                               ATTORNEY GENERAL OF TEXAS
                                           GREG        ABBOTT




                                              August 29, 2008



The Honorable David H. Aken                             Opinion No. GA-0658
San Patricio County Attorney
San Patricio County Courthouse, Room 108                Re: Maximum distance that a county may require
Sinton, Texas 78387                                     that a sexually oriented business be 109ated from
                                                        a residence, church, elementary school, and other
                                                        designated facilities (RQ-0680-GA)

Dear Mr. Aken:

       Chapter 243, Local Government Code, authorizes municipalities and counties to regulate
sexually oriented businesses-sometimes referred to as adult businesses or adult entertainment
businesses. See TEx. Lac. GOV'T CODE ANN. §§ 243.001-.011 (Vernon 2005). You explain that
San Patricio County has adopted the following regulation in relation to sexually oriented businesses:

                 The operation of sexually oriented businesses is prohibited on
                 premises that are located within 1300 feet of:

                          (1) a residential property;
                          (2) a church;
                          (3) a public or private elementary school;
                          (4) a child care facility;
                          (5) a public park;
                          (6) another sexually oriented business . . . .    I


        In relation to such locational restrictions, you ask the following questions:

                 1) Would a regulation requiring that certain sexually oriented
                 businesses be located a minimum of2000 feet from designated places
                 (as indicated above) exceed the legislative authority granted to
                 counties?



          ILetter from Honorable David H. Aken, San Patricio County Attorney, to Honorable Greg Abbott, Attorney
General of Texas, at I (Feb. 19, 2008) (on file with the Opinion Committee, also available at http://www
.texasattorneygeneral.gov) [hereinafter Request Letter].
The Honorable David H. Aken - Page 2                (GA-0658)



                  2) What is the maximum distance from designated places (as
                  indicated above) that a county can require that sexually oriented
                  businesses be located without exceeding the legislative authority
                  granted to counties?

Request Letter, supra note I, at 2.

I.      Analysis

        A.    State Statute

         It is long held that a county commissioners court may exercise only those powers expressly
granted by the Texas Constitution or the Legislature together with such implied powers as are
necessary to accomplish the powers expressly conferred. TEx. CaNST. art. V, § 18(b); City a/San
Antonio v. City a/Boerne, III S.W.3d 22, 28 (Tex. 2003); Canales v. Laughlin, 214 S.W.2d 451,
453 (Tex. 1948); Anderson v. Wood, 152 S.W.2d 1084, 1085 (Tex. 1941). Chapter 243, Local
Goverument Code, authorizes a county to adopt regulations regarding sexually oriented businesses
that are considered necessary to promote the public health, safety, or welfare. See TEx. Lac. GOV'T
CODE ANN. § 243.003(a) (Vernon 2005). Section 243.006 expressly authorizes a county to impose
certain locational restrictions on such businesses:

                  (a) The location of sexually oriented businesses may be:

                      (I) restricted to particular areas; or

                        (2) prohibited within a certain distance of a school, regular
                 . place of religious worship, residential neighborhood, or other
                   specified land use the governing body of the muuicipality or county
                   finds to be inconsistent with the operation of a sexually oriented
                   business.

                  (b) A muuicipality or county may restrict the density of sexually
                  oriented businesses.

Id. § 243.006.

        Section 243.006(a) does not specify a particular distance requirement between sexually
oriented businesses and other land uses. And we find no per se requirement established in the case
law construing chapter 243. The decision about the distance a sexually oriented business should be
located from other specified land uses is thus implicitly left to the discretion ofthe governing body.
See id. This discretion is not unfettered, however, but must be exercised within the confines ofthe
federal and state constitutions, as discussed below. Thus, as a practical matter, the exact distance
requirement permissible in a county will depend on the application ofconstitutional principles to the
 The Honorable David H. Aken - Page 3                           (GA-0658)




 facts and circumstances of the county? We understand the focus of your questions to be on a
 county's authority under statute and, thus, advise you only generally as to the constitutional issues
 raised by your questions.

           B.     Constitutional Cousiderations

         While sexually oriented business regulations have been challenged on numerous
 constitutional grounds, locationallimitations have been challenged principalli as an abridgement
 offree speech4 protections. See, e.g., SDJ, Inc. v. City ofHouston, 837 F.2d 1268, 1275-77 (5th Cir.
 1988); Laredo Rd Co., 389 F. Supp. 2d at 743-44; Smarttv. City ofLaredo, 239 S.W.3d 869, 872
 (Tex. App.-Amarillo 2007, no pet.); Schleuter v. City ofFort Worth, 947 S.W.2d 920, 926-27
 (Tex. App.-Fort Worth 1997, no pet.). This is the case because "[e]rotic non-obscene printed
 matter, films, and live entertainment are sheltered by the First Amendment" as speech. Woodall v.
 City ofEI Paso, 49 F.3d 1120, 1122 (5th Cir. 1995); see also FW/PBS, Inc. v. City ofDallas, 493
 U.S. 215, 250 (1990) (Scalia, J. concurring in part and dissenting in part) ("Since this Court first had
 occasion to apply the First Amendment to materials treating ofsex, ... we have been guided by the
 principle that 'sex and obscenity are not synonymous.' The former, we have said, the Constitution
 permits to be described and discussed. The latter is entirely unprotected ....") (citations omitted).


            'We note that distance requirements greaterthan those you proposehere have, under certain circumstances, been
  upheld. See, e.g., Laredo Rd Co. v. Maverick County, 389 F. Supp. 2d 729,747 (W.D. Tex. 2005) (holding that a one
  mile-5,280 foot-distance requirement in a rural county did not violate the FirstAmendmentbut strikingthe regulations
  down for other constitutional infIrmities). And county regulations prohibiting sexually oriented businesses within a
  specified distance of the type of land uses you list-residential property, churches, schools, child care facilities, and
  public parks-have likewise been upheld. See, e.g., Lindsay v. Papageorgiou, 751 S.W.2d 544, 545, 549 (Tex.
. App.-Houston [1st Dist.] 1988, writ denied) (holding that Harris County regulations that required a sexually oriented
  business permit applicant to certifY it was located a minimum of I ,500 feet from any child care facility, church, dwelling,
  hospital, public buiiding, public park or school did not exceed the authority of the statutory predecessor to section
  243.006).

           'Locational regulations have been challenged on various other grounds. In Kaczmarek v. State, for instance,
 the manager ofan adult lounge unsuccessfully argued that a city. ordinance prohibiting a sexually oriented business from
 being located within 750 feet of any school, church, or licensed day care violated article I, section 6 of the Texas
 Constitution which provides that "no preference shall ever be given to any religious society or mode of worship."
 Kaczmarek v. State, 986 S.W.2d 287, 289, 291 (Tex. App.-Waco 1999, no pet.). And, in Papageorgiou, the owner
 and operator of a sexually oriented business unsuccessfully argued that a county's locational regulations amounted to
 a taking ofher property in violation ofarticle I, section 19 ofthe Texas Constitution. Papageorgiou, 751 S.W.2d at 550;
 see also MJR'S Fare ofDallas, Inc. v. City ofDallas, 792 S.W.2d 569,574 (Tex. App.-Dallas 1990, writ denied)
 (involving an unsuccessful takings challenge to a city's locational regulations).

          'The First Amendment of the United States Constitution provides that "Congress shall make no law . . .
 abridging the freedom of speech" and has been made applicable to the States through the Due Process Clause of the
 Fourteenth Amendment. U.S. CONST. amend. I; id amend. XIV, § I; Edwards v. South Carolina, 372 U.S. 229, 235
 (1963). The Texas Constitution provides that "no law shall ever be passed curtailing the liberty of speech or of the
 press." TEx. CONST. art. I, § 8. Courts have held that, as applied to sexually oriented business regulations, the same level
 ofprotection is afforded under both the Texas and United States Constitutions. See Woodall v. City ofEI Paso, 49 F.3d
 1120, 1127-28 (5th Cir. 1995); Kaczmarek, 986 S.W.2d at291; 2300, Inc. v. City ofArlington, 888 S.W.2d 123, 127
 (Tex. App.-Fort Worth 1994, no writ).
The Honorable David H. Aken - Page 4                           (GA-0658)



        Despite the fact that such materials and activities may be constitutionally protected, they may
be regulated to minimize their adverse secondary effects. The United States Supreme Court, in City
o/Renton v. Playtime Theatres, Inc., established that a local government may constitutionally impose
content-neutral time, place, and manner restrictions on sexually oriented businesses if the local
government can show a substantial governmental interest in regulating the business and if the
regulations do not unreasonably limit alternative avenues of communication. City 0/ Renton v.
Playtime Theatres, Inc., 475 U.S. 41,46-47 (1986); see City o/LosAngeles v. Alameda Books, Inc.,
535 U.S. 425,433-34 (2002) (reaffmning the analytical framework in Renton).'

        Locational restrictions are content-neutral time, place, and mannerregulations "ifthey do not
ban [sexually oriented] businesses throughout the whole of a jurisdiction and are 'designed to
combat the undesirable secondary effects of such businesses' rather than to restrict the content of
their speech per se." Encore Videos, Inc. v. City o/San Antonio, 330 F.3d 288, 291 (5th Cir. 2003)
(quoting Renton).

        Ifthe local regulation is a content-neutral time, place, and manner regulation,6 the court then
inquires whether the regulation is narrowly tailored to serve a significant government interest and
whether the regulation leaves open ample alternative avenues ofcommunication. See Schleuter, 947
S.W.2d at 926 (citing Renton); see also Renton, 475 U.S. at 47 ('''content-neutral' 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 comm~cation").

        A local regulation '''is sufficiently well tailored if it effectively promotes the government's
stated interest.''' Schleuter, 947 S.W.2d at 927; but see Encore Videos, 330 F.3d 288 at 293 n.6
(indicating that the Fifth Circuit has adopted a new narrow tailoring standard in this context: "A
time, place, and manner regulation meets the narrow tailoring standard if it 'targets and eliminates
no more than the exact source ofthe evil it seeks to remedy.''') (quoting Frisby v. Schultz, 487 U.S.
474,485 (1988».

        Under Fifth Circuit jurisprudence, whether a local regulation furthers a substantial
governmental interest is a two-part inquiry: (l) does a substantial governmental interest actually
exist, and (2) does the regulation further that interest. See Fantasy Ranch, Inc., 459 F.3d at 558-59;
see also Encore Videos, 330 F.3d 288 at 293 ("This approach arguably conflicts with City o/Renton,


         'While recognizing the' United States Supreme Court is unquestionably the fmal arbiter regarding the
interpretation ofthis test, we note that this test is construed in different ways in different courts as exemplified in Encore
Videos. See Encore Videos, 330 F.3d at 293 (discussing its interpretation of the substantial govermnent interest
standard). Our discussion ofthe various prongs ofthis test here is intended to be general in nature and does not seek t~
highlight every tension and distinction that may exist among these courts and their interpretations ofthis test.

           '''Ifthe govermnent's interest is indeed related to the suppression of content, then that regnlation of symbolic
speech is subject to strict scrutiny." Fantasy Ranch, Inc. v. City ofArlington, 459 F.3d 546, 554 (5th Cir. 2006). Under
a strict scrutiny standard, the local govermnent faces the daunting task of showing that its content-based regnlation "is
a precisely drawn means of serving a compelling state interest." Canso!. Edison Co. v. Pub. Servo Comm 'n, 447 U.S.
530,540 (1980) (emphasis added).
The Honorable David H. Aken - Page 5                        (GA-0658)



which mandates only that a statute be 'designed to serve a substantial government interest' and does
not require evidence of effectiveness.") (quoting Renton, 475 U.S. at 47).

        In relation to locationallirnitations, the question ofwhether a regulation leaves open ample
alternative avenues of communication is an inquiry into whether "the areas left available are
inadequate to satisfy the demand for sexually oriented business locations." Schleuter, 947 S.W.2d
at 927-28; see also Smith v. State, 866 S.W.2d 760,764 (Tex. App.-Houston [1st Dist.] 1993, writ
ref'd) (holding a city's locational regulations left open alternative avenues of communication where
the ordinance did not totally ban or limit the number of adult bookstores); Papageorgiou, 751
S.W.2d at 550 (holding that a county's locational regulations allowed reasonable avenues of
communication where they did "not totally ban operation of all such enterprises in the county" or
"limit the enterprises in number").

        Renton establishes that commercialviability is not a factor in detennining whether land is
"available." Renton, 475 U.S. at 54; see also Papageorgiou, 751 S.W.2d at 550 (citing to Renton
for the notion that a county has no duty to insure a commercially viable site). The Fifth Circuit has
interpreted Renton to mean that while property does not have to be commercially desirable, it must
be both physically and legally available. See Woodall, 49 F.3d at 1124.; Schleuter, 947 S.W.2d at
928. Assuming that sites are available, a court will also consider whether "the demand for sexually
oriented business locations exceeds the number of locations available." Schleuter, 947 S.W.2d
at 929.

        Free speech challenges against locational regulations often center around the issue ofwhether
alternative avenues of communication are available. Unfortunately, there is no exact percentage of
land or number of sites that one can identify as necessary to meet constitutional standards.
Detennining whether a regulation leaves "adequate alternative avenues ofcommunication" is highly
fact sensitive and may vary significantly from one geographic location to another. 7

II.      Conclusion

        When faced with local legislationthat increased distance requirements as to sexually oriented
"businesses, as you propose to do here, the Fifth Circuit explained that a governing body '''has the
prerogative ofexperimenting with differentpossible solutions to [local] problems even when dealing
with First Amendment interests. ", N W. Enters., Inc. v. City ofHouston, 352 FJd 162, 177 (5th Cir.
2003) (quoting district court with approval). While section 243.006(a) gives a county discretion to
impose locational restrictions, such discretion must be exercised in light ofconstitutional constraints
as applied to the facts and circumstances of the jurisdiction at issue.



         7Locationallimitations may be implicated in challenges under other first amenthnent theories not otherwise
discussed herein. In Kaczmarek, for example, the manager of an adult business challenged a city ordinance as an
unconstitutional prior restraint on free speech arguing that the chiefofpolice had unbridled discretion in administering
the ordinance. Kaczmarek, 986 S.W.2 at 290. The court rejected the argument in part because the ordinance contained
detailed procedures for measuring the distance limitations.
The Honorable David H. Aken - Page 6              (GA-0658)



                                       SUMMARY

                        Local Government Code section 243.006(a) authorizes a
               county to, among other things, prohibit a sexually oriented business
               from locating "within a certain distance ofa school, regular place of
               religious worship, residential neighborhood, or other specified land
               use ... [found] to be inconsistent with the operation of' such a
               business. TEX. Lac. GOy'TCODEANN. § 243 .006(a) 01ernon 2005).
               Section 243.006(a) does not establish any particular distance
                                                                                         /
               requirement between sexually oriented businesses and other land
               uses, but implicitly leaves this decision to the discretion of the
               governing body adopting the restriction. That discretion must be
               exercised within the confines ofthe federal and state constitutions, as
               interpreted by the courts. The exact distance that a county may
               require a sexually oriented business be located from other land uses
               is a fact-sensitive inquiry.




KENT C. SULLIVAN
First Assistant Attorney General

ANDREW WEBER
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

Christy Drake-Adams
Assistant Attorney General, Opinion Committee
