Doctor John's, Inc. v. City of Roy , 465 F.3d 1150 ( 2006 )

F IL E D
United States Court of Appeals
Tenth Circuit
October 10, 2006
PU BL ISH
Elisabeth A. Shumaker
U N IT E D ST A T E S C O U R T O F A P PE A L S Clerk of Court
T E N T H C IR C U IT
DOCTOR JOHN’S, INC., a Utah
Corporation; and JOHN HALTOM ,
Plaintiffs - Appellants ,
v.
C ITY O F R OY ; G . B LA K E No. 04-4270
W AHLEN, in his official capacity as
City M anager; and TAM M Y
NELSO N, in her official capacity as
Development Services M anager,
Defendants - Appellees .
A ppeal from the U nited States D istrict C ourt
for the D istrict of U tah
(D .C . N o. 1:03-C V -00081-PC )
W . Andrew M cCullough, M cCullough & Associates, LLC, M idvale, UT (M ichael
W . Gross, Schw artz & Goldberg, PC, with him on the briefs), for Plaintiffs -
Appellants .
Robert C. Keller (Jody K. Burnett, with him on the brief), W illiams & Hunt, Salt
Lake C ity, UT, for Defendants - Appellees .
Before H E N R Y , E B E L, and T Y M K O V IC H , Circuit Judges.
E B E L, Circuit Judge.
Plaintiff-Appellant Dr. John’s, Inc. (“D r. John’s”) operates stores that sell,
among other things, a range of “adult” products. After Dr. John’s located a store
within its city limits, Defendant-Appellee Roy City (“Roy City” or “City”) passed
an ordinance subjecting “sexually oriented businesses” to certain regulations. Dr.
John’s challenged this ordinance on a variety of constitutional grounds; the
district court rejected them all. W e agree with the majority of the district court’s
rulings, and thus AFFIRM in substantial part. However, one of the issues before
the district court was whether the ordinance was properly supported as targeting
the untoward “secondary effects” adult businesses are thought to produce. It is
unclear from the record w hat evidence supporting and countering the C ity’s
rationale that the ordinance was indeed necessary to prevent these negative effects
w as presented to, and considered by, the district court. W e therefore REM AND
this case for consideration of that issue.
BACKGROUND
Dr. John’s stocks a variety of “adult” products, ranging from swimwear and
lingerie to “marital aids” to sexually-explicit books and videos. In February
2001, Dr. John’s applied for and received a general business license to operate a
store in R oy City. Plaintiff-Appellant John Haltom, a major shareholder in D r.
John’s parent company, is also involved in the operation of Dr. John’s R oy City
store.
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Soon after Dr. John’s came to Roy City, the City adopted an ordinance
requiring “sexually oriented businesses” (“SOBs”) and their employees to follow
certain regulations. The ordinance’s stated purpose is “to regulate sexually
oriented businesses in order to promote the health, safety, morals, and general
welfare of the citizens of the City, and to establish reasonable and uniform
regulations to prevent the deleterious secondary effects of sexually oriented
businesses within the City.” The ordinance also sets forth findings demonstrating
the need for the regulations, which are based on case law, Congressional
testimony, research papers, and various studies from other areas about the
secondary effects of SOBs.
The ordinance provides that SO Bs and their employees must obtain licenses
in order to operate in the C ity. The license application requires the applicant’s
name, address, proof of age, whether the applicant or the business has had a
previous SO B license suspended or revoked, and whether the applicant has been
convicted of or pled guilty to certain “specified criminal activities.” If the
application is for a business license (rather than an employee license), the
applicant must also provide the business name, location, and contact information;
the name of the agent authorized to receive service of process; and a sketch of the
layout of the premises.
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Upon the filing of a completed application, the City is to issue immediately
a temporary license to the applicant; a permanent license is thereafter issued
unless the applicant: is under 18; failed to provide information or provided false
information on the application form; failed to pay the application fee; was
convicted of a “specified criminal activity”; refused an inspection of an SOB’s
premises by the City within the preceding year; or had an SOB license revoked
within the preceding year. If the application is for a business license (as opposed
to an employee license), the application may also be denied if the premises do not
conform to the sketch of the layout of the premises submitted with the
application.
The ordinance subjects SOBs to various rules and regulations. Applicants
must pay an initial application fee and an annual renewal fee; the fees are set by
the City C ouncil and may not exceed $200 initially/$100 annually for an SOB
license or $100 initially/$50 annually for an SOB employee license. Additionally,
an SOB’s operating hours are limited to between 10:00 am and 11:00 pm, the
business must post and enforce a no-loitering policy, and there must be
appropriate lighting around the exterior of the premises.
Under the ordinance, SOBs are classified into eight categories. The City
contends that Dr. John’s falls into category 2— “adult bookstores, adult novelty
stores, adult video stores.” The ordinance defines a category 2 business as stores
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with a “significant or substantial portion” of their stock or floor space or revenue
devoted to or deriving from adult media (e.g., books, magazines, videos) or adult
“toys.”
In December 2002, the City presented Dr. John’s with a copy of the
ordinance and the application materials. Instead of completing the SOB
application, Dr. John’s sought renewal of its general business license and sent the
City a letter stating that it had review ed the ordinance and did not believe it fell
under the definition of an SOB. The letter also explained that a case pending in
the U tah Supreme C ourt— M idvale City v. Haltom— dealt with a similar SOB
ordinance as applied to another Dr. John’s store, and that Dr. John’s felt the
resolution of that case would “answer the questions” of whether it would need an
SOB license to do business in the City. The letter suggested that the City delay
any action against Dr. John’s pending the outcome of M idvale.
In M ay 2003, the U tah Supreme Court decided M idvale and ruled against
Dr. John’s. See M idvale City Corp. v. Haltom, 73 P.3d 334 (Utah 2003). Even
so, Dr. John’s again refused to complete the Roy City SO B application and
instead filed the present case pursuant to 42 U.S.C. § 1983, alleging that the
City’s ordinance was an unconstitutional restriction on speech. The City
counterclaimed, seeking a court order requiring Dr. John’s to comply with the
ordinance.
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Both sides then moved for summary judgment, with the City arguing that
Dr. John’s challenge should be dismissed and that it should be ordered to comply
with the ordinance, and Dr. John’s urging that the ordinance be declared
unconstitutional. The district court considered and rejected Dr. John’s arguments
as to the ordinance’s unconstitutionality, and therefore entered judgment in the
City’s favor on this issue. The court then turned to the City’s request for an order
requiring Dr. John’s to comply with the ordinance, which turned on whether Dr.
John’s met the ordinance’s definition of an SOB. Noting that this was an issue of
state law, the court declined to exercise jurisdiction over this issue and thus
denied the City’s motion for summary judgment on this point. 1
Dr. John’s then filed a motion to amend the district court’s judgment,
asking the court to construe the ordinance’s “significant or substantial” language
by specifying a percentage of inventory or floorspace or revenue that would
determine w hether or not a particular business w as an SOB. The district court
declined to do so, and this appeal followed.
D ISC U SSIO N
W e review the district court’s decisions on motions for summary judgment
de novo, applying the same legal standard used by the district court. Gregory v.
Fort Bridger Rendezvous Ass’n, 448 F.3d 1195, 1199 (10th Cir. 2006). Summary
1
The City does not appeal this decision.
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judgment is proper when the record shows “that there is no genuine issue as to
any material fact and that the moving party is entitled to a judgment as a matter of
law.” Fed. R. Civ. P. 56(c).
I. C onstitutional Standing
“Standing . . . raises jurisdictional questions and we are required to
consider the issue sua sponte to ensure that there is an Article III case or
controversy before us.” Rector v. City and County of Denver, 348 F.3d 935, 942
(10th Cir. 2003) (quotations omitted). The doctrine of standing limits who may
bring a matter before the federal courts for adjudication. The “irreducible
constitutional minimum of standing” requires plaintiffs to show (1) that they have
suffered an “injury in fact,” (2) that the injury is “fairly traceable to the
challenged action of the defendant,” and (3) that the injury is likely to be
redressed by a favorable decision. Lujan v. Defenders of W ildlife, 504 U.S. 555,
560-61 (1992) (quotations, alterations omitted). W here, as here, the proceedings
have reached the summary judgment stage, the plaintiff bears the burden of
setting forth (by affidavit or other evidence) specific facts that, if proved, would
establish these elements. Nova Health Sys. v. Gandy, 416 F.3d 1149, 1154 (10th
Cir. 2005).
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An injury in fact does not automatically occur by “[t]he mere presence on
the statute books of an unconstitutional statute . . . , even if [plaintiffs] allege an
inhibiting effect on constitutionally protected conduct prohibited by the statute.”
W insness v. Yocom, 433 F.3d 727, 732 (10th Cir. 2006). W here a law has yet to
be enforced against the plaintiff, the plaintiff is further required to show a
“credible threat” of enforcement. Id.; see also Pac. Frontier v. Pleasant Grove
City, 414 F.3d 1221, 1229 (10th Cir. 2005) (“[A] plaintiff establishes standing
when a credible threat of prosecution or other consequences following from the
statute’s enforcement is shown.”) (quotation omitted).
Dr. John’s concedes in its opening brief that, at the time this suit was filed, 2
the ordinance had not been enforced against it. However, the City has plainly
indicated that it intends to require Dr. John’s compliance; following the Utah
Supreme Court’s M idvale decision, the City wrote to D r. John’s that it must
complete the required SOB applications “or appropriate legal action will be
commenced.” D r. John’s faces the choice between the proverbial rock and a hard
place. If, on the one hand, Dr. John’s should accede to the City’s demand and
apply for an SOB license, the record contains evidence of the burdens that would
befall it. For example, Dr. John’s store manager stated that registration as an
2
“Standing is determined as of the time the action is brought.” Nova
Health Sys., 416 F.3d at 1154.
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SO B would lead to “a daily closing of the business during certain hours,” and
John Coil, a senior official with Dr. John’s, testified that the requirement that
every employee be licensed creates difficulty for the company. If, on the other
hand, Dr. John’s refuses to apply for a license, it faces fines of up to $2,500 per
day; the ordinance further authorizes the City “to institute criminal or civil
proceedings necessary for” its enforcement. Thus, Dr. John’s has met the injury-
in-fact requirement. Cf. Aid for W omen v. Foulston, 441 F.3d 1101, 1111 n.10
(10th Cir. 2006) (noting that plaintiff’s “‘if . . . then,’ approach to injury, (i.e., if
w e don’t follow the [A ttorney G eneral’s] interpretation [of a statute], then we
face prosecution, but if we do follow it, then we will harm our patients’ and
clients’ constitutional rights)” was sufficient to show injury-in-fact “if Plaintiffs
would be injured whether they follow the [Attorney General’s] interpretation or
not.”).
Given this injury-in-fact, causation and redressabilty are also established.
The injury is plainly caused by the City’s passage of the ordinance and credible
threat to enforce it. Further, the injury would be redressed by a declaration that
the ordinance is unconstitutional and an injunction against its enforcement. W e
therefore conclude that Dr. John’s has constitutional standing to challenge the
ordinance’s constitutionality.
II. M erits
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Dr. John’s attacks the ordinance’s constitutionality on several fronts,
claiming that: (1) it is unconstitutionally vague and thus void on its face; (2) it
gives the City “unbridled discretion” over who must obtain an SOB license and
thus operates as an unconstitutional prior restraint; (3) it is not a valid “time-
place-manner” restriction on speech because it is not narrowly tailored to regulate
only businesses that produce adverse “secondary effects”; (4) the provision
denying an SOB employee license to persons convicted of certain crimes operates
as a prior restraint on those individuals’ exercise of their First Amendment rights;
and (5) it infringes on customers’ rights to privacy in their purchase of “marital
aids.”
A . V agueness
As a basic matter of due process, a law is “void for vagueness” if it does
not clearly define its prohibitions. Grayned v. City of Rockford, 408 U.S. 104,
108 (1972). W here a law deals w ith areas of First A mendment import, there is
the additional concern that the uncertain terms will inhibit those First Amendment
freedoms, as “citizens [will] steer far wider of the unlawful zone than if the
boundaries of the forbidden areas were clearly marked.” Id. at 109 (quotations,
alterations omitted). Thus, in the First Amendment context, “[s]tricter standards
of permissible statutory vagueness may be applied.” H ynes v. M ayor and Council
of Borough of O radell, 425 U.S. 610, 620 (1976).
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The district court rejected Dr. John’s facial vagueness challenge, 3 finding
that D r. John’s lacked prudential and constitutional 4 standing to raise this claim.
W hile w e disagree as to this conclusion, we nonetheless affirm the district court
on the ground that the ordinance is not vague on its face.
1. Prudential Standing
The district court found, and the C ity argues on appeal, that Dr. John’s
lacked standing to bring a facial vagueness challenge. Here, it is clear the Roy
City ordinance might be unconstitutional as applied to Dr. John's, so that it has
standing on its own.
2. Facial vagueness
“Facial challenges are strong medicine,” and thus w e “must be vigilant in
applying a most exacting analysis to such claims.” W ard v. Utah, 398 F.3d 1239,
1246-47 (10th Cir. 2005). Though perhaps “efficient in the abstract,” facial
challenges risk “losing the lessons taught by the particular.” Sabri v. United
States, 541 U.S. 600, 609 (2004). It is for this reason that a party must show, at a
3
At oral argument, Dr. John’s claimed that it challenged the ordinance as
vague both facially (i.e., vague as to everyone) and as applied (i.e., vague as to
Dr. John’s). However, the district court’s order considered and addressed only a
facial vagueness challenge. On appeal, Dr. John’s does not argue that this was
erroneous. Based upon our review of the complaint below and Dr. John’s briefing
on appeal, we conclude that it is raising only a challenge of facial vagueness and,
accordingly, that is the issue we address.
4
W e have addressed, in the previous section of this opinion, the
constitutional standing issue. Here, we address only the prudential standing issue.
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minimum, that the challenged law would be vague in the vast majority of its
applications; that is, that “vagueness permeates the text of [the] law.” City of
Chicago v. M orales, 527 U.S. 41, 55 (1999). 5
The ordinance specifically defines an adult bookstore/novelty store/video
store as
a commercial establishment which has significant or substantial portion
of its stock-in trade or derives a significant or substantial portion of its
revenues or devotes a significant or substantial portion of its interior
business or advertising, or maintains a substantial section of its sales or
display space to [sic] the sale or rental, for any form of consideration,
of any one or more of the following:
1. Books, magazines, periodicals or other printed matter, or
photographs, films, motion pictures, video cassettes, compact discs,
slides, or other visual representations w hich are characterized by their
emphasis upon the exhibition or description of specified sexual
activities or specified anatomical areas;
5
The Supreme Court has been less than clear as to what a party must show
in order to succeed on a facial vagueness challenge. Compare United States v.
Salerno, 481 U.S. 739, 745 (1987) (“A facial challenge to a legislative Act is, of
course, the most difficult challenge to mount successfully, since the challenger
must establish that no set of circumstances exists under which the Act would be
valid.”) (emphasis added), with M orales, 527 U.S. at 55 n.22 (1999) (“To the
extent we have consistently articulated a clear standard for facial challenges, it is
not the . . . formulation [announced in Salerno], which has never been the
decisive factor in any decision of this Court, including Salerno itself ....
Since we . . .conclude that vagueness permeates the ordinance, a facial challenge
is appropriate.”) (emphasis added).
In any event, whether a party bringing a facial vagueness challenge must
show vagueness in all of a statute’s applications or merely vagueness in the vast
majority of its intended applications, we conclude that Dr. John’s facial challenge
fails.
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2. Instruments, devices, or paraphernalia which are designed
for use or marketed primarily for stimulation of human genital organs
or for sadomasochistic use or abuse of themselves or others.
Dr. John’s challenges two provisions of this definition: (1) the term “significant
or substantial portion” (the “quantity” test); and (2) the term “characterized by
their emphasis upon the exhibition or description of specified sexual activities or
specified anatomical areas” (the “quality” test).
a. “Significant or substantial”
A statute is unconstitutionally vague for one of two reasons: it either “fails
to provide people of ordinary intelligence a reasonable opportunity to understand
what conduct it prohibits”; or it “authorizes or even encourages arbitrary and
discriminatory enforcement.” Hill v. Colorado, 530 U.S. 703, 732 (2000). In the
context of Dr. John’s facial challenge— where these concerns would have to be
present in at least the vast majority of cases— we cannot conclude that the
quantity test language is impermissibly vague.
Although there may be instances w here an adult bookstore w ould be unsure
of whether its stock, floorspace, or revenue is made up of a “significant or
substantial portion” of adult material, there are myriad instances in which it
would not. If, for example, V ictoria’s Secret sold a few copies of an adult
magazine along with its regular stock of lingerie, it certainly would not wonder if
the ordinance applied to it. Or, if a store chose to carry nothing but adult videos
and toys, it would have no doubt that it was required to obtain an SOB license to
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do so. In short, in many situations, “people of ordinary intelligence” would
clearly understand whether or not the ordinance applied to them.
In the same way, in many cases the ordinance cannot be said to permit
arbitrary enforcement. The City has announced a standard— it will not require a
business to obtain an SOB license unless it stocks a “significant or substantial”
amount of adult material. Although this standard gives officials some discretion
over which businesses they deem to qualify as SO Bs, it does not vest the sort of
“virtually complete discretion” that has formed the basis for facial vagueness
attacks. Kolender v. Lawson, 461 U.S. 352, 358 (1983). There may be occasions
where arbitrary enforcement might occur, but the standard given to officials
satisfies this court that such a risk is not present to such a degree as to justify
facial invalidation.
Our conclusion that the quantity test survives a facial vagueness challenge
is bolstered by comparison to other laws challenged as unconstitutionally vague
on their face. For example, in M orales, 527 U.S. at 47, 56-57, the Supreme Court
found a statute prohibiting “loitering,” defined as “remain[ing] in any one place
with no apparent purpose,” to be unconstitutionally vague.
It is difficult to imagine how any citizen . . . standing in a public place
with a group of people would know if he or she had an “apparent
purpose.” If she were talking to another person, would she have an
apparent purpose? If she were frequently checking her watch and
looking expectantly down the street, would she have an apparent
purpose?
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Id. at 56-57 (emphasis added). Further, the law contained “no . . . guidelines” to
government law enforcement; “In any public place in the city of Chicago, persons
who stand or sit in the company of a gang member may be ordered to disperse
unless their purpose is apparent.” Id. at 60.
Similarly, in Coates v. City of Cincinnati, 402 U.S. 611 (1971), the C ourt
rejected a law making it a crime for a group of people to assemble on a sidewalk
and “conduct themselves in a manner annoying to persons passing by.” Id. at 611.
The Court found the law vague “because it subjects the exercise of the right of
assembly to an unascertainable standard”;
Conduct that annoys some people does not annoy others. Thus, the
ordinance is vague, not in the sense that it requires a person to conform
his conduct to an imprecise but comprehensible normative standard, but
rather in the sense that no standard of conduct is specified at all. As a
result, men of common intelligence must necessarily guess at its
meaning.
Id. at 614 (quotations omitted) (emphasis added).
In contrast, in G rayned v. City of Rockford, the Court upheld an antinoise
ordinance prohibiting diversions “which disturb[] or tend[] to disturb 6 the peace
or good order of [a] school session or class.” 408 U.S. at 108 (footnote added).
6
“Tends to disturb” had previously been limited by the Illinois Supreme
Court in another case to mean “imminent threat of violence,” thus the
Grayned Court assumed the state court would interpret the Rockford ordinance to
“prohibit only actual or imminent interference with the ‘peace or good order’ of
the school.” 408 U.S. at 111-12.
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Noting that “we can never expect mathematical certainty from our language,” and
acknowledging that the ordinance’s terms were “marked by flexibility and
reasonable breadth, rather than meticulous specificity,” the Court nonetheless
concluded that “it is clear w hat the ordinance as a whole prohibits.” Id. at 110.
The Roy City ordinance’s quantity test is closer to the Grayned ordinance, with
flexible and reasonably broad terms that still provide the necessary guidance, than
it is to those law s struck down in M orales and Coates— laws lacking any standard
of conduct whatsoever.
W e note that many other courts to have considered an adult business
ordinance’s “significant or substantial” language have similarly concluded that it
survives facial challenge. See ILQ Investments, Inc. v. City of Rochester, 25
F.3d 1413, 1418-19 (8th Cir. 1994) (“substantial or significant” is not “devoid of
meaningful legislative standards”); M om N Pops, Inc. v. City of Charlotte, 979 F.
Supp. 372, 392, 393 (W .D.N.C. 1997) (“substantial or significant” is “not devoid
of meaningful legislative standards and [is] reasonably specific and precise,
bearing in mind that unavoidable imprecision is not fatal and celestial precision is
not necessary.”) (quotations omitted); 15192 Thirteen M ile Road, Inc. v. City of
W arren, 626 F. Supp. 803, 820 (E.D. M ich. 1985) (“[T]he word ‘substantial’ as
used in the definition of Adult Book Store is not so indefinite as to render the
Ordinance void and unenforceable. That term has been construed as having an
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ascertainable meaning in numerous statutory schemes.”) (quotation omitted);
Cline v. City of Okla. City, 839 P.2d 657, 658, 659 (Okla. Crim. App. 1992)
(holding “significant portion of its stock in trade” definition not vague on its face,
but vague as applied to plaintiff). But cf. Ellwest Stereo Theater, Inc. v. Boner,
718 F. Supp. 1553, 1581 (M .D. Tenn. 1989) (finding “substantial or significant”
unconstitutionally vague because city officials in charge of enforcing the
ordinance could not define what the phrase meant; “Clearly, if the regulating
authority cannot determine the establishments which are subject to its authority,
the establishments themselves cannot be expected to determine whether they need
to be licensed or not.”); City of Knoxville v. Entm’t. Res., LLC, 166 S.W .3d 650,
656-57 (Tenn. 2005) (holding “substantial or significant” to be unconstitutionally
vague because “the determination of what constitutes a ‘substantial or significant
portion’ of a business’s ‘stock and trade’ under the ordinance is an entirely
subjective one”; also relying heavily on the fact that “the officers charged with
enforcing the ordinance [are unable] to define its key terms”).
In sum, we conclude that the ordinance’s definition of an adult bookstore as
one with a “significant or substantial” portion of its wares devoted to adult
material survives Dr. John’s facial vagueness challenge.
b. “C haracterized by their emphasis upon the exhibition or description of
specified sexual activities or specified anatom ical areas”
Dr. John’s contends that this phrase is impermissibly vague for its failure to
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explain how one should determine whether a picture puts an emphasis on a certain
portion of the body. 7 Specifically, Dr. John’s argues that “[e]mphasis being in the
mind of the beholder, Plaintiffs maintain that they cannot determine in advance
how City officials will determine where ‘the emphasis’ of certain representations
might be.” In the context of a facial challenge, we cannot agree.
The ordinance challenged in Young v. American M ini Theatres, Inc.
contained a similar “characterized by an emphasis on” provision. 427 U.S. 50, 61
(1976) (citations omitted). Although the Supreme Court discussed this provision
in the context of whether the plaintiff had standing to challenge the ordinance
when it plainly fell within its ambit, we find its reasoning persuasive on the
question of the provision’s facial vagueness:
the only vagueness in the ordinances relates to the amount of sexually
explicit activity that may be portrayed before the material can be said
to “characterized by an emphasis” on such matter. For most films the
question will be readily answerable . . . .
Id. (emphasis added). Like the Supreme Court, we find that in most of the
7
The ordinance defines “specified sexual activities” as
1. Sex acts, normal or perverted, including intercourse, oral
copulation, masturbation or sodomy; or
2. excretory functions as a part of or in connection with any of the
activities described in (1) above.
Further, the ordinance provides that “specified anatomical areas” “shall mean
human genitals, anus, cleft of the buttocks, or the female breast.”
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ordinance’s applications, a business will have clear notice as to what the material
in its store emphasizes. W e therefore join the other courts that have rejected
facial vagueness challenges to similar language in other SO B ordinances. See
ILQ, 25 F.3d at 1419; SD J, Inc. v. City of Houston, 837 F.2d 1268, 1278 & n.36
(5th Cir. 1988) (“A common sense reading of [the definition of an adult
‘enterprise,’ w hich contains the phrase ‘characterized by an emphasis on,’] show s
that [it is] adequately precise.”) (dicta); Hart Book Stores, Inc. v. Edmisten, 612
F.2d 821, 833 (4th Cir. 1979) (“distinguished or characterized by an emphasis on”
sexual explicitness is “reasonably specific and precise”), 15192 Thirteen M ile
Road, 626 F. Supp. at 820 (same). 8
B. Prior R estraint
Dr. John’s also contends that the ordinance is facially invalid as an
impermissible prior restraint on First Amendment activity. Historically, prior
restraint— that is, requiring approval before speech is allowed— was considered a
8
Dr. John’s also argues that our reference in Z.J. Gifts D -4, L.L.C. v. City
of Littleton, 311 F.3d 1220 (10th Cir. 2002), rev’d on other grounds, 541 U.S.
774 (2004), to whether a statute can be narrowly construed by state courts implies
that a statute is void for vagueness if it has not been so construed. However, the
discussion of narrow construction was in the context of prudential standing; as
noted above, where a law is unquestionably applicable to a party, that party can
only bring a facial challenge if the law (1) deters a substantial amount of
legitimate expression and (2) is not subject to a narrowing construction. Id. at
1229. W e do not find that discussion particularly relevant or helpful to our
consideration of the merits of this vagueness challenge.
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m ore significant restriction on speech than subsequent punishment. 4 Ronald D.
Rotunda and John E. Nowak, Treatise on Constitutional Law 315 (1999). As our
jurisprudence has developed, courts have permitted some forms of prior restraint,
such as licensing requirements for adult businesses,
so long as two classic evils of prior restraints are not present. First, the
licensing scheme may not vest unbridled discretion in the government
officials charged with the responsibility of granting or denying the
license. Second, the licensing scheme may not allow the decisionmaker
unlimited time to decide on matters affecting the license; otherwise,
there is the risk of indefinitely suppressing speech.
Essence, Inc. v. City of Fed. Heights, 285 F.3d 1272, 1289-90 (10th Cir. 2002)
(quotations and citations omitted).
Dr. John’s essentially argues that both evils are present; it claims that (1)
the ordinance’s “significant or substantial” standard gives City officials overly
broad discretion in determining whether a business is an SOB and thus risks
censoring speech; and (2) the ordinance effectively denies judicial review of the
City’s decision that a businesses is an SOB (risking the “indefinit[e]
suppressi[on]” of speech). 9
9
That Dr. John’s has not applied for an SOB license is no barrier to its
challenge:
Recognizing the explicit protection accorded speech and the press in
the text of the First Amendment, our cases have long held that when a
licensing statute allegedly vests unbridled discretion in a government
official over whether to permit or deny expressive activity, one who is
subject to the law may challenge it facially without the necessity of
(continued...)
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1. O verly broad discretion
Dr. John’s contends the ordinance is invalid because it gives city officials
unbridled discretion in determining whether a business must apply for an SOB
license (i.e., whether a “significant or substantial” portion of its business is
devoted to adult material). However, the discretion given to officials goes only to
what kind of license a business must operate under, not whether the business may
operate in the first place. W e conclude that such discretion does not justify facial
invalidation of the ordinance.
Dr. John’s points to several Supreme Court decisions in support of its
argument. However, the common thread running through these decisions— and
missing here— is that the discretion given to local officials had a direct effect on
whether speech would occur at all. In City of Lakewood v. Plain Dealer
Publishing Co., the Court declared unconstitutional an ordinance that required
newspapers to apply for permits before they could place a newsrack on city
property because the ordinance “g[ave] the mayor unfettered discretion to deny a
9
(...continued)
first applying for, and being denied, a license.
City of Lakewood v. Plain Dealer Publ’g. Co., 486 U.S. 750, 755-56 (1988). This
is because “in the area of free expression a licensing statute placing unbridled
discretion in the hands of a government official or agency constitutes a prior
restraint and may result in censorship. And these evils engender identifiable risks
to free expression that can be effectively alleviated only through a facial
challenge.” Id. at 757 (citations omitted).
- 21 -
permit application and unbounded authority to condition the permit on any
additional terms he deems ‘necessary and reasonable.’” 486 U.S. 750, 753, 770-
72 (1988). Similarly, in FW /PBS, Inc. v. City of Dallas, the Court found that an
adult-business licensing scheme was an unconstitutional prior restraint, as it
essentially allowed for “indefinite postponement of the issuance of a license.”
493 U.S. 215, 226-27 (1990) (plurality). 1 0 In other w ords, officials could stymie
the very opening of an adult business by sitting on the license application. Finally,
in Forsyth County v. Nationalist M ovement, the Court struck down a parade
permit ordinance, finding:
[t]he decision how much to charge for police protection or
administrative tim e— or even whether to charge at all— is left to the
whim of the administrator. There are no articulated standards either in
the ordinance or in the county’s established practice. The administrator
is not required to rely on any objective factors. He need not provide any
explanation for his decision, and that decision is unreviewable. Nothing
in the law or its application prevents the official from encouraging some
views and discouraging others through the arbitrary application of fees.
505 U.S. 123, 133 (1992). 1 1
The present scheme is relevantly different. Here, Roy City officials have
10
These pronouncements were made by a three-member plurality.
However, three other Justices concurred with the plurality’s conclusion. 493 U.S.
at 238.
11
The Forsyth County ordinance allowed for fees up to $1,000 per day, and
“the county administrator was empow ered to adjust the amount to be paid in order
to meet the expense incident to the administration of the Ordinance and to the
maintenance of public order in the matter licensed.” 505 U.S. at 126-27
(quotations omitted).
- 22 -
no discretion over whether to grant or deny an SOB license application— a
temporary license “shall immediately issue” upon the filing of an application, and
a permanent license “shall [be] issue[d]” within forty days of the filing of the
application unless some specifically enumerated criterion is not met. 1 2 The City
may seek to require Dr. John’s to operate under an SOB license rather than under
a general business license, but nothing in its licensing structure gives it the
12
Section 5 of the ordinance provides:
The City shall approve the issuance of a license unless one or more of
the following is found by a preponderance of the evidence to be true:
1. An applicant is less than eighteen (18) years of age.
2. An applicant has failed to provide information as required by
Section 4 [dealing with the information to be included in the license
application] for issuance of a license or has falsely answered a question
or request for information on the application form.
3. The license application fee required by this Chapter has not been
paid.
4. An application has been convicted of a specified criminal
activity, as defined in this ordinance, or has been shown to have
committed a violation of Section 7(A) [permitting inspections] or
Section 10(B) [license revocations] of this Ordinance within the
previous year.
5. In the case of a sexually oriented business license application, the
premises is not in compliance with the interior configuration
requirements of this Chapter.
An SO B employee license is reviewed under the same criteria, except for whether
the business complies with the interior configuration requirements.
- 23 -
authority to prevent Dr. John’s from doing business at all. So long as D r. John’s
is w illing to operate under an SOB license and to comply with its terms, the City
has no authority to restrain its business operations or its speech.
Arguably, if the terms of the SOB license were so onerous that they
effectively would preclude Dr. John’s from operating at all, we might have a
different situation. But that is not the case. The district court found that
[t]he only apparent additional burdens imposed on Doctor John’s are a
somewhat extended application process (during which it is free to
remain in business), a minor lim itation on hours of operation, the
requirement to place some extra lighting on the exterior of the business,
and the requirement to enforce a no loitering provision.
Doctor John’s, Inc. v. City of Roy, 333 F. Supp. 2d 1168, 1178-79 (D. Utah
2004). W e also recognize that the ordinance precludes SO B’s from employing
anyone convicted of certain sex-related crimes and imposes certain fees. 1 3
However, these burdens are not so great as to grant the City “substantial power to
discriminate” or “suppress[] disfavored speech” by deeming a business to fall in
the category of an SOB. Even if those conditions are disadvantageous, they do
not constitute a prior restraint on speech because they are not so onerous as to
prevent Dr. John’s from operating under an SOB license while it litigates whether
13
The ordinance provides that application fees shall not exceed $200 for an
SO B license and $100 for an SOB employee license and that annual renewal fees
shall not exceed $100 for an SOB license and $50 for an SOB employee license.
The record does not indicate precisely what the current fees are or whether there
are comparable fees required for a general business license.
- 24 -
it should, instead, receive a general business license.
2. Judicial review
Dr. John’s also contends that it is “effectively denied judicial review” of
the City’s decision that it qualifies as an SOB because it cannot obtain review of
the City’s decision unless it applies for such a license, which it does not wish to
do. This argument misapprehends the law regarding judicial review and prior
restraint. Prompt judicial review is relevant to the question of prior restraint
because a licensing scheme with no limit on the time to decide matters affecting
the license “‘risk[s] . . . indefinitely suppressing speech.’” Essence, Inc., 285
F.3d at 1290 (quoting FW /PBS, 493 U.S. at 226). In other w ords, the concern
evidenced by prior restraint cases is that a party will have to refrain from
speaking while it waits for a decision from the licensing authority. Here, as
pointed out above, D r. John’s can, if it wishes, immediately operate under an SO B
license while it litigates whether it qualifies for a general business license. 1 4 W e
see no basis here to sustain an attack on this licensing scheme based upon the
judicial review procedures available to D r. John’s. See City of Littleton v. Z.J.
Gifts, L.L.C., 541 U.S. 774, 777, 784 (2004) (upholding a similar licensing
provision against a prior restraint/ judicial review challenge).
14
The City’s attorney stated at Oral Argument that Dr. John’s could apply
for a general business license (w hich the City would deny) and then Dr. John’s
could appeal this denial.
- 25 -
C . T im e/Place/M anner
In City of Renton v. Playtime Theatres, Inc., 475 U.S. 41 (1986), the
Supreme Court established that ordinances targeting the so-called “secondary
effects” of adult businesses are analyzed as regulations aimed at the time, place,
and manner of speech. Id. at 46. Such a regulation will be upheld if it is content
neutral, “narrowly tailored to serve a significant governmental interest,” and if it
“leaves open ample alternative channels of communication.” Z.J. Gifts D-2,
L.L.C. v. City of A urora, 136 F.3d 683, 688 (10th Cir. 1998). Roy City’s
ordinance was enacted to protect against negative secondary effects and thus
meets the “content-neutral” prong. See, e.g., id. at 686-87. 1 5 Further, Dr. John’s
does not argue that the ordinance fails to leave open alternative means of
communication; thus, the only question on appeal is whether the ordinance is
15
At the outset of its “Time/Place/M anner” argument on appeal, Dr. John’s
appears to concede that the ordinance is properly analyzed as a content-neutral
law. However, it later cites A xson-Flynn v. Johnson, 356 F.3d 1277 (10th Cir.
2004), a case involving religious discrimination, and argues that “the City’s
decisions here were made in an effort to impose unlaw ful censorship.” Further, in
its reply brief, Dr. John’s argues that, because the ordinance arguably includes D r.
John’s in its ambit, and because Dr. John’s “sells only a minority of adult
materials, and caters heavily to women,” the ordinance is in fact content-based
and thus should be subject to strict scrutiny. As noted above, these arguments are
foreclosed by a long line of precedent finding SOB ordinances to be content-
neutral regulations. See, e.g., Z.J. Gifts D -2, 136 F.3d at 687 (“‘W ith respect to
businesses that purvey sexually explicit materials, zoning ordinances designed to
combat the undesirable secondary effects of such businesses are . . .
“content-neutral.”’”) (quoting City of Renton, 475 U.S. at 49) (emphasis in
original) (alterations omitted).
- 26 -
narrowly tailored to serve a significant government interest.
It is well established that combating the secondary effects of adult
businesses is a “significant governmental interest.” See, e.g., City of Renton, 475
U.S. at 50; Z.J. Gifts D-2, 136 F.3d at 688. Dr. John’s does not challenge that
principle, but rather contends it is simply not the kind of adult business that can
be thought to produce negative secondary effects. Specifically, Dr. John’s argues
that the studies cited in support of the Roy City ordinance do not consider
businesses (like Dr. John’s) that sell materials only for off-site consumption,
carry only a “small amount of adult videos” along with “a substantial inventory of
general merchandise,” and have a clientele that is 40% women.
In order to show that a challenged ordinance promotes a significant
government interest, “the government bears the burden of providing evidence of
secondary effects, where it relies on those secondary effects as the justification
for restricting speech.” Heideman v. S. Salt Lake City, 348 F.3d 1182, 1197 n.8
(10th Cir. 2003) (citing City of Los Angeles v. Alameda Books, Inc., 535 U.S.
425, 437 (2002) (plurality)). In H eideman, we canvassed the Supreme Court’s
secondary effects decisions and outlined the basic principles for determining
whether this burden has been met. First, we noted that, in City of Renton, the
Supreme Court rejected any argument that cities must “‘conduct new studies or
produce evidence independent of that already generated by other cities,’” and
- 27 -
affirmed that the city may rely on evidence “‘reasonably believed to be relevant to
the problem the city addresses.’” 348 F.3d at 1197 (quoting City of Renton, 475
U.S. at 51-52). Then, after discussing several other decisions, we undertook a
thorough analysis of the Court’s recent decision in Alameda Books, which sought
to “clarify the standard for determining whether an ordinance serves a substantial
government interest under City of Renton.” W e explained:
The [four-member] plurality distinguished between two parts of the
Renton intermediate scrutiny framework: whether an ordinance is
content-neutral and whether it serves a substantial governmental interest
while leaving open alternative avenues of communication. Only with
regard to the latter would the courts “examine evidence concerning
regulated speech and secondary effects.”
Even as to that connection, the plurality reiterated that the C ourt had
“refused to set such a high bar for municipalities that want to address
merely the secondary effects of protected speech.” It stated that cities
are entitled to rely, in part, on “appeal to comm on sense,” rather than
“empirical data,” at least where there is no “actual and convincing
evidence from plaintiffs to the contrary.” In so holding, the Alameda
plurality provided the following observation regarding the deference
properly accorded to legislative findings under the second prong of the
[United States v.] O’Brien[, 391 U.S. 367 (1968)] test:
This is not to say that the municipality can get aw ay w ith
shoddy data or reasoning. The municipality’s evidence
must fairly support the municipality’s rationale for its
ordinance. If plaintiffs fail to cast direct doubt on this
rationale, either by demonstrating that the municipality’s
evidence does not support its rationale or by furnishing
evidence that disputes the municipality’s factual findings,
the municipality meets the standard set forth in Renton. If
plaintiffs succeed in casting doubt on a municipality's
rationale in either manner, the burden shifts back to the
municipality to supplement the record with evidence
- 28 -
renewing support for a theory that justifies its ordinance.
Id. at 1199 (quoting Alameda Books, 535 U.S. at 438-41) (citations omitted)
(emphases added). 1 6
Here, the studies cited by Roy City certainly fit Heideman’s description of
“pre-packaged”— as the City acknowledges, many of the studies are the same as
those relied upon by the city of Aurora in Z.J. Gifts D-2. 1 7 Dr. John’s argues that
“common sense shows” that these studies are not relevant to an adult business like
Dr. John’s. How ever, simply stating that it is a “different kind” of adult business
is not, by itself, sufficient to “cast direct doubt” on the rationale underlying the
City’s ordinance. Heideman, 348 F.3d at 1199 (“[C]ities are entitled to rely, in
part, on ‘appeal to common sense,’ . . . at least where there is no actual and
convincing evidence from plaintiffs to the contrary.”) (emphasis added); cf. Z.J.
Gifts D -2, 136 F.3d at 690 (“[E]ven if [the appellant] is a new type of adult
business, it may not avoid time, place and manner regulation that has been
16
Justice Kennedy concurred, but “did not criticize the plurality’s
approach.” Heideman, 348 F.3d at 1199.
17
The Roy City Ordinance cited studies from Phoenix, AZ (1984);
M inneapolis, M N (1980); H ouston, TX (1997); Utahpolis, UT; Amarillo, TX;
Garden Grove, CA (1991); Los Angeles, CA (1977); W hittier, CA (1978); Austin,
TX (1986); Seattle, W A (1989); Oklahoma City, OK (1986); Cleveland, OH and
Dallas, TX (1997); St. Croix Co., W I (1993); Bellvue, W A (1998); New port
News, VA (1996); and Phoenix, AZ (1995-98). In Z.J. Gifts D-2, the town cited
studies from Garden G rove, CA; Austin, TX; Oklahoma City, OK; Indianapolis,
IN ; M inneapolis, M N; W hittier, CA; and Amarillo, TX. 136 F.3d at 687 n.1.
- 29 -
justified by studies of the secondary effects of reasonably similar businesses.”)
(emphasis added). Thus, without more, the City’s reliance on the “package” of
studies comm only invoked to justify SO B ordinances is quite permissible to meet
the City’s slight initial burden, even if the studies do not address SOB’s precisely
like Dr. John’s. Alameda Books, 535 U.S. at 438 (“[A] municipality may rely on
any evidence that is “reasonably believed to be relevant”); id. at 451 (K ennedy, J.,
concurring) (noting that “very little evidence is required” to satisfy city’s
threshold burden); see also City of Renton, 475 U.S. at 51-52. 1 8
Dr. John’s makes two arguments beyond its basic contention that it is a
different kind of SOB. First, it claims that the ordinance is not narrowly tailored
to serve a significant government interest because it fails to make a distinction
between businesses which have entertainment on the premises (“on-site”
businesses) and those which require customers to leave the premises to view or
use their purchases (“off-site” businesses). Next, it argues that it has put forward
evidence sufficient to call the City’s rationale into question and thus invoke the
18
Dr. John’s makes much of the fact that the Roy City ordinance purports to
rely on a study of “Utahpolis,” arguing that the “inclusion of a report from a non-
existent city raises serious questions as to the reasonable reliance by the city on”
the studies cites in the ordinance’s preamble. The City responds that this
reference was a typographical error, and that it intended to reference a study of
Indianapolis, Indiana. In any event, we have recognized that cities do and may
rely on “seemingly pre-packaged studies” to support adult business ordinances,
Heideman, 348 F.3d at 1197; the existence of an error in the listing of these pre-
packaged studies does not carry much weight.
- 30 -
Alameda Books burden-shifting scheme. W e consider these arguments in turn. 1 9
1. O n-site versus off-site businesses
Dr. John’s primarily relies on the Fifth Circuit’s decision in Encore Videos,
Inc. v. City of San Antonio, 330 F.3d 288 (5th Cir. 2003). In that case, the court
held that an ordinance which regulated both on-site and off-site adult businesses
was not narrowly tailored because the City failed, as a threshold matter, to
provide evidence that off-site businesses caused negative secondary effects. Id. at
294-95. 2 0
19
Dr. John’s also argues that the ordinance is not narrowly tailored because
its definition of an SOB is too broad, citing Executive Arts Studio, Inc. v. City of
Grand Rapids, 391 F.3d 783 (6th Cir. 2004) and Dr. John’s, Inc. v. City of Sioux
City, 305 F. Supp. 2d 1022 (N.D. Iowa 2004). However, both of those cases
involved SOB ordinances with substantially broader definitions of an SOB. In
Executive Arts Studio, an SOB was any business with a “segment or section” of
its store devoted to adult material, which the court noted “encompasses multiple
establishments which would never be defined as adult bookstores in everyday
English, such as a W alden's or Borders [bookstore].” 391 F.3d at 796. And in
Sioux City, the ordinance was written so that “a business selling any item of
‘adult media’ and any item of ‘lingerie’ would qualify as a ‘sex shop’ . . . .” 305
F. Supp. 2d at 1036. These ordinances are far different from Roy City’s, which
only applies to stores with a “significant or substantial” portion of adult material.
W e cannot conclude that the Roy City ordinance is so broad.
20
The Fifth Circuit reasoned that
[o]ff-site businesses differ from on-site ones, because it is only
reasonable to assume that the former are less likely to create harmful
secondary effects. If consumers of pornography cannot view the
materials at the sexually oriented establishment, they are less likely to
linger in the area and engage in public alcohol consumption and other
undesirable activities.
(continued...)
- 31 -
However, as the district court noted, and as Encore Videos specifically
acknowledges, see id. at 295, this circuit’s decision in Z.J. Gifts D-2 rejected the
on-site/off-site distinction as a basis for striking down an adult business
ordinance as an unconstitutional time/place/manner restriction. In determining
whether the Z.J. Gifts D-2 ordinance was narrowly tailored towards a significant
interest, 2 1 we began by finding that the government’s interest in preventing
secondary effects was not affected by the fact that the businesses it regulated
included off-site adult businesses. 136 F.3d at 688. W e then considered the
plaintiffs’ argument that the provision was not narrowly tailored. W e recognized
that, although “time, place or manner regulations on protected speech must be
narrowly tailored,” they “‘need not be the least restrictive or least intrusive means
of doing so.’” Id. at 689 (quoting W ard v. Rock Against Racism, 491 U.S. 781,
798 (1989)). This principle
recognizes the judiciary’s limited role in reviewing content-neutral
limitations on speech. “It is not [the court’s] function to appraise the
20
(...continued)
Id. at 295.
21
W e first rejected the argument that reliance on studies of “slightly
dissimilar businesses” (e.g., studies that may have focused only on on-site
businesses when the ordinance also regulated off-site businesses) made any
difference to the question of whether the ordinance was “content neutral.” 136
F.3d at 687 (“[D]ifferences in the mode of delivery of sexually oriented materials
are constitutionally insignificant for purposes of determining an ordinance’s
content-neutrality.”).
- 32 -
wisdom of [the city’s] decision[.]” Renton, 475 U.S. at 52. . . .
Instead, because legislative bodies are entitled to “reasonable
inferences” suggested by the legislative record before them, . . . the
court simply determines w hether the ordinance, as promulgated, “affects
only categories of businesses reasonably believed to produce at least
some of the unwanted secondary effects” the city seeks to regulate.
ILQ Investments[, Inc. v. City of Rochester], 25 F.3d [1413,] 1418 [(8th
Cir. 1994)]. If so, the court’s review is complete, and it may not
substitute its own judgment for that of the legislature, usurping the
legislative body’s policy-making function.
Id. Given that the city’s ordinance “d[id] not attempt to regulate businesses
which have a minimal or nonexistent connection to sexually oriented
entertainment,” and that the city did not “seek to justify its actions with a
completely barren legislative record,” w e found the ordinance sufficiently
narrowly tailored to the city’s concern over secondary effects. Id. at 689-90. W e
concluded by noting that “even if [the adult business in question] is ‘a new type
of adult business, [i.e., one that provides only off-site adult material], it may not
avoid [a] time, place and manner regulation that has been justified by studies of
the secondary effects of reasonably similar businesses.’” Id. (quoting ILQ
Investments, 25 F.3d at 1418). Thus, under Z.J. Gifts D-2, the mere fact that the
ordinance reaches off-site as w ell as on-site businesses is insufficient for us to
declare the ordinance unconstitutional.
Dr. John’s argues that, even if Z.J. Gifts D -2 was correct when decided, it
“needs to be re-examined in light of” Alameda Books. To the extent that this is
an argument that Alameda Books alters the initial burden that the City must meet
- 33 -
to justify the ordinance— i.e., that the City must, as a threshold matter, present
specific evidence of secondary effects caused by off-site businesses— we
disagree. Alameda Books reiterated that a city does not face a “high bar” in
meeting its initial obligation to show an ordinance is narrow ly tailored tow ards a
significant interest; it need only show that its evidence “fairly support[s]” its
rationale. 535 U.S. at 438; see also id. at 451 (Kennedy, J., concurring) (noting
that “very little evidence is required” to justify a secondary effects ordinance).
Thus, even after Alameda Books, our disagreement with the Fifth Circuit’s theory
that evidence of a specific connection between off-site businesses and secondary
effects is necessary at the outset still stands.
However, we agree with Dr. John’s to the extent it is arguing that a
distinction between on-site and off-site businesses might be relevant in the
Alameda Books burden-shifting framew ork. Indeed, this conclusion is not
inconsistent with our holding in Z.J. Gifts D-2. In that case, we specifically noted
that the inquiry into whether the studies used to support a city’s ordinance
addressed dissimilar businesses “may well be relevant in determining whether the
ordinance is ‘narrowly tailored to regulate only those adult uses shown to have
caused adverse secondary effects’ under Renton.” 136 F.3d at 687 (quoting ILQ
Investments, 25 F.3d at 1417). Further, though we specifically characterized the
on-site/off-site distinction as “constitutionally insignificant” to the question of
- 34 -
content neutrality and “constitutionally irrelevant” to the question of the
government’s interest, we notably did not make any such sweeping statement
about the relevance of the distinction to the question of narrow tailoring. Reading
Z.J. Gifts D -2 together with Alameda Books, we conclude that, although a city
need not initially come forward with specific evidence of a connection between
negative secondary effects and each precise type of business regulated under its
ordinance, a plaintiff may be able to challenge a city’s rationale for its ordinance
by pointing to evidence that its type of adult business (e.g., “off-site”) is
relevantly different than those types of businesses analyzed in the studies
supporting the ordinance (e.g., “on-site”).
Here, however, Dr. John’s points to no evidence showing that off-site SOBs
have materially different secondary effects that would call into question the
studies relied upon by Roy City. Simply stating that off-site businesses are
different from on-site businesses is not sufficient to shift the burden back to the
city. W e owe “deference to the evidence presented by the city” due to the fact
that cities are “in a better position than the Judiciary to gather and evaluate data
on local problems.” Alameda Books, 535 U.S. at 440; see also id. at 451
(Kennedy, J., concurring) (“As a general matter, courts should not be in the
business of second-guessing fact-bound empirical assessments of city planners.”).
- 35 -
Thus, Dr. John’s argument concerning on-site and off-site businesses fails to “cast
direct doubt” on the City’s rationale.
2. D r. John’s evidence
Dr. John’s points to evidence that it claims “puts into question” the City’s
studies and, thus, the C ity’s rationale for regulating adult businesses like D r.
John’s. Specifically, Dr. John’s points to two articles: The first article criticizes
the methodology used in the most frequently cited secondary effects studies.
Bryant Paul, Daniel Linz, and Bradley J. Shafer, Government Regulation of
“Adult” Businesses Through Zoning and Anti-Nudity Ordinances: Debunking the
Legal M yth of Negative Secondary Effects, 6 Comm. L. & Pol’y 355, 367 (2001).
The second article focuses on cities’ zoning of “unpopular” churches and
contends that cities are using zoning to restrict a religious message under the
guise of “secondary effects”— a tactic Dr. John’s contends is also used in the
adult entertainment context. Von G. Keetch & M atthew K. Richards, The Need
for Legislation to Enshrine Free Exercise in the Land Use Context, 32 U.C. Davis
L. Rev. 725 (1999).
These articles w ere submitted as part of Dr. John’s reply to the City’s
response to Dr. John’s motion for sum mary judgment. Our review of the record
leaves us in doubt as to whether the district court actually considered the articles.
The court made no reference to them in its order disposing of the parties’ motions
- 36 -
for summary judgment; 2 2 it did not affirmatively indicate w hether it refused to
consider them (perhaps as untimely) or, rather, that it had considered them and
had simply concluded they were insufficient to meet Dr. John’s burden to “cast
direct doubt” on the City’s studies. 2 3
Further, our review of the Paul, Linz, and Shafer article suggests that it
might cast doubt on the City’s evidence and rationale. 2 4 W e cannot conclusively
determine w hether it does, however, as we do not have the City’s studies before
us. In addition, it is not clear from the record w hether all the C ity’s studies were
22
The district court did state that Dr. John’s had not made “any serious
showing that the studies relied upon by the City were not appropriate.” This
reference to a “showing” does not make clear w hether the court was referring to
Dr. John’s arguments about the City’s studies or to the evidence it submitted to
attempt to contradict those studies.
23
W e express no opinion as to whether, if the district court did in fact
refuse to consider the evidence, such a decision was proper.
24
That article, which purports to have reviewed 107 “secondary effects”
reports cited in support of SOB ordinances, contends that “the methods most
frequently used in these studies [purporting to detect secondary effects from adult
businesses] are seriously and often fatally flawed.” Paul, Linz, Shafer, supra, at
367-68. Further, the article asserts that those studies that are scientifically
credible show no link between adult businesses and secondary effects. Id. at 367.
At least one court has cited this article as casting doubt on the “pre-packaged
studies” relied on by cities in support of adult business ordinances. Giovani
Carandola, Ltd. v. Fox, 396 F. Supp. 2d 630, 651 (M .D.N.C. 2005) (noting that
the article, along with Linz’s expert testimony, “cast direct doubt” on the
government’s studies).
- 37 -
even before the district court. 2 5 Given that the record is unclear as to precisely
what evidence was considered by the district court, and given that a review of the
parties’ evidence supporting and countering a city’s rationale is essential to
determining whether an ordinance is narrowly tailored to the City’s substantial
interest in preventing secondary effects, see Alameda Books, 535 U.S. at 438-
39, we conclude that the proper course is to remand this case to allow the district
court to conduct a thorough analysis of the evidence under the Alameda Books
burden-shifting scheme. See Nelson v. Tiffany Indus., Inc., 778 F.2d 533, 538
(9th Cir. 1985) (reversing summary judgment and remanding where it was not
clear w hether the district court considered evidence on a “critical factual issue” in
granting summary judgment). See generally 28 U.S.C. § 2106 (“[A]ny . . . court
of appellate jurisdiction may . . . vacate, set aside or reverse any judgment,
decree, or order of a court lawfully brought before it for review, and may remand
the cause and . . . require such further proceedings to be had as may be just under
the circumstances.”).
D . C ivil D isability Provision
As noted, the Roy City ordinance provides that the City “shall” grant an
SO B or SO B employee license application unless, inter alia, the applicant has
25
In its order disposing of the cross-motions for summary judgment, the
district court says only that it had reviewed “the report of many of the studies
relied upon by the City.”
- 38 -
been convicted of a “specified criminal activity” within a specific time period
(within the last two years for a misdemeanor; within the last five years for a
felony or for two misdemeanors in a twenty-four-month period) (the “civil
disability” provision). 2 6 Haltom, who has previous convictions for crimes which
disqualify him under the ordinance, 2 7 challenges this provision as an
26
The ordinance defines “specified criminal activity” as any of the
following:
prostitution or promotion of prostitution; dissemination of obscenity or
illegal pornography; sale, distribution, or display of harmful material to
a minor; sexual performance by a child; possession or distribution of
child pornography; lewdness; sexual battery; rape; indecent exposure;
indecency with a child; engaging in organized criminal activity relating
to a sexually oriented business; sexual assault; molestation of a child;
or distribution of a controlled substance; criminal attempt, conspiracy
or solicitation to commit any of the foregoing offenses or offenses
involving the same elements from any jurisdiction regardless of the
exact title of the offense.
The offenses are only considered “specified criminal activity” if (1) less than tw o
years have elapsed since conviction or release from confinement if the offense
was a misdemeanor; (2) less than five years have elapsed since conviction or
release from confinement if the offense w as a felony; or (3) less than five years
have elapsed since the last conviction or release from confinement if the person
was convicted of two or more misdemeanors w ithin any twenty-four-month
period.
27
Haltom has been convicted in Nebraska of distribution of obscene
materials, see State v. Haltom, 653 N.W .2d 232, 235 (Neb. 2002), a conviction
that Dr. John’s concedes qualifies as a “specified criminal activity.” Haltom was
also recently convicted in Utah of dealing in material harmful to minors; at the
time this appeal was briefed, an appeal of that conviction was pending.
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unconstitutional restriction of his First Amendment rights. 2 8
As a threshold matter, we must determine what level of scrutiny to apply to
this civil disability provision. Dr. John’s urges us to apply a “strict scrutiny”
analysis, as the provision “operates as an outright ban on future protected
expression of both individuals and businesses.” Although some older cases
involving similar disability provisions utilized such heightened scrutiny, see, e.g.,
Bayside Enters., Inc. v. Carson, 470 F. Supp. 1140, 1144-45 (M .D. Fla. 1979);
Natco Theatres, Inc. v. Ratner, 463 F. Supp. 1124, 1129 (S.D.N.Y. 1979), most
modern cases rely on the niche body of law that has developed around regulation
of adult businesses and analyze the disability provisions under the
time/place/manner standard of cases like City of Renton. See, e.g., Deja Vu of
Nashville, Inc. v. M etro. Gov’t of Nashville and Davidson County, 274 F.3d 377,
391-92 (6th Cir. 2001); Schultz v. City of Cumberland, 228 F.3d 831, 851-52 (7th
Cir. 2000); Brownell v. City of Rochester, 190 F. Supp. 2d 472, 493-94
(W .D.N.Y. 2001); Tee & Bee, Inc. v. City of W est Allis, 936 F. Supp. 1479,
28
The district court characterized this issue as a challenge to the civil
disability provision insofar as it precludes Haltom from obtaining an SOB
employee license. W e note that the ordinance also appears to preclude a business
with an “officer, director, general partner, or other person who will participate
directly in decisions relating to management and control of the business” from
obtaining an SOB license where one of the aforementioned persons has a
disqualifying conviction. However, neither Dr. John’s nor Haltom challenges the
district court’s characterization of the claim. W e therefore only consider the
effect of the civil disability provisions on Haltom personally.
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1485-86, 1489 (E.D. W is. 1996). W e agree with the reasoning of these cases.
The civil disability provision, enacted to combat the secondary effects associated
with adult businesses, is a content-neutral regulation of the manner of expression
and will be upheld, per City of Renton, if it is narrowly tailored toward a
significant government interest. 2 9
Dr. John’s argues that the provision does not serve a significant interest
because “[t]he City has not demonstrated any connection in the legislative record
between the specified criminal acts and adverse secondary effects.” However, the
ordinance made several findings supporting such a connection. 3 0 These findings
29
Dr. John’s does not argue that the civil disability provision fails to leave
open alternative channels of communication.
30
Specifically, the City found as follows:
(2) Certain employees of unregulated sexually oriented businesses
. . . engage in higher incidence of certain types of illicit sexual behavior
than employees of other establishments.
....
(23) The fact that an applicant for an adult use permit has been
convicted of a sexually related crime leads to the rational assumption
that the applicant may engage in that conduct in contravention of this
ordinance.
(24) The barring of such individuals from employment in sexually
oriented businesses for a specified period of years serves to prevent
distribution of illegal material, to prevent conduct which leads to the
transmission of sexually transmitted diseases, and to preclude the
establishment of criminal enterprises within the City.
(continued...)
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essentially conclude that a person convicted of a sex crime— one of the secondary
effects the ordinance seeks to combat— is likely to engage in that behavior again
in the future, and that preventing that person from working at an adult business
for a specified period of time will help to reduce the chance that such crimes w ill
occur at the business. These conclusions— that recidivism occurs, and that one
way to reduce sex-crimes at adult businesses is to prevent sex criminals from
working there— are certainly reasonable conclusions for a legislative body to
make. See, e.g., Deja Vu, 274 F.3d at 392 (“The Ordinance’s civil disabilities
provisions serve to weed out those applicants most likely to engage in the type of
criminal behavior that the Ordinance seeks to redress . . . .”). Dr. John’s points to
no evidence to challenge the City’s rationale; thus, we conclude that the City’s
legislative findings are sufficient to show the civil disability provision serves its
interest in combating secondary effects. See Heideman, 348 F.3d at 1199
(“[C]ities are entitled to rely, in part, on ‘appeal to common sense,’ rather than
‘empirical data,’ at least where there is no ‘actual and convincing evidence from
plaintiffs to the contrary.’”).
Dr. John’s also argues that the ordinance is not narrowly tailored towards
preventing these secondary effects. Critical to the question of narrow tailoring is
whether the types of disabling crimes are related to the secondary effects sought
30
(...continued)
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to be prevented (i.e., the prevention of sex-crimes) and whether the duration of
the disability is temporary. See, e.g., Deja V u, 274 F.3d at 392 (declaring civil
disability provision constitutional “[i]n light of the temporary nature of the ban
and the narrow reach of the provisions (applying only to those who have
comm itted a felony sex crime within the last five years or a misdemeanor sex
crime within the last two years”); Brownell, 190 F. Supp. 2d at 494-96 (generally
upholding a civil disability provision but striking out the “non-sex crimes” as the
city had not shown those crimes bore “any reasonable relation to furthering the
governmental interest”); Tee & Bee, 936 F. Supp. at 1490 (“As construed, the
provision denies a license based only on convictions for sex-related crimes.
Furthermore, after five years has elapsed, an individual with a prior criminal
conviction may once again be eligible. These built-in limitations on the scope of
the provision ensure that licenses are denied only when the applicant has recently
participated in the type of criminal activity associated with adult-oriented
establishments, precisely the sort of activity which the ordinance seeks to
impede.”). The Roy City civil disability provision satisfies these requirements— it
disqualifies an applicant only for convictions of sex-related crimes, and places
temporary limits on the disqualification (two to five years) similar to those limits
approved in other cases. The provision is thus sufficiently narrowly tailored
- 43 -
towards the secondary effects the City seeks to prevent. 3 1
E . C ustom ers’ Privacy R ights
Finally, Dr. John’s argues that the ordinance infringes upon the privacy
31
W e acknow ledge that the Seventh Circuit has taken a harder line against
civil disability provisions. For example, in Schultz, the court found that
these license ineligibility provisions absolutely disentitle classes of
speakers from a category of expression. They produce a complete ban
on certain expression for a disqualified group of applicants who, by
definition, wish to speak, and such a drastic measure cannot be justified
here as narrowly tailored to resist noisom e secondary effects. Indeed,
[the city] neither conducted nor cited any study establishing its basic
premise that ownership or performance by those convicted of specified
criminal activity or misconduct is more likely to lead to secondary
effects than ownership or performance by anyone else.
The government may regulate the conditions under w hich
operators and performers may stage adult entertainment, and in
accordance, it may withhold or revoke a license pending compliance
with legitimate time, place or manner requirements. Yet the government
may not categorically disenfranchise a class from protected expression
in this licensing context, at least on the factual record C um berland has
compiled, because it thereby fails to provide the alternative channels for
communication required by Renton and Young for those speakers.
228 F.3d at 853; see also Genusa v. City of Peoria, 619 F.2d 1203, 1219 & n.40
(7th Cir. 1980).
As an initial matter, both Schultz and Genusa are factually distinguishable
from the present case; those cases involved ordinances with definitions of
disabling criminal activity that included patently non-sex crimes. See Schultz,
228 F.3d at 853 n.6 (disabling offenses included “gambling” and “distribution of
a controlled substance”); Genusa, 619 F.2d at 1217 (disabling offenses included
any felony as well as any “crime or misdemeanor opposed to decency and
morality”). However, to the extent that the Seventh Circuit holds that civil
disability provisions are always unconstitutional, at least without specific studies
or evidence show ing the connection between sex criminals and secondary effects,
we disagree for the reasons stated above.
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rights of its customers. The district court did not rule on this claim. The City
contends that this issue was not even raised by Dr. John’s below, and urges us to
refuse to consider it on appeal. Our review of the record reveals that the issue
was not raised in Dr. John’s complaint or motion for summary judgment, but was
raised only obtusely at the conclusion of Dr. John’s memorandum submitted along
with its motion for summary judgment.
W e need not decide whether this was sufficient to present the issue to the
district court. See generally Lawrence Kaplan, Annotation, Sufficiency, in
Federal Court, of Raising Issue Below to Preserve M atter for Appeal, 157 A.L.R.
Fed. 581, 605 (1999) (noting that there is “[n]o bright-line rule to determine
whether [an] issue has been properly raised in [the] trial court.”). Even assuming
it was not properly raised, both parties briefed the issue, the City does not argue
that it is prejudiced by our consideration of the question, and, as discussed below ,
the issue is easily resolved on the merits. Thus, we exercise our discretion to
consider this issue. Singleton v. W ulff, 428 U.S. 106, 121 (1976) (“The matter of
what questions may be taken up and resolved for the first time on appeal is one
left primarily to the discretion of the courts of appeals, to be exercised on the
facts of individual cases. . . . Certainly there are circumstances in which a federal
appellate court is justified in resolving an issue not passed on below, as where the
proper resolution is beyond any doubt . . . .”).
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Dr. John’s asserts that the ordinance infringes on the sexual privacy rights
of its customers to purchase “marital aids.” 3 2 However, Dr. John’s fails to
provide any explanation of how the ordinance would in any way restrict the sale
of such devices. As the City points out, once an SOB is licensed, it is free to
“sell[] as much sexually oriented m erchandise as the market will bear,” and there
is no showing that Dr. John’s could not obtain an SOB license if it wished
(although it might not be able to retain H altom as an employee). And, at least
some marital aids would presumably be sold under even a general business
license. This case is thus palpably different from those cases cited by Dr. John’s
in support of its argument. See United States v. Extreme Assocs., Inc., 352 F.
Supp. 2d 578, 586 (W .D. Pa.), rev’d, 431 F.3d 150 (3d Cir. 2005) (“Defendants
further argue that because the federal obscenity laws place a complete ban on the
distribution of materials that an individual has the fundamental right to possess
and view in private, the statutes should be subjected to the strict scrutiny test.”)
(emphasis added); W illiams v. Pryor, 220 F. Supp. 2d 1257, 1259-60 (N.D. Ala.
2002), rev’d sub nom. W illiams v. Attorney Gen., 378 F.3d 1232 (11th Cir. 2004)
(“The constitutional guarantees that accompany plaintiffs’ fundamental right to
32
Dr. John’s has standing to assert the privacy rights of its customers. See
Carey v. Population Servs. Int’l, 431 U.S. 678, 683-84 & 684 n.3 (1977) (holding
that vendor of non-medical contraceptive devices has standing to assert rights of
customers; noting that the case for third party standing was compelling “because
the rights involved fall within the sensitive area of personal privacy”); see also
Craig v. Boren, 429 U.S. 190, 192-97 (1976).
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privacy will not permit the State of Alabama to prohibit plaintiffs from
purchasing sexual devices for use within the confines of their private, adult,
consensual, sexual relationships . . . .”) (emphasis added); People ex rel. Tooley
v. Seven Thirty-Five E. Colfax, Inc., 697 P.2d 348, 369-70 (Colo. 1985) (“[The
law] sweep[s] too broadly in [its] blanket proscription of all devices ‘designed or
marketed as useful primarily for the stimulation of human genital organs.’”)
(emphasis added). Thus, even assuming Dr. John’s’s customers have a sexual
privacy right in the sexual devices and marital aids that Dr. John’s sells, this right
is in no way infringed by the Roy City ordinance.
C O N C L U SIO N
For the foregoing reasons, we AFFIRM the substantial majority of the
district court’s rulings. W e do, however, REM AND for further proceedings on
the question of whether the evidence concerning the “secondary effects” of adult
businesses is sufficient to justify this ordinance as a reasonable time/place/manner
regulation. 3 3
33
Dr. John’s motion to strike Roy City’s response to Dr. John’s submission
of supplemental authority is G RANTED.
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