Constitutionality of Municipal Ordinance

Constitutional Civil Rights Lawyer Austin Texas

Mar 18, 2013 — by Jeff Mundy
Tags: Civil Rights

 

Constitutionality of the Ordinance

When reviewing the validity of a city ordinance, we presume the ordinance is valid. City of Brookside Village v. Comeau, 633 S.W.2d 790, 792 (Tex. 1982); Ex parte Woodall, 154 S.W.3d 698, 701 (Tex.App. -- El Paso 2004, pet. ref'd).A party attacking an ordinance bears an extraordinary burden to show "that no conclusive or even controversial or issuable fact or condition existed" which would authorize the municipality's passage of the ordinance. Comeau, 633 S.W.2d at 792--93. If reasonable minds may differ regarding whether a particular ordinance has a substantial relationship to the public health, safety, morals, or general welfare, no clear abuse of discretion is shown and the ordinance must stand as a valid exercise of the City's police power. See Quick v. City of Austin, 7 S.W.3d 109, 117 (Tex. 1998). If the evidence reveals an issuable fact in this respect, the ordinance must stand. Id.

In United States v. O'Brien, the United States Supreme Court established a four-pronged test for the purpose of determining whether a government regulation is justified and determined that a regulation does not impinge on First Amendment freedom of expression if: (1) the regulation is within the constitutional power of the government; (2) the regulation furthers an important or substantial governmental interest; (3) if the governmental interest is unrelated to the suppression of free expression; and (4) if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest. Id.; Fantasy Ranch Inc. v. City of Arlington, Texas, 459 F.3d 546, 554 (5th Cir. 2006).

If the government's predominant purpose in enacting the regulation is related to the suppression of symbolic speech, we apply a strict level of scrutiny. Fantasy Ranch, 459 F.3d at 554. However, we apply an intermediate level of scrutiny where the government's predominate purpose is unrelated to the suppression of expression, that is, where the regulation is '"justified without reference to the content of the regulated speech' . . . ." Fantasy Ranch, 459 F.3d at 554 (citations omitted). When reviewing government regulation of sexually-oriented businesses, courts routinely employ intermediate scrutiny. Fantasy Ranch, 459 F.3d at 555 (citations omitted). Included among the sufficient governmental interests that justify content-neutral regulations are the prevention of harmful secondary effects and the protection of morals and public order. See City of Erie v. Pap's A.M., 529 U.S. 277, 120 S.Ct. 1382, 1391-92, 1395-96, 146 L.Ed.2d 265 (2000); Barnes v. Glen Theatre, Inc., 501 U.S. 560, 566-69, 111 S.Ct. 2456, 115 L.Ed.2d 504 (1991) (plurality).

Foster v. City of El Paso (Tex. App. - El Paso, 2013)

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