                                                             United States Court of Appeals
                                                                      Fifth Circuit
                                                                   F I L E D
                   UNITED STATES COURT OF APPEALS                  March 18, 2004
                            FIFTH CIRCUIT
                                                               Charles R. Fulbruge III
                                                                       Clerk
                              No.    03-10337


                    RESTAURANT ASSOCIATES, INC.,

                                                      Plaintiff-Appellee,
                                    versus


 BOARD OF ADJUSTMENT, Of the City of Fort Worth, Texas; CITY OF
                       FORT WORTH, TEXAS,

                                                   Defendants-Appellants.


            Appeal from the United States District Court
                 for the Northern District of Texas
                           (4:02-CV-328-Y)


Before SMITH, BARKSDALE, and CLEMENT, Circuit Judges.

PER CURIAM:*

     Two issues are presented in this appeal by the City of Fort

Worth, Texas, and its Board of Adjustment from the summary judgment

awarded Restaurant Associates:         whether the Board’s denial of a

certificate to Associates to operate a sexually oriented business

(SOB) was   an   abuse   of   discretion;    and   whether   the   ordinance

requiring the certificate is an unconstitutional prior restraint.

VACATED and RENDERED.




     *
      Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
                                    I.

     In late 2001, Associates applied to the City’s Department of

Development for the requisite SOB certificate for 2300 Cobb Street.

It was denied because the Department’s Director concluded that, in

violation of section 5.200.B.2.a of the Fort Worth Zoning Code, the

location was within 1000 feet of a “religious institution”:             the

Love Memorial Church of God in Christ, which meets in a chapel

inside the multi-purpose wing of the Salvation Army building at

1855 East Lancaster.

     Associates appealed the certificate-denial to the Board, which

upheld the Director’s decision.       Next, in state court, Associates

claimed the Board’s decision was illegal.          See TEX. LOC. GOV’T CODE

ANN. § 211.011.    The action was removed to federal court, based on

federal question jurisdiction over Associates’ prior restraint

claim.

     On cross motions for summary judgment, the district court

granted judgment for Associates, holding the Board had abused its

discretion in denying the certificate because it acted arbitrarily

and unreasonably in concluding that the Church is a religious

institution pursuant to the ordinance.          Accordingly, it was not

necessary   for   the   district   court   to   reach   Associates’   prior

restraint claim.




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                                      II.

     A summary judgment is reviewed de novo, applying the same

standard of review as the district court.           E.g., Daniels v. City of

Arlington, 246 F.3d 500, 502 (5th Cir.), cert. denied, 534 U.S. 951

(2001). Such judgment is proper if movant demonstrates there is no

genuine issue of material fact and is entitled to judgment as a

matter of law.       FED. R. CIV. P. 56(c); e.g., Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 248 (1986); Crawford v. Formosa Plastics

Corp., 234 F.3d 899, 902 (5th Cir. 2000).

     Two issues are presented:              whether the certificate-denial

violated   Texas     law;   and   whether    the   ordinance   requiring   the

certificate is an unconstitutional prior restraint.             There are no

material fact issues; therefore, our review is limited to whether

either side is entitled to judgment as a matter of law.            Restated,

the two issues are questions of law; and the record is sufficient

to address each.

                                      A.

     Because the state law claim (certificate-denial) is in federal

court through supplemental jurisdiction, 28 U.S.C. § 1367, Texas

law controls; in this instance, it also provides the standard of

review for the certificate-denial.            (Because it was inadequately

briefed,   we   do    not   address   Associates’     contention   that    the

“legislative model” is inapplicable because this action was removed




                                       3
to federal court.)   Pursuant to Texas law, the standard of review

is quite narrow indeed:

                The Board is a quasi-judicial body, and
          the [state] district court sits only as a
          court of review by writ of certiorari. TEX.
          LOC. GOV’T CODE ANN. § 211.011(c).   The only
          issue    for  determination  in  a   writ  of
          certiorari proceeding is the legality of the
          Board’s order. A legal presumption exists in
          favor of the Board’s order, and the party
          attacking it has the burden of establishing
          its illegality.

               To establish that an adjustment board’s
          order is illegal, the contesting party must
          make a very clear showing that the board
          abused its discretion, i.e., acted arbitrarily
          and unreasonably, without reference to any
          guiding rules or principles.      The [state]
          district court cannot put itself in the
          adjustment board’s position or substitute its
          discretion for that of the board.

SWZ, Inc. v. Bd. of Adjusment of the City of Fort Worth, 985 S.W.2d

268, 269-70 (Tex. App.—Fort Worth 1999 pet. denied) (emphasis

added; some citations omitted).

     Citing Bd. of Adjustment v. Underwood, 332 S.W.2d 583 (Tex.

Civ. App.—San Antonio 1960, writ ref’d n.r.e.), Associates also

disputes applying the abuse of discretion standard of review

(which, as noted, the district court utilized), contending that we

may be less deferential to the Board because the question is one of

ordinance interpretation.   Underwood held: a court is not bound by

the Board’s legal construction of an ordinance; on the other hand,

the abuse of discretion standard applies when reviewing the Board’s

application of an ordinance to facts.      Id. at 585.     Here, the

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certificate-denial was the application of the ordinance to the

facts; accordingly, we review only for abuse of discretion.

     It is undisputed that the Church is within 1000 feet of the

proposed    SOB;       therefore,    if       the   Church     is    a     “religious

institution”, the proposed SOB is prohibited by the ordinance.                        A

religious institution is defined as “a building [discussed infra]

in which persons regularly assemble for religious worship and

activities intended primarily for purposes connected with such

worship or for propagating a particular form of religious belief”.

FORT WORTH TEX., ZONING ORDINANCES, app. A, Ch. 9, § 9.101 (emphasis

added).

     Concerning        the   Church’s         worship   services         and    related

activities, the following undisputed facts were before the Board:

the Salvation Army has allowed the Church to use its chapel since

1995; the Church, led by an ordained Church of God in Christ

minister,   is     a   Christian    denomination        with   its   own       distinct

doctrines and history; services are held at the Church twice a week

(Friday night and Sunday morning); the pastor conducts a Bible

study at the Church on Wednesday night and has performed marriages

and memorial services on occasion; the pastor distributes business

cards with the Church’s worship schedule in hopes people will

attend; and worship bulletins are prepared for the services held at

the Church.      In sum, the Church’s worship services and related




                                          5
activities     are    those   typically     associated     with   a   religious

institution.

     According       to   Associates,    however,    the   Church     is   not   a

religious institution because it is not a “building” as required by

the ordinance.       A “building” is defined as a “structure having a

roof supported by columns or walls for the housing or enclosure of

persons, animals or chattels”.          FORT WORTH TEX., ZONING ORDINANCES, app.

A, Ch. 9, § 9.101.        The Board asserts that, for the certificate-

denial, it did not consider the entire Salvation Army building as

a “religious institution”; rather, it considered the building’s

multi-purpose wing, which contains only the chapel and a gymnasium.

(The district court held the Board abused its discretion because

the Salvation Army facility is only one building and the Church is

inside that facility and not itself a building.)

     In the light of the narrow abuse of discretion standard of

review, we must review the Board’s decision based on the reasons it

gave for certificate-denial.       Therefore, our inquiry is limited to

whether the Board abused its discretion in finding the multi-

purpose wing is a building, satisfying that element for a religious

institution.

     With respect to the multi-purpose wing, the summary judgment

record shows:        the Director of the Department of Development

testified that it meets the ordinance’s definition of a building

because it is a structure with a roof supported by walls; the



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chapel used by the Church is located within that part of the

Salvation Army building; that part also houses a gymnasium, which

is used for religious purposes; the architectural plans for that

part are on a separate page from the rest of the building and are

labeled “multi-purpose building”; that part is separated from the

rest of the building by an enclosed breezeway with a roof; a cross

design adorns the brick wall outside where the chapel is located,

but nowhere else on the Salvation Army building; within the chapel

are pews, crosses, and a lectern designed for worship; the primary

purpose of the Salvation Army building is as a homeless shelter;

less than three percent of the Salvation Army facility is devoted

to the chapel; there are no signs inside or outside the Salvation

Army building indicating that religious services are available; the

Salvation Army does not denominate the building as one where the

public may attend religious services; the Salvation Army receives

emergency shelter grant funding from the federal government, and

its regulations restrict the funds’ use in connection with worship

services; and the Salvation Army building has only one address and

one certificate of occupancy.

     In sum, the summary judgment evidence arguably conflicts on

whether, under the ordinance’s definition, the multi-purpose wing

is a “building”. As discussed supra, however, given the applicable

abuse of discretion standard of review, we must defer to the

Board’s decision unless it was arbitrary or unreasonable. See SWZ,


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985 S.W.2d at 270; Southwest Paper Stock, Inc. v. Zoning Bd. of

Adjustment of the City of Fort Worth, 980 S.W.2d 802, 805 (Tex.

App.—Fort Worth 1998, pet. denied).                 Indeed, under this narrow

standard, we must defer to the decision even if the overwhelming

preponderance of the evidence is against it.                Southwest Paper, 980

S.W.2d at 805.         In this regard, the Board does not abuse its

discretion by basing its decision on conflicting evidence, as long

as some evidence of substantive and probative character exists to

support the decision.         Id. at 805-06.

       The Board’s decision that the multi-purpose wing is a building

pursuant to the ordinance is supported by the requisite evidence.

For example, as discussed, the architectural drawings label that

part    a    “multi-purpose     building”;      the   multi-purpose        wing    is

separated from the rest of the Salvation Army building by a

breezeway; crosses adorn the outside of the multi-purpose building,

but not the Salvation Army building as a whole; and the Development

Director      testified     that   the       multi-purpose     wing      meets    the

ordinance’s definition of a building.

       Accordingly,     the   Board    did    not   abuse    its   discretion     in

concluding that the multi-purpose wing is a building.                      This is

consistent with Texas law.             In SWZ, the Texas Court of Appeals

upheld      the   Board’s   decision     that   a   hall    used   for    religious

activities and prayer meetings, which was a portion of a church

complex, qualified as a church under a predecessor Fort Worth


                                         8
zoning ordinance.    SWZ, 985 S.W.2d at 271.   The Court of Appeals

noted:   “[T]he mere fact that the hall and the sanctuary are not

physically connected or part of the same structure is irrelevant to

our inquiry — as long as the hall meets the city’s definition of a

‘church’”.   Id.   Likewise, the Board’s decision that the Church is

a religious institution is not an abuse of discretion merely

because the multi-purpose wing is connected to the rest of the

Salvation Army building.

     Hooters, Inc. v. City of Texarkana, Texas, 897 F. Supp. 946

(E.D. Tex. 1995), is not to the contrary.       There, in granting

plaintiffs a preliminary injunction, the district court construed

the same predecessor ordinance and held that a prison room being

used for religious activities did not qualify as a church because

it was not a building.   Critical to that decision was that the room

used for religious activities shifted regularly and thus, the court

would have to find either that the “building” moved or that the

entire prison was a church.    Id. at 952.

                                  B.

     The other issue is Associates’ claim that the ordinance is an

unconstitutional prior restraint on freedom of speech, violative

of the First, through the Fourteenth, Amendment. As noted, because

the district court held the Board had abused its discretion, it did

not need to reach this constitutional issue.    As discussed supra,

we can decide it without further development of the record.


                                  9
       Ordinances regulating speech and contingent on the discretion

of    an   official    are     burdens       on    speech      classified     as    prior

restraints.    E.g., Chiu v. Plano Ind. Sch. Dist., 339 F.3d 273, 280

(5th Cir. 2003) (citing Staub v. City of Baxley, 355 U.S. 313

(1958)). A prior restraint is not unconstitutional per se; it will

be upheld if it has narrow, objective, and definite standards to

guide the licensing authority.                Id. at 281 (citing Southeastern

Promotions,    Ltd.     v.   Conrad,     420       U.S.   546,     558   (1975)).         A

delegation    scheme,     as    at    issue       here,   is    permissible        if   its

standards are “susceptible of objective measurement”. Keyishian v.

Bd. of Regents, 385 U.S. 589, 604 (1967).

       Associates     maintains,       erroneously,         that       the   Director’s

application of the term “building” to “a one room (chapel) in a

large facility” demonstrates unbridled discretion.                       As discussed,

the    ordinance      includes       three        components     for     a   “religious

institution”: (1) a building; (2) in which persons regularly

assemble; (3) for religious worship and related activities.                         These

standards are objective and the Director’s discretion is not

unbridled.     Further, the definition of “building” as a “structure

having a roof supported by columns or walls, for the housing or

enclosure of persons, animals, or chattel” contains definitive,

intelligible standards for the Director to follow.                       The standards

sufficiently limit the Director’s discretion.




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     Our    court   has   upheld    similar       ordinances    against    prior

restraint challenges.      E.g., FW/PBS, Inc. v. City of Dallas, 837

F.2d 1298 (5th Cir. 1988) (upholding ordinance prohibiting license

for SOB if within 1000 feet of church because ordinance standards

were capable of objective measurement), rev’d on other grounds, 493

U.S. 215 (1990).    SDJ, Inc. v. City of Houston, 837 F.2d 1268, 1277

(5th Cir. 1988), cert. denied, 489 U.S. 1052 (1989), upheld an

ordinance which provided that a permit to operate a SOB would issue

unless one of eight specific exceptions existed. One exception was

that “[t]he applicant’s enterprise is located within 750 feet of

any school, church, or licensed day care center”.                   Id. at 1277

n.28.   Associates’ contention that SDJ is inapplicable because

plaintiffs there brought a facial, rather than an as applied,

challenge is unavailing.

     In sum, the standards for issuing a certificate are capable of

objective   measurement,      and   the    Director’s   application       of   the

ordinance here falls squarely within its objective criteria. There

is no unconstitutional prior restraint.

                                     III.

     For    the   foregoing   reasons,      the   judgment     is   VACATED    and

judgment is RENDERED for the Board and City.

                                                     VACATED and RENDERED




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