The next (last?) SOB appeal gets underway

Back in May, several of Houston's topless clubs got a temporary stay from the Fifth Circuit Court of Appeals in New Orleans, which prevented the city of Houston from arresting their employees under the previously-upheld anti-SOB law. Today, the promised "expedited" appeal gets underway to determine if the 1500-foot regulation is too excessive.

The case before the 5th U.S. Circuit Court of Appeals in New Orleans on behalf of several topless clubs and bookstores is the latest legal skirmish between the industry and the city, which a decade ago adopted a strict new law regulating the businesses.

Toughest among the new regulations, most of which have been upheld by the courts, was a provision prohibiting the businesses from operating within 1,500 feet of the sensitive sites.

This provision, if it survives the judicial review, would mean scores of topless clubs, adult bookstores and modeling studios would have to close or move -- a fate the businesses have fought vigorously.

"We're looking forward to (the) argument, with the hope that the court will find favor in our position," said John Weston, a Los Angeles-based lawyer representing the Colorado Bar & Grill and The Men's Club, two of the city's most popular topless clubs.

Courts have previously ruled that such location restrictions are constitutional, so long as there are enough alternative sites where the clubs could relocate.

The city considered that issue 10 years ago, when it adopted the ordinance under then-Mayor Bob Lanier. After years of litigation delayed enforcement of the ordinance, U.S. District Judge Nancy Atlas earlier this year ruled that the decade-old analysis was sufficient, in siding with the city after a two-week trial.

At issue today is whether an updated examination of alternative sites, now that Houston has grown more densely populated, should be used in determining whether the clubs still have room to relocate.

The city's position is that the previous analysis is sufficient.

"Our response is that the point of evaluating the sites is to know if the purpose of passing the ordinance was to eliminate these businesses," said Pat Zummo, the city's outside counsel who has worked on the issue for years. "That's something you could only judge at the time of the enactment of the ordinance."

I don't know how you could argue with a straight face that the number of potential alternate sites that comply with the new law is about the same now as it was back in 1997, but we'll see what the court thinks. I suppose it could conclude that the clubs had their chance to relocate back then instead of pursuing this lawsuit, and if the window of opportunity has closed in the meantime, that's just too bad. Who knows? A question that interests me but that may not be within the scope of the suit, is what happens if a club finds a place that meets the requirements of the law, then later on a church or school or day care center gets built within 1500 feet of it. Does that then put them in violation? I'm not sure how a law that allows you to be put in legal jeopardy by someone else's actions can be constitutional, but we live in strange times. The City Hall blog has more, including copies of the various filings.

Posted by Charles Kuffner on August 07, 2007 to Local politics