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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 90-8269
_____________________
PHYLLIS WOODALL, ET AL.,
Plaintiffs-Appellants,
versus
THE CITY OF EL PASO, ET AL.,
Defendants-Appellees.
_______________________________________________________
Appeal from the United States District Court for
the Western District of Texas
_______________________________________________________
(April 21, 1992)
ON PETITION FOR REHEARING AND SUGGESTION FOR REHEARING EN BANC
(Opinion January 9, 1992, 5th Cir. 1992, __ F.2d __ )
Before REAVLEY and JONES, Circuit Judges.*
PER CURIAM:
The court withdraws its discussion entitled "Unavailable
Land under Renton" contained in Part A of its opinion (950 F.2d
258) because the court regards that discussion unnecessary to
decide this case. The cross-reference from the remainder of the
opinion back to Part II.A (id. at 262) should also be considered
deleted.
*Chief Judge Charles Clark was a member of the original
panel but resigned from the Court on January 15, 1992, and
therefore, did not participate in this decision. This matter is
being decided by quorum. 28 U.S.C. 46(d).

We reiterate, however, our conclusion that the jury received
an inadequate instruction under the facts of this case. The
record offers no clue as to how the jury determined what land not
foreclosed to adult businesses by El Paso's ordinance was
physically or legally impossible for them to locate upon.1 It
appears that many acres offered by the city partook of such
disabling physical or legal characteristics, yet the jury's
findings bear no resemblance whatever to any conceivable theory
of inclusion or exclusion of such parcels.
In so holding, we do not endorse appellants' formulation
that land is not available for use by the adult businesses if it
would be "unreasonable" to expect adult businesses to relocate
there. Rather, the jury should have been instructed, in addition
to the substance of the charge given, that land with physical
characteristics that render it unavailable for any kind of
development, or legal characteristics that exclude adult
businesses, may not be considered "available" for constitutional
purposes under Renton. Renton held that "the First Amendment
requires only that [El Paso] refrain from effectively denying
[appellants] a reasonable opportunity to open and operate [adult
businesses] within the city. . . ." Renton, 475 U.S. at 54, 106
S.Ct. at 932. When Renton stated that the theater owners "must
fend for themselves in the real estate market, on an equal
footing with other prospective purchasers and lessees," id., the
1 The adult businesses made no contention on, and we do not
address, the relationship between the economics of site location
and the constitutionality of an adult business zoning ordinance.
2

Court obviously contemplated that there was a "market" in which
businesses could purchase or lease real property on which
business could be conducted. A real estate market that provides
no opportunity to compete cannot provide a reasonable opportunity
to do so. Cities that allocate only land that is completely
unsuitable from a legal or physical standpoint for adult business
use do exactly what the court proscribed in Renton: effectively
suppress protected speech.
The petition for rehearing is otherwise DENIED. A member of
the court in active service having requested a poll on the
reconsideration of this cause en banc, and a majority of the
judges in active service not having voted in favor of it,
rehearing en banc is DENIED.
3