# Petition for Writ of Certiorari — Kansas v. Abilene (No. 07-972) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386010_0551%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 2007 ## Text 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 i 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 il 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 1V 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 Vv 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 V1 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. we 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 5 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) 6 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...) 8 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) 9 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 10 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...) 1] 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. 12 “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. 13 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 14 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. 1S 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.”) 16 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. 17 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 18 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. 19 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. 20 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). 21 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 la 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. 2a 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 3a 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. i Abilene opened the Lion’s Den at a rest stop off of Interstate 70 (“I-70") in Dickinson County, Kansas in September 2003. The Lion’s Den appears to be the first sexually oriented business in the County in at least 25 years, and it may be the first such business in County history. It is located just off an exit ramp on I- 70, in an unincorporated portion of the County. The total population of the unincorporated portions of Dickinson County is small, numbering just over six thousand people. Adult bookstores located near highway exit ramps rely on business from passing interstate traffic. The store’s inventory is almost entirely adult-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 4a 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. Sa 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, 6a 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...) 7a 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).” Sa 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. II We review the district court’s findings of constitutional fact, conclusions of law, and grant of summary judgment regarding Abilene’s First Amendment claims de novo, pursuant to the standard 9a 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). A “The principal inquiry in determining content neutrality, in speech cases generally and in time, place, or manner cases in particular, is whether the government has adopted a regulation of speech because of disagreement with the message it conveys. The government’s purpose is’ the controlling consideration.” Ward v. Rock Against Racism, 491 ‘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. B Once a local government has established that its purpose in enacting a time, place, or manner regulation was legitimate, we apply the test set forth in City of Renton.’ 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. IV 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). Vv 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 or [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386010_0551%3A1. Public record. Not legal advice.