Petition for Writ of Certiorari — Kansas v. Abilene (No. 07-972)

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07-972 JAN 18 2008

No. OFFICE OF THE CLERK

IN THE

SUPREME COURT OF THE UNITED STATES

BOARD OF COMMISSIONERS OF

DICKINSON COUNTY, KANSAS, and

KEITH HOFFMAN,

Petitioners,

ABILENE RETAIL #30, INC.,

Respondent.

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Tenth Circuit

PETITION FOR WRIT OF CERTIORARI

Teresa L. Watson, Counsel of Record

J. Steven Pigg

Fisher, Patterson, Sayler & Smith, LLP

3550 SW 5" Street, P.O. Box 949

Topeka, Kansas 66601-0949

(785) 232-7761

E-mail: twatson@fisherpatterson.com

spigg@fisherpattterson.com

QUESTIONS PRESENTED

i. This Court should preserve the deference

afforded legislative judgment in local regulation of

sexually oriented businesses. The Tenth Circuit would

impose greater burdens upon the government than

those outlined in Renton and Alameda Books, creating

two Circuit splits and subjecting legislative judgment

to impossible levels of proof and the veto power of a

jury.

A. There is not a separate and more

stringent burden of proof imposed upon rural

governments to justify regulation of sexually oriented

businesses.

B. Those seeking to cast direct doubt on

legislative judgment must do something more than

simply produce an “expert” to second guess the

government’s rationale and criticize the information

upon which it relied in making its judgment.

. When the government _ supplies

supplemental evidence to rebut doubts about its

legislative judgment, the legislation is valid. Meeting

the requirements of Alameda Books results in

judgment for the government, not a jury trial to weigh

competing rationales.

TABLE OF CONTENTS

Questions Presented .......................2-.- 1

i Ss yy ose dw haw diesen aa ene ll

| ee Vv

Petition for Writ of Certiorari................. 1

I A a cP 1

es oi hn a nb 5 6 4014 6 a0 a8 ORO i

Constitutional Provisions and Ordinances

AE eee 2

ee ee er 3

Reasons for Granting the Petition ............. 6

: This Court should preserve the

deference afforded legislative judgment

in local regulation of sexually oriented

businesses. The Tenth Circuit would impose

greater burdens upon the government

than those outlined in Renton and

Alameda Books, creating two Circuit splits

and subjecting legislative judgment to

impossible levels of proof

and the veto power ofajury............. 6

A. There is not a separate and

more stringent burden of proof

imposed upon rural governments

to justify regulation of sexually

oriented businesses... ............. 8

B. Those seeking to cast direct

doubt on legislative judgment

must do something more than

simply produce an “expert” to

second guess the government’s

rationale and criticize the

information upon which it relied

in making its judgment. ......... 13

C. When the government supplics

supplemental evidence to rebut doubts

about its legislative

judgment, the legislation is valid.

Meeting the requirements of Alameda

Books results in judgment for the

government, not a jury trial

to weigh competing rationales. .... 19

Conclusion

Appendix

Opinion of the Court of Appeals

for the Tenth Circuit

(led duly 10, 2007) ..<..-.6.250..cce.. la

Order Denying Appellees’ Petition for

Rehearing (filed October 25, 2007) ..... 49a

Memorandum & Order,

United States District Court

Case No. 04cev02230-JWL-JPO

Ordinance No. 121304A

TABLE OF AUTHORITIES

Cases

Andy’s Restaurant & Lounge, Inc. v.

City of Gary, 466 F.3d 550

(7 Cir. 2006). oo... ene cc ence acess 10

Ben's Bar, Inc. v. Village of Somerset,

316 F.3d 702 (7 Cir. 2003)............. 10

City of Erie v. Pap’s A.M., 529 U.S. 277

Pee 5) ck ada he ewe eee 5, 14-15, 18

City of Los Angeles v. Alameda Books, Inc.,

535 U.S. 425 @002). ....... 5-8, 13-15, 19-21

City of Renton v. Playtime Theatres, Inc.,

475 U.S. 41 (1986) ....... 5-6, 8-9, 11-13, 15

Daubert v. Merrell Dow Pharmaceuticals, Inc.,

MOS USS. STO CGO... wc i sc cne 15

Daytona Grand, Ine. v. City of Daytona

Beach, 490 F.3d 860

CO ee ee as haa ee 5, 16

Deja Vu of Cincinnati, L.L.C. v. Union Twp.

Bd. of Trustees, 411 I°.3d 777

eT Re NS So or nt eer eee 10

Deters v. The Lion’s Den, Inc.,

case no. 04-CH-26, order filed July 13, 2005,

Fourth Judicial Circuit, Effingham County,

A ey rer ee en ere 10, 19

Doctor John’s, Inc. v. City of Roy, 465 F.3d 1150

(10 Cir. 2006) ............--c2ceee: 9-10

Fantasy Ranch Inc. v. City of Arlington, 459 F.3d 546

Pr EN 4 606-6e860s ce ees s eas -.

G.M. Enterprises, Inc. v. Town of St. Joseph,

350 F.3d 631 (7 Cir. 2003) ........ 5, 15-16

Gammoh v. City of La Habra, 395 F.3d 1114

(O* Cir. 2006). .........-..... 5, 10, 16-17

Heideman v. South Salt Lake City, 348 F.3d

3208 C10" Cae. BOOM) ... wo. os ccccscccas 9-10

Illusions-Dallas Private Club, Inc. v. Steen,

482 F.3d 299 (5 Cir. 2007) ............. 9

LLEH, Inc. v. Wichita County, 289 F.3d 358

aa 2: re Ce 5, 11, 13

Peek-A-Boo Lounge of Bradenton, Inc. v.

Manatee County, 337 F.3d 1251

ea NE acres sean ck ewes 9

Vil

Playtime Theatres, Inc. v. City of Renton,

748 F.2d 527 (9 Cir. 1984) ............ 11

R.V.S., L.L.C. v. City of Rockford, 361 F.3d 402

ee ee cs a eee es 9

SOB, Inc. v. County of Benton, 317 F.3d 856

"Ce Sos ee eee ee 5, 16

Turner Broadcasting System, Inc. v. F.C.C.

pif Be Ts) 5 aan are 20

White River Amusement Pub, Inc. v.

Town of Hartford, 481 F.3d 163

ee ee cs ce we cee ee 9

Z.J. Gifts D-2, L.L.C. v. City of Aurora,

136 F.3d 683 (10 Cir. 1998) ......... 5, 18

Zibtluda, L.L.C. v. Gwinnett County,

411 F.3d 1278 (11" Cir. 2005) .......... 10

84 Video/ Newsstand, Inc. v. Sartint, 2007

WL 3047207 (N.D. Ohio 2007) .......... 16

5634 East Hillsborough Ave. v. Hillsborough

County, 2007 WL 2936211

(M.D. Fla. 2007)

Vili

Statutes

me €) 2k. SEO a 6k a a ee eee 2

BF ELE: BEGGS 6 60 eR eee 3

28 U.S.C. §1343(a)(S3) and (4) ................. 3

20 US. SRI 6. oi ce ee eee eee 2

SO UA: SEGUE soe sis Swe ee eee eee 3

Be UA. Gae o2 won bcc Se eee 3

42 USC. $1008... 3

A2UBA. $1008 . occ eee 3

Rules

Suprome Court Rule 83.1... 6. neiy oa eee 2

Supreme Court Rule 19.8 64.4. .266)40045505585 2

PETITION FOR WRIT OF CERTIORARI

The Board of Commissioners of Dickinson

County, Kansas, and Keith D. Hoffman (hereinafter,

“the County”) respectfully petition for a writ of

certiorari to review the judgment of the United States

Court of Appeals for the Tenth Circuit.

OPINIONS BELOW

The opinion of the United States Court of

Appeals for the Tenth Circuit, dated July 10, 2007, is

officially reported at 492 F.3d 1164 (10 Cir. 2007),

and is reproduced at Appendix la-48a.

The order of the United States Court -f Appeals

for the Tenth Circuit, dated October 25, 2007, denying

the County’s motion for rehearing en banc, with

accompanying dissent, is reported at 508 F.3d 958 (10"

Cir. 2007), and is reproduced at Appendix 49a-56a.

The order of the United States District Court for

the District of Kansas, dated December 1, 2005, is

officially reported at 402 F.Supp.2d 1285 (D.Kan.

2005), and is reproduced at Appendix 57a-77a

JURISDICTION

The judgment of the United States Court of

Appeals for the Tenth Circuit sought to be reviewed

was entered on July 10, 2007. A timely petition for

rehearing en banc was filed by the County on July 25.

2007. The petition for rehearing en banc was denied in

an order filed October 25, 2007.

This petition is timely under 28 U.S.C. §2101(c)

and Supreme Court Rule 13.1 and 13.3 because it is

filed within 90 days of the denial of the County’s

timely petition for rehearing en banc. This Court has

jurisdiction to review the judgment of the United

States Court of Appeals for the Tenth Circuit pursuant

to 28 U.S.C. § 1254(1).

CONSTITUTIONAL PROVISIONS AND

ORDINANCES INVOLVED

The relevant constitutional provision involved

is Constitution of the United States, Amendment 1:

“Congress shall make no law respecting an

establishment of religion, or prohibiting the free

exercise thereof; or abridging the freedom of speech, or

of the press; or the right of the people peaceably to

assemble, and to petition the Government for a redress

of grievances.” (Emphasis added.)

The relevant local ordinance involved is

Dickinson County, Kansas, Ordinance 121304A. It is

reproduced in full at Appendix 78a-114a.

STATEMENT OF THE CASE

Abilene Retail owns and operates an adult

bookstore in rural Dickinson County, Kansas, known

as “The Lion’s Den.” Abilene Retail challenged a

zoning ordinance which restricted the location and

mode of operation of sexually oriented businesses

within the County, asserting that the ordinance

violated the First Amendment.

Abilene Retail sought declaratory and injunctive

relief in the United States District Court for the

District of Kansas. The district court had jurisdiction

pursuant to 28 U.S.C. § 1331 because the matter was

a civil action arising under the Constitution of the

United States. Further, the district court had

jurisdiction pursuant to 28 U.S.C. § 1343(a)(3) and (4),

28 U.S.C. § 2201 and 2202, and 42 U.S.C. § 1983 and

1988 on the basis that the petition sought declaratory

relief to redress alleged deprivation of rights,

privileges and immunities secured by the Constitution

of the United States committed under color of state

law.

The County repealed the ordinance and adopted

a second zoning ordinance addressing sexually

oriented businesses.' Abilene Retail amended its

complaint to challenge the second ordinance only. The

parties agreed to a preliminary injunction staying

enforcement of the ordinance pending a decision on the

merits from the district court.

'The second ordinance, and the only one at issue in this

case, is 121304A It is reproduced in its entirety at App.78-1 14a.

The district court granted the County’s motion

for summary judgment on all claims of Abilene Retail.

Pertinent to this petition is the district court’s

conclusion that the ordinance was content neutral and

designed to address the negative secondary effects of

sexually oriented businesses in Dickinson County. The

district court held that the ordinance survived

intermediate scrutiny and did not violate the First

Amendment.

Abilene Retail appealed the decision to the

United States Court of Appeals for the Tenth Circuit.

Pertinent to this petition, a majority of the Tenth

Circuit panel concluded that while the ordinance was

content neutral, there remained a disputed question of

material fact regarding whether the ordinance was

designed to serve an admittedly substantial

government interest.

Two members of the Tenth Circuit panel

beheved that there remained a dispute about whether

the County reasonably relied on case law and

secondary effects studies from other jurisdictions in

passing the second ordinance. A concurring member of

the panel disagreed, concluding that the County

reasonably relied on the materials at issue, but that

Abilene Retail cast direct doubt on the validity of the

underlying fact findings made by the County and the

studies it relied upon in support of the second

ordinance. Further, the concurrence concluded that the

County in its supplemental submissions failed to

provide evidence sufficient to support the ordinance,

creating a triable fact issue. The majority adopted the

reasoning of the concurrence on the latter two issues

as an alternative ground for its holding.

The County filed a petition for rehearing en

banc, arguing that the majority and concurring

analyses directly contradict seminal United States

Supreme Court decisions, including City of Renton v.

Playtime Theatres, Inc., 475 U.S. 41 (1986); City of Erie

v. Pap’s A.M., 529 U.S. 277 (2000); and City of Los

Angeles v. Alameda Books, Inc., 535 U.S. 425 (2002); as

well as the precedent of the Tenth Circuit, namely Z.-/.

Gifts D-2, L.L.C. v. City of Aurora, 136 F.3d 683 (10

Cir. 1998). Further, the County asserted that the

majority and the concurring opinions created a split

among the circuits by diverging from decisions such as

LLEH, Inc. v. Wichita County, 289 F.3d 358 (5" Cir.

2002); G.M. Enterprises, Inc. v. Town of St. Joseph, 350

F.3d 631 (7 Cir. 2003); SOB, Inc. v. County of Benton,

317 F.3d 856 (8 Cir. 2003); Gammoh v. City of La

Habra, 395 F.3d 1114 (9 Cir. 2005); and Daytona

Grand, Inc. v. City of Daytona Beach, 490 F.3d 860

(11" Cir. 2007).

The Tenth Circuit ordered Abilene Retail to file

a response to the petition for rehearing en banc. The

petition was denied by a 7-5 vote of the court. Judge

Gorsuch filed a dissent from the denial of rehearing,

joined by Judge Kelly. Judge Gorsuch observed that

the case was one of great legal significance because it

“opens not one, but two, splits with our sister circuits

on important questions of law concerning the amount

of judicial deference due legislative judgments.” (App.

52a)

The County petitions this Court for review of

the Tenth Circuit’s decision holding that there is a

dispute of material fact regarding whether the County

reasonably relied on certain case law and secondary

effects studies in passing the second ordinance, that

Abilene Retail cast direct doubt on the validity of the

underlying fact findings made by the County and the

studies it relied upon, and that the County in its

supplemental submissions failed to produce evidence

entitling it to judgment as a matter of law.

REASONS FOR GRANTING THE PETITION

1. THIS COURT SHOULD PRESERVE

THE DEFERENCE AFFORDED LEGISLATIVE

JUDGMENT IN LOCAL REGULATION OF

SEXUALLY ORIENTED BUSINESSES. THE

TENTH CIRCUIT WOULD IMPOSE GREATER

BURDENS UPON THE GOVERNMENT THAN

THOSE OUTLINED IN RENTON AND ALAMEDA

BOOKS, CREATING TWO CIRCUIT SPLITS AND

SUBJECTING LEGISLATIVE JUDGMENT TO

IMPOSSIBLE LEVELS OF PROOF AND THE

VETO POWER OF A JURY.

The Tenth Circuit held that the County’s

ordinance was content neutral legislation designed to

regulate the secondary effects of sexually oriented

businesses. Thus, the ordinance is subject to

intermediate scrutiny under the First Amendment.

The ordinance must be upheld as long as it is

“designed to serve a substantial government interest”

and reasonable alternative avenues of communication

remain available. Alameda Books, 535 U.S. at 434.

The Tenth Circuit did not reach the issue of

alternative avenues. Instead, it concluded that there is

a disputed question of fact about whether the

ordinance is “designed to serve” an admittedly

substantial government interest.

The Tenth Circuit applied the three-step burden

shifting approach set forth in Alameda Books. This test

requires the County to show that in passing the

ordinance it relied upon “evidence that is reasonably

believed to be relevant for demonstrating a connection

between speech and a substantial, independent

government interest.” 535 U.S. at 438-39. If the

County succeeds, the burden shifts to Abilene Retail to

“cast direct doubt” upon the County’s evidence either

by proving that the County’s evidence does not support

its rationale for the ordinance or by disproving the

County’s factual findings. Jd. If Abilene Retail casts

direct doubt, the burden shifts back to the County to

“supplement the record with evidence renewing

support for a theory that justifies its ordinance.” Id.

The Tenth Circuit claimed to be “mindful” that

it had no right to reweigh the evidence de novo or

substitute its judgment for that of the legislative body.

Unfortunately, this is exactly what occurred.? The

?App. 16a. The Tenth Circuit reviewed the legislative

record and decided that a rural interstate was a logical — even

desirable — place for an adult superstore. “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

(continued...)

Tenth Circuit disregarded the deference owed

Dickinson County in regulating businesses within its

own borders, creating dangerous precedent which will

subject legislative judgment to impossible levels of

proof and the veto power of a jury.

A. THERE IS NOT A SEPARATE AND

MORE STRINGENT BURDEN OF PROOF

IMPOSED UPON RURAL GOVERNMENTS TO

JUSTIFY REGULATION OF SEXUALLY

ORIENTED BUSINESSES.

Never before has this Court or any other

required a rural government to meet a burden beyond

that imposed on urban governments in order to justify

a local zoning ordinance under Renton and Alameda

Books. The Tenth Circuit created from whole cloth an

additional burden and arbitrarily imposed it upon this

rural County. In doing so, the Tenth Circuit departed

from Supreme Court precedent and created a split

among the Circuits.

The County enacted an ordinance regulating the

location and operation of sexually oriented businesses

to prevent the negative secondary effects associated

with these businesses. Alameda Books requires that

the County provide evidence it “reasonably believed to

be relevant” to demonstrate a connection between this

admittedly substantial government interest and the

*(...continued)

‘independent judgment’ entirely.” (App. 20a) The opinion later

states that Abilene Retail’s existing location along the highway,

according to a “common sense” reading of the studies, “would best

limit any secondary effects. (App. 20a)

ordinance. The County’s burden at this point in the

analysis is very light. 535 U.S. at 451. See also Doctor

John’s, Inc. v. City of Roy, 465 F.3d 1150, 1166 (10

Cir. 2006) (initial burden is “slight”); Hetdeman v.

South Salt Lake City, 348 F.3d 1182, 1198 (10™ Cir.

2003) (initial burden is “minimal”). Only those who fail

to offer any evidence justifying an ordinance fall short

of this deferential standard. See Jllusions-Dallas

Private Club, Inc. v. Steen, 482 F.3d 299, 312-15 (5"

Cir. 2007); White River Amusement Pub, Inc. v. Town

of Hartford, 481 F.3d 163, 171-73 (2™ Cir. 2007);

R.V.S., L.L.C. v. City of Rockford, 361 F.3d 402, 411-13

(7 Cir. 2004); Peek-A-Boo Lounge of Bradenton, Inc. v.

Manatee County, 337 F.3d 1251, 1266-69 (11" Cir.

2003).

This Court has confirmed that a_ local

government may rely upon studies from other cities

and judicial opinions from other jurisdictions in

regulating sexually oriented businesses. Renton, 475

U.S. at 50-52 (First Amendment does not require

government to produce new studies or rely on

materials independent of those used in other locales).

Here, the County relied upon 20 secondary

effects studies of various types of sexually oriented

businesses in other cities and counties across the

country. The County also relied upon 27 judicial

opinions from a number of federal courts including this

Court, the Tenth Circuit, and courts in other Circuits.

See App. 8la-82a.

Other local governments have relied on a nearly

identical body of information in regulating sexually

oriented businesses, and that information was deemed

sufficient by the Tenth Circuit and others. Doctor

John’s, 465 F.3d at 1165-66; Heideman, 348 F.3d at

1186-87, 1199-1200; Andy’s Restaurant & Lounge, Inc.

uv. City of Gary, 466 F.3d 550, 554-55 (7 Cir. 2006);

Deja Vu of Cincinnati, L.L.C. v. Union Twp. Bd. of

Trustees, 411 F.3d 777, 791 (6" Cir. 2005); Zibtluda,

L.L.C. v. Gwinnett County, 411 F.3d 1278, 1286-87

(11 Cir. 2005); Gammoh, 395 F.3d at 1126; Ben’s Bar,

Inc. v. Village of Somerset, 316 F.3d 702, 725-26 (7"

Cir. 2003).

The majority in the instant case criticized the

County’s failure to rely upon a secondary effects study

from an entirely rural area such as Dickinson County.

The Tenth Circuit also found fault with the County’s

failure to “analogize” how the studies it relied upon

might apply to its more isolated rural setting.’

The County need not rely upon secondary effects

evidence from an entirely rural area to justify its

ordinance.‘ In Renton, the Ninth Circuit struck down

*The County did make such an analogy, and it appears in

the preamble and findings within the ordinance. See App. 79a-83a

(citing urban studies and anticipating similar negative secondary

effects within the County).

‘Even though it is not required to do so, the County

supplied evidence in the district court of negative secondary

effects associated with another rural adult superstore in the

Lion’s Den chain. The store in question was situated on the same

interstate (1-70) as Abilene Retail in a rural county in Illinois.

Deters v. The Lion’s Den, Inc., case no. 04-CH-26, order filed July

13, 2005, Fourth Judicial Circuit, Effingham County, Illinois.

(continued...)

the local ordinance on the basis that Renton failed to

prove that its legislative evidence — from Seattle, a city

20 times the size of Renton — was relevant “to the

particular problems or needs of Renton.” Playtime

Theatres, Inc. v. City of Renton, 748 F.2d 527, 537 (9

Cir. 1984). This Court reversed, rejecting the more

“rigid burden of proof’ imposed by the Ninth Circuit,

and concluding that local governments need not

produce evidence of negative secondary effects

independent of that generated by other, not

necessarily similar, jurisdictions. Renton, 475 U.S. at

51-52.

The majority decision here is a clear departure

from Renton. It also creates a split of authority with

the Fifth Circuit, the only other Circuit to directly

address the rural versus urban distinction. See LLEH,

Inc. v. Wichita County, 289 F.3d 358 (5" Cir. 2002).

In LLEH, the Fifth Circuit held that the district

court erred in considering the rural setting of Wichita

County versus the urban setting of the studies it relied

upon in passing its ordinance. “The secondary effects

that urban areas have experienced (well documented

in the relied-upon studies) are precisely what the

County is attempting to avoid.” Id. at 367. The Fifth

Circuit reasoned:

‘(...continued)

*The County in this case specifically stated that it relied

on LLEH when adopting its ordinance. See App. 82a.

“Accordingly, it is logical that the County

would: (1) review the experiences of

urban areas, as discussed in the studies;

(2) consider what measures those areas

have employed to combat secondary

effects; and (3) tailor those corrective

measures to the County's needs. By so

doing, the County may, in its continued

growth and development, successfully

sidestep many of the problems

encountered by urban areas. In this

respect, the relied-upon studies are

‘reasonably believed to be relevant’ to the

problems the County seeks to address.

See Renton, 475 U.S. at 51, 106 S.Ct.

925.” Id.

The majority in this case criticized the Fifth

Circuit for allowing a rural county to use urban studies

to justify its ordinance, ostensibly in light of a rural

county’s ability to revisit its zoning laws “in the event

that it sees an uptick in the number of sexually

oriented businesses locating in its jurisdiction.”* This

reasoning is flawed in at least two respects.

First, the Tenth Circuit ignores the fact that

urban counties, too, have the ability to “revisit” zoning

laws as the number of sexually oriented businesses

(and arguably, negative secondary effects) increase.

the law imposes no “wait and see” burden on local

*“App. 20a.

government, yet the Tenth Circuit here would create

such a burden and impose it only upon rural America.

Second, the majority ignores the bedrock

concept that local governments are not required to

suffer the negative secondary effects of adult

businesses before being allowed to regulate them.

Renton, 475 U.S. at 51-52. Indeed, the whole point of

regulation is to avoid such secondary effects. The

majority would carve out an exception for rural

jurisdictions, requiring them to wait until sexually

oriented businesses proliferate and cause harm before

being allowed to rely on urban studies to support

regulation. The majority fails to explain its rationale

and there is certainly no case law to support it.

The majority has created and applied a more

stringent burden of proof to rural governments than is

required by the first step of the Alameda Books

analysis. This Court must grant certiorari to consider

whether this separate and more strict burden of proof

is warranted and resolve a split in the Circuits created

by this case and LLEH.

B. THOSE SEEKING TO CAST DIRECT

DOUBT ON LEGISLATIVE JUDGMENT MUST

DO SOMETHING MORE THAN SIMPLY

PRODUCE AN “EXPERT” TO SECOND GUESS

THE GOVERNMENT’S RATIONALE AND

CRITICIZE THE INFORMATION UPON WHICH

IT RELIED IN MAKING ITS JUDGMENT.

The concurring opinion by Judge Ebel recognizes

that the County has cleared the low hurdle of the first

step of Alameda Books, but proceeds to raise the bar on

the second and third steps so high that they cannot be

cleared as a matter of law by any local government.

The majority adopted the reasoning of Judge Ebel on

the second and third steps of Alameda Books as an

alternative ground supporting its decision.

Because the County met the initial test in

Alameda Books, the burden shifts to Abilene Retail to

“cast direct doubt” on the City’s rationale for adopting

the ordinance. 535 U.S. at 438. This can be done in one

of two ways: 1) prove that the County’s evidence does

not support the rationale that restricting the location

and operation of adult businesses will reduce the

adverse secondary effects; or 2) disprove the County’s

factual findings justifying the ordinance. Jd. at 438-39.

The Tenth Circuit concluded that the opinions of

industry “expert” Dr. Daniel Linz were sufficient to

cast direct doubt upon the County’s rationale in both

ways because: 1) Dr. Linz attacked the studies and

reports upon which the County relied as invalid or

unreliable; 2) Dr. Linz conducted his own studies

which indicated that sexually oriented businesses do

not produce the negative secondary effects the County

seeks to avoid; and 3) Abilene Retail supplied evidence

that its store in Dickinson County had not yet

produced these negative secondary effects.

The opinions of Dr. Linz demonstrate nothing

more than an academic disagreement about whether

sexually oriented businesses give rise to negative

secondary effects. The existence of a disagreement does

not cast direct doubt on reasoned legislative judgment

that the potential for negative secondary effects is real

and the studies suggesting the same are reliable.

In City of Erie v. Pap’s A.M., 529 U.S. 277

(2000), the record before this Court included an article

by Dr. Linz in essentially the same form as the Linz

article cited by Judge Ebel in the instant case.’ The

premise asserted by Dr. Linz was and is that none of

the studies linking sexually oriented businesses and

negative secondary effects have been conducted with

methodology sound enough to satisfy the standard for

expert testimony set forth in Daubert v. Merrell Dow

Pharmaceuticals, Inc., 509 U.S. 579 (1993).*

This Court in Erie took a dim view of Dr. Linz’

opinions, observing that the Linz report “does not cast

any legitimate doubt” on the findings of the Erie city

council. 529 U.S. at 298. Further, the plurality opinion

in Erie criticized Justice Souter’s dissenting citation to

the Linz report, emphasizing that this Court has

“flatly rejected” academic studies disclaiming

secondary effects as wholly insufficient to cast direct

‘Amicus brief filed in Erie, Brief and Appendix of First

Amendment Lawyers Association, 1999 WL 805047, *20, Linz

article attached.

“No court before or since has superimposed the Daubert

standard upon the Renton analysis. See G.M. Enterprises, Inc. v.

Town of St. Joseph, 350 F.3d 631, 640 (7 Cir. 2003) (“{[Daubert]-

quality evidence would impose an unreasonable burden on the

legislative process, and further would be logical only if Alameda

Books required a regulating body to prove that its regulation

would — undeniably — reduce adverse secondary effects. Alameda

Books clearly did not impose such a requirement.”)

doubt on the judgment of local governments. 529 U.S.

at 300.°

The persuasive value of Dr. Linz’ opinions and

reports has been consistently rejected by other

Circuits. Dr. Linz is the expert of choice of the adult

business industry. He has offered his testimony,

opinions and reports in many other cases. Other

Circuits which have addressed the issue have held that

the information offered by Dr. Linz is insufficient as a

matter of law to cast direct doubt on a local

government's secondary effects rationale. See G.M.

Enterprises, 350 F.3d at 638-39; SOB, 317 F.3d at 863;

Gammoh, 395 F.3d at 1126-27; Daytona Grand, 490

F.3d at 882-885, specifically 883 fn. 33 (11™ Cir. 2007).

See also 84 Video/ Newsstand, Inc. v. Sartini, 2007 WL

3047207 (N.D. Ohio 2007).

The Tenth Circuit’s decision to the contrary not

only creates a split in the Circuits, but marks the

Tenth Circuit as the only one to afford more deference

to the opinions of one adult business “expert” than the

considered judgment of a local governing body.

Compare also 5634 East Hillsborough Ave. uv.

Hillsborough County, 2007 WL, 2936211 (M.D. Fla.

2007) (court granted summary judgment to county

despite criticism of four industry experts).

The opinions of Dr. Linz, even if credited, prove

nothing except that the studies relied upon by the

*In Alameda Books, the plurality — again over Justice

Souter’s dissent and a Linz paper submitted attached to an

amicus brief — rejected the idea that local governments must

support their rationale with empirical evidence. 535 US. at 439.

County are open to interpretation and perhaps

criticism. In holding that Dr. Linz has “cast direct

doubt” upon the County’s rationale, the Tenth Circuit

would prevent a local government from relying upon

the body of cases and studies already approved by this

Court and other Circuits. The Tenth Circuit would

allow Dr. Linz and his associates to undermine

legislative judgment with nothing more than a

contrary opinion and aé scattering of academic

criticisms.

The Tenth Circuit would place upon local

governments a burden to not only read and absorb

scholarly materials, but to delve into questions about

their scientific validity in order to justify an ordinance.

This is clearly beyond what is required by the law. The

legislative judgment of three part-time Dickinson

County commissioners, none of whom are

mathematicians or scientists, cannot be called into

question based upon their failure to probe the

statistical reliability of the studies at hand. Gammoh,

395 F.3d at 1126-27 (“While we do not permit

legislative bodies to rely on shoddy data, we also will

not specify the methodological standards to which their

evidence must conform.”).

Finally, the panel was unduly and improperly

influenced by the suggestion that Abilene Retail’s

adult superstore has not yet produced negative

secondary effects in Dickinson County. The panel

would translate this suggestion into “corroboration” of

Dr. Linz’s opinion that sexually oriented businesses do

not produce negative secondary effects."° This piece of

information, even if assumed to be true, does nothing

more than add fuel to the debate over whether and to

what extent sexually oriented businesses harm the

community. As discussed above, the mere existence of

the debate is not enough to cast direct doubt on

legislative judgment.

Local government “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. The validity of

an ordinance does not require the presence of a

sexually oriented business, let alone proof that it has

caused specific and local negative secondary effects.

See Fantasy Ranch Inc. v. City of Arlington, 459 F.3d

546, 559-61 (5" Cir. 2006) (evidence that plaintiff's

sexually oriented business did not spawn secondary

effects in the community was “plainly insufficient to

preclude summary judgment”).

The Tenth Circuit allows an academic dispute to

cast direct doubt on the considered legislative

judgment of a local governing body. This conflicts with

precedent in Erie and creates a split between the

Tenth Circuit and every other Circuit to consider this

issue. This Court should grant certiorari to consider

whether the opinions of one “expert” should be credited

"App. 42a-43a. Judge Ebel incorrectly states that Abilene

Retail has operated its store in “an unrestricted manner.” The

County has enforced portions of the ordinance, including the

licensing provisions, since the district court’s order on summary

judgment.

above reasoned legislative judgment, and whether lack

of specific evidence of secondary effects at this

particular store casts doubt upon the validity of the

ordinance.

C. WHEN THE GOVERNMENT

SUPPLIES SUPPLEMENTAL EVIDENCE TO

REBUT DOUBTS ABOUT ITS LEGISLATIVE

JUDGMENT, THE LEGISLATION IS VALID.

MEETING THE REQUIREMENTS OF ALAMEDA

BOOKS RESULTS IN JUDGMENT FOR THE

GOVERNMENT, NOT A JURY TRIAL TO WEIGH

COMPETING RATIONALES.

In Alameda Books, this Court said that if the

challenger casts direct doubt upon legislative

judgment, “the burden shifts back to the municipality

to supplement the record with evidence renewing

support for a theory that justifies its ordinance.” 535

USS. at 439."

The Tenth Circuit acknowledged that the

County in this case supplemented the record with

evidence justifying its rationale for the ordinance.

Indeed, the County offered the opinion of its expert,

Dr. Richard McCleary, that the studies and opinions of

Dr. Linz are invalid and unreliable, and that the

studies relied upon by the County are sound. The

County also offered a state court’s opinion and order

which contained anecdotal evidence of negative

''This Court need not reach the third step of the Alameda Books

analysis if it concludes, as it should, that Abilene Retail failed to cast direct

doubt on the County’s evidence or rationale supporting the ordinance.

secondary effects caused by a Lion’s Den store along

Interstate 70 in rural Illinois.”

Rather than conclude that this evidence met the

County’s purported burden to supplement, the Tenth

Circuit held that it gave rise to a “battle of the experts”

which must be fought at trial. In support of this rather

unlikely conclusion, the Tenth Circuit cited a handful

of cases involving a “battle of the experts” over issues

such as whether certain disorders are predictors of

future mental health problems and the effect of

weather conditions on the cause of an airplane crash.

The Tenth Circuit cited no case where a “battle of the

experts” was waged in an effort to evaluate the wisdom

of legislative judgment, let alone one where the battle

was won or lost in the jury room.”

The Tenth Circuit would create a fact question

out of every disagreement over the need for

government regulation. This reasoning renders

'? The opinion and order of the Fourth Judicial Circuit in

Effingham County, Illinois, contained a description of sworn

testimony about the negative secondary effects of a Lion’s Den

store inrural Effingham County. These negative secondary effects

included suspected sexual activity in the parking lot of the store,

pornographic litter, and decreased use of a nearby park. Deters v.

The Lion’s Den, Inc., case no. 04-CH-26, order filed July 13, 2005,

Fourth Judicial Circuit, Effingham County, Illinois. The County

attached the opinion to its reply in support of summary judgment

and it was part of the record before the district and appellate

courts in this case.

"In a slightly different First Amendment context, the

experts’ disagreement over the need for, or nature or quality of

regulation did not require a trial. See Turner Broadcasting

System, Inc. v. F.C.C. 520 U.S. 180, 211 (1997).

meaningless the third step of Alameda Books. This

Court did not provide local government the opportunity

to supplement evidence in support of its legislative

judgment only to reward its success with the demands

of a trial on that very issue.

This Court has never addressed the quantum of

evidence required to meet this burden. This Court

should grant certiorari to consider the burden of proof

imposed by the third step in Alameda Books. Further,

this Court should establish that meeting the burden to

supplement results in a valid ordinance, not a jury

trial to decide the merits of an academic debate

between industry experts.

CONCLUSION

The petition for writ of certiorari should be

granted.

Teresa L. Watson, Counsel of Record

J. Steven Pigg

Fisher, Patterson, Sayler & Smith, LLP

3550 SW 5" Street, P.O. Box 949

Topeka, Kansas 66601-0949

(785) 232-7761

Attorneys for Petitioners

APPENDIX

FILED

United States Court of

Appeals

Tenth Circuit

July 10, 2007

Elisabeth A. Shumaker

Clerk of the Court

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

ABILENE RETAIL #30, INC.,

Plaintiff - Appellant,

y, No. 05-3473

BOARD OF COMMISSIONERS OF

DICKINSON COUNTY KANSAS:

KEITH D. HOFFMAN,

Defendants-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. Vasvani, dr.,

Berkman, Gordon, Murray & DeVan, and Richard T.

Bryant, Richard T. Bryant & Associates, Kansas City,

Missouri, with him on the briefs), for the Plaintiff-

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 - 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 28

U.S.C. § 1291, we RESERVE 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.

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-orientated, 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.' They requested the

Board, composed of one chairman and _ two

commissioners, consider options to limit the

proliferation of adult businesses in the County.

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

disclosures 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; (8) imposed a

distance requirement of 1500 feet between adult

‘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.

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

retraining 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 it 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.’

? 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.,

(continued...)

As noted above, it is undisputed that the Board

2(...continued)

535 U.S. 425 (2002); City of _ v. ~~" A.M., 529 U.S. 277

(2000); Barnes v. Glen Th 501 U.S. 560 (1991);

FW/PBS, Inc. v. City of Dallas. ro US. 215 (1990); City of

Renton v. Playtime Theatres, Inc., 475 U.S. 41 (1986); Young v.

Am. Mini Theatres, 427 U.S. 50 (1976); Califormia v. LaRue, 409

U.S. 109 (1972); Williams v. Attorney Gen. of Ala., 378 F. 3d 1232

(11" Cir. 2004); World Wide Video of Wash., Inc. v. City of

Spokane, 368 F.3d 1186 (9 Cir. 2004); Heideman v. S. Salt Lake

City, 348 F.3d 1182 (10 Cir. 2003); Ctr. for Fair Pub. Policy v.

Maricopa County, 336 F.3d 1153 (9 Cir. 2003); Z.J. Gifts D-4

L.L.C. v. City of Littleton, 311 F.3d 1220 (10" Cir. 2002); LLEH,

Inc. v. Wichita County, 289 F.3d 358 (5 Cir. 2002); Essence, Inc.

v. City of Federal Heights, 285 F.3d 1272 (10" Cir. 2002); Am.

Target Adver., Inc.v. Giani, 199 F.3d 1241 (10 Cir. 2000);

Connection Distrib. Co. v. Reno, 154 F.3d 281 (6™ Cir. 1998);

Sundance Assocs., Inc. v. Reno, 139 F.3d 804 (10 Cir. 1998); Z.J.

Gifts D-2, L.L.C. v. City of Aurora, 136 F.3d 683 (10 Cir. 1998);

Dodger’s Bar & Grill, Inc. v. Johnson County Bd. of County

Comm’rs, 98 F.3d 1262 (10 Cir. 1996); Cortese v. Black, 87 F.3d

1327 (10" Cir. 1996)(table); Dodger’s Bar & Grill, Inc. v. Johnson

County Bd. of County Comm'rs, 32 F.3d 1436 (10 Cir. 1994); ILQ

Invs. v. City of Rochester, 25 F.3d 1413 (8 Cir. 1994); O'Connor

v. City & County of Denver, 894 F.2d 1210 (10 Cir. 1990); M.S.

News Co. v. Casado, 721 F.2d 1281 (10 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); Phoenix, 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).”

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 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 - 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.

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

(10 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 (10 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 a®#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.

10a

425, 438 (2002) (plurality);> Heideman v. S. Salt Lake

City, 348 F.3d 1182, 1197 (10" Cir. 2008).

In Alameda Books, the Supreme Court offered

its most recent comprehensive statement of the

constitutional limitations on zoning ordinances 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, 525 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 \argeting 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).

“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

‘Hereinafter, citations to the Court’s opinion in Alameda

Books refer to the plurality opinion of Justice O'Connor unless

otherwise noted.

lla

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.3 at 686 (quotations and

citations omitted). Accordingly, we are tasked with

“verify[ing] that the predominate concerns motivating

the ordinances 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 “acceptied] 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

12a

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

13a

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 of cited cases and

studies to establish their good-faith reliance on them.

“{S]Juch a holding would fly in the face of legislative

reality.” Lakeland Lounge of Jackson, Inc. v. City of

Jackson, 973 F.2d 1255, 1258 (5"* Cir. 1992).

Abilene also asks 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

14a

segregating the two inquires. See Z.J. Gifts D-2, 136

F.3d at 687.‘

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, 1386 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 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

‘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

15a

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.

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.’ 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 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, 525 U.S. at 438-39.

First, the Board must show that, in passing the Second

‘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.

l6a

Ordinance, it relied on “evidence that 1s 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 tocommon sense.” Jd. 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.

17a

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’ 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 gual 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.® 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 - legislators are

free to consider anecdotal evidence, statistical data,

prior cases, and their common sense. See Alameda

*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.

18a

Books, 535 U.S. at 439-40; see also World Wide Video

of Wash.., Inc. v. City of Spokane, 368 F.3d 1186, 1195

(9"" 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 which the sexually oriented

businesses are located,’ the concentration of sexually

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”’j; 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.c., the more residential

the nature of the neighborhood, the greater is the instance of

crime in that neighborhood.”); Comm. on the Proposed Regulatiun

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’].

19a

oriented businesses,® and the nature of the sexually

oriented business itself.* 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,

*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 & Glen 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.”).

*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 businesses.”); Planning Dept., City of

Amarillo, Tex., A Report on Zoning an Other Methods of

Regulating Adult Entertainment in Amarillo 9 (1977) (“[T]hese

street crimes were 2-1/2 times the City average in the immediate

vicinity of alcohol only adult businesses, and 1-1/2 times the City

average immediately surrounding businesses featuring alcohol

and semi-nude entertainment.”).

20a

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.’”” 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 © xisting

‘We decline to adopt the reasoning of the 5" 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 (5"

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 on sexually

oriented businesses, the governmental body must point to

evidence of secondary effects at the time of enactment or evidence

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.

2la

sexually oriented business(es).'"' 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 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

''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 (10 Cir. 2006), and “minimal,” see Heideman, 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, see Doctor 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 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.

22a

that otherwise required the dispersion of adult

businesses.” 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.”). He emphasized that

although “a zoning law need not be blind to the

"The prior ordinance prevented adult businesses from

locating within 1000 feet of the closest exterior structural wall of

another.

23a

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

“ys not substantially different than ordinances enacted

24a

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

25a

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.’*

Iil

Abilene brings a_ separate constitutional

challenge to § 7(a) of the Second Ordinance, which

ensures law enforcement officers’ right to inspect the

"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 448. Nor need we address Abilene’s arguments with respect to

narrow tailoring and facial 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.

26a

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 (10 Cir. 1998). Analogizing the conduct

27a

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 (10 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 coveys

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

28a

officers to imspect. 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.'* See Andy’s Restaurant

& Lounge, Inc. v. City of Gary, 466 F.3d 550, 557 (7"

Cir. 2006) (upholding a nearly identical provision on

similar grounds); see also Andree v. Ashland County,

818 F.2d 1306, 1314-16 (7 Cir. 1987) (holding that

although officers demanded admission to public concert

venue without paying, their inspection of public areas

did not implicate plaintiffs’ Fourth Amendment rights).

The challenged provision compromises Abilene’s

“reasonable expectation of privacy” no more than

conduct that survived Fourth Amendment scrutiny in

Macon.

As a final matter, Abilene appeals the district

court’s rejection of its claim that the Second Ordinance

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] bere 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).

29a

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 jyadgment

with respect to an alleged violation of Abilene’s

Fourteenth Amendment rights de novo. See United

States v. Oliver, 278 F.3d 1035, 1039 (10" 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 martial 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 im this case.

Rather, Carey stands for an entirely different

proposition - “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 (10" Cir. 1992) (holding

an argument forfeited if not supported by relevant

authority or sound legal reasoning).

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.

EBEL, J., concurring, and joined by MeWILLIAMS,

J., and LUCERO, J.

30a

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 (10 Cir. 2006) (quotation omitted);

see also City of Renton v. Playtime Theaters, 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

“filt 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

3la

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_e substantial

government interest.

The County’s stated purpose in enacting its

ordinance restricting the location and operation of

32a

sexually oriented businesses is to prevent the negative

secondary effects stemming from such businesses.’

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 (10™ Cir.

2003) (noting “it is common in these cases for cities to

cite to and rely on seemingly pre-packaged studies, as

'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 health, safety, and genera! 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.

33a

well as 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.?

Our deference to the evidence presented

by the [government] is the product ofa

careful balance between competing

interests. On the one hand, we have an

obligation to exercise independent

judgment when First Amendment rights

*Other circuits have likewise recognized that Alameda

Books’ initial burden is minimal. See Illusions-Dallas Private

Club, Inc. v. Steen, 482 F.3d 299, (5" 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, 1286-87 (11 Cir. 2005) (describing government’s

burden as “modest,” “low,” and not “rigorours”); World Wide Video

of Washington, Inc. v. City of Spokane, 368 F.3d 1186, 1194 (9"

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 (7" Cir. 2004) (noting government's

burden is “not particularly demanding’).

34a

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, citations

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” lnking the negative effects it

seeks to climinate 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).

35a

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 438.

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 (7" 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 (6 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

36a

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 (9 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 (7 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 (2™ 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

37a

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 (11 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 (10 Cir. 1998)). The County can

meet its “slight initia] 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

38a

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, 1386 F.3d at 685, I do

not think that this rural/urban distinction is sufficient

at the initial stage of 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 evident 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.* See Alameda Books, 535 U.S. at 436-38. A

’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 indicting that,

during a ten-year 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

(continued...)

39a

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

3(...continued)

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 436-38. “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 437-38. 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

iis 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.

40a

secondary effects stemming from such businesses, to

meet its minimal initial burden under Alameda Books.’

II. Whether Abilene Retail was able to cast

direct doubt on the County’s rationale

underlying its decision to enact the

challenged ordinance.

‘If, as the majority instead concludes, the County has

failed to mect its initial burden, then the result would not be to

remand this claim for trial, as the majority does. (Maj. Op. at 18,

21-22, 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, 411-13, 415-16 (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); Peek-A-Boo

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 (5"

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.

41a

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. Abilene 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 County fears. Specifically, Abilene Retail

offers the opinion of its expert witness, Dr. Daniel

42a

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.’

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.® 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

‘Interestingly, Dr. Linz’s studies took place primarily in

urban areas; Charlotte, North Carolina; Ft. Wayne, Indiana; San

Diego, California; sixty-seven Florida counties; and Dayton, Ohio.

‘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 actually experience with Abilene

Retail’s store offe s some corroboration of Abilene Retail’s

evidence suggesting that sexually oriented businesses do not

produce the negative secondary effects that the County fears.

43a

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.’

’Abilene Retail also challenges the County’s rationale by

pointing out that the County’s case law and pre-packaged reports

primarily address adult establishments offering only on-site

entertainment, or both on- and off-site entertainment, or

concerned studies that did not differentiate between the

secondary effects caused by on-site versus off-site adult

entertainment. Abilene Retail argues that such evidence does not

support the County’s rationale that it needs to regulate off-site

adult businesses to the same extent it regulates on-site

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 on-site/off-site distinction is not relevant at the initial

stage of the Alameda Books’ analysis, in Doctor John’s we

acknowledged that “a distinction between on-site and off-site

businesses might be relevant in the Alameda Books burden

shifting framework.” Doctor John’s, 465 F.3d at 1168.

Nonetheless, hike the plaintiff in Doctor John’s, Abilene Retail

failed to point to any evidence “that its type of adult business (eg.,

‘off-site’) is relevantly different than those types of businesses

analyzed in the studies supporting the ordinance (e.g., ‘on-site’).”

Id. “Simply stating that off-site businesses are different from on-

site 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

(continued...)

44a

B. Whether Abilene Retail was able to

furnish evidence disputing the

County’s factual finding justifying

its ordinance.®

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. Specifically,

7(...continued)

secondary effects” than the urban areas addressed in the County’s

case law and pre-packaged reports. Id. But Abilene Retail has

never itself drawn that distinction, let alone presented any

evidence to support that distinction. See id. at 1168.

’] recognize the considerable overlap between this inquiry

and the previous one.

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

(continued...)

45a

Abilene Retail presented the 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.

°(...continued)

premises of or in the parking lot of unregulated sexually

oriented businesses, including but not limited to those

which provide private or semi-private 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 non-sexually oriented businesses.

46a

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 conelude 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 (10" Cir. 2007) (quotation omitted), which

in this case is Abilene Retail.

Ill. 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

47a

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 (10 Cr. 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 (10% 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 (6 Cir. 2005); Goldman v. Standard Ins. Co.,

341 F.3d 1023, 1036 (9° Cir. 2003); Michaels v.

Avitech, Inc., 202 F.3d 746, 752 (5 Cir. 20Q0).

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

48a

(noting that “[t]he standard 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 Illusions-Dallas, 482 F.3d at 312-15;

Fantasy Rancy, Inc. v. City of Arlington, 459 F.3d 546,

559 (5 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 secondary effects

that the County seeks to eliminate through i 3

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.

49a

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

ABILENE RETAIL #30, INC.,

Plaintiff - Appellant,

v. No. 05-3473

BOARD OF COMMISSIONERS OF

DICKINSON COUNTY KANSAS;

KEITH D. HOFFMAN,

Defendants-Appellees

ORDER

Filed October 25, 2007

Before TACHA, Chief Judge, KELLY, HENRY,

BRISCOE, LUCERO, MURPHY, HARTZ,

O’BRIEN, MCCONNEL, TYMKOVICH,

GORSUCH, and HOLMES, Circuit Judges.

The appellees’ petition for rehearing is denied by

the panel that rendered the decision in this case.

The suggestion for rehearing en banc was

transmitted to all judges of the court who are in

regular active service. A poll was requested and a

majority of the active judges voted to deny rehearing

en banc. Chief Judge Tacha and Judges Kelly,

O’Brien, Tymkovich and Gorsuch voted to grant

50a

rehearing. Judge Gorsuch filed a dissent from the

denial of rehearing en banc, and he was joined in this

dissent by Judge Kelly. Judge Lucero filed a response

to the dissent. The dissent and response are attached

and incorporated in this order.

ENTERED FOR THE COURT

s/Elisabeth A. Shumaker

ELISABETH A. SHUMAKER,

Clerk

Sla

05-3473, Abilene Retail #30, Inc. v. Bd. of Comm'rs of

Dickinson County, Kan.

GORSUCH, J., joined by KELLY, J., dissenting from

denial of rehearing en banc.

While the panel grappled admirably with this

difficult and consequential case, I respectfully submit

it warranted plenary review given its legal and

practical significance.

Legally, the significance of this case is

illustrated by the fact that it opens not one, but two,

splits with our sister circuits on important questions of

law concerning the amount of judicial deference due

legislative judgments. First, the panel opinion sets a

new and much higher burden for municipalities under

Alameda Books Step 1 than has any other circuit court,

and in the process creates a circuit split with the Fifth

Circuit. See Concurrence Part 1; Maj. Op., 492 F.3d at

1175 n.10 (discussing LLEH, Inc. v. Wichita County,

289 F.3d 358 (5 Cir. 2002)).' Second, unlike our sister

circuits which afford substantially more judicial

deference to legislative judgments, the concurrence’s

treatment of Alameda Books Steps 2 and 3 effectively

allows a jury to “veto” legislation whenever it

concludes, by a preponderance of the evidence (that

‘There is no question that LLEH remains good law in the

Fifth Circuit after Alameda Books. See Fantasy Ranch, Inc. v.

Arlington, Tex., 459 F. 3d 546, 562 (5" Cir. 2006). If anything, in

Fantasy Ranch the Fifth Circuit went further than it had in

LLEH in upholding a municipality’s purely predictive judgment

about potential future secondary effects at Step 1; in Fantasy

Ranch, the municipality had no pre-enactment empirical evidence

supporting the existence of secondary effects and a_ post-

enactment records search revealed no arrests involving the city’s

targeted secondary effects. Jd. at 559-61.

52a

is,>50.0001%), that the legislature’s chosen path is

erroneous. Compare Concurrence Parts II & III with

Daytona Grand, Inc. v. City of Daytona Beach, Fla.,

490 F.3d 860, 881 (11" Cir. 2007), G.M. Enters, Inc. v.

Town of St. Joseph, Wisc., 350 F.3d 631, 639 (7 Cir.

2003), Gammoh v. City of La Habra, 395 F.3d 1114,

1126 (9" Cir. 2005), and Fantasy Ranch, 459 F.3d at

561.2. Such a holding also arguably renders Alameda

Books Step 1 superfluous (why bother asking if the

legislature’s evidence was merely rationally related to

its enactment when a jury can reject that enactment

"The facts of these cases are beside the point. The conflict

concerns a pure question of law. Our sister circuits evaluate any

evidence proffered at Steps 2 and 3 under a legal test far more

deferential than the legal test set forth by our panel. Unlike the

concurrence, our sister circuits will not allow factfinders to “re-

weigh the evidence considered by a legislative body” or “substitute

[their] judgment in regards to whether a regulation will best serve

a community”; so long as a legislature considered evidence

“reasonably believed to be relevant to the problem addressed,”

courts in those circuits will not “vitiate the result reached in the

... legislative process.” G.M. Enters., 350 F.3d at 639-40; see also

Daytona Grand, 490 F.3d at 881; Gammoh, 395 F.3d at 1126;

Fantasy Ranch, 459 F.3d at 561. Even if the facts were

(somehow) relevant to a split on a purely legal question, the

presence or absence of “local” evidence of extant empirical effects

is not dispositive under settled Supreme Court precedent, see City

of Renton, 475 U.S. at 51-52, a point the panel itself expressly

acknowledges. See Maj. Op., 492 F.3d at 1174. Neither can it be

said that the evidence before our court was unique in this respect.

See, e.g., Fantasy Ranch, 459 F.3d at 559 (finding sufficient

evidence even in the face of no pre-enactment empirical evidence

and post-enactment empirical data indicting no secondary effects).

53a

with a finding that a preponderance of the evidence

does not support it).°

Factually, this case is of great practical

importance to the large numbers of rural counties and

municipalities within our reach. Rural jurisdictions

within the Tenth Circuit will be unable to rely on

existing empirical “urban” studies to regulate the

secondary effects of adult businesses and will be forced

to meet new, unique, and significantly higher legal

burdens not imposed on their counterparts in other

areas of the country. See Maj. Op., 492 F.3d at 1175

(“To hold that legislators may reasonably rely on those

[urban] 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.”)‘

*The holding in this case indisputably rests in part on the

concurrence. All three panel members joined the concurrence,

giving it no less force than if it had been included in the majority

opinion itself. See Woods v. Interstate Realty Co., 337 U.S. 535,

537 (1949) (““[W]here a decision rests on two or more grounds,

none can be relegated to the category of obiter dictum.”).

Moreover, the panel remanded this matter for trial, and the jury

will be instructed on the concurrence’s understanding of Alameda

Books Steps 2 and 3. Every future secondary effects dispute in

this circuit hkewise will be measured against the concurrence’s

standards for Steps 2 and 3.

“It does not suffice to suggest that the county may rely on

evidence local police departments gather after a business has

opened. We have specifically said that a municipality “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 D-2, L.L.C. v. City of Aurora, 136 F.3d 683

688 (10"" Cir. 1998); Maj. Op., 492 F.3d at 1186 n.6. Instead,

(continued...)

54a

Though I can hardly say how I would have voted

on the ultimate outcome of this case — for example, the

county would still have had to show that its ordinance,

even if a justified response, was narrowly tailored at

City of Renton Step 3 — all of these reasons suggest to

me that this case is of sufficient legal and practical

significance that its resolution merited the attention of

the full court.

LUCERO, J., responding to the dissent from denial of

rehearing en banc.

I write briefly to respond to my dissenting

colleagues’ arguments that en banc review was

appropriate in this case. In doing so, | note that a

potential circuit split, in and of itself, is not a reason to

grant en banc review under our local rules. See 10"

Cir. R. 35.1(A) (“En banc review is an extraordinary

procedure intended to focus the entire court on an

issue of exceptional public importance or on a panel

“(...continued)

municipalities “may rely on the experience of other cities to

determine whether the harms presented by sexually oriented

businesses are real and should be regulated.” Z.J. Gifts, 136 F.3d

at 688. In this case, moreover, the legislature did analogize

between the documented experience of urban areas and what it

anticipated would occur in its jurisdiction; indeed, such an

analogy formed the very basis of its decision. See, e.g., Dickinson

Cty. Ordinance No. 121304A (citing urban studies and basing its

decision on the anticipation of similar effects in Dickinson

County). The problem was that the panel, applying far less

deferential standards than our sister circuits, rejected the

legislature’s analogy: “All studies relied upon by the Board

examine the secondary effects of sexually oriented businesses

located in urban environments; none examine[s] businesses

situated in an entirely rural area.” Maj. Op., 492 F.3d at 1175.

5Sa

decision that conflicts with a decision of the United

States Supreme Court or of this court” (emphasis

added)).

Regardless, the panel opinion does not create a

circuit split with the Fifth Circuit decision in LLEH

Inc. v. Wichita County, 289 F.3d 358 (5 Cir. 2002).

Three wecks after the LLEH decision, the Supreme

Court handed down City of Los Angeles v. Alameda

Books, Inc., 535 U.S. 425 (2002). In clarifying the

burden that a local government must meet at Step One

of the Renton evidentiary inquiry, Alameda Books

supercedes LLEH, and our panel opinion is predicated

upon that holding. No Fifth Circuit case has since

relied on the LLEH court’s interpretation of Step One.

Cf. Fantasy Ranch, Inc. v. City of Arlington, 459 F.3d

546, 559-62 (recognizing that Alameda _ Books

controlled its Renton analysis, but applying the narrow

tailoring inquiry from LLEH because “[t}he question of

narrow tailoring was not before the Court in Alameda

Books’).

The four cases cited by the dissent as evidence

of a circuit split with the panel’s alternative holding

are distinguishable, and particularly so when the

concurrence is read in concert with the majority

opinion. In each of the cited cases, the evidence

produced by the local government at Step One was

both more substantial and more contextual than that

produced by Dickinson County. Unlike the present

case, each of our sister circuits had local evidence

before it in addition to the commonly cited studies.®

‘See Daytona Grand, Inc. v. City of Daytona Beach, 490

F.3d 860, 876-77 (11 Cir. 2007) (city relied on “its own

experiences’ alongside studies and cases); Fantasy Ranch, 459

(continued...)

S6a

Thus, in order to meet their burden to overcome that

Step One evidence, the regulated businesses would

have had to produce more evidence to prevail at Step

Two than the Lion’s Den did here. In other words,

none of our sister circuits in these cases faced as close

an evidentiary question as that presented herein.

Finally, rural governments are not precluded by

the panel opinion from relying upon urban studies in

appropriate contexts. See Abilene Retail #30, Inc. v.

Bd. of Comm’rs, 492 F.3d 1164, 1177 (10 Cir. 2007)

(stressing county’s failure to “analogize the studies it

relied upon to the current or anticipated secondary

effects of sexually oriented businesses located in a

rural county” (emphasis added)). Additionally, cities

are permitted to rely on evidence garnered from local

police departments or other local experts, and need not

commission formal studies. See Alameda Books, 535

U.S. at 435 (plurality opinion) (“[A] police department

report's conclusions regarding crime patterns may

reasonably be relied upon...”).

Case 2:04-cv-02330-JWL-JPO

*(...continued)

F.3d at 559-60 (5 Cir. 2006) (city relied on post-enactment

evidence including at least one study conducted “within the City

of Arlington” alongside ‘oreign studies and cases); Gammoh v.

Cityof La Habra, 395 F.3d 1114, 1126 (9% Cir. 2005) (city council,

relied on “declarations from investigating vice officers” alongside

studies and cases); G.M. Enters, Inc. v. Town of St. Joseph, 350

F.3d 631, 633-34 (7" Cir. 2003) (board “considered police reports”

about local businesses alongside studies and cases). Although the

presence of local evidence is not dispositive, it is indicative of

higher production at Step One and a correspondingly higher Step

Two burden.

S7a

Document 118 Filed 12/01/2005

ABILENE RETAIL # 30, INC.,

Plaintiff,

v. Case No. 04-2330-JWL

THE BOARD OF COMMISSIONERS

i iain COUNTY, KANSAS,

KEITH D. HOFFMAN,

Defendants.

MEMORANDUM AND ORDER

LUNGSTRUM, District Judge.

This case involves a claim by Abilene Retail

(doing business as The Lion’s Den Adult Superstore)

against officials of Dickinson County (“the County”),

Kansas, for declaratory and injunctive relief against

the County’s Ordinance No. 121304A (“the

Ordinance”). The Ordinance is a zoning provision that

regulates The Lion’s Den, a sexually oriented business

located in Dickinson County. This matter comes before

the court on the County’s motion for summary

judgment (doc. #48). For the reasons explained below,

the motion is granted.

58a

STATEMENT OF MATERIAL FACTS'

In 2003, Abilene Retail opened the Lion’s Den

Adult Superstore in Dickinson County, which has a

population of roughly 6,100. The Lion’s Den sells

hundreds of sexual devices, and at least 90% of its

inventory is sexually explicit items, materials, or

devices. It is the only sexually oriented business in

Dickinson County.

In July 2004, the County passed Ordinance No.

070804, which regulated sexually oriented businesses.

Abilene Retail immediately challenged that ordinance.

The parties agreed to non-enforcement against Abilene

Retail, and that ordinance was soon repealed by the

passage of a new ordinance at the end of 2004.”

Dickinson County passed the new ordinance,

Ordinance No. 121304A, on December 13, 2004. It

substantially limited the scope of the previous zoning

ordinance. Among its provisions regulating sexually

oriented businesses in Dickinson County, it (1)

increased the threshold of sexually oriented

merchandise to 35%; (2) increased the threshold of

ownership interest to 30%; (3) provided for judicial

review of any licensing dispute and provisional

licensing pending any judicial review; (4) reduced the

distance limitations from 1,500 feet to 1,200 feet; (5)

eliminated all restrictions against signage advertising;

‘Consistent with the established standard for summary

judgment, the following facts are either uncontroverted or stated

in the light most favorable to the nonmoving party.

?Abilene Retail did challenge Ordinance No. 070804 in its

complannt, but the partics now agree this challenge is moot.

59a

and (6) prohibits sexually oriented businesses from

operating between midnight and 6 A.M.

About one week before the commissioners

passed the new ordinance, they received testimony at

a public hearing. They also reviewed reports and

studies, case law, and legislative evidence on the

secondary effects of sexually oriented businesses.

Reflecting on these efforts, the new ordinance included

in its preamble nearly four pages explaining that the

Ordinance’s purpose is to regulate the secondary

effects of sexually oriented businesses. Notably, it

discussed 27 court cases affirming the secondary

effects of sexually oriented businesses, including

guidance in Z.J. Gifts D-2, L.L. C. v. City of Aurora,

136 F.3d 683 (10™ Cir. 1998). It also discussed 22

reports verifying these secondary effects, including 7

reports cited affirmatively by the Tenth Circuit in City

of Aurora. See id. at 687, n. 1. Later, in March 2005,

the County passed Ordinance No. 032805. It

designated ten available areas for sexually oriented

businesses to locate in Dickinson County.

Abilene Retail disputes that the County actually

relied on any of the cases or reports documenting the

secondary effects of sexually oriented businesses. In

support, it points to parts of the record where the

commissioners could not clarify their understanding or

specific reliance upon the cases and reports at issue.

During the course of litigation, it retained an expert

witness, Dr. Linz, who substantially questions the

methodology underlying many of the reports cited by

the County. In turn, the County retained its own

expert, Dr. McCleary, who largely refuted Dr. Linz’s

allegations. The County also identified several federal

cases that have rejected Dr. Linz’s arguments as

legally insignificant under the established framework

60a

for upholding a zoning ordinance that regulates

sexually oriented businesses.

SUMMARY JUDGMENT STANDARD

Summary judgment is appropriate ifthe moving

party demonstrates that there is “no genuine issue as

to any material of fact” and that it is “entitled to a

judgment as a matter of law.” Fed.R.Civ.P. 56(c). In

applying this standard, the court views the evidence

and all reasonable inferences therefrom in the light

most favorable to the nonmoving party. Spaulding v.

United Transp. Union, 279 F.3d 901, 904 (10“ Cir.

2002). A fact is “material” if, under the applicable

substantive law, it is “essential to the proper

disposition of the claim,” Wright ex rel. Trust Co. of

Kansas v. Abbott Laboratories, Inc., 259 F.3d 1226,

1231-32 (10 Cir. 2001) (citing Adler v. Wal-Mart

Stores, Inc., 144 F.3d 664, 670 (10 Cir. 1998)). An

issue of fact is “genuine” if “there is sufficient evidence

on each side so that a rational trier of fact could

resolve the issue either way.” Adler, 144 F.3d at 670

(citing Anderson uv. Liberty Lobby, Inc., 477 U.S. 242,

2.48 (1986)).

The moving party initially must show the

absence of a genuine issue of material fact and

entitlement to judgment as a matter of law.

Spaulding, 279 F.3d at 904 (citing Celotex Corp. v.

Catrett, 477 U.S. 317, 322-23 (1986)). In attempting to

meet this standard, a movant that does not bear the

ultimate burden of persuasion at trial need not negate

the other party’s claim; rather, the movant need

simply point out to the court a lack of evidence for the

other party on an essential element of that party’s

claim. Adams v. American Guarantee & Liability Ins.

6la

Co., 233 F.3d 1242, 1246 (10 Cir. 2000) (citing Adler,

144 F.3d at 671).

Once the movant has met this initial burden,

the burden shifts to the nonmoving party to “set forth

specific facts showing that there is genuine issue for

trial.” Spaulding, 279 F.3d at 904 (citing Matsushita

Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,

587 (1986)); Anderson, 477 U.S. at 256; Celotex, 477

U S. at 324. The nonmoving party may not simply rest

upon its pleadings to satisfy its burden. Anderson, 477

U.S. at 256; accord Eck v. Parke, Davis & Co., 256 F3d,

1013, 1017 (10 Cir. 2001). Rather, the nonmoving

party must “set forth specific facts that would be

admissible in evidence in the event of trial from which

a rational trier of fact could find for the nonmovant.”

Mitchell v. City of Moore, Oklahoma, 218 F.3d 1190,

1197-98 (10" Cir. 2000) (quoting Adler, 144 F.3d at

671). To accomplish this, the facts “must be identified

by reference to an affidavit, a deposition, transcript, or

specific exhibits incorporated therein.” Adams, 233

F.3d at 1246.

Finally, summary judgment is not a “disfavored

procedural shortcut”; on the contrary, it is an

important procedure “designed to secure the just,

speedy and inexpensive determination of every action.”

Celotex, 477 U.S. at 327 (quoting Fed.R.Civ.P. 1). In

responding to a motion for summary judgment, “a

party cannot rest on ignorance of facts, on speculation,

or on suspicion and may not escape summary

judgment in the mere hope that something will turn up

at trial.” Conaway v. Smith, 853 F.2d 789, 794 (10°

Cir. 1988).

62a

ANALYSIS

The court faces six primary issues: (1) whether

Abilene Retail has standing to challenge the

Ordinance; (2) whether the Ordinance is content-based

or content-neutral and what level of constitutional

scrutiny the court should apply; (3) upon deciding that

the ordinance is content-neutral, whether the

Ordinance advances a substantial government interest

while being narrowly tailored and leaving open

alternative avenues of communication; (4) whether the

Ordinance violated the overbreadth doctrine; (5)

whether the inspection provisions of the Ordinance

violate the Fourth Amendment; and (6) whether the

Ordinance violates the Fourteenth Amendment right

to privacy.

After examining each of these issues, the court

finds there is no genuine issue of material fact and

that as a matter of law the Ordinance is valid as a

content-neutral zoning regulation that seeks to prevent

the secondary effects of sexually oriented businesses in

Dickinson County.

1. Standing.

Before reaching the merits, this court must

confirm that Abilene Retail has standing. Essence, Inc.

vu. City of Federal Heights, 285, F.3d 1272, 1280 (10th

Cir. 2002) (citing Steel Co. v. Citizens for a Better Env't,

523 U.S. 83, 94 (1998)). A federal district court may

only adjudicate an Article III case or controversy. Id.

(citing Bender v. Williainsport Area Sch. Dist., 475 U.S.

534, 541 (1986)). Article III standing has three

independent requirements:

63a

First, the plaintiff must suffer an

injury-in-fact. An injury in fact is an

“invasion of a legally protected interest”

that is (a) concrete and particularized

and (b) actual or imminent, ie., not

conjectural or hypothetical. Second, the

injury must be “fairly trace[able] to the

challenged action of the defendant,”

rather than some third party not before

the court. Third, it must be likely that a

favorable court decision will redress the

injury of the plaintiff.

Id. (internal citations omitted).

In this case, the County alleges that Abilene

Retail lacks standing because of the third factor:

redressability. It asserts that there is no First

Amendment protection for sexual devices. Based on

this premise, it contends that First Amendment

analysis of the Ordinance is unnecessary because

Abilene Retail still would be regulated as a sexual

device seller, regardless of any favorable First

Amendment holding. See Nova Health Systems v.

Gandy, 416 F.3d 1149, 1159 (10 Cir. 2005)

(recognizing that a plaintiff lacks standing if a

favorable decision will not redress the plaintiffs

injury).

Abilene Retail responds with three reasons why

it has standing but the court will focus on its third

reason. It claims that it could restructure its

inventory by not selling sexual devices and selling only

materials and items. protected by the First

Amendment. In support, it analogizes to City of Erie

v. Pap’s A.M., 529 U.S. 277 (2000). Admittedly in that

case the issue was mootness and not redressability, but

64a

the analogy remains convincing. There the Supreme

Court allowed a nude dancing establishment to

challenge a nude dancing ordinance even though the

establishment had closed its doors and sold its

property. The Court reached the merits after

concluding that the establishment remained an

incorporated entity under state law and “could very

easily get back into the nude dancing business.” /d. at

303. Likewise, given a favorable decision on the First

Amendment issue of this case, Abilene Retail could

very easily reopen its store without selling sexual

devices. Although disputed, Abilene Retail’s claim of

standing is tenable in light of the Supreme Court's

analysis in City of Erie. The court will therefore reach

the merits of this case.

2. Whether the Ordinance is Content-based

or Content-neutral

As a threshold matter, the court must decide

whether the Ordinance is content-based or content-

neutral. This determines whether the court applies

strict scrutiny or intermediate scrutiny to the

Ordinance. This issue has been heavily litigated, and

the Tenth Circuit has concluded that zoning

regulations similar to the Ordinance are content-

neutral. Thus, the court will apply intermediate

scrutiny in its First Amendment analysis.

In deciding whether the Ordinance is content-

based or content-neutral, “the government’s purpose 17

enacting the regulation is the _ controlling

consideration.” City of Aurora, 136 F.3d at 686. Ifthe

Ordinance “serves purposes unrelated to the content of

expression” it is considered content-neutral “even if it

has an incidental effect on some speakers or messages

65a

but not others.” See id. (citing City of Renton v.

Playtime Theatres, Inc., 475 U.S. 41, 47-48 (1986)).

City of Aurora held that a zoning ordinance regulating

sexually oriented businesses is generally content-

neutral so long as the ordinance is “intended to curb

the secondary effects” rather than First Amendment

expression. Id.

Drawing from the actions taken by the city

commission City of Aurora, the preamble of the

Ordinance establishes that Dickinson County relied

upon 22 secondary effects reports and 27 court cases

affirming the secondary effects of sexually oniented

businesses, including City of Aurora itself. Moreover,

allegations of a hidden motive by the County against

Abilene Retail are irrelevant. City of Aurora, 136 F.3d

at 686-87. Accordingly, the court accepts the County’s

statement in its preamble that the secondary effects of

sexually oriented businesses prompted the Ordinance.

Intermediate scrutiny is thus the proper standard. See

also City of Littleton, 311 F.3d et 1238 n.15 (10™ Cir.

2002), rev'd on other grounds, City of Littleton, 541

U.S. 774 (applying intermediate scrutiny).

In addition, the Ordinance appears to be

indistinguishable from the ordinance in City of Aurora.

In that case, the city’s ordinance targeted “off-site”

sexually oriented retail stores with “comprchensive

licensing, operating, and inspection requirements for

‘sexually oriented businesses located within the city

limits. The ordinance further required sexually

oriented businesses to locate in industrially-zoned

areas, and prohibited them from locating 1500 feet of

churches, schools, residential districts or dwellings,

public parks, and other sexually oriented businesses.”

136 F.3d at 685. Because Abilene Retail could not

distinguish the Ordinance in this case from the

66a

ordinance in City of Aurora in any meaningful regard,

the court relies on the on-point holding in City of

Aurora throughout this decision.

3. Whether the Ordinance Survives

Intermediate Scrutiny

As the Supreme Court announced in City of

Renton v. Playtime Theatres, Inc., 475 U.S. 41 (1986),

a “content-neutral time, place, and manner” regulation

is acceptable so long as it: (1) serves a substantial

governmental interest; (2) 1s narrowly tailored; and (3)

does not unreasonably limit alternative avenues of

communication. Id. at 47. City of Aurora, 136 F.3d at

688. Abilene Retail challenges the Ordinance under

each of the three requirements of the City of Renton

test. The court will now address each challenge.

A. Substantial Government Interest

The Ordinance advances a_ substantial

government interest if the County fulfills its burden of

proof to “demonstrate that the recited harms are real,

not merely conjectural, and that the regulation will in

fact alleviate these harms in a direct and material

way. On the other hand, the [Supreme] Court has

repeatedly emphasized that ‘municipalities must be

given a reasonable opportunity to experiment with

solutions’ to address the secondary effects of protected

speech.” Hetdeman v. South Salt Lake City, 348 F.3d

1182, 1197 (10" Cir. 2003) (internal citations omitted).

Here, in the preamble to the Ordinance, the

County includes 22 secondary effects reports and 27

cases discussing the secondary effects of sexually

oriented businesses. Abilene Retail alleges that the

67a

County’s reliance on these outside materials was

merely a pretext, a sham to cloak its true intent to

suppress the protected First Amendment rights of

Abilene Retail.

But this argument fails as a matter of law. To

begin, “[t]he First Amendment does not require a city,

before enacting such an ordinance, to conduct new

studies or produce evidence independent of that

already generated by other cities, so long as whatever

evidence the city relies upon is reasonably believed to

be relevant to the problem the city addresses.’

Accordingly it ts common in these cases for cities to cite

and rely on seemingly pre-packaged studies, as well as

the findings of courts in other cases.” Jd. (quoting City

of Renton, 475 U.S. at 51-52). The proper standard for

reviewing the evidence and the burdens of the parties

is currently as follows:

This is not to say that the

municipality can get away with shoddy

data or reasoning. The municipality’s

evidence must fairly support the

municipality’s rationale for its ordinance.

If plaintiffs fail to cast direct doubt on

this rationale, either by demonstrating

that the municipality’s evidence does not

support its rationale or by furnishing

evidence that disputes the municipality’s

factual findings, the municipality meets

the standard set forth in Renion. If

plaintiffs succeed in casting doubt on a

municipality's rationale in cither

manner, the burden shifts back to the

municipality to supplement the record

68a

with evidence renewing support for a

theory that justifies its ordinance.

Id. at 1199.

In this case, there is ample evidence that the

County “reasonably believed” that the reports and

cases discussed in its preamble were “relevant to the

problem” addressed by the Ordinance. City of Renton,

475 U.S. at 51-52. The County did not simply cite

previous secondary effects studies and flatly ignore the

challenges proposed by Abilene Retails’ expert, Dr.

Linz.’ Instead, the County retained the author of one

of the recognized secondary effects studies, Dr.

McCleary, who directly reviewed and contradicted the

findings of Abilene Retail’s expert, Dr. Linz.

Rather than freshly evaluating the evidence of

secondary effects, the Tenth Circuit, in line with the

Supreme Court’s repeated holdings, has “refused to set

such a high bar for municipalities that want to address

merely the secondary effects of protected speech.” Id.

(citation omitted). Instead, “cities are entitled to rely

in part, on ‘appeal to common sense,’ rather than

‘empirical data,’ at least where there is no ‘actual and

convincing evidence from plaintiffs to the contrary.”

Id. This court may not reweigh the legislative findings

of local policymakers. See id. (observing that “courts

should not be in the business of second-guessing fact-

bound empirical assessments of city planners.”)

*The distinction alone negates Abilene Retail’s reliance on

Peek-A-Boo Lounge v. Manatee County, 337 F.3d 1251 (11" Cir.

2003). In that case, the court qualified its holding: “Significantly,

the County has not attempted to counter the Adult Lounges’

evidence with local studies of its own. We are not dealing,

therefore, with a case involving a battle of competing experts.” Jd.

at 1272.

69a

(citation omitted). Repeatedly, the federal courts have

viewed Dr. Linzs methodological attacks as

immatcrial. In City of Erie, for instance, the Court

urged that it already had “flatly rejected that idea.”

Id. at 302. It reiterated that “invocation of academic

studies said to indicate that the threatened harms are

not real in insufficient to cast doubt on the experience

of the local government.” Id.

Although Dr. Linz might raise new arguments,

he does not dispute all aspects of the County’s reliance.

Numerous federal courts have examined this

challenge, and routinely they have refused to critique

in hindsight the internal decision-making process of

local governments, particularly when the _ local

governments make findings of legislative facts and

review studies and cases in the field of secondary

effects. Abilene Retail thus fails to trigger the burden

shifting process discussed above. See G.M. Enterprises,

Inc. v. Town of St. Joseph, 350 F.3d 631, 639 (7 Cir.

2003) (not shifting the burden to the city to establish

secondary effects because Dr. Linz’s reports were “not

sufficient to vitiate the result reached in the Board’s

legislative process”). Moreover, in this case, not only

did the County rely on 22 reports and 27 prior cases,

but its expert also directly refuted the findings of Dr.

Linz. Thus, even if Abilene Retail shifted the burden

to the County, the County responded with adequate

evidence to support the Ordinance. This meets the

required showing to establish secondary effects under

City of Renton and its progeny:

To the extent [plaintiff] argues that the

city has not “demonstrate[d] that the

recited harms are real, not merely

conjectural,” we disagree. [The city] need

not wait for sexually oriented businesses

70a

to locate within its boundaries, depress

property values, increase crime, and

spread sexually transmitted diseases

before it regulates those businesses. It

may rely on the experience of other cities

to determine whether the harms

presented by sexually oriented businesses

are real and should be regulated. In

other words, the city may control a

perceived risk through regulation. The

Court has long held, and we agree, that

[the city’s] stated governmental interests

in circumscribing the adverse secondary

effects of sexually oriented businesses

“must be accorded high respect.”

City of Aurora, 136 F.3d at 688 (internal citations

omitted).

Abilene Retail also challenges the Ordinance

under the substantial interest prong by asserting that

the Council singled it out for regulation and had a

hostile motive. Again, this argument fails. See, e.g.,

City of Erie, 529 U.S. at 279 (noting that in line witha

string of earlier cases, “this Court will not strike down

an otherwise constitutional statute on the basis of an

alleged illicit motive.”); City of Renton, 475 U.S. at 49

(same).

The County therefore fulfills the first prong of

the City of Renton test by proving that the Ordinance

advances a substantial government interest.

B. Narrowly Tailored

The second prong of the City of Renton test

requires that the Ordinance be narrowly tailored.

Abilene Retail challenges that the Ordinance fails

Tila

under this prong because the Ordinance restricts the

hours of operation between midnight and 6 A.M., the

Ordinance includes within its scope retail-only stores,

and the disclosure requirements for ownership are too

demanding. Each of these challenges fails as a matter

of law.

The objection against closing between midnight

and 6 A.M. is invalid. If the Ordinance is included

within the category of a “time, manner, and place

regulations” as defined by City of Renton, then by

definition some time restriction is allowed. Abilene

Retail cannot identify any reason why the limit from

midnight and 6 A.M. will have more than a de minims

effect on its First Amendment rights. Accord Doctor

John’s, Inc. v. City of Roy, 333 F. Supp. 2d 1168, 1184

(D. Utah 2004). Further, the Tenth Circuit already

has dismissed the second objection, involving a

distinction between “on-site” and “off-site” retail stores,

as “constitutionally irrelevant.” Jd. at 688. The final

objection regarding ownership interest disclosure for

those with a 35% or higher interest is also unfounded.

Cf. American Target Advertising, Inc. v. Guani, 199

F.3d 1241, 1248 (10 Cir. 2002) (“The Supreme Court

has indicated that registration and _ disclosure

provisions do not raise First Amendment problems.”)

In City of Aurora, the Tenth Circuit reversed the

district court because it “construed the narrow

tailoring inquiry too narrowly, and held [the city] to a

far more stringent standard than required by Renton...

136 F.3d at 689. The Tenth Circuit commanded that

narrowly tailored “need not be the least restrictive or

least intrusive means of doing so.” 7d. Because the

Ordinance here is not “substantially broader than

necessary, it 1s narrowly tailored. Id.

72a

C. Alternative Avenues of Communication

In assessing the final prong under City of

Renton, the court examines whether Abilene Retail can

relocate The Lion’s Den to other areas of Dickinson

County. The First Amendment merely requires that

the County “refrain from effectively denying [Abilene

Retail] a reasonable opportunity to open and operate”

within Dickinson County. See City of Renton, 475 U.S.

at 932. The County bears the burden to make this

showing. City of Aurora, 136 F.3d at 688. As a zoning

provision, the Ordinance is valid “so long as

‘reasonable alternative avenues ofcommunicatiom are

left open, a question that is answered through an

analysis of how much land is available in which adult

businesses may be located under the zoning system. In

undertaking that analysis, the courts must examine

what land is actually available, but also must keep in

mind that adult businesses must ‘fend for themselves

in the real estate market, on an equal footing with

other prospective purchasers and lessees.” City of

Littleton, 311 F.3d at 1239, rev'd on other grounds,

City of Littleton, 541 U.S. 774.

Upon review, the Ordinance survives. As it

stands, the County designated ten available sites for

sexually oriented businesses, and no other businesses

currently are in Dickinson County. This clearly meets

the final prong of the City of Renton test. See City of

Littleton, 311 F.3d at 1240-41 (observing that

designating seven available sites 1s sufficient if only

one adult business exists in a city). In the end, the

County has not used “the power to zone as a pretext

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