IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

FORT WORTH DIVISION

H&A LAND CORPORATION d/b/a § 

SHOWTIME CABARET § CIVIL ACTION NO. 4:05-CV-210-Y

 §

VS. §

 §

CITY OF KENNEDALE, TEXAS §

ORDER DENYING PLAINTIFF’S MOTION FOR PRELIMINARY INJUNCTION

Pending before the Court is plaintiff H&A Corporation d/b/a

Showtime Cabaret (“H&A”)’s Motion for Preliminary Injunction [doc.

# 15-2]. Having carefully reviewed the motion, response, and

reply, the Court concludes that the motion should be DENIED.

I. BACKGROUND

H&A operates a sexually oriented business--Showtime Cabaret

(“Showtime”), an exotic-dancing venue--on property in Tarrant

County, Texas, annexed in 1999 by defendant City of Kennedale,

Texas (“Kennedale”). Kennedale’s ordinances at the time of

annexation, as well as those enacted afterward (collectively, “the

Ordinances”), prohibited H&A, as well as other sexually oriented

businesses in the area, from operating in their locations at the

time of annexation. In essence, the Ordinances deemed H&A and the

other sexually oriented businesses “nonconforming uses” of the land

upon which they were operating. 

On May 20, 2002, H&A filed suit (“the initial suit”) in this

Court against Kennedale for injunctive and declaratory relief in

relation to the Ordinances. Through intervention or consolidation,

other sexually oriented businesses impacted by the Ordinances also

 

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2

became involved in the initial suit. H&A’s involvement in the

initial suit ended in December 2002 when it moved to dismiss with

prejudice its claims against Kennedale pursuant to a November 14,

2002, settlement agreement. Under that agreement, Showtime

“[could] be operated as an adult cabaret as defined in

[Kennedale]’s Sexually Oriented Business Ordinance (as amended from

time to time) for so long as it [wa]s owned and/or controlled by

H&A [].” (Pl.’s App., Ex. A, at 2 (Settlement Ag.).) In exchange

for Showtime’s operating site’s being deemed a “conforming

location” for purposes of Kennedale’s zoning code, H&A agreed

(among other things) to drop its claims in the initial suit. (Id.)

 On January 13, 2005, after a public hearing before Kennedale’s

planning and zoning board, Kennedale passed and approved Ordinance

Number 287 (“Ordinance 287"), which amended the Ordinances and

Ordinance No. 108 specifically (the main ordinance regulating

sexually oriented businesses in Kennedale). The amendments in

Ordinance 287 restrict the hours that sexually oriented businesses

may operate, impose a buffer zone for exotic performances, require

a minimum stage height, prohibit any employee of a sexually

oriented business from appearing in a “state of nudity” if alcohol

is served in the business, require dancers to wear “pasties”, limit

the methods by which customers may tip performers in sexually

oriented businesses by prohibiting direct tipping, and require that

any employee of a sexually oriented business obtain a permit in

order to work in such business. (Id., Ex. 2 (Ordinance 287).) 

 

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1 H&A’s first, second, third, fourth, and seventh claims for relief rest

upon Kennedale’s alleged violation of the First Amendment, made applicable to the

states by the Fourteenth Amendment. See U.S. CONST. amend. XIV; Thornhill v. Al.,

310 U.S. 88, 95 (1940) (citation omitted); Meltzer v. Bd. of Pub. Instruction,

548 F.2d 559, 575 (5th Cir. 1977) (citation omitted); 

3

On March 30, 2005, in response to Ordinance 287, H&A sued

Kennedale in the present action for declaratory relief, injunctive

relief, violation of 42 U.S.C. § 1988, and breach of contract (the

parties’ 2002 settlement agreement). H&A filed its motion for

preliminary injunction on December 23 and an amended brief in

support of that motion on January 10, 2006.

II. ANALYSIS

Under well settled Fifth Circuit precedent, a preliminary

injunction is an extraordinary remedy that should not be granted

unless the movant demonstrates by a clear showing: (1) a substantial likelihood of success on the merits; (2) a substantial threat

of irreparable harm if the injunction is not granted; (3) that the

threatened injury to the movant outweighs any harm to the nonmovant

that may result from the injunction; and (4) that the injunction

will not undermine the public interest. See Roho, Inc. v. Marquis,

902 F.2d 356, 358 (5th Cir. 1990).

A. Substantial Likelihood of Success on the Merits

1. First-Amendment Claims1

The First Amendment protects sexually explicit speech, whether

film, video, print, or symbolic, that is not obscene. TK’s Video

v. Denton County, 24 F.3d 705, 707 (5th Cir. 1994) (citing Mitchell

 

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2 The act of being in the nude is not, in and of itself, entitled to First

Amendment protection because no message is being conveyed. Cf. Tex. v. Johnson,

491 U.S. 397, 403-406 (1989) (finding that the act of desecrating the flag is not

critical in determining whether the actor is engaging in expressive conduct;

rather, the question is whether the actor intended to convey a particularized

message). Yet the act of dancing nude, with its attendant erotic message, is an

expressive act entitled to protection through the First Amendment. See Barnes,

501 U.S. at 560.

4

v. Commission on Adult Entertainment Establishments, 10 F.3d 123,

130 (3rd Cir. 1993)). Society’s interest in protecting such

speech, however, “is of a wholly different, and lesser, magnitude

than the interest in untrammeled political debate.” Young v. Am.

Mini Theatres, Inc., 427 U.S. 50, 70 (1976) (plurality opinion).

Given this distinction, restrictions on sexually expressive speech

are permissible under certain circumstances. City of Renton v.

Playtime Theatres, Inc., 475 U.S. 41 (1986). 

H&A’s claims rest upon an inference that the manner in which

nude dancing may occur and the viewing of such performance

constitute activities safeguarded by the First Amendment. Such

activities, however, fall only within the outer ambit of the First

Amendment’s protection, if at all. See City of Erie v. Pap's A.M.,

529 U.S. 277, 289 (2000) (citing Barnes v. Glen Theatre, Inc., 501

U.S. 560, 565-566 (1991) (plurality opinion); Schad v. Mount

Ephraim, 452 U.S. 61, 66, (1981)).2

 Because customary “barroom”

nude dancing barely manages to qualify as expressive conduct

protected by the First and Fourteenth Amendments, the protections

afforded such expression are limited. See Barnes, 501 U.S. at

565-566 (quoting Doran v. Salem Inn, Inc., 422 U.S. 922, 932

(1975); Cal. v. LaRue, 409 U.S. 109, 118 (1972); Schad, 452 U.S. at

66). 

 

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3 There are two paths governing the evaluation of First Amendment claims

asserted by a sexually oriented business. The first is that articulated by the

Supreme Court in O’Brien, which typically applies where a government regulates

the manner of permissible speech, such as restrictions on public nudity. See

Erie, 529 U.S. at 289; Barnes, 501 U.S. at 565-66. Governmental attempts to

regulate the location where such expression can take place, i.e. zoning

ordinances, however, are subject to the standard developed in Renton and its

progeny. See Renton, 475 U.S. at 41; City of L.A. v. Alameda Books, 535 U.S. 425

(2002); Encore Videos, Inc. v. City of San Antonio, 330 F.3d 288, 288 (5th Cir.

2003); N.W. Enters. v. City of Houston, 352 F.3d 162 (5th Cir. 2003); Lakeland

Lounge, 973 F.2d at 1255; SDJ, Inc. v. Houston, 837 F.2d 1268 (5th Cir. 1988);

J & B Entertainment v. City of Jackson, 152 F.3d 362 (5th Cir. 1998). Since

Ordinance 287 regulates the manner with which H&A may conduct its business, as

opposed to the location where such business may be situated, O’Brien governs this

suit. See Erie, 529 U.S. at 289 (“government restrictions on public nudity . .

. should be evaluated under the framework set forth in O'Brien.”); LLEH, Inc. v.

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

5

(a) Determining the Level of Scrutiny Applicable:

Content-Neutral versus Content-Based Regulations

The level of scrutiny a court must apply to regulations on

speech is determined by the animus behind the official regulation.

See Erie, 529 U.S. at 289 (citation omitted). A court must

evaluate “if the governmental purpose in enacting the regulation is

unrelated to the suppression of expression,” id.; in essence, if it

is content-neutral. If it is, the regulation need only satisfy the

standard articulated in United States v. O’Brien, 391 U.S. 367, 377

(1968)--the “less stringent” standard for evaluating restrictions

on symbolic speech.3 See Erie, 529 U.S. at 289 (citing Tex., 491

U.S. at 403; O’Brien, 391 U.S. at 377). If, however, the government’s regulation of expressive conduct is because of disagreement

with the message conveyed--i.e., is content based--“the regulation

falls outside the scope of the O’Brien test and must be justified

under a more demanding standard.” Id. Thus, for O’Brien to apply,

a court must verify that the predominate concerns motivating the

 

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6

regulating body were the secondary effects of the expressive

conduct regulated, not the content of such expression. See id. at

289-96; Alameda Books, 535 U.S. at 440-41 (quoting Renton, 475 U.S.

at 47). In essence, the court must ask whether the ordinance aims

to regulate the content or the consequences of sexually explicit

speech. See TK’s Video, 24 F.3d 705 at 707.

 By its terms, Ordinance 287 regulates mostly nonexpressive

conduct. Again, Ordinance 287 is directed towards a viewer’s

proximity to dancers, the consumption of alcohol where performances

are given, direct tipping, and employee permits. (Pl.’s App., Ex.

2 (Ordinance 287).) Such restrictions are on matters wholly

outside the expressive content of the dancing itself. See Gary v.

City of Warner Robins, 311 F.3d 1334, 1340 (11th Cir. 2002) (“Gary

remains free to observe and engage in nude dancing, but she simply

cannot do so . . . in establishments that primarily derive their

sales from alcoholic beverages consumed on the premises.”); Ben's

Bar, Inc. v. Village of Somerset, 316 F.3d 702, 726 (6th Cir. 2003)

(“Section 5(b) does not impose any restrictions whatsoever on a

dancer’s ability to convey an erotic message. Instead, the

regulation prohibits Sexually Oriented Businesses . . . from

serving alcoholic beverages to its patrons during a dancer’s

performance. This is not a restriction on erotic expression, but

a prohibition of nonexpressive conduct (i.e., serving and consuming

alcohol) during the presentation of expressive conduct.”) As the

Fifth Circuit has already stated: 

 

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[I]ntentional contact between a nude dancer and a

bar patron is conduct beyond the expressive scope of the

dancing itself. The conduct at that point has overwhelmed any expressive strains it may contain. That the

physical contact occurs while in the course of protected

activity does not bring it within the scope of the First

Amendment. Cf. Barnes, 111 S. Ct. at 2466 (Scalia, J.,

concurring in the judgment) (noting that the Court has

“never invalidated the application of a general law

simply because the conduct that it reached was being

engaged in for expressive purposes”). 

Similarly, patrons have no First Amendment right to

touch a nude dancer. Cf. Geaneas v. Willets, 911 F.2d

579, 586 (11th Cir. 1990) (holding that bar patrons have

no First Amendment right to wear revealing clothing),

cert. denied, 499 U.S. 955, 111 S. Ct. 1431, 113 L. Ed.

2d 484 (1991); Dodger's Bar & Grill, Inc. v. Johnson Cty.

Bd. of Comm'rs, 32 F.3d 1436, 1443 (10th Cir. 1994)

(same).

Hang On, Inc. v. City of Arlington, 65 F.3d 1248, 1253 (5th Cir.

1995). The same rationale applies to the provisions of Ordinance

287. Surely, if a prohibition on touching a nude dancer is outside

the protections of the First Amendment, then restrictions on

proximity, alcohol consumption, and employee qualifications are

equally so, i.e., “beyond the expressive scope of the dancing

itself.” Id. Such activity has no bearing on the expression of

the dancing; rather, it impacts the viewer’s experience. And, the

viewer is not restricted from observing nude dancing, he simply

experiences a limited ability to do so.

Moreover, Ordinance 287 replaces and updates provisions of the

Ordinances that were the subject of the initial suit. Such

ordinances have already been found by this Court to be contentneutral regulations targeting the secondary effects of sexually

oriented businesses rather than the expressive activity taking

 

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4 Specifically, the Court stated that:

The Ordinances either specifically state, or amend and adopt the

findings of prior ordinances that state, that the Kennedale city

council seeks to minimize and control the adverse secondary effects

of sexually oriented businesses. (Def.’s App. to Mot. for Summ. J.

at 2-3, 31-32, 48, 79, 91-92, 97-98 (Ordinances)). Although merely

mentioning “secondary effects,” or its functional equivalent, within

an ordinance’s preamble “may not save a statute ‘formulated without

specific attention to specific secondary effects,’” see J & B

Entertainment, 152 F.3d at 374 (quoting Lakeland Lounge, 973 F.2d at

1259), the [O]rdinances here include the requisite degree of

specificity. The [O]rdinances demonstrate that Kennedale not only

made specific findings of the adverse effects generally associated

with sexually oriented businesses, but also that Kennedale sought to

remedy specific adverse effects, namely, increased crime, decreased

property values, sexual-crime activity, and the spread of sexually

transmitted diseases. See . . . J & B Entertainment, 152 F.3d at

374 (“No explanation of what specific secondary effects motivated

[the city] to enact the Ordinance appears in its text, and the City

Council failed to make any specific legislative findings prior to

enactment”). The record also reflects that, in enacting the

[O]rdinances, Kennedale relied upon studies conducted for other

cities, statements made at public hearings, a survey conducted by

Kennedale’s attorney, and other information compiled by Kennedale’s

attorney that was presented to the Kennedale city council. (Id. at

2-3, 31-32, 91-92, 97-98; App. to Def.’s Reply to Pl.’s Resp. to

Def.’s Mot. for Summ. J. at 386-96 (Hearing Minutes), 449-53 (Olson

Aff.), 454-56 (Miller’s 2nd Aff.)). Furthermore, Ordinance No. 108

specifically states that the ordinance is directed not at limiting

protected speech but rather at controlling the adverse effects

associated with such expression. (Id. at 2-4). 

The record therefore demonstrates that the [O]rdinances are

predominantly concerned with and seek to address the secondary

effects from, rather than the content of, the form of speech

regulated. . . . As such, the Court concludes that the [O]rdinances

were not adopted because of disagreement with the message conveyed

and therefore constitute content-neutral regulations. See SDJ, 837

F.2d at 1268; Lakeland Lounge, 973 F.2d at 1258-59.

H & A I, 2005 U.S. Dist. LEXIS 8192, at *15-19. 

8

place at such establishments. See H & A Land Corp. v. City of

Kennedale (“H&A I”), CIVIL ACTION NO. 4:02-CV-458-Y, 2005 U.S.

Dist. LEXIS 8192, at *15-19 (N.D. Tex. March 29, 2005) (Means,

J.);4 cf. Erie, 529 U.S. at 290 (noting that the challenged

ordinance “replaces and updates provisions of an ‘Indecency and

Immorality’ ordinance . . . on the books since 1866.”).

Furthermore, “[i]n deciding whether an ordinance is designed

to address undesirable secondary effects and is therefore con-

 

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5 The preamble to Ordinance No. 108, which summarizes the review conducted

by Kennedale, states, in relevant part:

WHEREAS, the City Council of the City of Kennedale, Texas,

heretofore adopted regulations restricting the location of sexually

oriented businesses within the City of Kennedale based upon studies,

reports, and findings regarding the harmful effects of sexually

oriented businesses on surrounding land uses; and

WHEREAS the city council deems it necessary and advisable to

amend these regulations. . . ; and 

WHEREAS, studies, reports, and findings conducted by the

9

tent-neutral or is instead intended to suppress speech, courts

‘must give great deference to the stated goals of the [acting

governmental body].’” Cmty. Visual Communs., Inc. v. City of San

Antonio, 148 F.Supp.2d 764, 775 (W.D. Tex. 2000) (quoting N.W.

Enters. Inc. v. City of Houston, 27 F.Supp.2d 754, 776 (S.D. Tex.

1998)). This is because “[i]t is the legislature, and not the

courts, which determines how much testimony is enough to require

city action in redressing a perceived problem.” N.W. Enters., 27

F.Supp.2d at 776 (quoting SDJ v. City of Houston, 636 F.Supp. 1359,

1367 (S.D. Tex. 1986)); see also Cmty. Visual Communs., 148

F.Supp.2d at 775. Then again, though the court must defer to the

legislature’s stated intent, such deference must not exclusively

govern the Court’s review. See id.; SDJ, 636 F.Supp. at 1367. A

court must also consider “whether the [legislative body] relied on

evidence in the . . . record from which it could have reasonably

determined that negative secondary effects associated with adult

businesses actually exist and that the proposed regulations would

in some way address these effects.” SDJ, 636 F.Supp. at 1367.

In enacting Ordinance 287, Kennedale not only relied on its

extensive findings in relation to Ordinance No. 108,5

 but also

 

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cities of Austin, El Paso, and Indianapolis regarding the harmful

effects of sexually oriented businesses on surrounding land uses

have been presented to and reviewed by the city council; and

WHEREAS, studies, reports, and findings conducted by the

cities of Los Angeles, Las Vegas, Houston, Amarillo, and Beaumont

were presented to the city council and made part of the public

record; and 

WHEREAS, the city finds that churches, synagogues, licensed

day care centers, public parks, schools and public libraries are

centers of family oriented activities and therefore enhance the

quality of life in surrounding areas; and

WHEREAS, there is convincing documented evidence that sexually

oriented businesses, because of their very nature, have a

deleterious effect on surrounding land uses, causing increased crime

and the downgrading of property values; and 

WHEREAS, the city council desires to minimize and control

these adverse effects and thereby protect the health, safety, and

welfare of the citizenry; protect the citizens from increased crime,

preserve the quality of life; preserve the property values and the

character of surrounding neighborhoods; and deter the spread of

urban blight; and . . . 

WHEREAS, the city council finds that sexually oriented

businesses are frequently used for activities such as prostitution

or sexual liaisons of a casual nature; and 

WHEREAS, the concern over sexually transmitted diseases is a

legitimate health concern of the city which demands reasonable

regulation of sexually oriented businesses in order to protect the

health and well-being of the citizens; and 

WHEREAS, the city council finds that these amendments will

promote the public health, safety, morals and general welfare of the

citizens of the city; and 

WHEREAS, the city council finds that these amendments have

neither the purpose nor effect of imposing a limitation or

restriction on the content of any communicative materials, including

sexually oriented materials, nor do these amendments have the effect

of restricting or denying access by adults to sexually oriented

materials protected by the First Amendment . . .

H & A I, 2005 U.S. Dist. LEXIS 8192, at *18 n.7. 

10

reviewed relevant precedent and took into account the continuing

secondary-effects problem in Kennedale. (Def.’s Resp. App. at 674,

¶ 5 (Substitute Olson Aff.).) Moreover, Ordinance 287's preamble

specifically “finds that some of the concerns that Ordinance No.

108, as amended, was designed to address are still in existence and

therefore additional regulations are necessary to adequately

 

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protect the public health, safety and welfare,” and “finds that,

unless the regulations contained [in Ordinance 287] are adopted,

sexually oriented businesses will have an adverse effect on

surrounding properties.” (Pl.’s App., Ex. A (Ordinance 287).) The

record substantiates Kennedale’s finding. (Def.’s Resp. App. at

473-640.) Consequently, in light of Kennedale’s review, given the

statements made and findings announced in Ordinance 287, and

considering the actual content of that regulation and the Court’s

earlier ruling on the Ordinances, the Court must conclude that

Ordinance 287 is content neutral. 

(b) O’Brien

Pursuant to O’Brien, a regulation is valid “if it is within

the constitutional power of the Government; if it furthers an

important or substantial governmental interest; if the governmental

interest is unrelated to the suppression of free expression; and if

the incidental restriction on alleged First Amendment freedoms is

no greater than is essential to the furtherance of that interest.”

O’Brien, 391 U.S. at 377; see also Hang On, 65 F.3d at 1254. 

The Court has already examined whether “the governmental

interest is unrelated to the suppression of free expression,”

O’Brien, 391 U.S. at 377, concluding that it is. See Erie, 529

U.S. at 301 (relying upon content-neutral analysis when evaluating

this factor of O’Brien). Further, Kennedale’s efforts to protect

public health and safety are clearly within its police powers. See

 

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6 H&A did not address Kennedale’s authority to pass Ordinance 287 in the

section of its reply brief devoted to O’Brien; its brief in support of its motion

analyzed Ordinance 287 under the Renton standard. Since it elected not to

address the issue, the Court considers it waived. See Bursztajn v. United

States, 367 F.3d 485, 491 (5th Cir.2004); Whitmire v. Terex Telelect, Inc., 390

F.Supp.2d 540, 548 (E.D. Tex. 2005) (discussing abandonment) (“Indeed, because

he did not raise or brief these issues in his responsive brief, any claims . .

. relying on these theories have been waived and are no longer at issue.”)

(citation omitted). 

12

id. at 296. And, H&A does not appear to contest Kennedale’s

authority to pass Ordinance 287.6 

As for whether Ordinance 287 furthers an important or

substantial governmental interest, the Supreme Court has already

noted that “combating the harmful secondary effects associated with

nude dancing [is] undeniably important.” Id. And, courts

reviewing similar cases have concluded that a substantial governmental interest is involved where governmental bodies seek to

combat the types of secondary effects Ordinance 287 and the

Ordinances are aimed at preventing. See Erie, 529 U.S. at 300-01;

LLEH, 289 F.3d at 367-69; Hang On, 65 F.3d at 1254; Fantasy Ranch,

CA: 3:03-CV-0089-R, 2004 U.S. Dist. LEXIS 15605, at *13-17 (N.D.

Tex. Aug. 9, 2004). These conclusions are substantiated by

Kennedale’s own evidence, which reflects that sexually oriented

businesses in general “pose significant ambient public safety

hazards” to their surrounding communities. (Id. at 641-45

(McCleary Aff.).) 

Moreover, in passing Ordinance 287, Kennedale relied on

various cities’ studies, citizen comments, precedent in related

cases, and statements by police officials. (Def.’s Resp. App. at

674, ¶ 5 (Substitute Olson Aff.); 82-83; 65; 88-89; 94 (Hoover

 

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7 True, some of the research and findings were drawn from Kennedale’s

earlier work in passing the Ordinances and Ordinance No. 108 in particular.

However, the Court does not find that fact to be of much importance. See Fantasy

Ranch, 2004 U.S. Dist. LEXIS 15605, at *15-16. Moreover, “in . . . demonstrating

that . . . secondary effects pose a threat, the city need not ‘conduct new

studies or produce evidence independent of that already generated by other

cities’ to demonstrate the problem of secondary effects, ‘so long as whatever

evidence the city relies upon is reasonably believed to be relevant to the

problem that the city addresses.’” Erie, 529 U.S. at 298 (quoting Renton, 475

U.S. at 51-52). Thus, in setting forth its interest in passing a regulation, “a

local government may place great weight upon the experiences of, and studies

conducted by, other local governments, as well as opinions of courts from other

jurisdictions.” J&B Entm’t, Inc., 152 F.3d at 371 (citing Renton, 475 U.S. at

51). 

13

Aff.); 647 (Miller Aff.).)7 All of this evidence indicates that

Kennedale’s secondary-effects concerns are neither made up nor

unsubstantiated, as the record reflects that continuing secondaryeffects activity, including alcohol-related incidents and crimes

involving guns, assaults, theft, and property damage, is still

prevalent in the area despite the Ordinances’ enactments. (Id. at

473-640; 647 (Miller Aff.).) And, some of these reported incidents

even occurred in or directly near Showtime. (Id.) 

H&A argues that Kennedale cannot establish a substantial

governmental interest in passing Ordinance 287 because Kennedale

“has no objective proof that [Showtime], in the absence of the

newly enacted restrictions . . . , contributes in any manner to any

alleged secondary effects in the surrounding community” or that

Ordinance 287 will ameliorate the specific secondary effects

allegedly caused by Showtime. (Pl.’s Prelim. Inj. Reply. at 5.)

Even assuming, however, that the crime incidents reported at or

near Showtime could not be, at least in part, attributable to that

establishment, H&A’s argument must fail because Ordinance 287 is a

content-neutral regulation, and as such Kennedale enjoys sufficient

 

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14

leeway in justifying the ordinance based on secondary effects. See

Erie, 529 U.S. at 298. In such circumstances, “‘the government

generally has a freer hand in restricting expressive conduct than

it has in restricting the written or spoken word.’” Id. at 299

(quoting Tex., 491 U.S. at 406) (citing O’Brien, 391 U.S. at 377;

United States v. Albertini, 472 U.S. 675, 689 (1985); Clark v.

Community for Creative Non-Violence, 468 U.S. at 299). 

Finally, the fourth factor and final O’Brien factor--that the

restriction is no greater than is essential to the furtherance of

the government interest--is also satisfied. As already discussed,

Ordinance 287 regulates mostly non-expressive conduct. In relation

to those restrictions, “any incidental impact on the expressive

element of nude dancing is de minimis.” Erie, 529 U.S. at 301.

The amendments requiring patrons to remain a certain distance from

dancers, prohibiting alcohol service if there is nude dancing, and

requiring employee permits, are minimal restrictions in furtherance

of Kennedale’s asserted interest of eliminating the deleterious

effects nude-dancing establishments have on their surrounding

communities. See id. And, those restrictions do not limit a

dancer’s ability to convey an erotic message; rather, they prohibit

certain nonexpressive conduct taking place during an expressive

presentation. See id.; Gary, 311 F.3d at 1340; Ben's Bar, 316 F.3d

at 726 (“The First Amendment does not entitle Ben's Bar, its

dancers, or its patrons, to have alcohol available during a

‘presentation’ of nude or semi-nude dancing.”). Further, “the

restriction leaves ample capacity to convey the dancer’s erotic

 

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15

message.” Erie, 529 U.S. at 301 (citing Barnes, 501 U.S. at 572

(plurality opinion of Rehnquist, C.J., joined by O’Connor and

Kennedy, JJ.); 501 U.S. at 587 (Souter, J., concurring in judgment)). 

H&A argues that there are less restrictive means for achieving

Kennedale’s desired result. But, as noted by the Supreme Court,

least-restrictive-means analyses are not required where restrictions are content-neutral, as here. Id. (citing Ward v. Rock

against Racism, 491 U.S. 781, 798-799, n. 6 (1989)). And a city’s

regulation will not be deemed invalid simply because there is some

imaginable alternative that might be less burdensome on speech.

See Albertini, 472 U.S. at 689 (citing Community for Creative

Non-Violence, 468 U.S. at 299); LLEH, 289 F.3d at 367 (citing

Albertini, 472 U.S. at 689). Instead, “so long as the neutral

regulation promotes a substantial government interest that would be

achieved less effectively absent the regulation,” the final O’Brien

factor is met. See Albertini, 472 U.S. at 689 (citing Community

for Creative Non-Violence, 468 U.S. at 297 (“if the parks would be

more exposed to harm without the sleeping prohibition than with it,

the ban is safe from invalidation under the First Amendment”));

LLEH, 289 F.3d at 367 (citing Albertini, 472 U.S. at 689; Rock

Against Racism, 491 U.S. at 798-99). Here, that standard is

satisfied. See LLEH, 289 F.3d at 367-70. 

Therefore, given that none of the O’Brien factors are

satisfied, H&A does not have a substantial likelihood of success on

the merits on its First Amendment claims.

 

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8 In relation to H&A’s fifth and sixth claims for relief.

9 The Court also notes that, in its reply brief, H&A elected not to respond

to Kennedale’s arguments on these claims.

10 In relation to H&A’s seventh claim for relief.

16

2. Breach of Contract, Preemption by State Law8

H&A contends that an injunction is warranted because

Kennedale’s enactment of Ordinance 287 violates the parties’

November 2002 settlement agreement. It also argues that Ordinance

287's requirement that sexually oriented businesses close at

midnight violates Texas law which, due to to H&A’s liquor license,

allows Showtime to serve alcohol until two a.m. The Court

concludes that H&A does not have a substantial likelihood of

success on the merits on these claims for the reasons stated in

Kennedale’s response. (Def.’s Resp. at 20-23.)9

3. Overbreadth10

Though H&A argues that Ordinance 287's employee-permit

requirement is overbroad, H&A includes no citation to legal

authority in that portion of its brief. Nor has H&A analyzed the

issue according to the facts of this case and applicable legal

precedent. H&A has therefore wholly failed to demonstrate a

substantial likelihood of success as to this claim.

B. Remaining Preliminary-Injunction Elements

Because the Court concludes that H&A has not demonstrated a

substantial likelihood of success on the merits for any of its

 

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17

claims, the Court need not examine whether the remaining requirements for a preliminary injunction are satisfied. Injunctive

relief is unwarranted.

III. CONCLUSION

Therefore, H&A’s Motion for Preliminary Injunction [doc. # 15-

2] is DENIED.

SIGNED May 10, 2006.

TRM/kat

 

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