* District Judge of the Northern District of Texas, sitting by designation. United States Court of Appeals

Fifth Circuit



## FILED

April 29, 2003

Charles R. Fulbruge III

Clerk UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

____________

No. 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

Before SMITH and EMILIO M. GARZA, Circuit Judges, and CUMMINGS, * District Judge.

PER CURIAM:

Encore Videos’s petition for panel rehearing is DENIED. The City’s petition for rehearing

en banc is construed as a petition for panel rehearing pursuant to the 5 TH C IR . IOP to F ED . R. A PP

.

P. 35, and is also DENIED. The opinion of the court issued on October 29, 2002, 310 F.3d 812, is

withdrawn, and the following is substituted:

I.-2-

Appellant Encore Videos, Inc. (“Encore Videos”), operates a sexually oriented retail video

store in San Antonio, Texas. In April 1995, the city council enacted Ordinance #82135, which

forbids se x ually oriented businesses from locating within 1000 feet of residential areas. Encore

Videos’ store is within 1000 feet of a residential area, although separated 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 V i deos 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 mo t ion 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 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 restraint 

### S S as advocated by Encore Videos 

### SS or 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.” S huttlesw orth v. City1 City of Renton v. Playtime Theatres, Inc.

, 475 U.S. 41, 49 (1986); s ee also Lakeland

Lounge, Inc. v. City of Jackson , 973 F.2d 1255, 1257-58 (5th Cir. 1992) (same).

-3- 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 such businesses throughout the whole of a jurisdiction and are “desig n ed to combat the

undesirable secondary effects of such businesses” 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 impermissible motives on the part” of the enacting legislature, a

local government seeking to use the secondary effects j ust ification 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.” L akeland 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.” N

ATCO, Inc. v. City of San Antonio

, No. 98-5 0645, slip op. at 6 (5th Cir.

June 2, 1999) (unpublished). In this circuit, unpublished opinions issued on or after January 1, 1996,

generally are not binding precedent, although parties may cite them, and they have “persuasive value.”

5 TH C IR

. R. 47.5.4. NATCO ’s factual findings on the exact point at issue surely carry “persuasive”

weight. I d. They also hav e been endorsed by the di stri ct 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.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).

-4- Even a content-neutral regulation may be considered a prior restraint if it gives government

o fficials “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 fe et of a residential

neighborhood, another sexually oriented business, or several other precise ly specified types of

properties. San Antonio Ordinance #87443 § 2(a)-(f).

B.

1.

To pass constitutional muster, a time, place, and manner regu lat ion must be “contentneutral,

. . . narrowly tailored to serve a significant gove rnment int erest, and leave open ample

alternative channels of communication.” Frisby v. Schultz , 487 U.S. 474, 481 (1988) (internal

citations omitted). In C ity of Renton

, 475 U.S. at 47, the Court stated 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.” The Court went on to say that

“the Renton ordinance is ‘narrowly tailored’ to affect only that category of theaters shown to produce

the unwanted secondary effects, thus avoiding the flaw that proved fatal to the regulations in [certain

prior First Amendment cases].” I d. at 52. The Court thereby suggested that narrow tailoring is the

test in this context.

Later Supreme Court decisions on time, place, and manner regulations have continued to3 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. Brow ard County, Fla. , 941 F.2d 1157, 1162 (11th Ci r. 1991)

(advancing several reasons why narrow tailoring requirement survives City of Renton ).

4 The more r ecent Lakeland Lounge d ecision, which also dealt with First Amendment

challenges to a “secondary effects” ordinance, did not mention the narrow tailoring requirement, but

neither did i t explicitly repudiate it. S ee 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 limi t alternative avenues of

communication’”) (quoting City of Renton

, 475 U.S. at 47). Because L akeland 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.

-5- apply the narrow tailoring standard. 3 A leading post- C ity 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 manner test. We address each in turn.

2.

T he first requirement is content neutrality. “‘The principal inquiry in determini ng 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.’” H ill 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 app l ied to the question of secondary effects motivation,

described in part II.A, s upra . 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 ordinance for which5 See J& B Entm’t, Inc. v. City of Jackson

, 152 F.3d 362, 371 (5th Cir. 1998) (holding that

“ Ren ton t eaches us that [to pass the substantial interest test] the government must produce s ome

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).

-6- 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 interest.

“A city’s ‘interest in attempting to preserve the quality of urban life is one that must be accorded high

respect.’” C ity of Renton

, 475 U.S. at 50 (quoting Young v. Am. Mini-Thea t res

, 427 U.S. 50, 71

(1976) (plurality opinion)). “Local governments . . . can restrict adult businesses in order to control

the bad ‘secondary effects’ 

### SS such as crime, deterioration of their retail trade, and a decrease in

property values 

### SS

that the establishments bring.” Lakeland Lounge , 973 F.2d at 1257. There is,

therefore, no doubt that th e seco ndary effects the San Antonio ordinance seeks to remedy are

important enough

t o be considered a substantial government interest under the time, place, and

manner test.

We have i nt erpreted the substantial government interest standard as requiring not only a

showing of the importance of the interest, but also a demonstration that the challe nged statute, at

least to some degree, is effective in serving that interest. 5 This approach arguably conflicts with C ity

of Renton , which mandates only that a statute be “ d esigned to serve a substantial governmen t

interest” and does not require evidence of effectiveness. City of Renton , 475 U.S. at 47 (emphasis

added). C ity of Renton does requi re proof of the e xistence of the secondary effects that the

challenged ordinance seeks to eliminat e but does not consider the question of proof of effectiveness6 In SDJ

, we said that “an ordinance is sufficiently well tailored if it effectively prom otes the

government’s stated interest.” S DJ

, 837 F.2d at 1276. S

DJ

, however, predates the Supreme Court’s

articulation of the narrow tailoring requirement in Ward and Frisby. Ward

, 491 U.S. at 799; Frisby

,

-7- in combating them. I

d. 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. S ee, 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 significance for the prese nt case. Evidence of

ef fectiveness too weak to survive scrutiny under J &B Entertainment ’s version of the substantial

interest standard 

### SS

which requires only that the “government must present sufficient evidence to

demonstrate ‘a link between the r egulat io n and the asserted governmental interest’ under a

‘reasonable belief’ standard” 

### SS surely will also fail to meet the requirements of the mu ch more

stringent narrow tailoring prong. S ee J&B Entertainment

, 152 F.3d at 372. 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.

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 time, place, and manner regulation meets the narr o w t ailoring standard if it “targets and

eliminates no more than the exact source of the evil it seeks to remedy.” F risby

, 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. 6487 U.S. at 485. Al though W ard and Frisby did not involve statutes regulating sexually oriente d

expression, we join our sister circuits in applying this more recent test in cases involving sexually

oriented businesses. S ee, e.g.

, Pleasureland Museum, Inc. v. Beutter

, 288 F.3d 988, 1002 (7th Cir.

2002) (holding that restrictions on adult businesses “are narr o wly tailored if they advance a

substantial interest

. . . and the restrictions do not ‘burden substantially more speech than is necessary’

for such for such advancement” (quoting Ward , 491 U.S. at 799)); Lady J Lingerie, Inc. v. City of

Jacksonvill e , 176 F.3d 1358, 1365 (11th Cir. 1999) (holding that “narrow tailoring . . . prohibits

regulations [of adult businesses] that are ‘substantially broader than necessary’” (quoting Ward

, 491

U.S. at 800); Excali bur Group, Inc. v. City of Minneapolis , 116 F.3d 1216, 1221 (8th Cir. 1997)

(adopting Ward test in an adult business case); Phillips v. Borough of Keyport , 107 F.3d 164, 174

(3d Cir. 1997) (holding that narrow tailoring in an adult business case requires that “‘government may

not regulate expression in such a manner that a substantial porti on of the burden on speech does not

serve to advance its goals’” (quoting Ward , 491 U.S. at 799)).

7 Thus, the ordinance might apply to many garden-variety book or music stores with restricted

adult sections.

-8- Ordinance #87443 prohibits sexually oriented businesses from being within 1000 feet of other

sexually oriented businesses or residential areas, churches, schools, or parks. The ordinance defines

“sexually o riented business” broadly. The regulation applies not only to establishments at which

individuals can view sexually explicit materials on site, but also to establishments that do not permit

on-site viewing ( i.e., businesses at which individuals can buy or rent sexually explicit materials for athome viewing). In addition, the ordinance applies to any bookstore, novelty store, or video store

that devotes over 20% of its inventory or floor space to sexually ex plicit materials. 7 San Antonio

Ordinance #87443 § 1(2).

The city justifies this ordinance on the ground that it will reduce the adverse secondary effects

(such as increased crime and the reduction of property values) of sexually oriented businesses.

Therefore, in order to demonstrate that the ordinance is narrowly tailored, the city must show that

the ordinance addresses these problems.

To establish that Ordinance #87443 passes the narrow tailoring test, the city relies on three8 The Seattle study was limited to cabarets that provide live adult entertainment.

9 Based on the evidence in the r eco rd, it is difficult to tell whether the Austin and Garden

Gro ve st udies excluded off-site entertainment businesses 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.

-9- studies of the secondary effects of adult busin esses, all conducted in other cities: one in Seattle,

Washington, 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

e vidence t he 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; see City of Los Angeles v. Alameda Books, Inc. , 525

U.S. 435, 438 (2002) (confirming that “a municipality may rely on any evidence that is ‘reasonably

believed to be relev ant ’ fo r demonstrating a connection between speech and a substantial,

independent government interest” (quoting City of Renton , 475 U.S. at 51-52)).

However, these studies do not support the city’s extensive re gulation of sexually oriented

businesses. The studies either entirely exclude establishments that provide only take-home videos and

boo ks (as is the case with the Seattle study) 8 or include them but do not differentiate the data

collected from such businesses from evidence collected from enterprises that provide on-site adult

entertainment 

### SS

as may have been the case with the Austin and Garden Grove studies. 9 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. If consumers of pornography cannot view the materials

at the sexually oriented establishment, they are less likely to linger in the area and engage in public

alcohol consumption and other undesirable activities. S ee World Wide Video, Inc. v. City of Tukwila

,10 The Supreme Court’s decision in Alameda Books is not to the contrary. In A lameda Books

,

the Court held that the evidence presented by Los Angeles to support its regulat ion of sexually

oriented businesses was sufficient to survive summary judgment. The challenged provision in that

-10- 816 P.2d 18, 21 (Wash. 1991) (“[The city] has not shown that adult businesses with predominantly

‘take-home’ merchandise (which clearly are covered by the ordinance) have the same harmful secondary effects traditionally associated with adult movie theaters and peep shows

. . . .”). B ut see Z.J.

Gifts, L.L.C. v. City of Aurora

, 136 F.3d 683, 687 (10th Cir. 1998) (holding, without explaining why,

that the on-site/off-site distinction is immat erial, 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., Inc. v. City of Rochester

, 25 F.3d 1413, 1418 (8th Cir. 1994) (rejecting the

distinction because “that simply is not the law,” without giving more than a cursory explanation why).

Given the expansive reach of the ordinance in the instant case, we must require at least some

substantial evidence of the secondary effects of establishments that sell adult products solely for offsite consumption. S ee Alameda Books , 525 U.S. at 438 (“The municipalit y’s evidence must fairly

support the municipalit y’s rationale for its ordinance.”). 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.”

In order to m eet the narrow tailoring requirement, the city was required to provide at least

some substantial evidence of secondary effects specific to adult businesses that sell books or videos

solely for off-site entertainment. S ee Ward

, 491 U.S. at 799 (ho lding t hat government “may not

regulate expression in such a manner that a substantial porti on of the burden on speech does not serve

to advance its goals”). Because there is no such evidence in t he record, we must strike down the

zoning provision of Ordinance #87443. 10case prohibited “‘the establishment or maintenance of more than one adult entertainment business in

the same building, structure or porti on thereof.’” 525 U.S. at 429 (quoting L O S A NGELES

, C AL

., M UNICIPAL C ODE § 12.70(C) (1983)). Los Angeles presented more compelling evidence to justify

that provision than does the city in the instant case. Specifically, Los Angeles presented its own 1977

study that “concl

uded t hat co ncentrations of adult businesses are associated with higher rates of

pro st it ut io n, robbery, assaults, and thefts in surrounding communities.” I d. at 430. Clearly, that

study, unlike the studies presented in this case, directly supported the specific regulation at issue in

Alameda Books

.

11 Although the porti on 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 protecti ons. F W/PBS

, 493 U.S. at 238-42 (Brennan, 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.” M arks v. United States

, 430 U.S. 188, 193 (1977). Thus, Justice O’Connor’s opinion can be considered binding precedent.

-11- 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 maint ained, and there must be the

possibility of prompt judicial review in the event that the license is erroneously denied.” 11 Like the

present case, FW/PBS involved a zoning and licensing ordinance for adult businesses. I d. 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 F W/PBS procedural issue, because Encore Videos will

remain subject to Ordinance #87443 ’s pro cedural requirements even if one of the substantive12 The relevance of FW/PBS is not affected by Thomas v. Chicago Park Dist.

, 534 U.S. 316,

322 (2002), which held t hat 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.” I d. L ike FW/PBS and unlike

Thomas 

### SS

which addressed a demonstration perm it system for public parks 

### S S this case addresses a

licensing scheme for adult businesses. T homas did not overrule FW/PBS or even hint that its scope

has been narrowed.

13 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”).

-12- elements is held to be unconstitutional. 12

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 o f 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. 13

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 an d t he dist rict court here distinguish F W/PBS

, however, on the ground that the14 Encore Video , 2000 WL 33348240, at *5-*6; see also City New s & Novelty, Inc. v. City

of Waukesha

, 604 N.W.2d 870, 880 (Wis. Ct. App. 1999) (endorsing a similar argument), c ert.

granted , 530 U.S. 1242 (2000), cert. dismissed , 531 U.S. 278 (2001).

15 This court did once briefly consider the question. In C rystal 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 fo r t he

completion of required inspections. The general forty-five-day deadline for consideration of

appl icat ions was deemed sufficient, even though not all the agencies involved were under the autho r ity 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. 5 T H C IR

. R. 47.5.4.

Moreover, it fails even to consider the relevance of FW/PBS to this issue.

-13- permit system in question here assigns the task of inspection to the same official who is required to

issue or deny a license within thirty days. 14 The Director of Building Inspections therefore is able to

control the inspect io n pro cess 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 c all. 1 5 Nonetheless, based on the record

before us, we con clude t hat 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

co nst rains 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 t han 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 Inspections16 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); Jew

s for Jesus v. Mass. Bay Transp. Auth. , 984 F.2d 1319, 1327 (1st Cir. 1993).

17 See Nightclubs, Inc. v. City of Paducah

, 202 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).

18 See San Antonio Ordinance #87443 § 2(f)(7) (providing for immediate access to judicial

review but not imposing a time limit for decision).

19 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 certiorari had been granted)

-14- either cannot or will not be able to process adult business permit applications within the thirty-day

limit

, we rej ect Enco re 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 sp lit on the questi on whether F W/PBS ’s requirement of “prompt judicial

review in the event that the license is erroneously denied” requires merely prompt access to judicial

review or a prompt judicial decision. F W/PBS , 493 U.S. at 228. Five circuits, 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). 16 Three others have adopted the more stringent requirement of a prompt final decision. 1 7

Ordinance #87443 requires prompt access to judicial review but does not provide a time limit for a

decision. 18

The Supreme Court recently passed up an opportuni ty to resolve this split. 19 We therefore

follow our own precedent and decide in favor of the city on this question. S ee TK’s Video

, 24 F.3d

at 709.20 Because we strike down the locational restriction of Ordinance #87443 on First Amendment

grounds, we need not address Encore Videos’ argument that th e o rdinance violates the Texas

constitution.

-15- The judgment is REVERSED and REMANDED f or appropri ate further proceedi ngs i n

accordance with this opinion. 20