                  IN THE UNITED STATES COURT OF APPEALS

                            FOR THE FIFTH CIRCUIT



                                 No. 93-1434



GRAND BRITTAIN, INC., d/b/a
Brittain Adult Bookstore,
d/b/a Grand Street Adult Theater
and Bookstore,
                                                  Plaintiff-Appellant,

                                   versus

THE CITY OF AMARILLO, TEXAS,
                                                  Defendant-Appellee.



            Appeal from the United States District Court
                 for the Northern District of Texas


                              ( July 26, 1994 )

Before GOLDBERG, HIGGINBOTHAM, and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:

     Grand Brittain, Inc., operator of an adult bookstore and an

adult theater in Amarillo, Texas, sued the city alleging that local

adult    business   ordinances    violated     the      First   and   Fourteenth

Amendments.*      The district court held portions of the ordinances

unconstitutional, severed them, and upheld the remainder.                  Grand

Brittain,    on   appeal,    alleges   a   lack    of    adequate     procedural




     *
        These Amarillo ordinances are attached as Appendices A,
B, and C. See generally Amarillo, Tex., Ordinance 5862 (June 18,
1990) (zoning); Amarillo, Tex., Ordinance 5863 (June 18, 1990)
(licensing), as amended by Amarillo, Tex., Ordinance 5942 (Jan.
2, 1992) (procedural safeguards).
safeguards and a failure to permit adult businesses to operate. We

affirm except in one respect.

       On June 12, 1990, Amarillo passed Ordinance No. 5862 amending

the zoning chapter of the Amarillo Municipal Code by adopting adult

business regulations governing viewing booths, requiring spacing

from    uses   determined     incompatible      by    the    city     commission,

regulating     zoning   district     locations,      requiring      specific   use

permits, and requiring amortization of nonconforming uses.                   On the

same   day,    the   city   passed     Ordinance     No.    5863    amending   the

amusements chapter of the Amarillo Municipal Code by requiring

adult businesses to obtain a license from the Chief of Police,

requiring compliance with other municipal codes, prohibiting minors

from the businesses, and regulating the viewing booths.

       In June 1991, the Texas Legislature amended Chapter 243 of the

Texas Local Government Code to give district courts jurisdiction to

hear appeals from licensing decisions affecting adult businesses.

Amarillo passed Ordinance No. 5942 on December 24, 1991, amending

the amusement chapter of the Amarillo Municipal Code, as already

amended by Ordinance No. 5863, to limit the time in which adult

business licenses must be granted and to incorporate the appeal

provision of Chapter 243 of the Texas Local Government Code.

                                        I.

       Ordinance     5862   requires     that   structures         housing   adult

businesses be located at least 1,000 feet from residential zoning

districts and from residences, churches, public or denominational

schools, hospitals, licensed child care facilities, hotels, motels,


                                        2
parks, playgrounds, play fields, public stadiums, other adult

businesses,        or    religious,    charitable,     or    philanthropic

institutions. Grand Brittain operates adult businesses within 1000

feet of residential properties and, under Ordinance 5862, must

relocate them within three years after the effective date of the

ordinance to a light or heavy industrial zone.

      Under City of Renton v. Playtime Theatres, Inc., 475 U.S. 41,

46-48 (1986), Ordinance 5862 must preserve ample alternative means

of communication. Grand Brittain complains that the ordinance will

force its establishments into locations that cannot support a

commercial enterprise. The district court isolated 63 locations as

"legally    and     physically    suitable    and   feasible"   for    adult

businesses, of which the court noted that 90% are "undeveloped" and

without infrastructure and utilities, that no more than five have

existing structures, and that only two have available buildings.

Grand Brittain accepts these findings but complains that adult

businesses cannot relocate to these sites and still have adequate

means of communication.

      The district court properly found that Ordinance 5862 did not

unreasonably harm Grand Brittain's business prospects.           In City of

Renton, the Court upheld a similar zoning ordinance.            The outcome

did   not   rest    on   the   availability   of    "commercially     viable"

alternative sites, but on the fact that the city provided a

"reasonable opportunity" for the relocation of displaced adult

businesses.       Id. at 54.     Ordinance 5862 may not guarantee Grand




                                      3
Brittain    desirable   commercial       properties,     but     it    affords     a

reasonable opportunity to bid in the commercial real estate market.

     We    have   recognized   the   difference        between        promising    a

commercially viable alternative site and affording a reasonable

opportunity to operate an adult business at a new location.                       In

Woodall v. City of El Paso, 950 F.2d 255, 261 n.5 (5th Cir.),

modified, 959 F.2d 1305 (5th Cir. 1992) (per curiam), cert. denied,

113 S.Ct. 304 (1992), as modified, we held that land is not

reasonably available if its physical and legal characteristics make

it impossible for any adult business to relocate there.                  We do not

suggest that whether a location is economically desirable is not

relevant to an alternative means calculus.                See also Lakeland

Lounge v. City of Jackson, 973 F.2d 1255 (5th Cir. 1992).                  Indeed,

physical and legal characteristics and economic desirability are

interrelated.     Rather, the question is whether the city offers

sites from a commercial real estate market--that is, sites that

businesses can locate on.        Whether a particular business can

succeed on such sites is not the question and it could not be, as

a practical matter.

     As noted in Topanga Press, Inc., et al. v. City of Los

Angeles, 989 F.2d 1524, 1529 (9th Cir. 1993), almost all legal and

physical impediments to use may be recast as economic barriers.

The Topanga Press court explained that the sites at issue in Renton

and Woodall were part of the commercial real estate market.                 Id. at

1529-30.    In short, City of Renton and Woodall ensure that adult

businesses have access to a commercial real estate market, but do


                                     4
not guarantee that a specific adult business can obtain existing

commercial sites at low cost and with "market" access to assure its

prosperity.         City of Renton, 475 U.S. at 54; Woodall, 950 F.2d at

255.

       Our question then is whether the 63 sites identified by the

district court give Grand Brittain a reasonable chance to compete

in the commercial real estate market.                 Bill Moore testified that

most sites have electricity available and that many of them have

gas available, but that some of them would require water and sewer

extensions.      He stated that approximately ten of the chosen sites

had topographical problems that made them undesirable and that only

one lacked street access.               Mr. Moore also testified that no

alternative     sites     were     landlocked    or    under    current    use    by a

government entity.        Jimmy Davis questioned the appropriateness of

some    of    the     sites   as    alternative       venues    under     the    zoning

restrictions, but did not question that a number of these sites

could be transformed into productive commercial property. We agree

with    the    district       court   that     the    city     furnished    adequate

alternatives.

                                         II.

       In FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 227-30 (1990)

(plurality opinion), Justice O'Connor, writing for Justices Stevens

and Kennedy, and joined in the judgment by Justices Brennan,

Marshall, and Blackmun, stated that content-neutral regulations

contain adequate procedural safeguards when (1) any prior restraint

before judicial review of the licensing process is for a specified


                                          5
brief period during which the status quo is maintained; and (2)

there is prompt judicial review after denial of a license.                       The

Amarillo    ordinances      are    content-neutral,       and    FW/PBS     measures

adequacy of its procedural safeguards.

     Ordinance 5942 provides that an applicant denied a license may

appeal to the district court and that a licensee may abate a

revocation    by    similarly      appealing   and   obtaining         a   temporary

restraining order.          Grand Brittain argues that the regulation

guarantees neither a brief interim restraint on protected speech

pending judicial resolution nor a swift final judicial decision.

Grand Brittain also argues that Ordinance 5942 should provide for

a mandatory stay in the absence of immediate judicial review.                      We

agree with the district court that the regulation contains adequate

procedural safeguards, except in one respect.

     In Freedman v. Maryland, 380 U.S. 51, 59 (1965), Justice

Brennan    stated    that   a     challenged   ordinance        must   guarantee   a

specified    brief     period       "in   advance    of    a      final     judicial

determination on the merits." Justice O'Connor in FW/PBS variously

recast this standard as a specified brief period "prior to judicial

review" and as a specified brief period "prior to issuance of a

license." We have interpreted this language to require only access

to the courts within a specified brief period.                    See TK's Video,

Inc. v. Denton County, Nos. 93-4631 & 93-5234, slip op. at 6 (5th

Cir. June 14, 1994).

     A denied applicant can immediately challenge the regulatory

decision in court and request a temporary restraining order to


                                          6
prevent    closing    a     business.     The    ordinance    also       requires    a

licensing decision within eleven days, reinspection within three

working days, and issuance of a license within a day after the

correction of any deficiencies in an application. These restraints

meet the specified brief period requirement.

       Grand     Brittain    acknowledges      availability    of    a    temporary

restraining order, but challenges the absence of a mandatory stay.

The availability of expeditious judicial review and the possibility

of a temporary restraining order obviate the need for an automatic

stay.    National Socialist Party v. Village of Skokie, 432 U.S. 43,

44 (1977).       We agree with the district court in every respect,

except one.       The status quo required by FW/PBS mandates that the

city    cannot    regulate    under     the    adult   business   regulation        an

operating adult business during a revocation proceedings until the

Chief of Police's licensing decision is final.               The ordinance does

maintain the status quo during a revocation proceeding by providing

that "a licensee may abate the revocation by filing an appeal with

the district court and obtaining a temporary restraining order."

The ordinance does not address a business operating when the

ordinance became effective.             The status quo must be similarly

maintained for those businesses, such as Great Brittain.                       TK's

Video, Nos. 93-4631 & 93-5234, slip op. at 4-6.

                                        III.

       The district court is affirmed except in one respect.                    The

case is remanded to the district court with the instruction to

enter judgment declaring that until the Chief of Police's licensing


                                          7
decision becomes final, the city cannot regulate under the adult

business regulation a business operating on the effective date of

the ordinance and seeking a license.

     AFFIRMED IN PART and REMANDED WITH INSTRUCTION.




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