                                                   United States Court of Appeals
                                                            Fifth Circuit
                                                         F I L E D
                      REVISED JUNE 3, 2004
                                                           May 28, 2004
                 UNITED STATES COURT OF APPEALS
                      FOR THE FIFTH CIRCUIT          Charles R. Fulbruge III
                     _______________________                 Clerk

                           No. 98-20255
                     _______________________

    N.W. ENTERPRISES INCORPORATED; AMETHYST ENTERPRISES INC;
     CAMPUS INVESTMENTS INCORPORATED; 1431 WEST 18TH, INC.,

                                          Plaintiffs - Appellees,

                   FTU INC.; DAJO INC.; ICE EMBASSY INC.;
     TEXAS RICHMOND CORPORATION; ANDREA STAFFORD; FRANK I. KENT;
      NAOMI L. PARRISH; ANN MARIE HASSELBACH; JEANNE L GRIGSBY;
          SUSAN BOYLE; DANA LYNN THOMAS; KIMBERLY ANN DUSHMAN;
            MICHELLE HADLEY; COLLEEN CLOER; LEAH MARIE WILSON;
          CARLA K. EATON; CHERYL THOMPSON; ROBERT G. FUREY; HFR
    ENTERPRISES, INC.; ANDREA HILL; GINA OLIVER; HEATHER WELDIN;
  CHARISMA BARRY; DONNA SOTO; ANDREA ALLBRIGHT MARCO; AHD HOUSTON
  INC., a Texas Corporation d/b/a Centerfolds; DNW HOUSTON, INC;
                PARABAR CO, doing business as Paradise Club;
           JANE DOE ONE, Applicants; JANE DOE TWO, Applicants;
           DEE & DEE ENTERPRISES, INC.; 9924 I-45 NORTH, INC.;
      HI-HOUSTON, INC.; CHARLES WESLEY, INC.; CHIL SOUNG, INC.,
    doing business as BJ's 24 Hour Newsstand; DARIS, INC., doing
      business as Riveria Cabaret; GNCD, INC., doing business as
      Fantasy South; RUDE DOG II, INC., doing business as Scores
     Cabaret; LONE STARR MULTI THEATRES, INC., doing business as
Cinema West; AVW, INC., doing business as Adult Video Megaplexxx;
CLMS, INC., doing business as 24 Hour Video & News; C-SNAP, INC.,
  doing business as Interludes; EAST BAY, INC., doing business as
 East Tex 24 Hour News & Video, doing business as Hempstead Adult
      Bookstore, none, doing business as XTC Cabaret Center; TNT
  SERVICES, INC., doing business as Xcalibur; 9834 JENSEN, INC.,
     doing business as Harlem Knights; 8503 NORTH FREEWAY, INC.,
    doing business as Fantasy Cabaret; CORPORATE CLUBS OF TEXAS,
        INC., doing business as Fantasia I XTC; US CLUBS, INC.,
    doing business as Fantasia III XTC; XTC CABARET, INC., doing
     business as XTC; DHL INC., doing business as Executive XTC;
         CHERIE FELDMAN, doing business as Executive Playmates;
          EVE ENTERPRISES, INC., doing business as Club Royale;
             LONG TRAN, doing business as Ellington Newsstand;
    NIEN X. NGUYEN, doing business as DT Video; WMF INVESTMENTS,
       INC., doing business as Chesapeake Bay; AKM, INC., doing
 business as Gigi's Cabaret; DHR, INC., doing business as Hi-10
       Cabaret; PANAH, INC., doing business as Mirage Cabaret;
  R & R ENTERTAINMENT, INC., doing business as Moments Cabaret;
        SSD ENTERPRISES, INC., doing business as Ritz Cabaret;
 HHE, INC., doing business as Passion Cabaret; F & R CLUB, INC.
   doing business as Silk Bar & Grill Cabaret; ATCOMM SERVICES,
         INC., doing business as Broadsteets; HOUMAN SHAGHAGI,
   doing business as Foxxy's Cabaret; SOUTHEAST TEXAS VENTURES,
 A TEXAS JOINT VENTURE, doing business as The Trophy Club; KMRC,
INC., doing business as LaChatte; ARIS MYLONAS, doing business as
Baby Dolls Saloon; MK CLUB & RESTAURANTS, INC., doing business as
 Moulin Rouge; 10128 TDC 1, INC., doing business as Texas Dolls
  Cabaret; SOUTHWEST CLUBCO, INC., doing business as Playmates;
 DUNCAN BURCH, INC., doing business as Michael's International;
   OBSESSION CABARET, INC., doing business as Obession Cabaret;
 NORMAN R. GLENN, doing business as West Mt. Houston Newsstand,
    doing businessas Far West News, doing business as Highway 6
     Newsstand; JAMES DREW, doing business as Gold Touch Stress
         Clinic and Velvet Touch Stress Clinic; PETE CASERLY,
            doing business as Northwest News; A TO X VIDEO,
           doing business as Pacific Management Enterprises;
              HUGHES & ST. CLAIR, INC., doing business as
    Pacific Management Enterprises; QUASAR INTERNATIONAL, INC.,
           doing business as Pacific Management Enterprises;
        VIDEO NEWS, INC., doing business as Pacific Management
 Enterprises; CHUCK WESLEY, doing business as Pacific Management
   Enterprises; CHUCK WESLEY, INC., doing business as Northwest
     News; JACOB BORENSTEIN, doing business as Northwest News;
        12851-59 WESTHEIMER, INC.; 608 WEST MT. HOUSTON, INC.;
         GINO A. BARONE, doing business as Ban Management Co.,
          also known as Consolidated Video, doing business as
               Hillcroft News & Video, doing business as
           Telephone Road News & Video; HEAVEN VIDEO & NEWS;
        AIRLINE VIDEO AND THAI COMPANY; CITY WIDE GROUP, INC.,
    doing business as Studz News; ANS, INC. DBA LONE STAR NEWS,
         doing business as Lone Star News, NORTHSTAR, INC. DBA
     NORTH FREEWAY NEWS; NORTHEAST, INC. DBA GULF FREEWAY NEWS,
 doing business as Gulf Freeway News; EASTEX 24-HOUR NEWSSTAND;
         G. W. ROGERS; R. GLASS; G. HUMPHREY; D. L. STONEHAM;
     L. J. PUTTERMAN; M. ROBERTS; V. L. AUZSTON; J. J. LANGEN;
     H. PEREZ; A. LUCKE; Y. HINOJOSA; A. N. MCMILLEN; B. WEBB;
     R. STERNES; S. MONGONIA; K. MARTIN; N. ROBERTS; V. GOBEA;
       D. QUICK; K. WARREN; R. SANCHEZ; S. JUREK; N. ESPINOZA;
     C. EMERY; K. MARTIN; C. COMBS; J. DAMPIER; W. KALINOWSKI;
  J. CRENSHAW; L. M. BATES; H. MACTAVISH; T. DOVE; E. CASTILLO;
 K. K. HANNAN; C. J. SHARPE; A. A. COOK; N. BAILEY; T. R. KING;

                                2
    L. B. MEAGHER; N. HENRY; A. BAILEY; D. DODSON; J. SUAREZ;
       A. N. MCMILLAN; K. ROSENBERRY; C. GARCIA; M. FISHER;
       D. M. MUENZLER; T. J. OAKLEY; D. CARSWELL; A. KELLY;
          T. WESTERN; K. A. RADAR; L. PHILLIPS; T. JONES;
           A. GIBSON; G. PIERCE; N. NEUENFELDT; T. ALLEN;
    S. L. WHITTNEBURG; P. A. BUFFIN; C. VAUGHN; T. L. ALDAPE;
   S. Y. NORENO; L. TAUAREZ; T. DARDAS; N. BARRY; T. STANDRIDE;
 J. D. BURDEN; S. S. SALAZAR; H. L. LOCOCO; S. BRADY; S. NNOLI;
      E. I. STREET; D. JORGENSON; D. G. LEWIS; P. Z. GERMAN;
   J. M. ROGERS, J.R.; B. TEMPLEMIRE; R. DUNCAN; J. EASTERWOOD;
           J. C. ACRES; W. TEMPLEMIRE, JR.; TRUMPS, INC.,
       doing business as Rick's Cabaret, A Texas Corporation;
   ANDREW SEFIA, doing business as Rumors, and others similarly
     situated; D. HOUSTON, INC., doing business as Treasures,
   a Texas Corporation S.E. MANAGEMENT, INC., doing business as
Northshore Video and News, JEANA WILEY, Operator of Southeastern
                  Management; NORMAN S. HARRISION,

             Intervenor Plaintiffs - Appellees-Cross-Appellants,

ELGIN INVESTMENT COMPANY, LTD, doing business as French Quarter
   Theater; KQ INVESTMENTS, doing business as Amenity Caberet;
   MARK THAI DO; doing business as Dong Kyong Modeling Studio;
    DSSS ARIA MERICA, INC., doing business as Solid Platinum,
 a Texas Corporation; MARKETING ORGANIZATION OF AMERICA, INC.,
    doing business as Exclusive Tanning, a Texas Corporation;
BUDGET DISTRIBUTORS, INC., doing business as Franc's of Beverly
    Hills, a Texas Corporation; MICHAEL D'S RESTAURANT, INC.,
        doing business as Houston Salon & Fitness Center,
    doing business as Texas Health Salon, a Texas Corporation;
     LE CRAZYHORSE CABARET ASTRODOME, INC., doing business as
    Malibu Resorts, doing business as Sensational Impressions,
             a Texas Corporation; EPZ TRADING COMPANY,
    doing business as Texas Health Salon, a Texas Corporation;
  DEUX SOEUR ENTERPRISES, INC., doing business as Native Tan,
  a Texas Corporation; LIMERICK, INC., doing business as Video
    Specials, a Texas Corporation; YOU’RE A TO X VIDEO OUTLET,
                     INC., a Texas Corporation,

                              Intervenor Plaintiffs - Appellees,

                               v.

                        CITY OF HOUSTON,

                           Defendant - Appellant-Cross-Appellee.

                               3
                    _______________________

                          No. 98-20885
                    _______________________

  N. W. ENTERPRISES INCORPORATED; AMETHYST ENTERPRISES, INC.;
     CAMPUS INVESTMENTS INCORPORATED; 1431 WEST 18TH, INC.;

                        Plaintiffs - Appellees-Cross-Appellants,

      FTU INC.; DAJO, INC.; ICE EMBASSY, INC.; TEXAS RICHMOND
CORPORATION; ANDREA STAFFORD; FRANK I KENT; AHD HOUSTON, INC.,
    a Texas Corporation d/b/a Centerfolds; DNW HOUSTON, INC.;
    PARABAR CO, doing business as Paradise Club; JANE DOE ONE,
  Applicants; JANE DOE TWO, Applicants; DEE & DEE ENTERPRISES,
INC.; 9924 I-45 NORTH, INC.; HI-HOUSTON, INC.; CHARLES WESLEY,
   INC.; D HOUSTON, INC., doing business as Treasures, a Texas
   Corporation; HFR ENTERPRISES, INC.; ANDREA ALLBRIGHT MARCO;
    NAOMI L. PARRISH; ANN MARIE HASSELBACH; JEANNE L. GRIGSBY;
       SUSAN BOYLE; DANA LYNN THOMAS; KIMBERLY ANN DUSHMAN;
         MICHELLE HADLEY; COLLEEN CLOER; LEAH MARIE WILSON;
    CARLA K. EATON; ANDREA HILL; GINA OLIVER; HEATHER WELDIN;
   CHARISMA BARRY; DONNA SOTO; CHERYL THOMPSON; ROBERT FUREY,

             Intervenor Plaintiffs - Appellees-Cross-Appellants,

                              and

  CHIL SOUNG, INC., doing business as BJ's 24 Hour Newsstand;
         ET AL (referred to as Chil Soung Appellants),

             Intervenor Plaintiffs - Appellees-Cross-Appellants,

       KQ INVESTMENTS, doing business as Amenity Cabaret;
  MARK THAI DO, doing business as Dong Kyong Modeling Studio;
 NORMAN S. HARRISON; DSSS ARIA MERICA, INC., doing business as
               Solid Platinum, a Texas Corporation;
   MARKETING ORGANIZATION OF AMERICA, INC., doing business as
             Exclusive Tanning, a Texas Corporation;
BUDGET DISTRIBUTORS, INC., doing business as Franc's of Beverly
   Hills, a Texas Corporation; MICHAEL D'S RESTAURANT, INC.,
        doing business as Houston Salon & Fitness Center,
   doing business as Texas Health Salon, a Texas Corporation;
    LE CRAZYHORSE CABARET ASTRODOME, INC., doing business as
   Malibu Resorts, doing business as Sensational Impressions,
  a Texas Corporation; EPZ TRADING COMPANY, doing business as

                               4
              Texas Health Salon, a Texas Corporation;
   DEUX SOEUR ENTERPRISES, INC., doing business as Native Tan,
                        a Texas Corporation;
    LIMERICK, INC., doing business as Video Specials, a Texas
      Corporation; YOU’RE A TO X VIDEO OUTLET, INC., a Texas
            Corporation; ELGIN INVESTMENT COMPANY, LTD,
             doing business as French Quarter Theater,

                                        Intervenor Plaintiffs - Appellees,

                                         v.

                                CITY OF HOUSTON,

                                      Defendant - Appellant-Cross-Appellee.



          Appeals from the United States District Court
                for the Southern District of Texas
_________________________________________________________________

                          ORDER ON REHEARING
              (Opinion 11/25/03, 5th Cir., 352 F.3d 162)

Before GARWOOD, JONES, and STEWART, Circuit Judges.

PER CURIAM:

            The court, having carefully considered the petitions for

rehearing   and     rehearing    en    banc   filed    on    behalf   of    sexually

oriented businesses and entertainers in this case, GRANTS them IN

PART and DENIES IN PART as follows:

     1.     We agree with the argument of FTU appellees that the

district    court     lacked     jurisdiction     to        enter   an     order   of

reconsideration in August 1998, partially reversing the injunctive

relief that it granted on February 18, 1998, because this court had

already    obtained    appellate       jurisdiction    over     the   same    issues


                                         5
through the City’s timely filed notice of appeal.              The specifics of

this jurisdictional reasoning need not be related here.

             Because FTU is correct, it follows that the introductory

paragraph of Section IV and a part of IV.C of the panel opinion,

see 352 F.3d at 192, 196-97, must be vacated only to the extent

that those discussions appear to “affirm” the district court

decision, entered on reconsideration, which upheld the requirement

that SOB entertainers wear and conspicuously display a city-issued

identification       card    while    performing.      Instead,      the    proper

disposition     is    that    we     REVERSE   the   court’s    earlier-issued

injunction against enforcement of that requirement.                    See N.W.

Enterprises, Inc., et al. v. City of Houston, 27 F.Supp 2d 754 at

848-50 (S.D. Tex. 1998) (striking the provision).              We REVERSE, and

VACATE the injunction, because that provision of the Ordinance,

viewed under a standard of intermediate scrutiny, is narrowly

tailored to serve a substantial governmental interest in ensuring

that   all   entertainers      are    properly   licensed      and   that   their

licensure can be ascertained without interrupting the performances.

More precisely, we concur that “an important goal of the new

Ordinance was to allow police officers to enforce the law in adult

businesses from a distance, without having to get themselves

involved in illegal activity.”          See 27 F.Supp 2d at 908.       We uphold

this aspect of the Ordinance essentially for the reasons stated by




                                         6
the district court in its (ineffective) reconsideration order. See

27 F.Supp 2d at 907-09 and 914-17.1

      2.    In all other respects, the Petitions for Rehearing are

DENIED, and no member of this panel nor judge in regular active

service on the court having requested that the court be polled on

Rehearing En Banc* (FED. R. APP. P. and 5TH CIR. R. 35), the Petitions

for Rehearing En Banc are also DENIED.




*Judge Smith did not participate in the consideration of the

Petitions for Rehearing En Banc.




      1
            FTU additionally argues that before upholding this provision, we
ought to permit further briefing, as this precise issue was not briefed on the
merits on appeal. At this point, given the hundreds of pages of briefing already
presented to this court, and the incredibly thorough briefing before and
reasoning of the district court in the case, including on this precise issue,
further substantive briefing would be a waste of time.

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