On Friday, a three-judge panel of the 5th Circuit Court of Appeals in New Orleans issued a stay of enforcement pending the outcome of an “expedited” appeal to be argued as soon as August.
The stay prevents the city from arresting employees and owners at the Colorado Bar & Grill and The Men’s Club, and possibly five other large businesses that have joined in the appeal: Ritz Cabaret, Treasures, Trophy Club, Gold Cup and Centerfolds.
“We’re quite excited, and very, very pleased for the clients and the citizens of Houston,” said John Weston, a Los Angeles-based lawyer representing Colorado Bar & Grill and The Men’s Club.
It was unclear Friday how many other businesses would be protected from enforcement by the stay. The court’s order lists several other topless clubs and bookstores. Some businesses’ names and owners have changed since the case was filed a decade ago, so a precise number couldn’t be determined late Friday.
Don Cheatham, a senior assistant city attorney monitoring progress in the case, received word from the appellate court by phone late Friday. He said he wasn’t yet sure how the ruling would affect the city’s plans.
“We don’t know how broad it is or what it covers,” he said of the ruling, which he hadn’t yet read.
Houston police Capt. Steve Jett, who commands the vice unit investigating the businesses, said he was surprised by the decision and would have to discuss it with city attorneys before proceeding.
To get Friday’s stay from the 5th Circuit, the clubs’ lawyers had to show there were substantial legal questions remaining in their appeal, and that they would suffer more if the enforcement continued than the city if it were halted pending resolution of the case.
The ruling offered a glimmer of hope to at least some businesses, who had been preparing to close, move or change their operations to comply with the ordinance.
Their appeal argues against the distance provision in the ordinance, saying the city can’t justify that the businesses have negative “secondary effects” at their current locations.
“There was no constitutional justification for expanding the distances such that it had a retroactive impact upon the previously licensed businesses,” said Weston, who has argued seven cases before the U.S. Supreme court.
Among many issues raised in the appeal, they also argue that there aren’t enough alternative sites for them to legally operate, and that the judge erred by examining the availability of those locations based on decade-old, not current, conditions in Houston.
I keep coming back to the distance provision. It doesn’t seem right to me that a business that has operated legally for a decade or more under one requirement can suddenly be declared illegal. And I’m also not sure what the public interest is in keeping something a certain distance away from a church. Residences and schools, sure, but churches? I don’t understand. Looks like getting this injunction was a nontrivial thing, so maybe there is still hope for the clubs. We’ll see.