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FILED
United States Court of Appeals
Tenth Circuit
July 10, 2007
Elisabeth A. Shumaker
Clerk of Court PUBLISH
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
ABILENE RETAIL #30, INC., No. 05-3473
Plaintiff Ä Appellant,
v.
BOARD OF COMMISSIONERS OF DICKINSON
COUNTY, KANSAS; KEITH D. HOFFMAN,
Defendants Ä Appellees.
Appeal from the United States District Court
for the District of Kansas
(D.C. No. 04-CV-2330-JWL)
J. Michael Murray, Berkman, Gordon, Murray, & DeVan, Cleveland, Ohio
(Raymond V. Vasvari, Jr., Berkman, Gordon, Murray, & DeVan, and Richard T.
Bryant, Richard T. Bryant & Associates, Kansas City, Missouri, with him on the
briefs), for the Plaintiff Ä Appellant.
Scott D. Bergthold, Chattanooga, Tennessee (J. Steven Pigg and Teresa L.
Sittenauer, Fisher, Patterson, Sayler, & Smith, Topeka, Kansas, with him on the
briefs), for the Defendants Ä Appellees.
Before LUCERO, Circuit Judge, McWILLIAMS, and EBEL, Senior Circuit
Judges.
LUCERO, Circuit Judge.
Abilene Retail #30, Inc. ("Abilene") appeals from a district court order
granting summary judgment in favor of the Board of County Commissioners of
Dickinson County, Kansas (the "Board"). Abilene, which owns and operates an
adult bookstore in Dickinson County named "The Lion's Den," challenged a
zoning ordinance which restricts The Lion's Den's location and mode of
operation. Abilene contends the ordinance violates the First Amendment. The
district court held the ordinance to be a content-neutral effort to address the
secondary effects of adult businesses in Dickinson County. It further concluded
that the ordinance survived intermediate scrutiny, which we apply to content-
neutral zoning ordinances under City of Renton v. Playtime Theatres, Inc., 475
U.S. 41 (1986), and its progeny. We agree the ordinance is facially content
neutral, but conclude a genuine dispute of material fact exists as to whether the
Board reasonably relied on studies analyzing the secondary effects of adult
businesses on surrounding communities in passing the ordinance. If the Board's
reasonable reliance were not in dispute, we agree that Abilene has cast sufficient
doubt on the Board's rationale to preclude summary judgment. On that basis, we
join in the concurrence of Judge Ebel as an alternative ground for our holding.
Exercising jurisdiction pursuant to 28 U.S.C. 1291, we REVERSE the district
court's grant of summary judgment, and REMAND to the district court for
further consideration of this claim. We AFFIRM the district court's judgment
with respect to Abilene's Fourth and Fourteenth Amendment claims.
I
Abilene opened The Lion's Den at a rest stop off of Interstate 70 ("I-70")
in Dickinson County, Kansas in September 2003. The Lion's Den appears to be
the first sexually oriented business in the County in at least 25 years, and it may
be the first such business in County history. It is located just off an exit ramp on
I-70, in an unincorporated portion of the County. The total population of the
unincorporated portions of Dickinson County is small, numbering just over six
thousand people. Adult bookstores located near highway exit ramps rely on
business from passing interstate traffic. The store's inventory is almost entirely
adult-oriented, and consists of a variety of sexual devices and sexually explicit
magazines, videos, and DVDs.
Soon after The Lion's Den opened for business, local residents began
protesting outside its doors. As early as September 22, 2003, individual
Dickinson County residents appeared before the Board and testified to a variety of
possible negative consequences of the store's continued operation.(1) They
requested the Board, composed of one chairman and two commissioners, consider
options to limit the proliferation of adult businesses in the County.
(1) Dickinson County did not experience any negative secondary effects, such
as an increase in crime or neighborhood blight, attributable to The Lion's Den.
Undersheriff John Nachtman testified that, with one exception, the only calls for
service attributable to The Lion's Den were in connection with demonstrators who
gathered to protest the store's opening.
In response, the Board passed "Dickinson County Kansas Sexually Oriented
Business Ordinance No. 070804" (the "First Ordinance") on July 8, 2004. In the
preamble to the First Ordinance the Board noted that the operation of sexually
oriented businesses leads to a variety of negative secondary effects, and cited to a
number of cases and studies that support such a finding. In an attempt to curb
these secondary effects, the First Ordinance: (1) provided that all businesses
devoting ten percent or more of their floor space to adult materials must obtain a
license from the County; (2) required disclosure of certain corporate documents as
part of the application for a license, including ownership documents related to the
land on which the store sits; (3) required disclosure of all owners with a ten-
percent or greater ownership stake as part of the application for a license, and
further requires those owners to provide fingerprint cards and disclose their social
security numbers; (4) imposed a $500 licensing fee; (5) limited the business'
operating hours from 10 a.m. to 10 p.m.; (6) provided for a variety of limitations
on signage; (7) set a one-year amortization period; and (8) imposed a distance
requirement of 1500 feet between adult businesses and certain uses, including
residences, schools, houses of worship, and any section of interstate highway.
Although the First Ordinance contains a lengthy preamble citing to a
variety of secondary-effects studies and case law, the Board did not consider any
of the cited materials before passing the First Ordinance. In fact, the evidence
shows it is unlikely any of the commissioners had those documents at that time.
On July 16, 2004, Abilene challenged the First Ordinance in federal district
court, seeking a restraining order and preliminary injunction. After the parties
agreed to a preliminary injunction staying enforcement of the First Ordinance, the
Board concluded the ordinance might be vulnerable to constitutional challenge,
and began to consider passing a second ordinance. The Board retained a lawyer
to assist it with drafting a new ordinance. Counsel provided copies of the
materials cited in the preamble to the First Ordinance, and also delivered a
presentation on those materials. Multiple drafts were prepared and considered by
the Board before it settled on a final text. On December 6, 2004, the Board held a
public hearing, during which it solicited comment from interested parties.
Especially vocal in his support of restricting sexually oriented businesses was
Philip Cosby, a Dickinson County resident who led "Operation Daniel," a group
that opposed The Lion's Den. Cosby noted that the draft currently before the
Board, which set a distance requirement of 750 feet between sexually oriented
businesses and any private residence, was insufficient to force The Lion's Den to
move from its current location, which is approximately 1150 feet from the nearest
residence. One week later, on December 13, 2004, the Board voted to adopt
Ordinance No. 121304A (the "Second Ordinance").
Relevant provisions of the Second Ordinance are as follows: (1) Owners of
stores devoting more than 35 percent of the inventory or floor space to adult
materials must obtain a license from the County; (2) The owner of a qualifying
store must disclose certain financial information; (3) A license applicant must pay
a one-time license fee of $100; (4) Judicial review of all adverse licensing
decisions is available; (5) Sexually oriented businesses must be located no less
than 1200 feet from any residence, school, house of worship, or other specified
establishment; (6) Non-conforming sexually oriented businesses are allowed an
amortization period of two years to achieve compliance; and (7) Such businesses
may only be open between the hours of 6:00 a.m. and midnight. On March 28,
2005, the Board further amended the ordinance to set aside certain specific areas
in the County where adult businesses could locate.
Like the First Ordinance, the Second Ordinance contains a lengthy
preamble stating the Board's purpose in enacting it, as well as a list of the
materials on which the Board relied. In particular, the preamble identifies
numerous secondary-effects studies, all purporting to evidence the adverse impact
of adult businesses on the neighborhoods in which they are located. Case
precedent is included to establish the constitutional validity of the ordinance as
enacted.(2) As noted above, it is undisputed that the Board considered at least some of these materials prior to its passage of the Second Ordinance. The extent to
which they were considered, however, is an open question.
Abilene filed an amended complaint challenging the Second Ordinance on
February 11, 2005. Shortly thereafter, the district court entered an order
modifying the preliminary injunction to cover the Second Ordinance. The Board
then moved for summary judgment on all of Abilene's claims, at which point
(2) The cases cited in the preamble to the Second Ordinance include the
following: City of Littleton v. Z.J. Gifts D-4, L.L.C., 541 U.S. 774 (2004); City
of Los Angeles v. Alameda Books, Inc., 535 U.S. 425 (2002); City of Erie v.
Pap's A.M., 529 U.S. 277 (2000); Barnes v. Glen Theatre, Inc., 501 U.S. 560
(1991); FW/PBS, Inc. v. City of Dallas, 493 U.S. 215 (1990); City of Renton v.
Playtime Theatres, Inc., 475 U.S. 41 (1986); Young v. Am. Mini Theatres, 427
U.S. 50 (1976); California v. LaRue, 409 U.S. 109 (1972); Williams v. AttorneyGen. of Ala., 378 F.3d 1232 (11th Cir. 2004); World Wide Video of Wash., Inc.
v. City of Spokane, 368 F.3d 1186 (9th Cir. 2004); Heideman v. S. Salt Lake
City, 348 F.3d 1182 (10th Cir. 2003); Ctr. for Fair Pub. Policy v. Maricopa
County, 336 F.3d 1153 (9th Cir. 2003); Z.J. Gifts D-4, L.L.C. v. City of Littleton,
311 F.3d 1220 (10th Cir. 2002); LLEH, Inc. v. Wichita County, 289 F.3d 358 (5th
Cir. 2002); Essence, Inc. v. City of Federal Heights, 285 F.3d 1272 (10th Cir.
2002); Am. Target Adver., Inc. v. Giani, 199 F.3d 1241 (10th Cir. 2000);
Connection Distrib. Co. v. Reno, 154 F.3d 281 (6th Cir. 1998); Sundance Assocs.,
Inc. v. Reno, 139 F.3d 804 (10th Cir. 1998); Z.J. Gifts D-2, L.L.C. v. City of
Aurora, 136 F.3d 683 (10th Cir. 1998); Dodger's Bar & Grill, Inc. v. Johnson
County Bd. of County Comm'rs, 98 F.3d 1262 (10th Cir. 1996); Cortese v. Black,
87 F.3d 1327 (10th Cir. 1996) (table); Dodger's Bar & Grill, Inc. v. Johnson
County Bd. of County Comm'rs, 32 F.3d 1436 (10th Cir. 1994); ILQ Invs., Inc. v.
City of Rochester, 25 F.3d 1413 (8th Cir. 1994); O'Connor v. City & County of
Denver, 894 F.2d 1210 (10th Cir. 1990); M.S. News Co. v. Casado, 721 F.2d
1281 (10th Cir. 1983); Bigg Wolf Disc. Video Movie Sales, Inc. v. Montgomery
County, 256 F. Supp. 2d 385 (D. Md. 2003); Sewell v. Georgia, 233 S.E.2d 187
(Ga. 1977). In addition, the preamble cites to studies commissioned by the
following municipalities: Austin, Tex. (1986); Indianapolis, Ind. (1984); Garden
Grove, Cal. (1991); Houston, Tex. (1983 & 1997); Pheonix, Ariz. (1979 & 1995-
98); Chattanooga, Tenn. (1999-2003); Minneapolis, Minn. (1980); Los Angeles,
Cal. (1977); Whittier, Cal. (1978); Spokane, Wash. (2001); St. Cloud, Minn.
(1994); Littleton, Colo. (2004); Oklahoma City, Okla. (1986); Dallas, Tex.
(1997); Greensboro, N.C. (2003); Amarillo, Tex. (1977); New York, N.Y. (1994).
Finally, the preamble refers to the "Roncek, McCleary Expert Reports - 2004"
and the "Report of the Attorney General's Working Group on the Regulation of
Sexually Oriented Businesses, (June 6, 1989, State of Minnesota)."
pretrial discovery commenced. Both parties retained experts, who submitted
conflicting testimony as to the validity of the secondary effects studies cited in
the Second Ordinance. Abilene's expert, Daniel Linz, disputed the methodologies
and findings of most of the studies on which the Board relied. The Board offered
the testimony of its own expert, Richard McCleary, who testified that "a strong,
empirically-validated criminological theory" supports the relationship between
crime and adult businesses, and that the studies support the Board's stated
rationale for enacting the Second Ordinance. Neither Linz nor McCleary are
strangers to litigation challenging municipal zoning ordinances that target adult
businesses Ä both have testified in many such cases.
Following extensive discovery, the district court issued an order on
December 1, 2005, granting summary judgment in favor of Dickinson County.
II
We review the district court's findings of constitutional fact, conclusions of
law, and grant of summary judgment regarding Abilene's First Amendment claims
de novo, pursuant to the standard provided in Federal Rule of Civil Procedure
56(c). Z.J. Gifts D-2, L.L.C. v. City of Aurora, 136 F.3d 683, 685 (10th Cir.
1998). Although we ordinarily review a district court's findings of fact for clear
error, "[w]here First Amendment interests are implicated, this court is obligated
to make an independent examination of the record in its entirety to ensure the
challenged regulation does not improperly limit expressive interests." Id. We
draw all "reasonable inferences from the record in the light most favorable to
[Abilene]." Essence, Inc. v. City of Federal Heights, 285 F.3d 1272, 1283 (10th
Cir. 2002).
It is now axiomatic that local governments may, within the confines of the
First Amendment, adopt zoning ordinances regulating the location and operation
of sexually oriented businesses. Such restrictions can be a valid exercise of
municipalities' police powers. "The mere fact that the commercial exploitation of
material protected by the First Amendment is subject to zoning and other
licensing requirements is not a sufficient reason for invalidating these
ordinances." Young v. Am. Mini Theatres, Inc., 427 U.S. 50, 62 (1976).
Constitutionally valid motivations for such an ordinance include a desire to target
the secondary effects of sexually oriented businesses, such as increased crime,
neighborhood blight, and reduced property values. See City of Renton, 475 U.S.
at 48. The Board must prove that the Second Ordinance is based on these proper
motivations to survive First Amendment scrutiny. See City of Los Angeles v.
Alameda Books, Inc., 535 U.S. 425, 438 (2002) (plurality);(3) Heideman v. S. Salt
Lake City, 348 F.3d 1182, 1197 (10th Cir. 2003).
In Alameda Books, the Supreme Court offered its most recent
comprehensive statement of the constitutional limitations on zoning ordinances
(3) Hereinafter, citations to the Court's opinion in Alameda Books refer to the
plurality opinion of Justice O'Connor unless otherwise noted.
that target adult businesses. When analyzing whether a time, place, or manner
regulation violates the First Amendment's guarantee of freedom of speech, we
must first determine whether the ordinance is content based or content neutral.
Alameda Books, 535 U.S. at 434. Ordinances targeting adult content per se are
content based, and are "considered presumptively invalid and subject to strict
scrutiny." Id. Those targeting the negative secondary effects associated with
sexually oriented businesses are considered content neutral, and subject to
intermediate scrutiny. Id. They will "be upheld so long as the [municipality]
show[s] that its ordinance was designed to serve a substantial government interest
and that reasonable alternative avenues of communication remained available."
Id. (citing City of Renton, 475 U.S. at 50).
A
"The principal inquiry in determining content neutrality, in speech cases
generally and in time, place, or manner cases in particular, is whether the
government has adopted a regulation of speech because of disagreement with the
message it conveys. The government's purpose is the controlling consideration."
Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989) (citation omitted). "If
the regulation serves purposes unrelated to the content of expression it is
considered neutral, even if it has an incidental effect on some speakers or
messages but not others." Z.J. Gifts D-2, 136 F.3d at 686 (quotations and
citations omitted). Accordingly, we are tasked with "verify[ing] that the
predominate concerns motivating the ordinance were with the secondary effects of
adult speech, and not with the content of the adult speech." Alameda Books, 535
U.S. at 440-41 (quotations and alterations omitted).
Relying on our content-neutrality analysis in Z.J. Gifts D-2, the district
court "accept[ed] the County's statement in its preamble that the secondary
effects of sexually oriented businesses prompted the Ordinance." Abilene
challenges this finding, arguing that the predominant legislative purpose
motivating both ordinances was an impermissible desire to suppress adult content.
Abilene does not contend that the studies cited in the ordinance's preamble are
insufficient to establish a legitimate purpose. Rightly so, as this circuit and other
courts have consistently held the "evidentiary foundation" provided by such
reports and the judicial opinions describing them is generally sufficient. See City
of Erie v. Pap's A.M., 529 U.S. 277, 297 (2000) (plurality). So long as the
materials are "reasonably believed to be relevant to the problem that the
[municipality] addresses," we will presumptively classify the Board's legislative
purpose as content neutral. Z-J Gifts D-2, 136 F.3d at 687.
Rather, Abilene weaves the following narrative from the record: After
determining that the First Ordinance might not survive constitutional challenge,
the Board considered a series of revised draft ordinances. For the first time, the
Board reviewed the cases and secondary effects studies listed in the preamble, but
even then its review was cursory and incomplete. All of the drafts the Board
considered prior to the enacted version contained distance requirements that
would not have required The Lion's Den to move from its current location. At
the final hearing before the Board passed the Second Ordinance, Cosby testified
that only a distance requirement of 1200 feet or greater would force The Lion's
Den's closure. As enacted, the Second Ordinance did set the distance requirement
at 1200 feet. Ergo, by Abilene's logic, "the predominant legislative concern
motivating the adoption of the new ordinance was not with ameliorating the
secondary effects supposedly caused by sexually oriented businesses, but with the
content of the material offered at [The Lion's Den]." Abilene advances a two-
pronged argument. First, it contends the constitutional infirmities of the First
Ordinance taint the Second Ordinance. Second, it argues that even the Second
Ordinance, examined independently, was motivated by a distaste for sexually
oriented businesses and the adult content sold therein.
With regard to the first argument, we need not reach the question of
whether there is a dispute of material fact about the First Ordinance's content
neutrality. Abilene cites no case law for the proposition that the motivations
guiding legislators in passing one ordinance taint a separate, succeeding
ordinance. Although none of the commissioners consulted the cases and studies
cited in the preamble to the First Ordinance prior to its passage, they did review
them before passing the Second Ordinance. They also viewed a presentation
summarizing those materials. To punish the Board for redressing its earlier
failure would be a bizarre result, and we decline to so hold today.
As to Abilene's second claim, we note that the commissioners conducted at
least a cursory review of the materials cited in the preamble before passing the
Second Ordinance. Although Abilene takes issue with the degree of consideration
the Board gave to those materials, we have never required legislators to engage in
monastic rumination on cited cases and studies to establish their good-faith
reliance on them. "[S]uch a holding would fly in the face of legislative reality."
Lakeland Lounge of Jackson, Inc. v. City of Jackson, 973 F.2d 1255, 1258 (5th
Cir. 1992).
Abilene also asks us to impute Cosby's impermissible, content-based
motives to the Board. It argues that Alameda Books requires us to look beyond
the ordinance itself, to the facts and circumstances surrounding the Second
Ordinance's passage. However, under City of Renton, we may "not strike down
an otherwise constitutional statute on the basis of an alleged illicit legislative
motive." 475 U.S. at 48. We find no language in Alameda Books that requires
reconsideration of City of Renton's basic guidance.
Abilene urges us to adopt an approach that conflates Alameda Books' two-
step test. Although a majority of the Alameda Books Court agreed that "the
designation [content neutral] is imprecise," 535 U.S. at 444-45, and "something of
a fiction," id. at 447-48 (Kennedy, J., concurring), a majority of the Court has
never adopted Abilene's theory. See id. at 448 (Kennedy, J. concurring) ("[T]he
central holding of Renton is sound: A zoning restriction that is designed to
decrease secondary effects and not speech should be subject to intermediate rather
than strict scrutiny."). Therefore, we must continue our prior practice of
segregating the two inquiries. See Z.J. Gifts D-2, 136 F.3d at 687.(4)
Although we have never explicitly limited our review to the text of an
ordinance when evaluating legislative purpose, Abilene asks us to engage in
precisely the sort of subjective fishing expedition that City of Renton forecloses.
See 475 U.S. at 48. Abilene asks us to go even further and impute the motives of
a concerned citizen to the Board itself. This is despite the fact that many, if not
most, ordinances regulating sexually oriented businesses are preceded by public
hearings during which a wide variety of concerns, both "content neutral" and
"content based," are voiced. See, e.g., Essence, 285 F.3d at 1286; Z.J. Gifts D-2,
136 F.3d at 685. We have never incorporated public comments into our
determination of an ordinance's content neutrality, and decline to do so here.
Examining the preamble to the Second Ordinance, we are satisfied that the
Board's predominant purpose in enacting it was to regulate the secondary effects
(4) Abilene urges this conflation by reading our holding in Essence for the
proposition that we look beyond the preamble when evaluating an ordinance's
content neutrality. In that case we considered testimony from individual
legislators in considering the city's interest in enacting the ordinance, not, as
Abilene suggests, in determining the ordinance's content neutrality. See 285 F.3d
at 1286.
of adult businesses. The Second Ordinance's stated goals are to: (1) "protect and
preserve the health, safety, and welfare of the patrons of sexually oriented
businesses as well as the citizens of the County;" (2) limit "unlawful sexual
activities;" (3) minimize crime; and (4) "preserve the property values and
character of surrounding neighborhoods and deter the spread of urban blight." As
stated supra, Abilene does not dispute that the materials cited in the preamble are
relevant to the stated purposes. Accordingly, we hold that the Board has met its
burden of proof with respect to the content neutrality of the Second Ordinance.
B
Once a local government has established that its purpose in enacting a time,
place, or manner regulation was legitimate, we apply the test set forth in City of
Renton.(5) For a restrictive zoning ordinance to survive intermediate scrutiny it
must be "designed to serve a substantial governmental interest and allow[] for
reasonable alternative avenues of communication." City of Renton, 475 U.S. at
50. There is no question that a municipality's interests in mitigating the effects
of crime, neighborhood blight, and other deleterious secondary effects "are both
important and substantial." Young, 427 U.S. at 80 (Powell, J., concurring); see
(5) Courts may also apply the four-factor test articulated in United States v.
O'Brien, 391 U.S. 367 (1968). The O'Brien test is, in practice, little different
from the "time, place, or manner" test applied in City of Renton. See Clark v.
Community for Creative Non-Violence, 468 U.S. 288, 298 (1984); Z-J Gifts D-2,
136 F.3d at 688.
also Alameda Books, 535 U.S. at 434-36. We focus instead on whether the
Second Ordinance is "designed to serve" those substantial interests.
In answering this question, we apply a burden-shifting approach. Alameda
Books, 535 U.S. at 438-39. First, the Board must show that, in passing the
Second Ordinance, it relied on "evidence that is reasonably believed to be
relevant for demonstrating a connection between speech and a substantial,
independent government interest." Id. at 438 (quotation omitted). Such evidence
need not be so conclusive that the Board's secondary effects theory "is the only
one that can plausibly explain the data," but must only "fairly support the
[Board's] rationale." Id. at 437-38. Put in other terms, the Board's reading of the
cited evidence must "appeal to common sense." Id. at 439. The Court cautioned,
however, that local governments cannot "get away with shoddy data or
reasoning." Id. at 438. If the Board can make this showing, Abilene may rebut
the Board's proffered evidence "either by demonstrating that the [Board's]
evidence does not support its rationale or by furnishing evidence that disputes the
[Board's] factual findings." Id. at 438-39. "If [Abilene] succeed[s] in casting
doubt on [the Board's] rationale in either manner the burden shifts back to the
[Board] to supplement the record with evidence renewing support for a theory that
justifies its ordinance." Id. at 439.
We are mindful that judicial review of an ordinance that implicates the
First Amendment "is not a license to reweigh the evidence de novo, or to replace
[legislators'] factual predictions with our own." Turner Broad. Sys., Inc. v.
F.C.C., 512 U.S. 622, 666 (1994). However, the Supreme Court has instructed
that such deference to the legislative policymaking role nevertheless "does not
foreclose our independent judgment of the facts bearing on an issue of
constitutional law." Id. (quotation omitted). Our role is to "assure that, in
forming its judgments [the legislature] has drawn reasonable inferences based on
substantial evidence." Id.
Although it quoted the relevant burden-shifting language from Alameda
Books, the district court misapplied the test required. Rather, the district court
summarily found that the Board's evidence was sufficient to meet its initial
burden, and focused instead on whether the Linz affidavit and studies cast doubt
on the Board's rationale. Similarly, the parties devote the lion's share of their
intermediate scrutiny arguments to the evidentiary battle waged between Linz and
McCleary. We conclude, however, that a dispute of material fact exists as to
whether the cases and studies cited by the Board are "reasonably believed to be
relevant" to its interests, such that the Second Ordinance is "designed to serve" its
goal of combating the secondary effects of Dickinson County sexually oriented
businesses.
The Board's evidentiary support for the Second Ordinance consists entirely
of cases and studies examining other locales' experiences with the secondary
effects of sexually oriented businesses.(6) This lack of local evidence is not
preclusive, as it is well settled that the Board may rely on foreign studies
detailing the secondary effects of adult businesses in other areas. See City of
Renton, 475 U.S. at 51-52. Nor is there a constitutional requirement that the
studies relied upon be empirical or satisfy any particular methodological or
scientific standards Ä legislators are free to consider anecdotal evidence,
statistical data, prior cases, and their common sense. See Alameda Books, 535
U.S. at 439-40; see also World Wide Video of Wash., Inc. v. City of Spokane,
368 F.3d 1186, 1195 (9th Cir. 2004). However, when a municipality chooses to
rely solely on foreign evidence, "the experience elsewhere [must be] germane to
the measure under consideration and actually relied upon." City of Erie, 529 U.S.
at 313 (Souter, J., concurring).
In the case at bar, the studies relied upon include a wide variety of
methodologies, both anecdotal and empirical, and are not easily summarized.
Equally diverse are the studies' findings. Although most, if not all, find that
adult businesses trigger at least some secondary effects in surrounding areas, the
findings rest on a number of factors, including: the type of neighborhood in
(6) The Board did not rely on a local study of secondary effects attributable
to The Lion's Den, nor does it argue that the record evidences an increase in
secondary effects during the relevant period.
which the sexually oriented businesses are located,(7) the concentration of sexually
oriented businesses,(8) and the nature of the sexually oriented business itself.(9) All of the studies relied upon by the Board examine the secondary effects of sexually
oriented businesses located in urban environments; none examine businesses
situated in an entirely rural area. To hold that legislators may reasonably rely on
those studies to regulate a single adult bookstore, located on a highway pullout
far from any business or residential area within the County, would be to abdicate
our "independent judgment" entirely. Such a holding would require complete
deference to a local government's reliance on prepackaged secondary effects
studies from other jurisdictions to regulate any single sexually oriented business,
of any type, located in any setting.(10) Our review is deferential, but the evidentiary basis for the Second Ordinance must establish some minimal
connection to the secondary effects attendant to Dickinson County's existing
sexually oriented business(es).(11) Based on the record before us, we conclude that
a material dispute of fact exists as to whether the Board has established such a
connection.
In so holding, we emphasize the wide contextual gulf between the facts of
this case and those before the Court in Alameda Books. In that case, the City of
Los Angeles relied primarily on a prior, local study of the secondary effects of
(7) See, e.g., Austin City Council, Report on Adult Oriented Businesses in
Austin 32 (1986) ("Sexually oriented businesses should be restricted to regionally
oriented commercial zone districts. These districts are usually located along
heavily traveled streets such as arterials and interstate highways, and are not
normally near single-family neighborhoods.") [hereinafter "Austin Study"]; Dept.
of Metro. Dev., Adult Entertainment Businesses in Indianapolis: An Analysis 26
(1984) ("There appears to be a strong correlation between crime frequency and
the residential character of neighborhoods, i.e., the more residential the nature of
the neighborhood, the greater is the instance of crime in that neighborhood.");
Comm. on the Proposed Regulation of Sexually Oriented Businesses, Houston
City Council, Legislative Report 26 (1983) ("A third set of problems identified
during the hearings was the difficulties created when these businesses locate in
areas that are primarily residential in character.") [hereinafter "Houston Study"].
(8) See, e.g., Houston Study at 26 ("A second set of problems brought out in
the hearings is the detrimental effect that the clustering of such businesses can
have on a surrounding area."). Marlys McPherson & Glenn Silloway, An
Analysis of the Relationship Between Adult Entertainment Establishments, Crime,
and Housing Values 82 (1980) ("[C]oncentrations of adult establishments should
be encouraged only if a concentration of crime and housing value effects is also
desirable.") [hereinafter "Minneapolis Study"]; Staff Report (Whittier City),
Amendment to Zoning Regulations: Adult Businesses in C-2 Zone with
Conditional Use Permit, Case No. 353.015, at 20 (1978) ( "[C]oncentration of
adult businesses in the City of Whittier have [sic] had an adverse impact on the
adjacent neighborhoods.").
(9) See, e.g., Minneapolis Study at 75 ("Different types of adult entertainment
businesses are different in their relationships to crime and housing value. Some
types of these businesses have significant relationships with crime or housing
value; others do not."); Dept. of City Planning, City of Los Angeles, Study of the
Effects of the Concentration of Adult Entertainment Establishments in the City of
Los Angeles 1 (1977) ("[Survey respondents] feel that the degree of negative
impact depends upon the degree of concentration and on the specific type of adult
entertainment business."); Planning Dept., City of Amarillo, Tex., A Report on
Zoning and Other Methods of Regulating Adult Entertainment in Amarillo 9
(1977) ("[T]hese street crimes were 2-1/2 times the City average in the immediatevicinity of alcohol only adult businesses, and 1-1/2 times the City average
immediately surrounding businesses featuring alcohol and semi-nude
entertainment.").
(10) We decline to adopt the reasoning of the 5th Circuit on this point. In
LLEH, Inc. v. Wichita County, that court addressed the constitutionality of
Wichita County's reliance on a very similar set of studies to presume that
secondary effects would result from the operation of a single sexually oriented
business in a rural, unincorporated portion of the county. 289 F.3d 358 (5th Cir.
2002). The LLEH court bypassed the applicability of the cited studies to the
county's single existing adult business, reasoning that the county might, "in its
continued growth and development," experience a profusion of sexually oriented
businesses and their attendant secondary effects. Id.at 367 (emphasis in
original). To so hold would strip the Court's mandate in Barnes v. Glen Theatre,
Inc. that a challenged ordinance serve "a current governmental interest" of any
force whatsoever, as municipalities could merely point to a hypothetical future
featuring more and differently situated sexually oriented businesses to justify
their reliance on various studies. See 501 U.S. 560, 582 (Souter, J., concurring);
see also Essence, 285 F.3d at 1284 ("In order to prove a substantial interest in
limiting the secondary effects of sexually oriented businesses, the governmental
body must point to evidence of secondary effects at the time of enactment orevidence of current secondary effects."). Nothing, of course, prevents the Board
or any other legislative body from reconsidering its zoning laws in the event it
sees an uptick in the number of sexually oriented businesses locating in its
jurisdiction.
(11) To be sure, the Board's burden at this step is not heavy. We have
previously characterized the burden at this initial step as "slight," see Doctor
John's, Inc. v. City of Roy, 465 F.3d 1150, 1166 (10th Cir. 2006), and "minimal,"
seeHeideman, 348 F.3d at 1198. See also Alameda Books, 535 U.S. at 451
(Kennedy, J., concurring) ("Only after identifying the proposition to be proved
can we ask the second part of the question presented: is there sufficient evidence
to support the proposition? As to this, we have consistently held that a city must
have latitude to experiment, at least at the outset, and that very little evidence is
required."). Slight as this burden is, it is not pro forma, and may not be satisfied
by any evidence whatsoever. Although we have held, post-Alameda Books, that
prepackaged studies of the type adduced by the Board in this case satisfied a
municipality's initial burden, seeDoctor John's, 465 F.3d at 1165-66 & 1166
n.18; Heideman, 348 F.3d at 1199-1200, we have never held the relevance inquiry
at any step to be acontextual. In our view, the Board's reliance on these studies
amounts to "shoddy . . . reasoning," see Alameda Books, 535 U.S. at 438, not
because the studies permit a multitude of reasonable inferences to be drawn
therefrom, but because they shed only the weakest light on the relevant question -
whether the Board's interest in regulating existing Dickinson County adult
businesses is substantial.
adult businesses to support a narrow amendment to its zoning laws: the
prohibition of "adult-oriented department store[s]," in which multiple, distinct
adult businesses located within a single structure. 535 U.S. at 431. The
amendment was adopted to close a loophole in the prior ordinance that otherwise
required the dispersion of adult businesses.(12) See id. at 430. Reversing the
judgment of the district court and the Ninth Circuit, the Court held that it was
consistent with the findings of the 1977 study, and thus reasonable,
for Los Angeles to suppose that a concentration of adult
establishments is correlated with high crime rates because a
concentration of operations in one locale draws, for example, a
greater concentration of adult consumers to the neighborhood, and a
high density of such consumers either attracts or generates criminal
activity. . . . Under this view it is rational for the city to infer that
reducing the concentration of adult operations in a neighborhood,
whether within separate establishments or in one large establishment,
will reduce crime rates.
Id. at 436.
Writing separately, Justice Kennedy concurred in the judgment, but
emphasized that the application of intermediate scrutiny does not foreclose a
reviewing court's inquiry into "how speech will fare under the . . . ordinance."
Id. at 450 (Kennedy, J., concurring) ("[T]he necessary rationale for applying
intermediate scrutiny is the promise that zoning ordinances like this one may
reduce the costs of secondary effects without substantially reducing speech.").
(12) The prior ordinance prevented adult businesses from locating within 1000
feet of the closest exterior structural wall of another.
He emphasized that although "a zoning law need not be blind to the secondary
effects of adult speech," its "purpose [may] not [be] to suppress it." Id. at 447.
Determining that Los Angeles' effort to prohibit adult department stores was not
designed to reduce the availability of adult content in the city, Justice Kennedy
agreed with the plurality that the evidentiary basis for the amended ordinance was
sufficient. See id. at 451.
By contrast, to the extent that we may identify a "premise" on which the
Board relied in passing the Second Ordinance, it is that negative secondary effects
are an attendant feature of all sexually oriented businesses, anywhere, and
therefore Dickinson County's interest in regulating those effects is substantial.
Justice Kennedy concurred with the Alameda Books plurality because the
evidence upon which the City of Los Angeles relied was sufficient to support a
narrowly-drawn, carefully-considered effort to limit secondary effects. In this
case, we are not satisfied that the evidence relied upon by the Board is sufficient
to permit summary judgment at the first step of Alameda Books.
Nowhere in the record or the Board's brief is an effort made to analogize
the studies it relied upon to the current or anticipated secondary effects of
sexually oriented businesses located in a rural county. Neither of the two expert
reports commissioned by the Board so much as mention the specific features of
either the First or Second Ordinance. Rather, the report submitted by Dennis
Roncek is largely concerned with general, methodological flaws in several Linz
studies; the McCleary report offers justifications for the methodologies used in
some of the studies on which the Board relied and also refutes the Linz
methodologies, but refers to the Second Ordinance only to say that it "is not
substantially different than ordinances enacted in other jurisdictions." See
Richard McCleary, Expert Report 7; Dennis Roncek, Expert Report [hereinafter
"Roncek Report"]. Myriad differences in the relied-upon studies' findings with
respect to concentration, location, and type of business are passed over in silence.
In particular, the Roncek Report highlights the correlation between secondary
effects and the neighborhood in which a sexually oriented business is located, and
states explicitly that "crime-related secondary effects of [sexually oriented
businesses] are unlikely to cover the entire area of a county." Roncek Report at
11. Yet the report does not speak to how the locations permitted by the Second
Ordinance might work to mitigate secondary effects in the County.
Moreover, the Second Ordinance plainly contemplates the closure of The
Lion's Den in its existing location, a location that a common sense reading of the
Board's studies suggests would best limit any secondary effects. See, e.g., Austin
Study at 32 ("Sexually oriented business districts are usually located along
heavily traveled streets such as arterials and interstate highways, and are not
normally near single-family neighborhoods."). Nor can we glean any rationale
from the materials relied upon by the Board for its decision to expand the setback
requirement from 750 to 1200 feet, other than to specifically capture The Lion's
Den. We need not impute an impermissible motive to the Board based on the fact
that the Second Ordinance captures The Lion's Den. Nonetheless, we are not
blind to the fact that the Second Ordinance's targeted application to a single,
existing sexually oriented business differs substantially from the impact on speech
contemplated in Alameda Books, in which the challenged ordinance was "just one
part of an elaborate web of land-use regulations in Los Angeles." See 535 U.S. at
447 (Kennedy, J., concurring).
Had the Alameda Books plurality and Justice Kennedy held that any
municipality may reasonably rely on the existing body of prepackaged secondary
effects studies to justify a zoning ordinance regulating local sexually oriented
businesses, we would affirm the district court on this point. They did not, but
instead reaffirmed municipalities' need to make a showing that the evidence on
which they relied is germane to their local experience. We are therefore
constrained to hold that a genuine dispute of material fact exists as to whether the
evidence cited by the Board provides a sufficient connection between the
continued operation of Dickinson County sexually oriented businesses and the
negative secondary effects targeted by the Second Ordinance.(13)
(13) Given our holding that a dispute of material fact exists as to whether the
cases and studies cited by the Board are "reasonably believed to be relevant" to
its interests, we need not reach whether Abilene has "cast direct doubt" on the
rationale underlying the Second Ordinance. See Alameda Books, 535 U.S. at 438.
Nor need we address Abilene's arguments with respect to narrow tailoring andfacial overbreadth. Nevertheless, as noted above, we agree with Judge Ebel that
if a dispute of material fact did not exist at step one of the Alameda Books
burden-shifting inquiry, summary judgment would also be inappropriate at the
second and third steps - thus we join the concurrence as an alternative basis on
which to reverse and remand to the district court.
III
Abilene brings a separate constitutional challenge to 7(a) of the Second
Ordinance, which ensures law enforcement officers' right to inspect the public
areas of Dickinson County sexually oriented businesses during normal business
hours. Section 7(a) mandates that:
Sexually oriented businesses and [their] employees shall permit the
Administrator and his or her agents to inspect, from time to time on
an occasional basis, the portions of the sexually oriented business
premises where patrons are permitted, for the purpose of ensuring
compliance with the specific regulations of this Chapter, during those
times when the sexually oriented business is occupied by patrons or
is open to the public. This section shall be narrowly construed by the
County to authorize reasonable inspections of the licensed premises
pursuant to this chapter, but not to authorize a harassing or excessive
pattern of inspections.
Abilene challenges this provision on Fourth Amendment grounds. First, it argues
that the inspections permitted by the provision are searches, insofar as 7(a)
permits law enforcement officers to enter the store as a matter of right, a privilege
unavailable to ordinary customers. Second, it argues that adult bookstores are not
"highly regulated," and therefore not subject to warrantless administrative searches. As such, Abilene argues, the search provision violates its reasonable
expectation of privacy.
"[W]e review de novo the question of whether a search has occurred within
the meaning of the Fourth Amendment." United States v. Nicholson, 144 F.3d
632, 636 (10th Cir. 1998). Analogizing the conduct authorized by 7(a) to that
sanctioned by the Supreme Court in Maryland v. Macon, 472 U.S. 463 (1985), the
district court held that 7(a) did not implicate the Fourth Amendment at all; it
therefore found no need to address Abilene's argument from case precedent
addressing administrative searches of regulated businesses. We agree.
In Macon the Court addressed whether pornographic magazines purchased
by undercover officers could be entered into evidence against the store clerk who
sold them. Concluding that Macon "did not have any reasonable expectation of
privacy in areas of the store where the public was invited to enter and to transact
the business," the Court held that "the officer's action . . . did not constitute a
search within the meaning of the Fourth Amendment." Id. at 469; see also United
States v. Katz, 389 U.S. 347, 351 (1967) ("[T]he Fourth Amendment protects
people, not places."); United States v. Longoria, 177 F.3d 1179, 1183 & n.2 (10th
Cir. 1999) ("[W]hat a person knowingly exposes to the public, even in his own
home or office, is not a subject of Fourth Amendment protection."). In Macon the
undercover agents did not enter the store as a matter of right, but rather as
customers on the same footing with other members of the public. This notwithstanding, the distinction before us does not turn the type of access
authorized by 7(a) into a search prohibited by the Fourth Amendment.
Any fair reading of Macon requires us to conclude that Abilene's Fourth
Amendment claim cannot turn on whether the Second Ordinance conveys access
to officers as a matter of right, but must instead turn on whether Abilene has a
reasonable expectation of privacy in the areas of the store 7(a) entitles the
officers to inspect. Section 7(a) explicitly limits officers' rights of access to
public areas of the store and to normal business hours; no special invasive search
privileges are authorized. There is no barrier to officers entering any retail
establishment during normal business hours to view those areas of the premises
open to the public.(14) See Andy's Restaurant & Lounge, Inc. v. City of Gary, 466
F.3d 550, 557 (7th Cir. 2006) (upholding a nearly identical provision on similar
grounds); see also Andree v. Ashland County, 818 F.2d 1306, 1314-16 (7th Cir.
1987) (holding that although officers demanded admission to public concert venue
without paying, their inspection of public areas did not implicate plaintiffs'
(14) Efforts to use 7(a) as anything more than a right of casual inspection of
the premises could run afoul of the Fourth Amendment. See Lo-Ji Sales, Inc. v.
New York, 442 U.S. 319, 329 ("[T]here is no basis for the notion that because a
retail store invites the public to enter, it consents to wholesale searches and
seizures that do not conform to Fourth Amendment guarantees."); Durham Video
& News, Inc. v. Durham Bd. of Adjustment, 550 S.E.2d 212, 215 (N.C. App.
2001) (holding that officers' extended visit to an adult bookstore, during which
they measured the store, recorded a video detailing the bookstore's inventory, and
played portions of videos taken from the shelves, went beyond the activities of an
ordinary customer and thus constituted a warrantless search).
Fourth Amendment rights). The challenged provision compromises Abilene's
"reasonable expectation of privacy" no more than the conduct that survived
Fourth Amendment scrutiny in Macon.
IV
As a final matter, Abilene appeals the district court's rejection of its claim
that the Second Ordinance violates its Fourteenth Amendment right to privacy, as
identified in Carey v. Population Servs. Int'l, 431 U.S. 678 (1977). We review
the district court's judgment with respect to an alleged violation of Abilene's
Fourteenth Amendment rights de novo. See United States v. Oliver, 278 F.3d
1035, 1039 (10th Cir. 2001). Abilene argues that the Second Ordinance
"impose[s] a substantial burden on the right to intimate privacy" by limiting
individuals' right of access to marital aids. Abilene cannot cite to a single case,
state or federal, that extends the substantive due process right identified in Carey
and its progeny to the type of restrictive zoning ordinance at issue in this case.
Rather, Carey stands for an entirely different proposition Ä "that the Constitution
protects individual decisions in matters of childbearing from unjustified intrusion
by the State." Id. at 687. Abilene offers no support for the proposition that the
relatively minimal burden imposed by a restrictive zoning ordinance should be
compared to the much more severe burden at issue in Carey. Accordingly, on this
claim we affirm the judgment of the district court. See Phillips v. Calhoun, 956
F.2d 949, 953-54 (10th Cir. 1992) (holding an argument forfeited if not supported
by relevant legal authority or sound legal reasoning).
V
For the reasons stated above, the judgment of the district court is
AFFIRMED in part, REVERSED in part, and REMANDED for proceedings
consistent with this opinion.
Abilene Retail #30, Inc. v. Hoffman, No. 05-3473
EBEL, J., concurring, and joined by McWILLIAMS, J., and LUCERO, J.
I agree entirely with the result that the majority opinion reaches, and I join
most of its reasoning. Along with the majority (Maj. Op. at 2), I conclude that
Plaintiff-Appellant Abilene Retail #30, Incorporated's ("Abilene Retail") First
Amendment claim should be remanded for a trial. I would reach this conclusion,
however, at a different step in the analysis than does the majority.
Like the majority, I conclude that the County's challenged ordinance is a
content-neutral time, place or manner restriction on speech protected by the First
Amendment and, thus, must pass intermediate scrutiny to be valid. (Maj. Op. at
15.) We inquire, therefore, whether the ordinance is "narrowly tailored to serve a
significant government interest, and if it leaves open ample alternative channels
of communication." Doctor John's, Inc. v. City of Roy, 465 F.3d 1150, 1164
(10th Cir. 2006) (quotation omitted); see also City of Renton v. Playtime
Theatres, Inc., 475 U.S. 41, 50 (1986). The parties in this case do not dispute that
the County's ordinance does leave open adequate alternative channels of
communication. And "[i]t is well established that combating the secondary
effects of adult businesses is a significant governmental interest." Doctor John's,
465 F.3d at 1164 (quotation omitted). The relevant question before us, therefore,
is whether the County's ordinance is narrowly tailored to serve that interest. In
addressing this question, we apply the burden-shifting evidentiary analysis set
forth in City of Los Angeles v. Alameda Books, Inc., 535 U.S. 425, 434, 438-39
(2002) (plurality).
Alameda Books requires that Defendants-Appellees ("the County"), in
justifying the restrictions the County has placed on protected speech, bear the
initial burden of presenting "evidence that is `reasonably believed to be relevant'
for demonstrating a connection between [the regulated] speech and a substantial,
independent government interest." Id. at 438 (quoting City of Renton, 475 U.S. at
51-52); see also id. at 437. If the County is able to do so, the burden shifts to
Abilene Retail to "cast direct doubt" on the County's "rationale, either by
demonstrating that the [County's] evidence does not support its rationale or by
furnishing evidence that disputes the [County's] factual findings" underlying its
decision to enact the challenged ordinance. Id. at 438-39. If Abilene Retail
"succeed[s] in casting doubt on the [County's] rationale in either manner, the
burden shifts back to the [County] to supplement the record with evidence
renewing support for a theory that justifies its ordinance." Id. at 439.
Although the majority in this case decides that the County has failed to
meet its initial burden under Alameda Books (Maj. Op. at 18, 21-22, 26 n.13), I
disagree. I would, however, go on to conclude that Abilene Retail has been able
to "cast direct doubt" on the County's rationale sufficient to require a trial. It is
on that basis that I would remand Abilene Retail's First Amendment claim.
I. Whether the County has met its initial burden of presenting evidence
"reasonably believed to be relevant" to demonstrate a connection
between its regulation of protected speech and a substantial
government interest.
The County's stated purpose in enacting its ordinance restricting the
location and operation of sexually oriented businesses is to prevent the negative
secondary effects stemming from such businesses.(1) Under Alameda Books, then,
the County must assert evidence that it "reasonably believed to be relevant" to
demonstrate a connection between that purpose and the ordinance the County
enacted regulating protected speech. See 535 U.S. at 438. In this case, the
County sought to justify its ordinance by citing to a number of judicial opinions
from other cases, finding that sexually oriented businesses can have adverse
secondary effects on their surrounding communities, as well as a number of "seemingly pre-packaged studies" of the secondary effects generally stemming
from various types of sexually oriented businesses located in other cities and
counties across the nation. Heideman v. S. Salt Lake City, 348 F.3d 1182, 1197
(10th Cir. 2003) (noting "it is common in these cases for cities to cite to and rely
on seemingly pre-packaged studies, as well as the findings of courts in other
cases"). Unlike the majority opinion, I would conclude that this evidence is
sufficient for the County to meet its initial burden under Alameda Books.
Both the Supreme Court and this court have consistently recognized that
the government's burden at this initial step in the Alameda Books' analysis is
very light. See Alameda Books, 535 U.S. at 451 (Kennedy, J., concurring)
(noting "that very little evidence is required" for the government to support the
rationale on which its ordinance rests); Doctor John's, 465 F.3d at 1166 (noting
government's initial burden is "slight"); Heideman, 348 F.3d at 1198 (suggesting
"City's initial burden to present empirical support for its conclusions is
minimal"); see also Alameda Books, 535 U.S. at 437-38, 439-40.(2)
(1) The ordinance states its underlying rationale to be the following:
It is the purpose of this ordinance to regulate sexually oriented
businesses in order to promote the health, safety, and general welfare
of the citizens of the County, and to establish reasonable and uniform
regulations to prevent the deleterious secondary effects of sexually
oriented businesses within the County. The provisions of this ordinance
have neither the purpose nor effect of imposing a limitation or
restriction on the content or reasonable access to any communicative
materials, including sexually oriented materials. Similarly, it is neither
the intent nor effect of this ordinance to restrict or deny access by
adults to sexually oriented materials protected by the First Amendment,
or to deny access by the distributors and exhibitors of sexually oriented
entertainment to their intended market. Neither is it the intent nor
effect of this ordinance to condone or legitimize distribution of obscene
material.
(2) Other circuits have likewise recognized that Alameda Books' initial
burden is minimal. See IllusionsDallas Private Club, Inc. v. Steen, 482 F.3d 299,
(5th Cir. 2007) (noting that, although government must assert "some" evidence to
meet its initial burden, that burden is "very light" and "minimal"); Zibtluda, LLC
v. Gwinnett County ex rel. Bd. of County Comm'rs, 411 F.3d 1278, 128687
(11th Cir. 2005) (describing government's burden as "modest," "low," and not
"rigorous"); World Wide Video of Washington, Inc. v. City of Spokane, 368 F.3d
1186, 1194 (9th Cir. 2004) (noting government's evidence need not be
overwhelming to meet its initial burden); R.V.S., L.L.C. v. City of Rockford, 361
F.3d 402, 411 (7th Cir. 2004) (noting government's burden is "not particularlydemanding").
Our deference to the evidence presented by the [government] is the
product of a careful balance between competing interests. On the one
hand, we have an obligation to exercise independent judgment when
First Amendment rights are implicated. On the other hand, we must
acknowledge that the [local government] is in a better position than the
Judiciary to gather and evaluate data on local problems.
Alameda Books, 535 U.S. at 440 (quotation, citation omitted).
In order to meet its initial burden, therefore, the County need not conduct
its own studies or "produce evidence independent of that already generated by
other cities" in support of its ordinance, "so long as whatever evidence the
[government] relies upon is reasonably believed to be relevant to the problem that
the [government] addresses." City of Renton, 475 U.S. at 51-52; see also Doctor
John's, 465 F.3d at 1164-65; Heideman, 348 F.3d at 1197.
Further, the County is not required to produce evidence "that rules out
every [other] theory" linking the negative secondary effects at which its ordinance
is aimed to other possible causes, apart from the presence of adult businesses.
Alameda Books, 535 U.S. at 437. That is, the government does not have "to
prove that its theory" linking the negative effects it seeks to eliminate to sexually
oriented businesses "is the only [theory] that can plausibly explain the data" on
which the County relies. Id. at 437-38. Nor does the government have to assert
empirical data that shows that its ordinance will succeed in reducing the negative
secondary effects at which it is aimed. See id. at 439. Government entities "must
be given a reasonable opportunity to experiment with solutions to address the
secondary effects of protected speech." Id. (quotation omitted).
Of course, "[t]his is not to say that [the government] can get away with
shoddy data or reasoning. The [government's] evidence must fairly support [the]
rationale for its ordinance." Id. at 538. The County's evidence does so here.
Courts have consistently upheld ordinances based upon the same type of
evidence with which the County has initially supported its ordinance in this case.
See City of Renton, 475 U.S. at 50-52 (upholding ordinance based upon a judicial
opinion entered in another case discussing the negative secondary effects of
sexually oriented businesses, and a study of such secondary effects conducted in
another location); Heideman, 348 F.3d at 1197-98 (citing Barnes v. Glen Theatre,
Inc., 501 U.S. 560, 584 (1991) (Souter, J., concurring), and recognizing
government can rely on court-made findings in other cases that sexually oriented
businesses can have negative secondary effects). Moreover, this court has
previously held that a local government met its initial burden under Alameda
Books by relying upon prepackaged reports and case law almost identical to that
relied upon by the County in this case. See Doctor John's, 465 F.3d at 1165-66 &
1165 n.17, 1166 n. 18; Heideman, 348 F.3d at 1186-87, 1186 & n.5, 1199-1200.
So have other circuits. See Andy's Restaurant & Lounge, Inc. v. City of Gary,
466 F.3d 550, 555 (7th Cir. 2006) (holding City met its burden by asserting
"numerous studies evidencing the secondary effects of sexually oriented
businesses"); Deja Vu of Cincinnati, L.L.C. v. Union Twp. Bd. of Trustees, 411
F.3d 777, 791 (6th Cir. 2005) (reh'g en banc) (holding township's evidence,
twelves studies from different cities, as well as the township administrator's
testimony of documented instances of intoxicated patrons causing serious trouble
in adult cabarets, was sufficient to support resolution requiring cabarets that do
not serve alcohol to close at midnight); Zibtluda, 411 F.3d at 1286-87 (holding
County sufficiently supported its ordinance by citing to studies from different
locations, conducting a hearing at which the county commissioners heard citizens'
testimony, as well as testimony from experts in law enforcement and economics);
Gammoh v. City of La Habra, 395 F.3d 1114, 1126 (9th Cir. 2005) (holding City
met its initial burden by relying upon judicial decisions in other cases, reports and
studies from other jurisdictions, and testimony of the City's vice officers and
nude dancers); Ben's Bar, Inc. v. Village of Somerset, 316 F.3d 702, 725-26 (7th
Cir. 2003) (holding City met its initial burden by relying upon studies, reports and
judicial decisions from other locations).
In fact, in the few cases in which courts have held that a government failed
to meet its initial burden under the Alameda Books' burden-shifting analysis, the
local government did not present any evidence at all justifying its decision to
enact an ordinance regulating adult businesses. See Illusions-Dallas, 482 F.3d at
312-15 (holding State had failed to meet its "very light" initial burden because
"the record is completely devoid of any evidence that a secondary effects problem
exists or that the [challenged ordinance] furthers that interest"); White River
Amusement Pub, Inc. v. Town of Hartford, 481 F.3d 163, 171-73 (2d Cir. 2007)
(holding town failed to meet its initial burden because defendants could "not
show that they relied on relevant evidence of negative effects before enacting the
Ordinance"); R.V.S., 361 F.3d at 411-13 (holding City had failed to meet its
initial burden, which requires "very little evidence," because "[t]he record is
devoid of evidence connecting [the adult businesses] and the secondary effects
that allegedly motivated the Ordinance's adoption"); Peek-A-Boo Lounge of
Bradenton, Inc. v. Manatee County, 337 F.3d 1251, 1266-69 (11th Cir. 2003)
(holding County had failed to meet its initial burden because "the record reveals
that the Manatee County Board of County Commissioners, when enacting
Ordinance 98-46, failed to rely on any evidence whatsoever that might support the
conclusion that the ordinance was narrowly tailored to serve the County's interest
in combating secondary effects").
Abilene Retail argues that the County's evidence in this case is insufficient
even at this initial step in the analysis because the cases and reports upon which
the County relies primarily concern adult businesses that offered only on-site, or
both on- and off-site, adult entertainment, whereas Abilene Retail offers only
off-site adult entertainment. But at this initial stage in the analysis, those
distinctions are of no moment, so long as the County could reasonably believe the
reports and case law upon which it relied were relevant to demonstrate that the
County's regulating sexually oriented businesses will reduce adverse secondary
effects on the community. See Doctor John's, 465 F.3d at 1165-69 (citing Z.J.
Gifts D-2, L.L.C. v. City of Aurora, 136 F.3d 683 (10th Cir. 1998)). The County
can meet its "slight initial burden, even if the studies" on which it relies do not
address sexually oriented businesses "precisely like" Abilene Retail's store. Id. at
1166.
The majority would conclude that the County's pre-packaged studies and
case law are insufficient to meet the County's initial evidentiary burden because
the County's evidence concerns local governments' experiences with sexually
oriented businesses in an urban setting, while the County is a rural, sparsely
populated area. This may be a valid distinction to draw at the later stages of the
Alameda Books' analysis. Notwithstanding our obligation in the First
Amendment context "to make an independent examination of the record in its
entirety to ensure the challenged regulation does not improperly limit expressive
interests," Z.J. Gifts, 136 F.3d at 685, I do not think that this rural/urban
distinction is sufficient at the initial stage of our analysis. The evidence the
County asserted was sufficient to permit the County to draw the reasonable
conclusion that the secondary effects that other communities across the country
have experienced related to sexually oriented businesses would also occur in this
County. That is all Alameda Books requires at this initial analytical step. In fact,
in Alameda Books, the Supreme Court held that the circuit court had erred in not
permitting the local government, at this initial stage in the analysis, to draw a
reasonable inference from the evidence it had before it, even though there were
other reasonable explanations of the evidence and other reasonable inferences that
the government could have drawn instead.(3) See Alameda Books, 535 U.S. at
436-38. A local government, therefore, can meet its "slight initial burden, even if
the studies" on which it relies do not address sexually oriented businesses "precisely like" those being regulated by the challenged ordinance. Doctor
John's, 465 F.3d at 1166.
For these reasons, then, I conclude that, in this case, the County has
presented sufficient evidence, linking its ordinance restricting the location and
operation of sexually oriented businesses to the County's substantial interest in
eliminating adverse secondary effects stemming from such businesses, to meet its
minimal initial burden under Alameda Books.(4)
II. Whether Abilene Retail was able to cast direct doubt on the County's
rationale underlying its decision to enact the challenged ordinance.
Because the County has met its initial burden under Alameda Books, the
burden shifts to Abilene Retail to "cast direct doubt" on the County's rationale
underlying its ordinance. Alameda Books, 535 U.S. at 438. Abilene Retail can
do so in one of two ways. See id. at 438-39. It can demonstrate that the County's
evidence does not support its rationale that restricting the location and operation
of adult businesses reduces the adverse secondary effects resulting from sexually
oriented businesses. See id. Or Abilene Retail can furnish evidence that disputes
the County's factual findings justifying its ordinance. See id. at 439. In this
case, Abilene Retail has been able to do both.
A. Whether Abilene Retail was able to demonstrate that the
County's evidence does not support the rationale underlying the
County's ordinance.
The County's rationale in enacting this challenged ordinance, based upon
the case law and studies the County had before it, is that sexually oriented
businesses can cause negative secondary effects on the surrounding community,
and the restriction that the County's ordinance places on sexually oriented
businesses is narrowly tailored to prevent those adverse effects. Abilene Retail
challenges that rationale that the County has drawn from the County's
pre-packaged evidence by presenting its own evidence indicating instead that
sexually oriented businesses do not cause the adverse secondary effects the
(3) Alameda Books considered the validity of the City of Los Angeles'
ordinance prohibiting "the establishment or maintenance of more than one adult
entertainment business in the same building, structure or portion thereof." 535
U.S. at 429 (quotation omitted). To justify this restriction, the City relied upon a
study conducted by the Los Angeles police department indicating that, during a
tenyear period, "certain crime rates grew much faster in Hollywood, which had
the largest concentration of adult establishments in the city, than in the city of
Los Angeles as a whole." Id. at 435. The circuit court reviewing this ordinance
held that this study did not reasonably support the City's enacting an ordinance
prohibiting more than one adult establishment in the same building, because the
study did not address that particular circumstance. See id. The Supreme Court,
however, concluded that the circuit court had erred in refusing to allow the City
to draw this reasonable inference from that study, even if the study might also
support drawing other reasonable inferences. See id. at 43638. "The Court of
Appeals' analysis...implicitly requires the city to prove that its theory is the
only one that can plausibly explain the data." Id. at 43738. The Court concluded
this was error, and further indicated that it is instead up to those challenging the
ordinance to "provide evidence that refutes the city's interpretation of the study."
Id. at 438.
Similarly, in this case, the County can reasonably infer that the adverse
secondary effects that other, more urban communities have experienced in
relation to sexually oriented businesses would also occur in the County's more
rural, less populated community. That is sufficient for the County to meet its
minimal initial evidentiary burden under Alameda Books and shifts the burden to
Abilene Retail to present evidence challenging the County's interpretation of the
law and reports upon which the County relies.
(4) If, as the majority instead concludes, the County has failed to meet its
initial burden, then the result would not be to remand this claim for a trial, as the
majority does. (Maj. Op. at 18, 2122, 26 n.13 (holding that the County has failed
to meet its initial burden and so there is a dispute of material fact as to whether
the County could reasonably believe that the evidence on which it relied to justify
enacting the challenged ordinance was relevant).) In that case, there would be no
genuinely disputed factual issue to be tried. Rather, if the County has failed as a
matter of law to meet its initial burden of asserting some minimal evidence
connecting the ordinance it enacted with the County's stated objective to
eliminate adverse secondary effects stemming from adult businesses, then the
evidentiary burden under Alameda Books would never shift to require Abilene
Retail to produce evidence creating a genuinely disputed factual issue. The
ordinance would instead simply be invalid. See White River Amusement Pub,
481 F.3d at 165, 173 (affirming summary judgment for the plaintiff, where the
government failed to prove its legislative body actually considered the evidence
on which the government relied to justify its ordinance); R.V.S., 361 F.3d at 404,
41113, 41516 (holding that government had failed to present sufficient evidence
during bench trial to meet its initial burden; remanding for entry of judgment after
concluding ordinance, therefore, violated First Amendment); PeekABoo
Lounge, 337 F.3d at 1269 & n.18 (reversing judgment entered for County and
sustaining plaintiffs' First Amendment challenge); Encore Videos, Inc. v. City of
San Antonio, 330 F.3d 288, 295 (5th Cir. 2003) (striking down ordinance after
holding that City had failed to assert any evidence to justify its enactment). But,
as I have indicated, the County in this case did not fail to meet its minimal initial
burden.
County fears. Specifically, Abilene Retail offers the opinion of its expert
witness, Dr. Daniel Linz, Ph.D. Dr. Linz has conducted five studies of his own
indicating that sexually oriented businesses do not produce the negative
secondary effects that the County sought to prevent by enacting its ordinance.(5)
More importantly, perhaps, Abilene Retail also presented evidence that its store
has in fact not produced any of the negative secondary effects that the County's
ordinance was designed to eliminate.(6) Cf. Peek-A-Boo Lounge, 337 F.3d at 1270
(concluding plaintiffs had successfully cast direct doubt on the County's rationale
by presenting evidence of the County's actual experience with adult businesses, which contradicted the evidence on which the County had relied). This evidence
is sufficient to cast direct doubt on the County's evidence on which the County
based its rationale that regulating sexually oriented businesses will eliminate the
adverse secondary effects those businesses cause.(7)
B. Whether Abilene Retail was able to furnish evidence disputing
the County's factual findings justifying its ordinance.(8)
In addition to the five studies on which Abilene Retail relies to show that
sexually oriented businesses do not cause the negative secondary effects that the
County fears, Abilene Retail also presented evidence calling into doubt the
validity of the County's legislative factual findings indicating adult businesses do
cause adverse secondary effects.(9) Specifically, Abilene Retail presented the
(5) Interestingly, Dr. Linz's studies took place primarily in urban areas:
Charlotte, North Carolina; Ft. Wayne, Indiana; San Diego, California; sixtyseven
Florida counties; and Dayton, Ohio.
(6) The County enacted its first ordinance regulating sexually oriented
businesses within a year of Abilene Retail's opening its store. As a result,
Abilene Retail commenced this litigation. The County then amended its
ordinance, and Abilene Retail amended its complaint to challenge the new
ordinance. It is only this amended ordinance that is at issue now in this case.
Throughout this litigation, the County has agreed to stay enforcing these
challenged ordinances until the courts resolve their validity. So Abilene Retail
has operated its adult retail store in an unrestricted manner for several years.
Abilene Retail presented evidence tending to prove that during this time, its store
has not produced any of the secondary effects that the County seeks to eliminate
through its regulation of sexually oriented businesses.
Of course, the County "need not wait for sexually oriented businesses to
locate within its boundaries, depress property values, increase crime, and spread
sexually transmitted diseases before it regulates those businesses." Z.J. Gifts, 136
F.3d at 688. But in this case, the County's actual experience with Abilene
Retail's store offers some corroboration of Abilene Retail's evidence suggesting
that sexually oriented businesses do not produce the negative secondary effects
that the County fears.
(7) Abilene Retail also challenges the County's rationale by pointing out that
the County's case law and prepackaged reports primarily address adult
establishments offering only onsite entertainment, or both on and offsite
entertainment, or concerned studies that did not differentiate between the
secondary effects caused by onsite versus off-site adult entertainment. Abilene
Retail argues that such evidence does not support the County's rationale that it
needs to regulate offsite adult businesses to the same extent it regulates onsite
establishments. By this argument, Abilene Retail argues that, based upon the
County's evidence, the County's ordinance is not narrowly tailored to serve the
County's substantial interest in combating the secondary effects of sexually
oriented businesses. See Doctor John's, 465 F.3d at 1166. While we have
concluded that this onsite/offsite distinction is not relevant at the initial stage of
the Alameda Books' analysis, in Doctor John's we acknowledged that "a
distinction between onsite and offsite businesses might be relevant in the
Alameda Books burden shifting framework." Doctor John's, 465 F.3d at 1168.
Nonetheless, like the plaintiff in Doctor John's, Abilene Retail failed to point to
any evidence "that its type of adult business (e.g., `offsite') is relevantly
different than those types of businesses analyzed in the studies supporting the
ordinance (e.g., `onsite')." Id. "Simply stating that offsite businesses are
different from onsite businesses is not sufficient to shift the burden back to the
[government]." Id.
It would be at this stage in the analysis that Abilene Retail might also
present evidence indicating that sexually oriented businesses in rural settings
"have materially different secondary effects" than the urban areas addressed in
the County's case law and prepackaged reports. Id. But Abilene Retail has
never itself drawn that distinction, let alone presented any evidence to support
that distinction. See id. at 1168.
(8) I recognize the considerable overlap between this inquiry and the previous
one.
(9) In enacting the challenged ordinance, the County specifically found the
following, based upon the cases and reports it had before it:
(1) Sexually oriented businesses, as a category of commercial
uses, are associated with a wide variety of adverse secondary effects
including, but not limited to, personal and property crimes, prostitution,
potential spread of disease, lewdness, public indecency, obscenity,
illicit drug use and drug trafficking, negative impacts on property
values, urban blight, litter, and sexual assault and exploitation.
(2)Sexual acts.. .sometimes occur inside the premises of or in
the parking lot of unregulated sexually oriented businesses, including
but not limited to those which provide private or semiprivate booths,
rooms, or cubicles for viewing films, videos, or live sexually explicit
shows, which acts pose a risk to public health through the spread of
sexually transmitted diseases.
(3)Sexually oriented businesses should be separated from
sensitive land uses to minimize the impact of their secondary effects
upon such uses, and should be separated from other sexually oriented
businesses, to minimize the secondary effects associated with such uses
and to prevent an unnecessary concentration of sexually oriented
businesses in one area.
(4) Each of the foregoing negative secondary effects constitutes
a harm which the County has a substantial government interest in
preventing and/or abating, and said substantial interest exists
independent of any comparative analysis between sexually oriented and
nonsexually oriented businesses.
opinion of its expert, Dr. Linz, that the studies and reports on which the County
relies are invalid or at least unreliable. In offering that opinion, Dr. Linz
addresses each of the County's reports and studies individually and points to
specific problems he sees with each study or report that call its results or
conclusions into question. Furthermore, Dr. Linz has bolstered this opinion with
an academic, peer-reviewed article that he wrote with others challenging the
validity of the County's studies. This evidence, too, sufficiently casts direct
doubt on whether the County could have reasonably believed its own evidence,
underlying the County's legislative findings, was relevant to justify enacting the
challenged ordinance. Cf. Peek-A-Boo Lounge, 337 F.3d at 1271 n.20 (relying in
part on similar evidence to conclude that the plaintiffs had created a genuinely
disputed issue of material fact sufficient to survive summary judgment).
C. Conclusion
For the foregoing reasons, I would conclude that Abilene Retail's evidence
is sufficient to cast direct doubt on the County's rationale underlying its decision
to enact the challenged ordinance restricting the location and operation of
sexually oriented businesses, in an effort to eliminate the adverse secondary
effects that adult businesses cause. That is particularly true given that, in
reviewing summary judgment decisions, we must "view the evidence and draw
reasonable inferences therefrom in the light most favorable to the nonmoving
party," Reeves v. Churchich, 484 F.3d 1244, 1250 (10th Cir. 2007) (quotation
omitted), which in this case is Abilene Retail.
III. Whether the County was able to supplement the record with evidence
renewing support for a theory that justifies its ordinance.
At this point in the Alameda Books' analysis, the burden shifts back to the
County "to supplement the record with evidence renewing support for a theory
that justifies its ordinance." 535 U.S. at 439. The County has done so in this
case, offering one of its expert witness's opinion that the studies and opinions of
Abilene Retail's expert, Dr. Linz, are themselves invalid and unreliable. The
County's expert, Dr. McCleary, further responds that the reports on which the
County relies, including at least one study conducted by Dr. McCleary himself,
are valid and reliable. While the County's evidence, then, does supplement the
other evidence it relied upon to justify enacting the challenged ordinance, this
supplemental evidence, rather than resolving the evidentiary dispute in this case,
further exacerbates it.
This is best illustrated by the arguments the County asserts in challenging
Abilene Retail's evidence. The County argues, for example, that Abilene Retail's
expert, Dr. Linz, has conducted only "industry-funded studies," is not a credible
witness, and has been found so by several courts in other cases. But, at the
summary judgment stage of litigation, a court cannot decide that Dr. Linz (or Dr.
McCleary, for that matter) is not a credible witness. See Norton v. City of
Marietta, 432 F.3d 1145, 1154 (10th Cir. 2005) (per curiam). Such a credibility
determination requires a trial and a fact finder charged with making such
determinations. See Plotke v. White, 405 F.3d 1092, 1103 (10th Cir. 2005). The
battle of the experts that the parties present to us requires a trial and a trier of fact
to resolve. See Phillips v. Cohen, 400 F.3d 388, 399 (6th Cir. 2005); Goldman v.
Standard Ins. Co., 341 F.3d 1023, 1036 (9th Cir. 2003); Michaels v. Avitech, Inc.,
202 F.3d 746, 752 (5th Cir. 2000).
IV. Conclusion
The Supreme Court has declared that whether a community's ordinance
regulating sexually oriented businesses is narrowly tailored to serve a substantial
government interest is an evidentiary question. Alameda Books, 535 U.S. at
437-42; City of Renton, 475 U.S. at 50-52; see Heideman, 348 F.3d at 1197
(noting that "[t]he standards for the quantity and nature of empirical evidence
needed to uphold a city ordinance based on the negative secondary effects of
sexually oriented speech in general . . . are continuing to evolve"); see also
IllusionsÄDallas, 482 F.3d at 312-15; Fantasy Ranch Inc. v. City of Arlington,
459 F.3d 546, 559 (5th Cir. 2006); R.V.S., 361 F.3d at 408. Applying that
Supreme Court precedent to this case, I conclude the County has met its initial
burden of producing some evidence linking its ordinance restricting the location
and operation of sexually oriented businesses with the County's stated goal of
preventing the secondary effects caused by such businesses. But I further
conclude that Abilene Retail has been able to assert sufficient evidence of its
own, contradicting and disputing the validity of the County's evidence and, thus,
the County's rationale underlying its ordinance, to create a triable evidentiary
dispute. And the supplemental evidence that the County offered is not sufficient
to dispel this triable evidentiary dispute. I reach this conclusion even while
recognizing that the issue to be presented at trial is not whether sexually oriented
businesses do, in fact, cause the secondary effects that the County seeks to
eliminate through its ordinance, but rather only whether the County's Board of
Commissioners had evidence from which it could reasonably infer that sexually
oriented businesses may cause adverse secondary effects in the surrounding
community, and that its ordinance restricting adult businesses is narrowly tailored
to eliminate those adverse effects.
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