City attorneys are asking the 5th U.S. Circuit Court of Appeals to let Kennedale enforce its adult entertainment ordinance, despite the fact that the city failed in the lower court to prove that Dreamers blights surrounding neighborhoods.
Michael Ware, Dreamers' attorney, says the city will face the same problem in its appeal that it did in district court — namely, that its evidence of blight is based on studies of adult businesses with video arcades and nude dancing on the premises, while Dreamers merely sells and rents DVDs for off-premises use.
"The secondary effects that apply to on-premises sexually oriented businesses do not necessarily apply to off-premises," Ware said.
Ware also pointed out that the presiding district court judge’s opinion criticized the city's studies as having "shoddy data or reasoning."
The case has several underlying layers.
Soon after its victory in district court, Dreamers asked the presiding judge to force Kennedale to pick up the tab for its legal fees, which it claims totaled more than $200,000. The city disputed both the request and the dollar amount, and the judge denied the request.
But Dreamers appealed to the Texas attorney general, which said Dreamers has a right to a court hearing on the issue of legal costs. A date has not been set for the hearing, and the city is challenging the attorney general’s opinion.
Beginning in 2002, Kennedale Mayor Jim Norwood, a pastor at a local church, started a protracted campaign to rid the city of its adult businesses, which has resulted in the closure of two stores and the relocation of a third. A fourth store initially agreed to cease operations but stayed open after adding merchandise that it says excludes it from the adult entertainment law.
But all five Kennedale adult businesses sued the city in federal court to block enforcement of the ordinance, and city officials estimate that fighting the lawsuits has cost the city in excess of $300,000.
