PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

ABILENE RETAIL #30, INC.,

Plaintiff – Appellant,

v.

BOARD OF COMMISSIONERS OF DICKINSON COUNTY, KANSAS; KEITH D. HOFFMAN,

Defendants – Appellees.	No. 05-3473

Appeal from the United States District Court

for the District of Kansas

(D.C. No. 04-CV-2330-JWL)

J. Michael Murray, Berkman, Gordon, Murray, & DeVan, Cleveland, Ohio (Raymond V. Vasvari, Jr., Berkman, Gordon, Murray, & DeVan, and Richard T. Bryant, Richard T. Bryant & Associates, Kansas City, Missouri, with him on the briefs), for the Plaintiff – Appellant.

Scott D. Bergthold, Chattanooga, Tennessee (J. Steven Pigg and Teresa L. Sittenauer, Fisher, Patterson, Sayler, & Smith, Topeka, Kansas, with him on the briefs), for the Defendants – Appellees.

Before LUCERO, Circuit Judge, McWILLIAMS, and EBEL, Senior Circuit Judges.

LUCERO, Circuit Judge.

Abilene Retail #30, Inc. ("Abilene") appeals from a district court order granting summary judgment in favor of the Board of County Commissioners of Dickinson County, Kansas (the "Board"). Abilene, which owns and operates an adult bookstore in Dickinson County named "The Lion's Den," challenged a zoning ordinance which restricts The Lion's Den's location and mode of operation. Abilene contends the ordinance violates the First Amendment. The district court held the ordinance to be a content-neutral effort to address the secondary effects of adult businesses in Dickinson County. It further concluded that the ordinance survived intermediate scrutiny, which we apply to content-
neutral zoning ordinances under City of Renton v. Playtime Theatres, Inc., 475 U.S. 41 (1986), and its progeny. We agree the ordinance is facially content neutral, but conclude a genuine dispute of material fact exists as to whether the Board reasonably relied on studies analyzing the secondary effects of adult businesses on surrounding communities in passing the ordinance. If the Board's reasonable reliance were not in dispute, we agree that Abilene has cast sufficient doubt on the Board's rationale to preclude summary judgment. On that basis, we join in the concurrence of Judge Ebel as an alternative ground for our holding. Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we REVERSE the district court's grant of summary judgment, and REMAND to the district court for further consideration of this claim. We AFFIRM the district court's judgment with respect to Abilene's Fourth and Fourteenth Amendment claims.

I

Abilene opened The Lion's Den at a rest stop off of Interstate 70 ("I-70") in Dickinson County, Kansas in September 2003. The Lion's Den appears to be the first sexually oriented business in the County in at least 25 years, and it may be the first such business in County history. It is located just off an exit ramp on I-70, in an unincorporated portion of the County. The total population of the unincorporated portions of Dickinson County is small, numbering just over six thousand people. Adult bookstores located near highway exit ramps rely on business from passing interstate traffic. The store's inventory is almost entirely adult-oriented, and consists of a variety of sexual devices and sexually explicit magazines, videos, and DVDs.

Soon after The Lion's Den opened for business, local residents began protesting outside its doors. As early as September 22, 2003, individual Dickinson County residents appeared before the Board and testified to a variety of possible negative consequences of the store's continued operation.1 They requested the Board, composed of one chairman and two commissioners, consider options to limit the proliferation of adult businesses in the County.

In response, the Board passed "Dickinson County Kansas Sexually Oriented Business Ordinance No. 070804" (the "First Ordinance") on July 8, 2004. In the preamble to the First Ordinance the Board noted that the operation of sexually oriented businesses leads to a variety of negative secondary effects, and cited to a number of cases and studies that support such a finding. In an attempt to curb these secondary effects, the First Ordinance: (1) provided that all businesses devoting ten percent or more of their floor space to adult materials must obtain a license from the County; (2) required disclosure of certain corporate documents as part of the application for a license, including ownership documents related to the land on which the store sits; (3) required disclosure of all owners with a ten-
percent or greater ownership stake as part of the application for a license, and further requires those owners to provide fingerprint cards and disclose their social security numbers; (4) imposed a $500 licensing fee; (5) limited the business' operating hours from 10 a.m. to 10 p.m.; (6) provided for a variety of limitations on signage; (7) set a one-year amortization period; and (8) imposed a distance requirement of 1500 feet between adult businesses and certain uses, including residences, schools, houses of worship, and any section of interstate highway.

Although the First Ordinance contains a lengthy preamble citing to a variety of secondary-effects studies and case law, the Board did not consider any of the cited materials before passing the First Ordinance. In fact, the evidence shows it is unlikely any of the commissioners had those documents at that time.

On July 16, 2004, Abilene challenged the First Ordinance in federal district court, seeking a restraining order and preliminary injunction. After the parties agreed to a preliminary injunction staying enforcement of the First Ordinance, the Board concluded the ordinance might be vulnerable to constitutional challenge, and began to consider passing a second ordinance. The Board retained a lawyer to assist it with drafting a new ordinance. Counsel provided copies of the materials cited in the preamble to the First Ordinance, and also delivered a presentation on those materials. Multiple drafts were prepared and considered by the Board before it settled on a final text. On December 6, 2004, the Board held a public hearing, during which it solicited comment from interested parties. Especially vocal in his support of restricting sexually oriented businesses was Philip Cosby, a Dickinson County resident who led "Operation Daniel," a group that opposed The Lion's Den. Cosby noted that the draft currently before the Board, which set a distance requirement of 750 feet between sexually oriented businesses and any private residence, was insufficient to force The Lion's Den to move from its current location, which is approximately 1150 feet from the nearest residence. One week later, on December 13, 2004, the Board voted to adopt Ordinance No. 121304A (the "Second Ordinance").

Relevant provisions of the Second Ordinance are as follows: (1) Owners of stores devoting more than 35 percent of the inventory or floor space to adult materials must obtain a license from the County; (2) The owner of a qualifying store must disclose certain financial information; (3) A license applicant must pay a one-time license fee of $100; (4) Judicial review of all adverse licensing decisions is available; (5) Sexually oriented businesses must be located no less than 1200 feet from any residence, school, house of worship, or other specified establishment; (6) Non-conforming sexually oriented businesses are allowed an amortization period of two years to achieve compliance; and (7) Such businesses may only be open between the hours of 6:00 a.m. and midnight. On March 28, 2005, the Board further amended the ordinance to set aside certain specific areas in the County where adult businesses could locate.

Like the First Ordinance, the Second Ordinance contains a lengthy preamble stating the Board's purpose in enacting it, as well as a list of the materials on which the Board relied. In particular, the preamble identifies numerous secondary-effects studies, all purporting to evidence the adverse impact of adult businesses on the neighborhoods in which they are located. Case precedent is included to establish the constitutional validity of the ordinance as enacted.2 As noted above, it is undisputed that the Board considered at least some of these materials prior to its passage of the Second Ordinance. The extent to which they were considered, however, is an open question.

Abilene filed an amended complaint challenging the Second Ordinance on February 11, 2005. Shortly thereafter, the district court entered an order modifying the preliminary injunction to cover the Second Ordinance. The Board then moved for summary judgment on all of Abilene's claims, at which point 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 provided in Federal Rule of Civil Procedure 56(c). Z.J. Gifts D-2, L.L.C. v. City of Aurora, 136 F.3d 683, 685 (10th Cir. 1998). Although we ordinarily review a district court's findings of fact for clear error, "[w]here First Amendment interests are implicated, this court is obligated to make an independent examination of the record in its entirety to ensure the challenged regulation does not improperly limit expressive interests." Id. We draw all "reasonable inferences from the record in the light most favorable to [Abilene]." Essence, Inc. v. City of Federal Heights, 285 F.3d 1272, 1283 (10th Cir. 2002).

It is now axiomatic that local governments may, within the confines of the First Amendment, adopt zoning ordinances regulating the location and operation of sexually oriented businesses. Such restrictions can be a valid exercise of municipalities' police powers. "The mere fact that the commercial exploitation of material protected by the First Amendment is subject to zoning and other licensing requirements is not a sufficient reason for invalidating these ordinances." Young v. Am. Mini Theatres, Inc., 427 U.S. 50, 62 (1976). Constitutionally valid motivations for such an ordinance include a desire to target the secondary effects of sexually oriented businesses, such as increased crime, neighborhood blight, and reduced property values. See City of Renton, 475 U.S. at 48. The Board must prove that the Second Ordinance is based on these proper motivations to survive First Amendment scrutiny. See City of Los Angeles v. Alameda Books, Inc., 535 U.S. 425, 438 (2002) (plurality);3 Heideman v. S. Salt Lake City, 348 F.3d 1182, 1197 (10th Cir. 2003).

In Alameda Books, the Supreme Court offered its most recent comprehensive statement of the constitutional limitations on zoning ordinances that target adult businesses. When analyzing whether a time, place, or manner regulation violates the First Amendment's guarantee of freedom of speech, we must first determine whether the ordinance is content based or content neutral. Alameda Books, 535 U.S. at 434. Ordinances targeting adult content per se are content based, and are "considered presumptively invalid and subject to strict scrutiny." Id. Those targeting the negative secondary effects associated with sexually oriented businesses are considered content neutral, and subject to intermediate scrutiny. Id. They will "be upheld so long as the [municipality] show[s] that its ordinance was designed to serve a substantial government interest and that reasonable alternative avenues of communication remained available." Id. (citing City of Renton, 475 U.S. at 50).

A

"The principal inquiry in determining content neutrality, in speech cases generally and in time, place, or manner cases in particular, is whether the government has adopted a regulation of speech because of disagreement with the message it conveys. The government's purpose is the controlling consideration." Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989) (citation omitted). "If the regulation serves purposes unrelated to the content of expression it is considered neutral, even if it has an incidental effect on some speakers or messages but not others." Z.J. Gifts D-2, 136 F.3d at 686 (quotations and citations omitted). Accordingly, we are tasked with "verify[ing] that the predominate concerns motivating the ordinance were with the secondary effects of adult speech, and not with the content of the adult speech." Alameda Books, 535 U.S. at 440-41 (quotations and alterations omitted).

Relying on our content-neutrality analysis in Z.J. Gifts D-2, the district court "accept[ed] the County's statement in its preamble that the secondary effects of sexually oriented businesses prompted the Ordinance." Abilene challenges this finding, arguing that the predominant legislative purpose motivating both ordinances was an impermissible desire to suppress adult content. Abilene does not contend that the studies cited in the ordinance's preamble are insufficient to establish a legitimate purpose. Rightly so, as this circuit and other courts have consistently held the "evidentiary foundation" provided by such reports and the judicial opinions describing them is generally sufficient. See City of Erie v. Pap's A.M., 529 U.S. 277, 297 (2000) (plurality). So long as the materials are "reasonably believed to be relevant to the problem that the [municipality] addresses," we will presumptively classify the Board's legislative purpose as content neutral. Z-J Gifts D-2, 136 F.3d at 687.

Rather, Abilene weaves the following narrative from the record: After determining that the First Ordinance might not survive constitutional challenge, the Board considered a series of revised draft ordinances. For the first time, the Board reviewed the cases and secondary effects studies listed in the preamble, but even then its review was cursory and incomplete. All of the drafts the Board considered prior to the enacted version contained distance requirements that would not have required The Lion's Den to move from its current location. At the final hearing before the Board passed the Second Ordinance, Cosby testified that only a distance requirement of 1200 feet or greater would force The Lion's Den's closure. As enacted, the Second Ordinance did set the distance requirement at 1200 feet. Ergo, by Abilene's logic, "the predominant legislative concern motivating the adoption of the new ordinance was not with ameliorating the secondary effects supposedly caused by sexually oriented businesses, but with the content of the material offered at [The Lion's Den]." Abilene advances a two-
pronged argument. First, it contends the constitutional infirmities of the First Ordinance taint the Second Ordinance. Second, it argues that even the Second Ordinance, examined independently, was motivated by a distaste for sexually oriented businesses and the adult content sold therein.

With regard to the first argument, we need not reach the question of whether there is a dispute of material fact about the First Ordinance's content neutrality. Abilene cites no case law for the proposition that the motivations guiding legislators in passing one ordinance taint a separate, succeeding ordinance. Although none of the commissioners consulted the cases and studies cited in the preamble to the First Ordinance prior to its passage, they did review them before passing the Second Ordinance. They also viewed a presentation summarizing those materials. To punish the Board for redressing its earlier failure would be a bizarre result, and we decline to so hold today.

As to Abilene's second claim, we note that the commissioners conducted at least a cursory review of the materials cited in the preamble before passing the Second Ordinance. Although Abilene takes issue with the degree of consideration the Board gave to those materials, we have never required legislators to engage in monastic rumination on cited cases and studies to establish their good-faith reliance on them. "[S]uch a holding would fly in the face of legislative reality." Lakeland Lounge of Jackson, Inc. v. City of Jackson, 973 F.2d 1255, 1258 (5th Cir. 1992).

Abilene also asks us to impute Cosby's impermissible, content-based motives to the Board. It argues that Alameda Books requires us to look beyond the ordinance itself, to the facts and circumstances surrounding the Second Ordinance's passage. However, under City of Renton, we may "not strike down an otherwise constitutional statute on the basis of an alleged illicit legislative motive." 475 U.S. at 48. We find no language in Alameda Books that requires reconsideration of City of Renton's basic guidance.

Abilene urges us to adopt an approach that conflates Alameda Books' two-
step test. Although a majority of the Alameda Books Court agreed that "the designation [content neutral] is imprecise," 535 U.S. at 444-45, and "something of a fiction," id. at 447-48 (Kennedy, J., concurring), a majority of the Court has never adopted Abilene's theory. See id. at 448 (Kennedy, J. concurring) ("[T]he central holding of Renton is sound: A zoning restriction that is designed to decrease secondary effects and not speech should be subject to intermediate rather than strict scrutiny."). Therefore, we must continue our prior practice of segregating the two inquiries. See Z.J. Gifts D-2, 136 F.3d at 687.4

Although we have never explicitly limited our review to the text of an ordinance when evaluating legislative purpose, Abilene asks us to engage in precisely the sort of subjective fishing expedition that City of Renton forecloses. See 475 U.S. at 48. Abilene asks us to go even further and impute the motives of a concerned citizen to the Board itself. This is despite the fact that many, if not most, ordinances regulating sexually oriented businesses are preceded by public hearings during which a wide variety of concerns, both "content neutral" and "content based," are voiced. See, e.g., Essence, 285 F.3d at 1286; Z.J. Gifts D-2, 136 F.3d at 685. We have never incorporated public comments into our determination of an ordinance's content neutrality, and decline to do so here.

Examining the preamble to the Second Ordinance, we are satisfied that the Board's predominant purpose in enacting it was to regulate the secondary effects of adult businesses. The Second Ordinance's stated goals are to: (1) "protect and preserve the health, safety, and welfare of the patrons of sexually oriented businesses as well as the citizens of the County;" (2) limit "unlawful sexual activities;" (3) minimize crime; and (4) "preserve the property values and character of surrounding neighborhoods and deter the spread of urban blight." As stated supra, Abilene does not dispute that the materials cited in the preamble are relevant to the stated purposes. Accordingly, we hold that the Board has met its burden of proof with respect to the content neutrality of the Second Ordinance.

B
Once a local government has established that its purpose in enacting a time, place, or manner regulation was legitimate, we apply the test set forth in City of Renton.5 For a restrictive zoning ordinance to survive intermediate scrutiny it must be "designed to serve a substantial governmental interest and allow[] for reasonable alternative avenues of communication." City of Renton, 475 U.S. at 50. There is no question that a municipality's interests in mitigating the effects of crime, neighborhood blight, and other deleterious secondary effects "are both important and substantial." Young, 427 U.S. at 80 (Powell, J., concurring); see also Alameda Books, 535 U.S. at 434-36. We focus instead on whether the Second Ordinance is "designed to serve" those substantial interests.

In answering this question, we apply a burden-shifting approach. Alameda Books, 535 U.S. at 438-39. First, the Board must show that, in passing the Second Ordinance, it relied on "evidence that is reasonably believed to be relevant for demonstrating a connection between speech and a substantial, independent government interest." Id. at 438 (quotation omitted). Such evidence need not be so conclusive that the Board's secondary effects theory "is the only one that can plausibly explain the data," but must only "fairly support the [Board's] rationale." Id. at 437-38. Put in other terms, the Board's reading of the cited evidence must "appeal to common sense." Id. at 439. The Court cautioned, however, that local governments cannot "get away with shoddy data or reasoning." Id. at 438. If the Board can make this showing, Abilene may rebut the Board's proffered evidence "either by demonstrating that the [Board's] evidence does not support its rationale or by furnishing evidence that disputes the [Board's] factual findings." Id. at 438-39. "If [Abilene] succeed[s] in casting doubt on [the Board's] rationale in either manner the burden shifts back to the [Board] to supplement the record with evidence renewing support for a theory that justifies its ordinance." Id. at 439.

We are mindful that judicial review of an ordinance that implicates the First Amendment "is not a license to reweigh the evidence de novo, or to replace [legislators'] factual predictions with our own." Turner Broad. Sys., Inc. v. F.C.C., 512 U.S. 622, 666 (1994). However, the Supreme Court has instructed that such deference to the legislative policymaking role nevertheless "does not foreclose our independent judgment of the facts bearing on an issue of constitutional law." Id. (quotation omitted). Our role is to "assure that, in forming its judgments [the legislature] has drawn reasonable inferences based on substantial evidence." Id.

Although it quoted the relevant burden-shifting language from Alameda Books, the district court misapplied the test required. Rather, the district court summarily found that the Board's evidence was sufficient to meet its initial burden, and focused instead on whether the Linz affidavit and studies cast doubt on the Board's rationale. Similarly, the parties devote the lion's share of their intermediate scrutiny arguments to the evidentiary battle waged between Linz and McCleary. We conclude, however, that a dispute of material fact exists as to whether the cases and studies cited by the Board are "reasonably believed to be relevant" to its interests, such that the Second Ordinance is "designed to serve" its goal of combating the secondary effects of Dickinson County sexually oriented businesses.

The Board's evidentiary support for the Second Ordinance consists entirely of cases and studies examining other locales' experiences with the secondary effects of sexually oriented businesses.6 This lack of local evidence is not preclusive, as it is well settled that the Board may rely on foreign studies detailing the secondary effects of adult businesses in other areas. See City of Renton, 475 U.S. at 51-52. Nor is there a constitutional requirement that the studies relied upon be empirical or satisfy any particular methodological or scientific standards – legislators are free to consider anecdotal evidence, statistical data, prior cases, and their common sense. See Alameda Books, 535 U.S. at 439-40; see also World Wide Video of Wash., Inc. v. City of Spokane, 368 F.3d 1186, 1195 (9th Cir. 2004). However, when a municipality chooses to rely solely on foreign evidence, "the experience elsewhere [must be] germane to the measure under consideration and actually relied upon." City of Erie, 529 U.S. at 313 (Souter, J., concurring).

In the case at bar, the studies relied upon include a wide variety of methodologies, both anecdotal and empirical, and are not easily summarized. Equally diverse are the studies' findings. Although most, if not all, find that adult businesses trigger at least some secondary effects in surrounding areas, the findings rest on a number of factors, including: the type of neighborhood in which the sexually oriented businesses are located,7 the concentration of sexually oriented businesses,8 and the nature of the sexually oriented business itself.9 All of the studies relied upon by the Board examine the secondary effects of sexually oriented businesses located in urban environments; none examine businesses situated in an entirely rural area. To hold that legislators may reasonably rely on those studies to regulate a single adult bookstore, located on a highway pullout far from any business or residential area within the County, would be to abdicate our "independent judgment" entirely. Such a holding would require complete deference to a local government's reliance on prepackaged secondary effects studies from other jurisdictions to regulate any single sexually oriented business, of any type, located in any setting.10 Our review is deferential, but the evidentiary basis for the Second Ordinance must establish some minimal connection to the secondary effects attendant to Dickinson County's existing sexually oriented business(es).11 Based on the record before us, we conclude that a material dispute of fact exists as to whether the Board has established such a connection.

In so holding, we emphasize the wide contextual gulf between the facts of this case and those before the Court in Alameda Books. In that case, the City of Los Angeles relied primarily on a prior, local study of the secondary effects of adult businesses to support a narrow amendment to its zoning laws: the prohibition of "adult-oriented department store[s]," in which multiple, distinct adult businesses located within a single structure. 535 U.S. at 431. The amendment was adopted to close a loophole in the prior ordinance that otherwise required the dispersion of adult businesses.12 See id. at 430. Reversing the judgment of the district court and the Ninth Circuit, the Court held that it was

consistent with the findings of the 1977 study, and thus reasonable, for Los Angeles to suppose that a concentration of adult establishments is correlated with high crime rates because a concentration of operations in one locale draws, for example, a greater concentration of adult consumers to the neighborhood, and a high density of such consumers either attracts or generates criminal activity. . . . Under this view it is rational for the city to infer that reducing the concentration of adult operations in a neighborhood, whether within separate establishments or in one large establishment, will reduce crime rates.

Id. at 436.

Writing separately, Justice Kennedy concurred in the judgment, but emphasized that the application of intermediate scrutiny does not foreclose a reviewing court's inquiry into "how speech will fare under the . . . ordinance." Id. at 450 (Kennedy, J., concurring) ("[T]he necessary rationale for applying intermediate scrutiny is the promise that zoning ordinances like this one may reduce the costs of secondary effects without substantially reducing speech."). He emphasized that although "a zoning law need not be blind to the secondary effects of adult speech," its "purpose [may] not [be] to suppress it." Id. at 447. Determining that Los Angeles' effort to prohibit adult department stores was not designed to reduce the availability of adult content in the city, Justice Kennedy agreed with the plurality that the evidentiary basis for the amended ordinance was sufficient. See id. at 451.

By contrast, to the extent that we may identify a "premise" on which the Board relied in passing the Second Ordinance, it is that negative secondary effects are an attendant feature of all sexually oriented businesses, anywhere, and therefore Dickinson County's interest in regulating those effects is substantial. Justice Kennedy concurred with the Alameda Books plurality because the evidence upon which the City of Los Angeles relied was sufficient to support a narrowly-drawn, carefully-considered effort to limit secondary effects. In this case, we are not satisfied that the evidence relied upon by the Board is sufficient to permit summary judgment at the first step of Alameda Books.

Nowhere in the record or the Board's brief is an effort made to analogize the studies it relied upon to the current or anticipated secondary effects of sexually oriented businesses located in a rural county. Neither of the two expert reports commissioned by the Board so much as mention the specific features of either the First or Second Ordinance. Rather, the report submitted by Dennis Roncek is largely concerned with general, methodological flaws in several Linz studies; the McCleary report offers justifications for the methodologies used in some of the studies on which the Board relied and also refutes the Linz methodologies, but refers to the Second Ordinance only to say that it "is not substantially different than ordinances enacted in other jurisdictions." See Richard McCleary, Expert Report 7; Dennis Roncek, Expert Report [hereinafter "Roncek Report"]. Myriad differences in the relied-upon studies' findings with respect to concentration, location, and type of business are passed over in silence. In particular, the Roncek Report highlights the correlation between secondary effects and the neighborhood in which a sexually oriented business is located, and states explicitly that "crime-related secondary effects of [sexually oriented businesses] are unlikely to cover the entire area of a county." Roncek Report at 11. Yet the report does not speak to how the locations permitted by the Second Ordinance might work to mitigate secondary effects in the County.

Moreover, the Second Ordinance plainly contemplates the closure of The Lion's Den in its existing location, a location that a common sense reading of the Board's studies suggests would best limit any secondary effects. See, e.g., Austin Study at 32 ("Sexually oriented business districts are usually located along heavily traveled streets such as arterials and interstate highways, and are not normally near single-family neighborhoods."). Nor can we glean any rationale from the materials relied upon by the Board for its decision to expand the setback requirement from 750 to 1200 feet, other than to specifically capture The Lion's Den. We need not impute an impermissible motive to the Board based on the fact that the Second Ordinance captures The Lion's Den. Nonetheless, we are not blind to the fact that the Second Ordinance's targeted application to a single, existing sexually oriented business differs substantially from the impact on speech contemplated in Alameda Books, in which the challenged ordinance was "just one part of an elaborate web of land-use regulations in Los Angeles." See 535 U.S. at 447 (Kennedy, J., concurring).

Had the Alameda Books plurality and Justice Kennedy held that any municipality may reasonably rely on the existing body of prepackaged secondary effects studies to justify a zoning ordinance regulating local sexually oriented businesses, we would affirm the district court on this point. They did not, but instead reaffirmed municipalities' need to make a showing that the evidence on which they relied is germane to their local experience. We are therefore constrained to hold that a genuine dispute of material fact exists as to whether the evidence cited by the Board provides a sufficient connection between the continued operation of Dickinson County sexually oriented businesses and the negative secondary effects targeted by the Second Ordinance.13

III

Abilene brings a separate constitutional challenge to § 7(a) of the Second Ordinance, which ensures law enforcement officers' right to inspect the public areas of Dickinson County sexually oriented businesses during normal business hours. Section 7(a) mandates that:

Sexually oriented businesses and [their] employees shall permit the Administrator and his or her agents to inspect, from time to time on an occasional basis, the portions of the sexually oriented business premises where patrons are permitted, for the purpose of ensuring compliance with the specific regulations of this Chapter, during those times when the sexually oriented business is occupied by patrons or is open to the public. This section shall be narrowly construed by the County to authorize reasonable inspections of the licensed premises pursuant to this chapter, but not to authorize a harassing or excessive pattern of inspections.

Abilene challenges this provision on Fourth Amendment grounds. First, it argues that the inspections permitted by the provision are searches, insofar as § 7(a) permits law enforcement officers to enter the store as a matter of right, a privilege unavailable to ordinary customers. Second, it argues that adult bookstores are not "highly regulated," and therefore not subject to warrantless administrative searches. As such, Abilene argues, the search provision violates its reasonable expectation of privacy.

"[W]e review de novo the question of whether a search has occurred within the meaning of the Fourth Amendment." United States v. Nicholson, 144 F.3d 632, 636 (10th Cir. 1998). Analogizing the conduct authorized by § 7(a) to that sanctioned by the Supreme Court in Maryland v. Macon, 472 U.S. 463 (1985), the district court held that § 7(a) did not implicate the Fourth Amendment at all; it therefore found no need to address Abilene's argument from case precedent addressing administrative searches of regulated businesses. We agree.

In Macon the Court addressed whether pornographic magazines purchased by undercover officers could be entered into evidence against the store clerk who sold them. Concluding that Macon "did not have any reasonable expectation of privacy in areas of the store where the public was invited to enter and to transact the business," the Court held that "the officer's action . . . did not constitute a search within the meaning of the Fourth Amendment." Id. at 469; see also United States v. Katz, 389 U.S. 347, 351 (1967) ("[T]he Fourth Amendment protects people, not places."); United States v. Longoria, 177 F.3d 1179, 1183 & n.2 (10th Cir. 1999) ("[W]hat a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection."). In Macon the undercover agents did not enter the store as a matter of right, but rather as customers on the same footing with other members of the public. This notwithstanding, the distinction before us does not turn the type of access authorized by § 7(a) into a search prohibited by the Fourth Amendment.

Any fair reading of Macon requires us to conclude that Abilene's Fourth Amendment claim cannot turn on whether the Second Ordinance conveys access to officers as a matter of right, but must instead turn on whether Abilene has a reasonable expectation of privacy in the areas of the store § 7(a) entitles the officers to inspect. Section 7(a) explicitly limits officers' rights of access to public areas of the store and to normal business hours; no special invasive search privileges are authorized. There is no barrier to officers entering any retail establishment during normal business hours to view those areas of the premises open to the public.14 See Andy's Restaurant & Lounge, Inc. v. City of Gary, 466 F.3d 550, 557 (7th Cir. 2006) (upholding a nearly identical provision on similar grounds); see also Andree v. Ashland County, 818 F.2d 1306, 1314-16 (7th Cir. 1987) (holding that although officers demanded admission to public concert venue without paying, their inspection of public areas did not implicate plaintiffs' Fourth Amendment rights). The challenged provision compromises Abilene's "reasonable expectation of privacy" no more than the conduct that survived Fourth Amendment scrutiny in Macon.

IV

As a final matter, Abilene appeals the district court's rejection of its claim that the Second Ordinance violates its Fourteenth Amendment right to privacy, as identified in Carey v. Population Servs. Int'l, 431 U.S. 678 (1977). We review the district court's judgment with respect to an alleged violation of Abilene's Fourteenth Amendment rights de novo. See United States v. Oliver, 278 F.3d 1035, 1039 (10th Cir. 2001). Abilene argues that the Second Ordinance "impose[s] a substantial burden on the right to intimate privacy" by limiting individuals' right of access to marital aids. Abilene cannot cite to a single case, state or federal, that extends the substantive due process right identified in Carey and its progeny to the type of restrictive zoning ordinance at issue in this case. Rather, Carey stands for an entirely different proposition – "that the Constitution protects individual decisions in matters of childbearing from unjustified intrusion by the State." Id. at 687. Abilene offers no support for the proposition that the relatively minimal burden imposed by a restrictive zoning ordinance should be compared to the much more severe burden at issue in Carey. Accordingly, on this claim we affirm the judgment of the district court. See Phillips v. Calhoun, 956 F.2d 949, 953-54 (10th Cir. 1992) (holding an argument forfeited if not supported by relevant legal authority or sound legal reasoning).

V

For the reasons stated above, the judgment of the district court is AFFIRMED in part, REVERSED in part, and REMANDED for proceedings consistent with this opinion.

Abilene Retail #30, Inc. v. Hoffman, No. 05-3473

EBEL, J., concurring, and joined by McWILLIAMS, J., and LUCERO, J.

I agree entirely with the result that the majority opinion reaches, and I join most of its reasoning. Along with the majority (Maj. Op. at 2), I conclude that Plaintiff-Appellant Abilene Retail #30, Incorporated's ("Abilene Retail") First Amendment claim should be remanded for a trial. I would reach this conclusion, however, at a different step in the analysis than does the majority.

Like the majority, I conclude that the County's challenged ordinance is a content-neutral time, place or manner restriction on speech protected by the First Amendment and, thus, must pass intermediate scrutiny to be valid. (Maj. Op. at 15.) We inquire, therefore, whether the ordinance is "narrowly tailored to serve a significant government interest, and if it leaves open ample alternative channels of communication." Doctor John's, Inc. v. City of Roy, 465 F.3d 1150, 1164 (10th Cir. 2006) (quotation omitted); see also City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 50 (1986). The parties in this case do not dispute that the County's ordinance does leave open adequate alternative channels of communication. And "[i]t is well established that combating the secondary effects of adult businesses is a significant governmental interest." Doctor John's, 465 F.3d at 1164 (quotation omitted). The relevant question before us, therefore, is whether the County's ordinance is narrowly tailored to serve that interest. In addressing this question, we apply the burden-shifting evidentiary analysis set forth in City of Los Angeles v. Alameda Books, Inc., 535 U.S. 425, 434, 438-39 (2002) (plurality).

Alameda Books requires that Defendants-Appellees ("the County"), in justifying the restrictions the County has placed on protected speech, bear the initial burden of presenting "evidence that is 'reasonably believed to be relevant' for demonstrating a connection between [the regulated] speech and a substantial, independent government interest." Id. at 438 (quoting City of Renton, 475 U.S. at 51-52); see also id. at 437. If the County is able to do so, the burden shifts to Abilene Retail to "cast direct doubt" on the County's "rationale, either by demonstrating that the [County's] evidence does not support its rationale or by furnishing evidence that disputes the [County's] factual findings" underlying its decision to enact the challenged ordinance. Id. at 438-39. If Abilene Retail "succeed[s] in casting doubt on the [County's] rationale in either manner, the burden shifts back to the [County] to supplement the record with evidence renewing support for a theory that justifies its ordinance." Id. at 439.

Although the majority in this case decides that the County has failed to meet its initial burden under Alameda Books (Maj. Op. at 18, 21-22, 26 n.13), I disagree. I would, however, go on to conclude that Abilene Retail has been able to "cast direct doubt" on the County's rationale sufficient to require a trial. It is on that basis that I would remand Abilene Retail's First Amendment claim.

I.	Whether the County has met its initial burden of presenting evidence "reasonably believed to be relevant" to demonstrate a connection between its regulation of protected speech and a substantial government interest.

The County's stated purpose in enacting its ordinance restricting the location and operation of sexually oriented businesses is to prevent the negative secondary effects stemming from such businesses.1 Under Alameda Books, then, the County must assert evidence that it "reasonably believed to be relevant" to demonstrate a connection between that purpose and the ordinance the County enacted regulating protected speech. See 535 U.S. at 438. In this case, the County sought to justify its ordinance by citing to a number of judicial opinions from other cases, finding that sexually oriented businesses can have adverse secondary effects on their surrounding communities, as well as a number of "seemingly pre-packaged studies" of the secondary effects generally stemming from various types of sexually oriented businesses located in other cities and counties across the nation. Heideman v. S. Salt Lake City, 348 F.3d 1182, 1197 (10th Cir. 2003) (noting "it is common in these cases for cities to cite to and rely on seemingly pre-packaged studies, as well as the findings of courts in other cases"). Unlike the majority opinion, I would conclude that this evidence is sufficient for the County to meet its initial burden under Alameda Books.

Both the Supreme Court and this court have consistently recognized that the government's burden at this initial step in the Alameda Books' analysis is very light. See Alameda Books, 535 U.S. at 451 (Kennedy, J., concurring) (noting "that very little evidence is required" for the government to support the rationale on which its ordinance rests); Doctor John's, 465 F.3d at 1166 (noting government's initial burden is "slight"); Heideman, 348 F.3d at 1198 (suggesting "City's initial burden to present empirical support for its conclusions is minimal"); see also Alameda Books, 535 U.S. at 437-38, 439-40.2

Our deference to the evidence presented by the [government] is the product of a careful balance between competing interests. On the one hand, we have an obligation to exercise independent judgment when First Amendment rights are implicated. On the other hand, we must acknowledge that the [local government] is in a better position than the Judiciary to gather and evaluate data on local problems.

Alameda Books, 535 U.S. at 440 (quotation, citation omitted).

In order to meet its initial burden, therefore, the County need not conduct its own studies or "produce evidence independent of that already generated by other cities" in support of its ordinance, "so long as whatever evidence the [government] relies upon is reasonably believed to be relevant to the problem that the [government] addresses." City of Renton, 475 U.S. at 51-52; see also Doctor John's, 465 F.3d at 1164-65; Heideman, 348 F.3d at 1197.

Further, the County is not required to produce evidence "that rules out every [other] theory" linking the negative secondary effects at which its ordinance is aimed to other possible causes, apart from the presence of adult businesses. Alameda Books, 535 U.S. at 437. That is, the government does not have "to prove that its theory" linking the negative effects it seeks to eliminate to sexually oriented businesses "is the only [theory] that can plausibly explain the data" on which the County relies. Id. at 437-38. Nor does the government have to assert empirical data that shows that its ordinance will succeed in reducing the negative secondary effects at which it is aimed. See id. at 439. Government entities "must be given a reasonable opportunity to experiment with solutions to address the secondary effects of protected speech." Id. (quotation omitted).

Of course, "[t]his is not to say that [the government] can get away with shoddy data or reasoning. The [government's] evidence must fairly support [the] rationale for its ordinance." Id. at 538. The County's evidence does so here.

Courts have consistently upheld ordinances based upon the same type of evidence with which the County has initially supported its ordinance in this case. See City of Renton, 475 U.S. at 50-52 (upholding ordinance based upon a judicial opinion entered in another case discussing the negative secondary effects of sexually oriented businesses, and a study of such secondary effects conducted in another location); Heideman, 348 F.3d at 1197-98 (citing Barnes v. Glen Theatre, Inc., 501 U.S. 560, 584 (1991) (Souter, J., concurring), and recognizing government can rely on court-made findings in other cases that sexually oriented businesses can have negative secondary effects). Moreover, this court has previously held that a local government met its initial burden under Alameda Books by relying upon prepackaged reports and case law almost identical to that relied upon by the County in this case. See Doctor John's, 465 F.3d at 1165-66 & 1165 n.17, 1166 n. 18; Heideman, 348 F.3d at 1186-87, 1186 & n.5, 1199-1200. So have other circuits. See Andy's Restaurant & Lounge, Inc. v. City of Gary, 466 F.3d 550, 555 (7th Cir. 2006) (holding City met its burden by asserting "numerous studies evidencing the secondary effects of sexually oriented businesses"); Deja Vu of Cincinnati, L.L.C. v. Union Twp. Bd. of Trustees, 411 F.3d 777, 791 (6th Cir. 2005) (reh'g en banc) (holding township's evidence, twelves studies from different cities, as well as the township administrator's testimony of documented instances of intoxicated patrons causing serious trouble in adult cabarets, was sufficient to support resolution requiring cabarets that do not serve alcohol to close at midnight); Zibtluda, 411 F.3d at 1286-87 (holding County sufficiently supported its ordinance by citing to studies from different locations, conducting a hearing at which the county commissioners heard citizens' testimony, as well as testimony from experts in law enforcement and economics); Gammoh v. City of La Habra, 395 F.3d 1114, 1126 (9th Cir. 2005) (holding City met its initial burden by relying upon judicial decisions in other cases, reports and studies from other jurisdictions, and testimony of the City's vice officers and nude dancers); Ben's Bar, Inc. v. Village of Somerset, 316 F.3d 702, 725-26 (7th Cir. 2003) (holding City met its initial burden by relying upon studies, reports and judicial decisions from other locations).

In fact, in the few cases in which courts have held that a government failed to meet its initial burden under the Alameda Books' burden-shifting analysis, the local government did not present any evidence at all justifying its decision to enact an ordinance regulating adult businesses. See Illusions-Dallas, 482 F.3d at 312-15 (holding State had failed to meet its "very light" initial burden because "the record is completely devoid of any evidence that a secondary effects problem exists or that the [challenged ordinance] furthers that interest"); White River Amusement Pub, Inc. v. Town of Hartford, 481 F.3d 163, 171-73 (2d Cir. 2007) (holding town failed to meet its initial burden because defendants could "not show that they relied on relevant evidence of negative effects before enacting the Ordinance"); R.V.S., 361 F.3d at 411-13 (holding City had failed to meet its initial burden, which requires "very little evidence," because "[t]he record is devoid of evidence connecting [the adult businesses] and the secondary effects that allegedly motivated the Ordinance's adoption"); Peek-A-Boo Lounge of Bradenton, Inc. v. Manatee County, 337 F.3d 1251, 1266-69 (11th Cir. 2003) (holding County had failed to meet its initial burden because "the record reveals that the Manatee County Board of County Commissioners, when enacting Ordinance 98-46, failed to rely on any evidence whatsoever that might support the conclusion that the ordinance was narrowly tailored to serve the County's interest in combating secondary effects").

Abilene Retail argues that the County's evidence in this case is insufficient even at this initial step in the analysis because the cases and reports upon which the County relies primarily concern adult businesses that offered only on-site, or both on- and off-site, adult entertainment, whereas Abilene Retail offers only off-site adult entertainment. But at this initial stage in the analysis, those distinctions are of no moment, so long as the County could reasonably believe the reports and case law upon which it relied were relevant to demonstrate that the County's regulating sexually oriented businesses will reduce adverse secondary effects on the community. See Doctor John's, 465 F.3d at 1165-69 (citing Z.J. Gifts D-2, L.L.C. v. City of Aurora, 136 F.3d 683 (10th Cir. 1998)). The County can meet its "slight initial burden, even if the studies" on which it relies do not address sexually oriented businesses "precisely like" Abilene Retail's store. Id. at 1166.

The majority would conclude that the County's pre-packaged studies and case law are insufficient to meet the County's initial evidentiary burden because the County's evidence concerns local governments' experiences with sexually oriented businesses in an urban setting, while the County is a rural, sparsely populated area. This may be a valid distinction to draw at the later stages of the Alameda Books' analysis. Notwithstanding our obligation in the First Amendment context "to make an independent examination of the record in its entirety to ensure the challenged regulation does not improperly limit expressive interests," Z.J. Gifts, 136 F.3d at 685, I do not think that this rural/urban distinction is sufficient at the initial stage of our analysis. The evidence the County asserted was sufficient to permit the County to draw the reasonable conclusion that the secondary effects that other communities across the country have experienced related to sexually oriented businesses would also occur in this County. That is all Alameda Books requires at this initial analytical step. In fact, in Alameda Books, the Supreme Court held that the circuit court had erred in not permitting the local government, at this initial stage in the analysis, to draw a reasonable inference from the evidence it had before it, even though there were other reasonable explanations of the evidence and other reasonable inferences that the government could have drawn instead.3 See Alameda Books, 535 U.S. at 436-38. A local government, therefore, can meet its "slight initial burden, even if the studies" on which it relies do not address sexually oriented businesses "precisely like" those being regulated by the challenged ordinance. Doctor John's, 465 F.3d at 1166.

For these reasons, then, I conclude that, in this case, the County has presented sufficient evidence, linking its ordinance restricting the location and operation of sexually oriented businesses to the County's substantial interest in eliminating adverse secondary effects stemming from such businesses, to meet its minimal initial burden under Alameda Books.4

II.	Whether Abilene Retail was able to cast direct doubt on the County's rationale underlying its decision to enact the challenged ordinance.

Because the County has met its initial burden under Alameda Books, the burden shifts to Abilene Retail to "cast direct doubt" on the County's rationale underlying its ordinance. Alameda Books, 535 U.S. at 438. Abilene Retail can do so in one of two ways. See id. at 438-39. It can demonstrate that the County's evidence does not support its rationale that restricting the location and operation of adult businesses reduces the adverse secondary effects resulting from sexually oriented businesses. See id. Or Abilene Retail can furnish evidence that disputes the County's factual findings justifying its ordinance. See id. at 439. In this case, Abilene Retail has been able to do both.

A.	Whether Abilene Retail was able to demonstrate that the County's evidence does not support the rationale underlying the County's ordinance.

The County's rationale in enacting this challenged ordinance, based upon the case law and studies the County had before it, is that sexually oriented businesses can cause negative secondary effects on the surrounding community, and the restriction that the County's ordinance places on sexually oriented businesses is narrowly tailored to prevent those adverse effects. Abilene Retail challenges that rationale that the County has drawn from the County's pre-packaged evidence by presenting its own evidence indicating instead that sexually oriented businesses do not cause the adverse secondary effects the County fears. Specifically, Abilene Retail offers the opinion of its expert witness, Dr. Daniel Linz, Ph.D. Dr. Linz has conducted five studies of his own indicating that sexually oriented businesses do not produce the negative secondary effects that the County sought to prevent by enacting its ordinance.5 More importantly, perhaps, Abilene Retail also presented evidence that its store has in fact not produced any of the negative secondary effects that the County's ordinance was designed to eliminate.6 Cf. Peek-A-Boo Lounge, 337 F.3d at 1270 (concluding plaintiffs had successfully cast direct doubt on the County's rationale by presenting evidence of the County's actual experience with adult businesses, which contradicted the evidence on which the County had relied). This evidence is sufficient to cast direct doubt on the County's evidence on which the County based its rationale that regulating sexually oriented businesses will eliminate the adverse secondary effects those businesses cause.7

B.	Whether Abilene Retail was able to furnish evidence disputing the County's factual findings justifying its ordinance.8

In addition to the five studies on which Abilene Retail relies to show that sexually oriented businesses do not cause the negative secondary effects that the County fears, Abilene Retail also presented evidence calling into doubt the validity of the County's legislative factual findings indicating adult businesses do cause adverse secondary effects.9 Specifically, Abilene Retail presented the opinion of its expert, Dr. Linz, that the studies and reports on which the County relies are invalid or at least unreliable. In offering that opinion, Dr. Linz addresses each of the County's reports and studies individually and points to specific problems he sees with each study or report that call its results or conclusions into question. Furthermore, Dr. Linz has bolstered this opinion with an academic, peer-reviewed article that he wrote with others challenging the validity of the County's studies. This evidence, too, sufficiently casts direct doubt on whether the County could have reasonably believed its own evidence, underlying the County's legislative findings, was relevant to justify enacting the challenged ordinance. Cf. Peek-A-Boo Lounge, 337 F.3d at 1271 n.20 (relying in part on similar evidence to conclude that the plaintiffs had created a genuinely disputed issue of material fact sufficient to survive summary judgment).

C.	Conclusion

For the foregoing reasons, I would conclude that Abilene Retail's evidence is sufficient to cast direct doubt on the County's rationale underlying its decision to enact the challenged ordinance restricting the location and operation of sexually oriented businesses, in an effort to eliminate the adverse secondary effects that adult businesses cause. That is particularly true given that, in reviewing summary judgment decisions, we must "view the evidence and draw reasonable inferences therefrom in the light most favorable to the nonmoving party," Reeves v. Churchich, 484 F.3d 1244, 1250 (10th Cir. 2007) (quotation omitted), which in this case is Abilene Retail.

III.	Whether the County was able to supplement the record with evidence renewing support for a theory that justifies its ordinance.

At this point in the Alameda Books' analysis, the burden shifts back to the County "to supplement the record with evidence renewing support for a theory that justifies its ordinance." 535 U.S. at 439. The County has done so in this case, offering one of its expert witness's opinion that the studies and opinions of Abilene Retail's expert, Dr. Linz, are themselves invalid and unreliable. The County's expert, Dr. McCleary, further responds that the reports on which the County relies, including at least one study conducted by Dr. McCleary himself, are valid and reliable. While the County's evidence, then, does supplement the other evidence it relied upon to justify enacting the challenged ordinance, this supplemental evidence, rather than resolving the evidentiary dispute in this case, further exacerbates it.

This is best illustrated by the arguments the County asserts in challenging Abilene Retail's evidence. The County argues, for example, that Abilene Retail's expert, Dr. Linz, has conducted only "industry-funded studies," is not a credible witness, and has been found so by several courts in other cases. But, at the summary judgment stage of litigation, a court cannot decide that Dr. Linz (or Dr. McCleary, for that matter) is not a credible witness. See Norton v. City of Marietta, 432 F.3d 1145, 1154 (10th Cir. 2005) (per curiam). Such a credibility determination requires a trial and a fact finder charged with making such determinations. See Plotke v. White, 405 F.3d 1092, 1103 (10th Cir. 2005). The battle of the experts that the parties present to us requires a trial and a trier of fact to resolve. See Phillips v. Cohen, 400 F.3d 388, 399 (6th Cir. 2005); Goldman v. Standard Ins. Co., 341 F.3d 1023, 1036 (9th Cir. 2003); Michaels v. Avitech, Inc., 202 F.3d 746, 752 (5th Cir. 2000).

IV.	Conclusion

The Supreme Court has declared that whether a community's ordinance regulating sexually oriented businesses is narrowly tailored to serve a substantial government interest is an evidentiary question. Alameda Books, 535 U.S. at 437-42; City of Renton, 475 U.S. at 50-52; see Heideman, 348 F.3d at 1197 (noting that "[t]he standards for the quantity and nature of empirical evidence needed to uphold a city ordinance based on the negative secondary effects of sexually oriented speech in general . . . are continuing to evolve"); see also Illusions–Dallas, 482 F.3d at 312-15; Fantasy Ranch Inc. v. City of Arlington, 459 F.3d 546, 559 (5th Cir. 2006); R.V.S., 361 F.3d at 408. Applying that Supreme Court precedent to this case, I conclude the County has met its initial burden of producing some evidence linking its ordinance restricting the location and operation of sexually oriented businesses with the County's stated goal of preventing the secondary effects caused by such businesses. But I further conclude that Abilene Retail has been able to assert sufficient evidence of its own, contradicting and disputing the validity of the County's evidence and, thus, the County's rationale underlying its ordinance, to create a triable evidentiary dispute. And the supplemental evidence that the County offered is not sufficient to dispel this triable evidentiary dispute. I reach this conclusion even while recognizing that the issue to be presented at trial is not whether sexually oriented businesses do, in fact, cause the secondary effects that the County seeks to eliminate through its ordinance, but rather only whether the County's Board of Commissioners had evidence from which it could reasonably infer that sexually oriented businesses may cause adverse secondary effects in the surrounding community, and that its ordinance restricting adult businesses is narrowly tailored to eliminate those adverse effects.