Opposition Brief — Heideman v. South Salt Lake City (No. 05-1551)

mG,

No.05-155] OFFICE Of THE CLERK.

In the

Supreme Court of the Anited States

FLONA HEIDEMAN, et al.,

; Petitioners ,

V.

SOUTH SALT LAKE CITY,

a Utah Municipal Corporation,

_ Respondent.

On Petition for a Writ of Certiorari to the United

States Court of Appeals for the Tenth Circuit

BRIEF OF SOUTH SALT LAKE CITY

IN OPPOSITION TO PETITION

FOR WRIT OF CERTIORARI

Scott D. BERGTHOLD

Counsel of Record

Law OFFICE OF

Scotr D. BERGTHOLD, PLLC

8052 STANDIFER Gap RoaD

Suite C

CHATTANOOGA, TN 37421

(423) 899-3025

Dave CarRLSON

Ciry ATTORNEY

Crry oF SoutH SALT Lake

220 E. Morris Ave., Ste. 200

SouTH SaLt Lake, UT 84115

(801) 483-6070

GLENN C. HANNI

StroNG & HaAnni

3 TrRiAD CentER, STE. 500

Satt Lake City, UT 84180

(801) 532-7080

—

Becker Gallagher Legal Publishing, Inc. 800.890.5001

i

QUESTION PRESENTED

Whether the Court of Appeals correctly held that the

City’s prohibition on nude conduct in sexually oriented

businesses serves a substantial government interest under

United States v. O’Brien, 391 U.S. 367 (1968) and its

progeny.

i

TABLE OF CONTENTS

COO FO es a ke ae eee I

pe ee Ree Fe oe ery oe re ae il

Ce Oe FI 6 ee ee i ee eS ili

L Cement OF FOE ook ie ee 1

Counterstatement of Proceedings Below ........... 3

Reasons for Dewyies Ge WI ec eek cess 7

I. THE TENTH CIRCUIT’S DECISION IS

CONSISTENT WITH THIS COURT’S

PEE RB 550 Sa oe oe ewes 7

H. THE TENTH CIRCUIT’S DECISION IS

CONSISTENT WITH THE RELEVANT

DECISIONS OF THE REMAINING COURTS

Cr APP <a e eA eee eee ee 16

iil

TABLE OF AUTHORITIES

Cases

Barnes v. Glen Theatre, Inc.,

SE Ee RAED: oe Neb dine te t. &, 9. 32, 21

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

a ee Pe nk ib ek Eh ewes 16

California v. LaRue,

RR kt gt | rr ea ar rer 1,6, 9, 52

Charter Twp. of Van Buren v. Garter Belt, Inc..,

673 N.W.2d 111 (Mich. Ct. App. 2004) ........ 16

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

Se ae a GE fice seeker eee es passim

City of Elko v. Abed,

677 N.W.2d 455 (Minn. Ct. App. 2004) ........ 16

City of Erie v. Pap’s A.M..,

PEP tas BEF be es 4, 6.9.4, 3

Fantasy Ranch, Inc. v. City of Arlington,

No. 04-11337,

2006 WL 2147559 (Sth Cir., Aug. 2, 2006) ... 15, 16

Gammoh vy. City of La Habra,

Fae Oe P81 COU Ce ON) fc 8 ce ns ss i6, 18

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

Soe ae Oot CE. EO es Oe ee 16, 17

iv

Heideman v. South Salt Lake City,

S48 F.5d 1182 (30th Cir. 2003)... ee. t,.3,4

O’Connor v. City and County of Denver,

894 F.2d 1210 (10th Cir. 1990) ....... ee aes 2

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

PAT Wie ETA Ge BO se ee ewe 19

Renton v. Playtime Theatres, Inc..,

We es Oe TE oe a ea, he ere passim

SOB, Inc. v. County of Benton,

317 F.3d: 856 (6th Cir. 2003)... 2.2... 16, 17, 18

United States v. O’Brien,

ee A ee CE ds ie a es i, 7-10, 12, 14

World Wide Video of Washington, Inc. v. City of Spokane,

366 F.3d 1986 (Sth: Cir, 2004)... 12, 18

Young v. American Mint Theatres, Inc.,

Bar ee TROT ce hee pe ae eee 6,9

Ordinances

Sa Lake 6 oy Ord. 69.56.51) ob wie wees 3

Sah Lane Cry te. 93.50.3000): oo oS es 3

]

COUNTERSTATEMENT OF THE FACTS

Since 1990, the City of South Salt Lake has regulated

sexually oriented businesses (“SOBs”) to control the negative

secondary effects associated with such establishments. Its

ordinances have been periodically reviewed and revised to

accomplish this goal and to ensure conformity with

developing case law. The most recent review began in late

1999. Heideman v. South Salt Lake City, 348 F.3d 1182,

1185 (10th Cir. 2003) (Heideman I) (see Pet. App. 22, 26).

From 2000 to 2001, the City researched relevant case law

and compiled numerous secondary effects reports, land use

studies, police records, and public health reports concerning

the negative secondary effects of sexually oriented businesses.

348 F.3d at 1186 & n.5; see (Pet. App. 27-28). The City

identified various secondary effects, including lewd and

lascivious conduct, prostitution, unsanitary conditions, and

risk of spreading venereal discases. (Pet. App. 3-4).

The City based its findings and conclusions on a number

of sources cited in the Ordinance, including findings

incorporated in decisions of the U.S. Supreme Court, state

and federal trial and appellate courts, numerous secondary

effects reports from other municipalities, and raw data from

the City’s police department and others. (Pet. App. 27-28 &

n.5) (citing, inter alia, California v. LaRue, 409 U.S. 109,

111 (1972) (identifying lewd conduct and sexual assaults

associated with nudity in sexually oriented businesses);

Barnes v. Glen Theatre, Inc., 501 U.S. 560, 584 (1991)

(Souter, J., concurring) (citing examples of prostitution rings

run out of nude clubs); and City of Erie v. Pap’s A.M., 529

U.S. 277, 296-97 (2000) (“Because the nude dancing at

Kandyland is of the same character as the adult entertainment

at issue in [prior adult business cases], it was reasonable for

2

Erie to conclude that such nude dancing was likely to produce

the same secondary effects.”); O’Connor v. City and County

of Denver, 894 F.2d 1210, 1213 (10th Cir. 1990) (upholding

revocation of “adult theater” license for 65

“citations . . . issued for a wide variety of public sex acts

including masturbation, fellatio and sexual intercourse”)).

Consistent with myriad cases, the secondary effects

reports compiled by the City document similar harms.

Numerous cities included live nude conduct establishments in

their studies documenting the adverse impacts of sexually

oriented businesses. Additionally, several of the reports

document the problems of nude conduct in particular. (Pet.

App. 20-21, 28 n.5).

The City Council introduced Ordinance 2001-04 during a

public meeting on February 21, 2001. (Pet. App. 14). Prior

to the meeting, each City Council member had received a 21-

page summary of numerous secondary effects reports included

in the legislative record. At the meeting, petitioners’ counsel

submitted documents and made statements opposing the

ordinance; similarly, numerous citizens, including a former

nude dancer and her mother, made statements supporting the

ordinance. (Pet. App. 14-15). The City Attorney and the

City’s outside counsel also spoke, summarizing the law and

the negative secondary effects. /d. At the conclusion of the

meeting, the Ordinance was tabled until a future work

meeting.

On April 25, 2001, the South Salt Lake City Council

enacted the Ordinance 2001-04 (“the Ordinance”). (Pet.

App. 15). Among other things, the Ordinance added certain

procedural protections for sexually oriented businesses and

greatly expanded the legislative record incorporated into the

Ordinance. The Ordinance was signed by the Mayor on May

3

2, 2001, and . >dified as Chapter 5.56 of the City’s Code.

(Pet. App. 15). Contrary to the assertion at page 3 of the

petition, the Ordinance was not “aimed specifically at the

erotic message” of petitioners but rather at the negative

secondary effects associated with sexually oriented businesses

and nude conduct in those businesses. (Pet. App. 15).

The Ordinance prohibits nudity—by both patrons and

employees—on the premises of all sexually oriented

businesses. (Pet. App. 2, 46) (§ 5.56.310(G) (employees)

and § 5.56.320(C) (patrons)). Contrary to petitioners’

misstatement that the “ordinance is aimed specifically at the

erotic message,” (Pet. 3), the nudity prohibition applies to

both nude dancing and patron masturbation alike, /.e.,

regardless of whether expression is occurring. A wide range

of semi-nude erotic conduct is allowed, but an employee is

required to wear nothing less than a “g-string” that covers the

genitalia, anus, and anal cleft, and “pasties” that cover the

* female nipples. Heideman I, 348 F.3d at 1186 (see Pet. App.

26-27 & n.4).

COUNTERSTATEMENT OF PROCEEDINGS BELOW

The petitioners challenged the Ordinance, and the district

court denied their motion for preliminary injunction, holding

that “[t}he South Salt Lake ordinance requiring the use of G-

Strings and pasties in sexually oriented businesses does not

limit expression.” (Pet. App. 59).

On November 4, 2003, the Tenth Circuit affirmed the

district court’s denial of petitioners’ motion for a preliminary

injunction. (Pet. App. 22). The court held that the

Ordinance’s prohibition on nudity: (1) is within the City’s

police power to enact, (2) is, on its face, designed to serve a

substantial government interest in preventing secondary

4

effects, (3) that prevention of secondary effects is unrelated to

the suppression of free expression, and (4) that the “pasties

and G-string” requirement is a de minimis restriction that

“leaves ample capacity to convey the dancer’s erotic

message.” Heideman I, 348 F.3d at 1197-1200 (see Pet.

App. 49-57).

Noting that the case was before the court on appeal from

a preliminary injunction proceeding, the court remanded the

case for further development. /d. at 1200 (see Pet. App. 57).

On remand, the petitioners repeated essentially the same

arguments that they presented to the City Council during the

public hearing on February 21, 2001: (a) that much of the

secondary effects evidence the City relied upon is, according

to their expert, “unscientific,” (b) that their particular local

clubs are “upscale,” and had not caused problems, and (c)

that the Ordinance would “force” them to sell alcohol.!

During discovery, petitioners obtained — but never acted

upon - an order permitting them to gather police data

regarding sexually oriented businesses in the City. District

Court Record Entry (“R.”) 114. Without obtaining the data

they claimed necessary, petitioners submitted a report, R.

132, Exh. D, prepared by their expert, Daniel Linz - a

communications professor whose work has previously been

submitted to the Court by the adult entertainment industry.

See City of Erie v. Pap’s A.M., 529 U.S. 277, 300 (2000)

(referring to Linz’s study and reiterating that the Court has

“flatly rejected” the idea that invocation of academic studies

' The argument that the ordinance “forces” any business to sell

alcohol is patently false. What petitioners mean is that if they

cannot offer full nudity, they will likely seek an alcohol license.

This is irrelevant to the constitutionality of the ordinance at bar.

5

is sufficient to “cast doubt on the experience of the local

government”). Linz’s report acknowledges plaintiffs’ failure

to obtain certain data and states that the lack of data “severely

limits our ability to answer the most important question

concerning secondary crime effects” in South Salt Lake. R.

132, Exh. D, at 2.

The City also hired an expert, Richard McCleary, a

criminology professor who not only concluded that the City’s

legislative record was more than sufficient to justify the

secondary effects rationale of the City’s ordinance, but also

thoroughly critiqued Linz’s methodology, including his

reliance on police calls-for-service (“CFS”), which are not

used by criminologists to measure crime. R. 139, Exh. C.

At the close of discovery, the City moved for summary

judgment. On August 24, 2004, the district court issued an

opinion and order granting the City’s motion. (Pet. App. 13).

The petitioners appealed to the Tenth Circuit.

After briefing and oral argument, the Tenth Circuit

affirmed the grant of summary judgment to the City. (Pet.

App. 1). The court held that evidence of secondary effects

underlying the Ordinance was reasonably believed to be

relevant to the City’s rationale for regulating nude conduct in

sexually oriented businesses. (Pet. App. 5-6). It also held

that the petitioners’ evidence did not cast direct doubt on the

City’s evidence and therefore did not shift the burden of proof

back to the City so as to preclude a summary judgment. (Pet.

App. 6).

The court of appeals stated that “[a]lthough Plaintiffs

submitted evidence in rebuttal of other negative secondary

effects cited by the City in its ordinance, such as diminished

property values and crime, they presented no evidence

6

whatsoever that nude conduct does not result in unsanitary

conditions, unlawful sexual conduct, or the transmission of

sexually transmitted diseases.” (Pet. App. 7).

In this statement, the Court of Appeals properly

recognized that service of one substantial government interest

is sufficient to justify a content-neutral regulation. Cf. City of

Los Angeles v. Alameda Books, Inc., 535 U.S. 425, 435-36

(2002) (finding evidence concerning crime sufficient to justify

zoning regulation although evidence concerning property

values was inconclusive).’

The court also recognized the City was permitted to rely

on evidence of conditions at various kinds of sexually oriented

businesses to support its regulation of sexually oriented

businesses as a category of establishments. (Pet. App. 7-8

n.1) (quoting City of Erie v. Pap’s A.M., 529 U.S. 277, 296-

97 (2000) (“Because the nude dancing [at plaintiff's

establishment] is of the same character as the adult

entertainment at issue in Renton [v. Playtime Theatres, Inc. ,

475 U.S. 41 (1986), namely, adult motion pictures], Young v.

American Mini Theatres, Inc., 427 U.S. 50 (1976) [same],

and California v. LaRue, 409 U.S. 109 (1972) [erotic

dancing], it was reasonable for [the city] to conclude that such

? Because the secondary effects evidence most relevant to the nude

conduct regulation - /7., evidence concerning illicit sexual

behavior inside sexually oriented businesses - was unrebutted, the

panel apparently concluded that it need not reach Dr. McCleary’s

expert report, which demonstrated the deficiencies of Dr. Linz’s

methodology and conclusions regarding ambient crime. The Tenth

Circuit's characterization of petitioners’ evidence, although unduly

generous, did not change its sound conclusion that the City’s

legislative evidence satisfied Renton analysis and justified summary

judgment.

7

nude dancing was likely to produce the same secondary

effects.”)).

The Tenth Circuit concluded that “Plaintiffs have not

shown a genuine issue of materia! fact as to any of the four

O’Brien prongs, and therefore the district court did not err in

granting the City’s motion for summary judgment.” (Pet.

App. 11).

REASONS FOR DENYING THE WRIT

The issue is whether the court of appeals correctly applied

this Court’s precedents when evaluating, under the First

Amendment, the City’s prohibition on complete nudity in

sexually oriented businesses. Because the Tenth Circuit’s

decision is consistent with this Court’s precedents and the

relevant decisions of other courts of appeals, the petition for

a writ of certiorari should be denied.

I. THE TENTH CIRCUIT’S DECIS.JON IS

CONSISTENT WITH THIS COURT’S

PRECEDENTS.

The petition for a writ of certiorari should be denied

because the Tenth Circuit’s decision is consistent with this

Court’s precedents.

In United States v. O’Brien, 391 U.S. 367 (1968), this

Court set forth the standard for evaluating restrictions on

expressive conduct under the First Amendment:

[A] government regulation is sufficiently justified if it

is within the constitutional power of the Government;

if it furthers an important or substantial governmental

interest; if the governmental interest is unrelated to the

8

suppression of free expression; and if the incidental

restriction on alleged First Amendment freedoms is no

greater than is essential to the furtherance of that

interest.

391 U.S. at 377.

The Court applied this standard in the adult business

context in City of Renton v. Playtime Theatres, Inc., 475 U.S.

41 (1986). There, the Court considered a time, place, and

manner regulation that required adult theaters to locate more

than 1,000 feet from residential zones, dwellings, churches,

parks, and schools. /d. at 46. The Court stated that “content-

neutral” speech regulations—those that are justified without

reference to the content of the regulated speech—“are

acceptable so long as they are designed to serve a substantial

governmental interest and do not unreasonably limit

alternative avenues of communication.” /d. at 47-48.

With regard to whether the ordinance served a substantial

governmental interest, the Court held that Renton was entitled

to rely on the experiences of other cities and the findings

summarized in judicial decisions about the secondary effects

associated with sexually oriented businesses. /d. at 51-52.

The Court stated the city was not required to rely on local

studies, nor was it required to conduct new studies or to

produce evidence independent from that produced by other

cities. Jd. Under Renton, a regulation satisfies the First

Amendment “so long as whatever evidence the city relies

upon is reasonably believed to be relevant to the problem that

the city addresses.” /d.

Five years later, in Barnes v. Glen Theatre, Inc., 501

U.S. 560 (1991), the Court applied O ‘Brien analysis to a state

statute prohibiting public nudity when it was challenged on

9

First Amendment grounds by establishments that desired to

provide totally nude dancing. 501 U.S. at 567 (plurality

opinion); id. at 582 (Souter, J., concurring). Despite the lack

of any legislative history or record evidence concerning

secondary effects, the nudity ban in Barnes was upheld

because it was justified by a current governmental interest in

preventing the adverse impacts ?~sociated with nude dancing.

Id. at 582-83 (Souter, J., concurring).

Relying on Renton, the controlling opinion in Barnes

concluded that live nude dancing would likely produce the

same negative secondary effects as the type of entertainment

at issue in previous Court decisions (i.e., Renton, American

Mini Theatres, LaRue), and that the statute therefore served

a substantial government interest in preventing such adverse

effects. Jd. at 584. The opinion agreed with “Renton’s

recognition that legislation seeking to combat the secondary

effects of adult entertainment need not await localized proof

of those effects,” and it held that regulating adult businesses

due to their correlation with secondary effects is unrelated to

the suppression of free expression. /d. at 584-86.

This Court’s most recent nude dancing case is City of Erie

v. Pap’s A.M., 529 U.S. 277 (2000). In Erie, the Court

applied O’Brien analysis and the evidentiary standard set forth

in Renton to conclude that a ban on public nudity, which

required erotic dancers to wear pastics and g-strings,

furthered the government interest in preventing harmful

secondary effects and did not violate the First Amendment.

The court approved the city’s reliance on previous judicial

decisions that described the evidentiary basis for similar

regulations. /d. at 296-97. It also recognized that the city’s

own secondary effects findings—unaided by extrinsic

evidence—are sufficient in the absence of specific reason to

doubt them. /d. at 297-98. Finally, the Court rejected the

10

idea that empirical analysis or academic studies are required

for establishing a substantial government interest under

O’Brien, holding that the government has a “freer hand”

when regulating conduct. 529 U.S. at 299-300.

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

535 U.S. 425 (2002), the Court applied Renton (but not

O’Brien) analysis to a unique zoning regulation prohibiting

the combination of adult bookstore and adult arcade

operations under one roof. The city contended that such |

combinations would have the same zoning-type secondary

effects as the city had found, in an earlier study, to be

associated with separate sexually oriented businesses clustered

in a neighborhood. 535 U.S. at 430-31.

Los Angeles — which relied solely on its zoning study —

admitted that it did not study the effects of “any separate-

standing adult bookstore or arcade,” let alone any

“combination” establishments. /d. at 436. Although the

district court and court of appeals granted summary judgment

against the regulation for lack of specific evidence concerning

“combination” businesses, this Court reversed, holding that

the circuit court erred in “refus[ing] to allow the city to draw

the inference that ‘the expansion of an adult bookstore to

include an adult arcade would increase’ business activity and

produce the harmful secondary effects” identified in the city’s

zoning study. /d. at 436-37 (quoting 222 F.3d 719, 726 (9th

Cir. 2000)). The Court also explained that while a city must

provide evidence supporting its own rationale, the city “does

not bear the burden of providing evidence that rules out”

alternative theories of secondary effects. Alameda Books , 535

U.S. at 437 (“The Court of Appeals simply replaced the city’s

theory... with itsown....”).

1]

Alameda Books clarifies that the latitude given cities to

address secondary effects allows reliance on evidence of harm

not directly on point with the regulation adopted, but

nevertheless supportive of an inference justifying the

regulation. It was in this context of relying on an inference

that the plurality introduced a burden-shifting procedure—not

to “appraise the wisdom of the City’s decision,” Renton, 475

U.S. at 52, but only to ensure that “the municipality meets the

[reasonably believed to be relevant] standard set forth in

Renton.” Alameda Books, 535 U.S. at 438-39.

Justice Kennedy’s concurrence stressed that a city cannot

advance a content-based rationale, i.e., that the city will

reduce secondary effects because its regulation will force the

closure of one or more adult businesses. Jd. at 450-51.

Rather, a city must “advance some basis to show that its

regulation has the purpose and effect of suppressing

secondary effects, while leaving the quantity and accessibility

of speech substantially intact.” /d. at 449. This is the

“proposition [that] a city need[s] to advance in order to

sustain a secondary-effects ordinance.” Id.

Justice Kennedy agreed with the plurality that the city’s

inference, drawn from its zoning study, was reasonable. /d.

at 450-52. He emphasized that cities need only rely on some

evidence “reasonably believed to be relevant” when reaching

legislative judgments concerning secondary effects,

acknowledging that city councils are in a better position than

the courts to make policy decisions affecting their

municipalities. /d.

The Tenth Circuit faithfully applied these precedents when

it affirmed summary judgment in favor of the City. It

properly evaluated the evidence from the City and from

petitioners within the Alameda Books framework to ensure

12

that “the municipality meets the standard set forth in Renton,”

535 U.S. at 439, i.e., that the City relies on evidence

“reasonably believed to be relevant” to the secondary effects

the City seeks to address. Consistent with this Court’s on-

point decisions in Barnes and City of Erie, the Tenth Circuit

held that the City’s extensive legislative record satisfied the

O’Brien/Renton standard.

Petitioners’ theory of the case proceeds along the false

premise that Alameda Books worked fundamental changes in

the deferential Renton standard and that localized secondary

effects proof is now required. Petitioners complain that under

the Tenth Circuit’s ruling, cities “may rely on studies of other

cities and their problems, even if the businesses are

substantially dissimilar.” (Pet. 9).

As an initial matter, it is well-settled that “legislation

seeking to combat the secondary effects of adult entertainment

need not await localized proof of those effects.” Barnes v.

Glen Theatre, Inc. , 501 U.S. 560, 584 (Souter, J., concurring

in judgment) (following Renton, 475 U.S. 41, 51-52)). “All

five Justices in the Alameda Books majority affirmed Renton’s

core principle that local governments are not required to

conduct their own studies in order to justify an ordinance

designed to combat the secondary effects of adult businesses.

See Alameda Books, 535 U.S. at 438 (plurality opinion); id.

at 451 (Kennedy, J., concurring).” World Wide Video of

Washington, Inc. v. City of Spokane, 368 F.3d 1186, 1193

(9th Cir. 2004).

Moreover, petitioners’ nude dancing establishment is not

“substantially dissimilar” from the businesses in LaRue,

Barnes, and Erie—all of which, like petitioner American

Bush, Inc., offered nude or topless dancing as their principal

enterprise. And while petitioners seek to require legislative

13

bodies to rely on evidence concerning businesses identical to

those being regulated, the Tenth Circuit’s ruling on this point

flows directly from this Court’s precedents establishing that

adult entertainment in “adult motion picture theaters” is “of

the same character” as adult entertainment in “adult cabarets”

featuring nude dancing. (See Pet. App. 8) (quoting Erie, 529

U.S. at 296-97).

Petitioners’ citation to affidavits—many of which lack the

basic requirements for summary judgment

evidence—concerning property values and_ their

establishment’s alleged compliance with prior regulations in

South Salt Lake City is simply another iteration of its

misplaced argument that the City must provide “localized

proof” of secondary effects at specific addresses to regulate

sexually oriented businesses as a Category.

In any event, the Tenth Circuit properly observed that the

affidavit of Hallard Cannon, president of American Bush,

Inc., stated that dancers at his establishment were cited under

the City’s prior ordinance for “touching while performing,”

i.é., Suggesting “at the very least . . . that nude employees

were either simulating masturbation or engaging in physical

contact with patrons.” (Pet. App. 8).* The panel found that

both of these activities are reasonably related to the unlawful

sexual activity and related conditions that the ordinance seeks

to prevent. /d. This case involves no showing that, as it

concerns secondary effects, pctitiower: are “different” from

adult oriented businesses in gener. so the petitioners’

assertion that the court of appeals erred in allowing the City

> This highlights one of several misst™® “ents of fact made by

petitioners, namely that petitioners “have always followed” the

City’s regulations. (Pet. 9).

14

\

to rely on evidence from substantially dissimilar businesses is

without any foundation.

Several other misstatements of fact and law merit

correction.

First, contrary to the petitioner’s misstatement at page 8

of the petition, at no point did the Tenth Circuit label the

petitioners’ materials as “substantial rebuttal evidence tending

to put the second and third prongs of the O’Brien test at

issue.” The court considered whether, under the Alameda

Books framework, the petitioners’ evidence cast direct doubt

on the City’s rationale for the ordinance, and concluded that

it did not.

Second, petitioners misrepresent the City’s argument and

the Tenth Circuit’s decision at page 9 of the petition, where

they assert that the court “accepted the City’s argument that

it need not show” a correlation between negative secondary

effects and sexually oricnted businesses. As demonstrated

above, the statement to the effect that the City need not show

a correlation between the category of regulated businesses and

secondary effects neither describes the City’s position nor the

Tenth Circuit’s holding in this case.

Third, petitioners incorrectly assert at page 9 of the

petition that “Defendant conceded that it had no evidence of

unlawful conduct, sanitation problems or the transmission of

disease in its Interrogatory Answers (Aplt. App. 501-513).”

Petitioners’ failure to cite to a specific page of the

Interrogatory Answers is understandable, given that the

Interrogatories did not specifically mention “sanitation

problems or the transmission of disease.” What the

Interrogatory Answers do show is that in addition to extensive

evidence documenting the adverse impacts of nude conduct in

15

sexually oriented businesses, the City’s legislative record also

included police reports and conviction records “show[ing]

adverse incidents at sexually oriented businesses in the city,

including, but not limited to: assaults and fights, harassment,

burglary/theft from car, DUI, public intoxication, disorderly

conduct, and lewdness.” (Aplt. App. 506).

Fourth, petitioners incorrectly assert on page 9 that they

“did, in fact, submit evidence on all the points referred to by

the Court . . . .” On the contrary, petitioners offered the

affidavit of a former lawyer for two of the City’s sexually

oriented businesses, in which the lawyer opined that “he

would have been aware of any criminal convictions”

associated with the businesses. (Aplt. App. 184). This

assertion not only lacks foundation, but it wrongly assumes

that all unlawful activity results in a criminal conviction. It

obviously does not. See Fantasy Ranch, Inc. v. City of

Arlington, No. 04-11337, 2006 WL 2147559, at *9-10 (Sth

Cir., Aug. 2, 2006) (noting that lack of arrests at adult

cabaret “is likely of little comfort to the City of Arlington,

which passed this ordinance at least in part because dancer-

patron proximity in a dimly-lit room made such crimes

difficult to police.”). In short, the Tenth Circuit properly

held that the City has a “clear interest” in preventing the

unlawful sexual conduct and unsanitary conditions associated

with nude dancing establishments, and that the minimal

clothing requirements in the ordinance logically serve that

interest. City of Erie, 529 U.S. at 300-01.

Finally, petitioners have no basis to assert, on page 10,

that the City’s ordinance dropped the requirement that

entertainers provide proof they are free from contagious or

communicable diseases “because experience has simply

proved it unnecessary.” It is more likely that the City

eliminated the requirement out of constitutional privacy

16

concerns implicated by requiring the disclosure of medical

records. In any event, petitioners’ claim is an unsubstantiated

misstatement of fact that has no bearing upon the case.

Il. THE TENTH CIRCUIT’S DECISION IS

CONSISTENT WITH THE RELEVANT DECISIONS

OF THE REMAINING COURTS OF APPEALS.

The Tenth Circuit’s decision in this case is consistent with

the relevant post-Alameda decisions of other courts of

appeals. See, e.g., Fantasy Ranch, No. 04-11337, 2006 WL

2147559 (rejecting evidentiary challenge as insufficient to

shift evidentiary burden back to legislative body); Gammoh v.

City of La Habra, 395 F.3d 1114 (9th Cir. 2005); Ben’s Bar,

Inc. v. Village of Somerset, 316 F.3d 702 (7th Cir. 2003);

G.M. Enterprises, Inc. v. Town of St. Joseph, 350 F.3d 631

(7th Cir. 2003); SOB, Inc. v. County of Benton, 317 F.3d 856

(8th Cir. 2003).*

The Seventh Circuit applied Alameda Books in Ben’s Bar,

Inc. v. Village of Somerset, 316 F.3d 702 (7th Cir. 2003), to

an ordinance that prohibited the sale, use, or consumption of

alcohol on the premises of sexually oriented business. Like

South Salt Lake City in this case, the village in that case

relied on numerous judicial decisions, studies from 11

different cities, and other secondary effects reports to support

its conclusion that adult establishments are associated with

adverse secondary effects. Jd. at 725. The Seventh Circuit

* Indeed, the decisions in G.M. Enterprises, SOB, Inc., and

Gammoh all reject Dr. Linz’s opinion as insufficient under

governing law. State appellate decisions are in accord. See City of

Elko v. Abed, 677 N.W.2d 455 (Minn. Ct. App. 2004); Charter

Twp. of Van Buren v. Garter Belt, Inc., 673 N.W.2d 111 (Mich.

Ct. App. 2004).

17

rejected the bar’s argument that the village had to conduct its

own studies of local conditions to support the regulation, and

it held that the evidentiary record fairly supported the

proffered rationale for the ordinance. /d. at 725-26.

The Seventh Circuit also applied Alameda Books in G.M.

Enterprises, Inc. v. Town of St. Joseph, 350 F.3d 631 (7th

Cir. 2003), where the ordinance at issue prohibited the sale of

alcohol and imposed a stage height/pr.'s«mity buffer between

dancers and patrons in establishments where nude erotic

dancing occurs. The local government relied on studies from

other communities that demonstrated a correlation between

sexually oriented businesses and negative secondary effects,

as well as -judicial decisions and police report to the same

effect. /d. at 633-35. The business presented its own study

- by Dr. Linz - that criticized the town’s studies and evidence

that allegedly showed that property values and crime were not

negatively impacted by it. Jd. 635-36.

The G.M. Enterprises court held that the business’s

evidence showed that the town could have reached a different

reasonable conclusion about secondary effects and adult

businesses, but the evidence was nevertheless insufficient “to

vitiate the result reached in the Board’s legislative process.”

Id. at 639. The court rejected, as “completely unfounded,”

Dr. Linz’s argument that secondary effects reports must

demonstrate a causal relationship and be sufficiently

methodical to be admissible under the Daubert evidentiary

standard. /d. at 640.

In SOB, Inc. v. County of Benton, 317 F.3d 856 (8th Cir.

2003), the Eighth Circuit applied Alameda Books and Renton

to a public indecency ordinance that required erotic dancers

to wear pasties and g-strings. The county relied on studies

from other municipalities and other evidence of adverse

18

secondary effects associated with adult businesses. /d. at 862.

The business countered with evidence that it did not

negatively impact crime rates or property values during its

nearly eight years in business, as well as with an article that

criticized the secondary effects studies relied upon by other

municipalities. /d. at 862-63. The Eight Circuit noted that

the business’s evidence did not relate to the secondary effects

most relevant to nudity regulations. /d. at 863-64. Because

the business did not cast direct doubt on the county’s rationale

for its nudity regulation, the Eight Circuit affirmed summary

judgment for the county. /d. at 864.

The Ninth Circuit is also in agreement. In World Wide

Video of Washington, Inc. v. City of Spokane, 368 F.3d 1186

(9th Cir. 2004), the court considered the city’s zoning

regulation for adult businesses (requiring 6 of them to

relocate), and held that the business’s land use report

criticizing the city’s evidence was insufficient to overcome

summary judgment because it ignored certain categories of

the city’s evidence altogether /d. at 1195-96 (“Again,

however, World Wide failed to present an effective rebutta!

to an entire category of evidence: the public testimony. . . .

This failure to cast doubt on Spokane's justification for the

Ordinances dooms World Wide’s chalienge.”).

In Gammoh v. City of La Habra, 395 F.3d 1114 (9th Cir.

2005), the court rejected Dr. Linz’s opinion—the exact

opinion given here, see R. 132, Exh. D at 7—that only

systematic and methodological analysis of police calls-for-

service (“CFS”) data could support the City’s regulation of

adult cabarets. The Ninth Circuit stated: “This is simply not

the law. ‘So long as whatever evidence the city relies upon is

reasonably believed to be relevant to the problem that the city

addresses[,]’ it is sufficient to support the Ordinance.” 395

F.3d at 1126; see also id. at 1127 (citing Alameda Books and

19

concluding: “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.”). The court held that the city’s studies were

unquestionably relevant to its rationale because they addressed

secondary effects of a variety of adult businesses (the category

of establishments affected by the ordinance), that the city was

not required to obtain research targeting the exact activity it

wished to regulate, and that summary judgment for the city

was appropriate. /d. at 1127-28.

Petitioners assert at page 10 of the petition that there is “a

split in the Circuits as to the kink [sic], quantity, and quality

of rebuttal information which is necessary in order to avoid

summary judgment for the Defendant municipality.” They

principally rely on Peek-A-Boo Lounge of Bradenton, Inc. v.

Manatee County, 337 F.3d 1251 (11th Cir. 2003), which

concluded that the plaintiffs’ voluminous evidence addressed

each secondary effect targeted by the government and

warranted a remand for the district court to evaluate the

evidence under Alameda Books, which was decided after the

district court entered its judgment. /d. at 1272-73.

While the City contends that the Peek-A-Boo decision is

flawed - it appears to require, contrary to this Court’s

precedents, local evidence of secondary effects and a “battle

of competing experts” - the decision is nevertheless

distinguishable from this case and the others cited above

because the Eleventh Circuit concluded that the business’s

evidence sufficiently disputed every kind of evidence the

county relied upon in enacting its ordinance. In contrast, the

Fifth, Seventh, Eighth, Ninth, and (in this case) Tenth

Circuits have held that the local government’s supporting

secondary effects evidence was reasonably believed to be

relevant to its rationale for the ordinance and, on at least

20

some significant issue, unchallenged by the evidence

presented by the adult businesses. This indicates no split

among the circuits, but rather different outcomes based on

different underlying facts.

Consequently, the consistency between the Tenth Circuit’s

decision with the decisions of other circuits provides another

reason for denying the writ.

21

CONCLUSION

The Tenth Circuit’s decision in this case is consistent with

this Court’s precedents and those of other federal circuits.

The City’s nudity prohibition, like those upheld by this Court

in Barnes and Erie, serves a substantial government interest

in preventing negative secondary effects. This Court should

deny the petition for a writ of certiorari.

Dated: August 7, 2006 Respectfully submitted,

Scott D. Bergthold

Counsel of Record

8052 Standifer Gap Rd.

Suite C

Chattanooga, TN 37421

(423) 899-3025

Dave Carlson

City Attorney

City of South Salt Lake

220 E. Morris Ave., Ste. 200

South Salt Lake, UT 84115

(801) 483-6070

Glenn C. Hanni

Strong & Hanni

3 Triad Center

Suite 500

Salt Lake City, UT 84180

(801) 532-7080