that the “speech” and “activi ty” at issue in the

provisions is properly regulated. Any overbreadth in the injunction

provision is not “substantial

... in relation to the [provision’s]

plainly legitimate sweep”. B roadrick v. Oklahoma

, 413 U.S. 601, 615

(1973).

B.

Approximately $43,000 was awarded pursuant to 42 U.S.C. §

1988(b), which provides: “In any action or proceeding to enforce

a provision of section [1983] of this title, the court, in its

discretion, may allow the prevailing party

... a reasonable

attor ney’s fee as part of the costs....” (Emphasis added.) The

County requests th at we either vacate the award or remand for

reconsideration.

“[A] plaintiff ‘prevails’ when actual relief on the merits of

h is claim materially alters the legal relationship between the

parties by modifying the defendant’s behavior in a way that directly

benefits the plaintiff”. F arrar v. Hobby

, 506 U.S . 103, 111-12

(1992) (emphasis added). In the light of our disposition of this

appeal, the only points on which LLEH m ight be considered to have

“prevailed” are: (1) in having the term “partially nude” adjudged

vague (it is unclear whether the County conceded this at trial); (2)

in having it adjudged th a t the County may not request a current23

residential address, which it conceded pre-trial; and (3) in having

a provision (not at issue here) pertaining to on-premises alcohol

consumption adjudged preempted by Texas law, which the County also

apparently conceded pre-trial. Because the district court is better

suited to determine both whether LLEH is a prevailing party in the

light of our resolution of this appeal and what, if any, fees would

be reasonable, we vacate the award and remand for reconsideration.

III.

For the foregoing reasons, we REVERSE t he district court’s

holdings as to the Order’s locati on, buffer, stage-height,

demarcation, un obstructed-view, and injunction provisions. We do

not reach its holdings on either the vagueness of the term

“partially nude” or the disclosure provision. We V ACATE the fees

and expenses award. This case is R EMANDED for further proceedings

consistent with this opinion, including entry of judgment on the

merits and reconsideration of fees.

JUDGMENT ON THE MERITS AFFIRMED in PART, REVERSED in PART;

JUDGMENT AWARDING ATTORNEY’S FEES and EXPENSES VACATED;

REMANDED