Gene Lovelace Enterprises, LLC v. City of Knoxville

06/11/2021
IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
April 21, 2021 Session
GENE LOVELACE ENTERPRISES, LLC, ET AL. V.
CITY OF KNOXVILLE, ET AL.
Appeal from the Circuit Court for Knox County
Nos. 2-391-05, 2-494-05 William T. Ailor, Judge
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No. E2019-01574-COA-R3-CV
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This is the second appeal of this action concerning the enforceability of a licensing
ordinance applicable to sexually oriented businesses in the City of Knoxville. The trial
court found the ordinance lawful upon remand from this court and granted summary
judgment in favor of the City. We affirm.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court
Affirmed; Case Remanded
JOHN W. MCCLARTY, J., delivered the opinion of the court, in which D. MICHAEL SWINEY,
C.J. and CARMA DENNIS MCGEE, J., joined.
Matthew A. Grossman, Knoxville, Tennessee, for the appellant, Gene Lovelace
Enterprises, LLC and Bambi’s, LLC.
Scott D. Bergthold, Bryan A. Dykes, and Robert T. Noland, Chattanooga, Tennessee, for
the appellee, the City of Knoxville.
OPINION
I. BACKGROUND
The City of Knoxville (“the City”) drafted the licensing ordinance at issue to
regulate the conduct permitted on the premises of sexually oriented businesses by, inter
alia, (1) prohibiting total nudity and touching of patrons; (2) prohibiting alcohol on the
premises; (3) limiting hours of operation; and (4) requiring sexually oriented businesses
and their employees to obtain licenses. The ordinance was presented to the Metropolitan
Planning Committee (“MPC”). Following a hearing over the course of two days on March
10 and April 14, 2005, the MPC denied recommendation of the licensing ordinance.
The ordinance was then presented to the Knoxville City Council (“the City
Council”), at which the City’s outside counsel, Scott Bergthold, presented evidence,
claiming that regulation was necessary because the subject businesses caused adverse
secondary effects upon the community, namely diminished property values; increased
personal, property, and drug crimes; spread of disease; and neighborhood blight.1
Attorneys for the businesses at issue were present and objected to the passing of the
ordinance with the support of their own documentary evidence. Members of the public
were also present and offered their personal opinions on the matter. The ordinance was
approved following a full hearing over the course of two days in May 2005.
Gene Lovelace Enterprises, LLC a/k/a Last Chance Theatre & Musical Club 2000
at Alcoa Highway and Bambi’s, LLC (collectively “Plaintiffs”), and other adult businesses
then filed the instant action to challenge the validity of the ordinance, claiming that (1) the
ordinance is invalid because the City did not timely appeal the MPC’s denial of the
ordinance and that (2) the ordinance violates the constitutional right of free speech because
it was enacted based on “shoddy” or misleading information and contains
unconstitutionally vague and overbroad terms. The City moved for summary judgment,
providing specific evidence of crimes occurring in and around Knoxville near the subject
businesses. The City also provided studies performed in other cities showing similar
effects of such businesses in other municipalities.
At the discovery stage, Plaintiffs requested permission to depose Attorney
Bergthold to gain information concerning the basis for his selection of the materials
presented to the City Council. The City moved for a protective order precluding his
deposition based upon claims of legislative immunity, the attorney-client privilege, and the
work product doctrine. The trial court entered a protective order, citing the immunities and
privileges claimed without further explanation.
Plaintiffs responded to the motion for summary judgment with, inter alia, their own
affidavit, in which Larry Miller, Ph.D. alleged that the studies provided by the City
contained flawed methodology or were otherwise unreliable. Dr. Miller attested that he
found no evidence of adverse secondary effects resulting from the operation of the subject
businesses. Plaintiffs also provided a report from a cultural anthropologist, who concluded
that displays of nudity such as those at issue here have artistic merit and communicative
expression, and an article in which the writer concluded that crime was more common
around fast food restaurants than around adult businesses.
1
Plaintiffs refer to Attorney Bergthold’s evidence as “the legislative predicate.”
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Following a hearing, the trial court granted summary judgment in the City’s favor.
Plaintiffs appealed to this court. We reversed the grant of summary judgment and
remanded for further proceedings, holding that the trial court failed to fully analyze the
requested enactment of the ordinance using the four-factor test developed in United States
v. O’Brien, 391 U.S. 367 (1968). Lovelace v. City of Knoxville, No. E2013-01584-COA-
R3-CV, 2014 WL 7069956, at *8 (Tenn. Ct. App. Dec. 15, 2014) (“Lovelace I”). The test
at issue is as follows:
1. whether the ordinance is within the city’s constitutional power to
enact;
2. whether the ordinance furthers an important government interest:
3. whether the government interest is related to suppression of free
expression; and
4. whether the restriction is no greater than is essential to furtherance of
the government interest.
O’Brien, 391 U.S. at 377 (citations omitted). We directed the trial court as follows:
Specifically, as regarding the second factor of the O’Brien test, the trial court
must consider whether Plaintiffs’ evidence, consisting of expert affidavits as
well as a study and report based on empirical data specific to the City of
Knoxville, was successful in casting doubt upon the City’s factual findings
regarding adverse secondary effects on the community. The trial court must
apply the proper burden-shifting framework . . . to determine whether the
subject ordinance serves a substantial government interest.
Lovelace I, 2014 WL 7069956, at *8. We likewise held that the trial court’s ruling
concerning the protective order did not allow for meaningful appellate review because it
failed to delineate the specific privilege or immunity forming the basis for the order.
Upon remand, Plaintiffs provided an updated report from Dr. Miller in which he
again found no adverse secondary effects upon the community from the subject businesses.
The trial court renewed the protective order barring the deposition of Attorney Bergthold
with the following additional reasoning:
[Plaintiffs] want to depose [Attorney Bergthold] to show the Court that the
data relied upon by the [City] is “shoddy” by using the impressions of
[Attorney Bergthold] and his opinions and why he chose the information he
chose to present to the City which supported his conclusions. The Court is
of the opinion that those things are clearly covered by the attorney-client
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privilege as [Attorney Bergthold] was hired by the City to help them develop
the ordinance which is a legal function and something that the City Attorney
does on a regular basis. To rule otherwise would open up the City Attorney
to being deposed every time someone decided to question the efficacy of an
ordinance prepared by that office. Questioning [Attorney Bergthold] as to
why he chose the information he chose will not test whether the data relied
on was based on shoddy work by those who developed it. That would have
nothing to do with the data but [Attorney Bergthold’s] opinions as to why he
chose the data he chose. Any documents that were filed with the ordinance
or in support thereof are now public record and have clearly lost any
protection of attorney-client privilege and are discoverable. [Plaintiffs have]
the right to hire their own expert who can examine those documents and
make whatever determination and reach whatever conclusions about or
opinions she or he may make. Any statements made by [Attorney Bergthold]
in a public forum have also lost any attorney-client privilege but have already
been disclosed. However, [Attorney Bergthold’s] thoughts, impressions,
[and] reasoning as to why he decided to use certain information in making
his recommendation is covered by the attorney-client privilege and work
product and therefore not discoverable.
In determining whether legislative immunity applies to [Attorney
Bergthold], the Court . . . is of the opinion that legislative immunity should
be applied to [Attorney Bergthold] as he was hired by [the City] to draft an
ordinance which is a legislative function of [the City]. After that
determination, the Court must determine the nature of the act he was hired to
perform not his motivation. If it was legislative in nature, then legislative
immunity should apply and he would be protected. In this case, as stated
previously, he was hired to draft a city ordinance. It does not matter that the
ordinance was affecting adult entertainment businesses only that he was
hired to draft an ordinance which is legislative in nature. As a result, the
Court, is of the opinion that he is protected by legislative immunity.
Following a hearing, the court again granted the City’s motion for summary judgment,
finding that the City was not required to appeal the MPC’s denial because the licensing
ordinance is not a zoning ordinance. The court found that the ordinance was not overbroad
or vague and that it passed the four-factor O’Brien test because Plaintiffs failed to cast
direct doubt upon the evidence relied upon by the City Council.
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II. ISSUES
A. Whether the trial court erred in its qualification of the subject
ordinance as a non-zoning matter, thereby permitting the City to present the
matter to the City Council without filing an appeal from the MPC.
B. Whether the trial court abused its discretion in its issuance of a
protective order barring the deposition of Attorney Bergthold.
C. Whether the trial court erred in its grant of summary judgment.
III. STANDARD OF REVIEW
Rule 56.04 of the Tennessee Rules of Civil Procedure states that a motion for
summary judgment should only be granted if “the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show 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.” The standard of review following a trial court’s decision on a motion
for summary judgment is de novo with no presumption of correctness. Tatham v.
Bridgestone Ams. Holding, Inc., 473 S.W.3d 734, 748 (Tenn. 2015) (citing Parker v.
Holiday Hospitality Franchising, Inc., 446 S.W.3d 341, 346 (Tenn. 2014)).
IV. ANALYSIS
A.
Plaintiffs assert that the licensing ordinance at issue is tantamount to a zoning
ordinance subject to the zoning appeal process when one ground for denial of a permit is
noncompliance with zoning requirements. Plaintiffs argue that the City’s failure to abide
by its own appeal process renders the ordinance invalid. The City responds that the subject
ordinance simply requires compliance with laws governing location as a prerequisite to
obtaining a business license but does not prevent Plaintiffs from continuing to use the
property as a sexually oriented business due to its location. Rather, it imposes ordinary
licensing restrictions on that category of businesses and is not a zoning ordinance.
The City Code provides an appeal process stating that any petitioner “aggrieved by
any decision of the [MPC] may petition the City Council to consider the same.” Knoxville
Municipal Code, Appx. B, Art. VII, Sec. 6F (emphasis added). The appeal ordinance then
provides certain guidelines concerning the public notification requirement and the time
limits applicable to such appeals of zoning decisions.
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In considering this issue, we must first determine whether the ordinance at issue is
a zoning ordinance. Tennessee courts utilize the following two-part test in determining
whether an ordinance is a zoning ordinance:
The first step requires courts to review the terms of the challenged ordinance
and the municipality’s comprehensive zoning plan to determine whether the
ordinance is so closely related to the zoning plan that it can be fairly
characterized as tantamount to zoning. The second step requires the courts
to determine whether the challenged ordinance substantially affects the use
of the property that is the subject of the litigation. Both parts of the test must
be satisfied before a challenged ordinance may be held to be tantamount to
zoning.
SNPCO, Inc. v. City of Jefferson City, 363 S.W.3d 467, 478 (Tenn. 2012). Here, the
challenged ordinance regulates the time and manner in which the subject businesses
operate and cannot be fairly characterized as tantamount to zoning when the ordinance at
issue does not depend upon the City’s zoning plan. Consideration of the second factor is
unnecessary when both parts of the test must be satisfied to classify the challenged
ordinance as a zoning matter. Accordingly, we hold that the City was not beholden to the
appeal process for zoning matters under the circumstances presented here.2
B.
Plaintiffs next argue that the trial court abused its discretion in entering a protective
order, prohibiting the deposition of Attorney Bergthold based upon legislative immunity,
the attorney-client privilege, and the work product doctrine. Plaintiffs assert that Attorney
Bergthold, who is not a party to the lawsuit, does not have standing to plead legislative
immunity because he does not face potential civil or criminal liability. They likewise assert
that the City may not rely upon the attorney-client privilege or work product doctrine
because they are not seeking his communications with the City. Finally, they suggest that
a reasonable protective order may shield the City from any disclosure of unnecessary
material while also allowing their requested discovery. The City responds that Plaintiffs
possess the documents filed with the ordinance or those filed in support thereof and that
Attorney Bergthold’s thought processes are protected and not subject to review.
2
Plaintiffs suggest that review was somehow hampered by the failure to follow the appeal
process, citing the fact that the appeal procedure requires notification to all interested parties and
the general public at least 15 days prior to the hearing. Our review of the record reflects that
Plaintiffs were afforded a full and fair hearing before both the MPC and the City Council and that
members of the public were present at the City Council hearing and offered an opportunity to
present their opinions.
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Decisions pertaining to discovery and the issuance of a protective order are subject
to an abuse of discretion standard of review. To determine whether a decision constitutes
an abuse of discretion, we review the trial court’s decision to ascertain: “(1) whether the
factual basis of the decision is supported by sufficient evidence; (2) whether the trial court
has correctly identified and properly applied the applicable legal principles; and (3)
whether the trial court’s decision is within the range of acceptable alternatives.” Gooding
v. Gooding, 477 S.W.3d 774, 780 (Tenn. Ct. App. 2015) (quotation omitted). The
Tennessee Rules of Civil Procedure limit the scope of discovery to “any matter, not
privileged, which is relevant to the subject matter involved in the pending action, whether
it relates to the claim or defense of the party seeking discovery or to the claim or defense
of any other party[.]” Tenn. R. Civ. P. 26.02. Our Supreme Court has provided the
following additional guidance in such matters:
When a discovery dispute involves the application of a privilege, the court’s
judgment should be guided by the following three principles. First,
Tennessee’s discovery rules favor discovery of all relevant, non-privileged
information. Second, even though privileges do not facilitate the fact-finding
process, they are designed to protect interests and relationships that are
regarded as sufficiently important to justify limitations on discovery. Third,
while statutory privileges should be fairly construed according to their plain
meaning, they need not be broadly construed.
Powell v. Cmty. Health Sys., Inc., 312 S.W.3d 496, 504 (Tenn. 2010) (citation omitted).
The attorney-client privilege, codified now at Tennessee Code Annotated section
23-3-105, provides as follows:
No attorney, solicitor or counselor shall be permitted, in giving testimony
against a client or person who consulted the attorney, solicitor or counselor
professionally, to disclose any communication made to the attorney, solicitor
or counselor as such by such person during the pendency of the suit, before
or afterward, to the person’s injury.
Similarly, the work product doctrine, codified now at Rule 26.02(3) of the Tennessee Rules
of Civil Procedure, provides as follows:
[A] party may obtain discovery of documents and tangible things otherwise
discoverable under subdivision (1) of this rule and prepared in anticipation
of litigation or for trial by or for another party or by or for that other party’s
representative (including an attorney, consultant, surety, indemnitor, insurer,
or agent) only upon a showing that the party seeking discovery has
substantial need of the materials in the preparation of the case and is unable
without undue hardship to obtain the substantial equivalent of the materials
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by other means. In ordering discovery of such materials when the required
showing has been made, the court shall protect against disclosure of the
mental impressions, conclusions, opinions, or legal theories of an attorney
or other representative of a party concerning the litigation.
(Emphasis added.). We agree with the trial court that Attorney Bergthold’s thoughts,
impressions, and reasoning as to why he decided to use certain information in making his
recommendation are covered by the attorney-client privilege and are his work product,
thereby precluding their discoverability.
Legislative immunity, codified now at Article II, Section 13 of the Tennessee
Constitution, provides as follows:
Senators and representatives shall, in all cases, except treason, felony, or
breach of the peace, be privileged from arrest during the session of the
General Assembly, and in going to and returning from the same; and for any
speech or debate in either House, they shall not be questioned in any other
place.
Legislators or attorneys hired by legislators are not specifically covered by the doctrine of
legislative immunity as codified; however, the immunity has been applied in a broad
manner to insulate local legislators from judicial interference with their duties. Miller v.
Wyatt, 457 S.W. 3d 405, 411-12 (Tenn. Ct. App. 2014) (holding that a city council member
was immune from suit for statements made during the course of a city council hearing).
We decline to extend the scope of such immunity to the circumstances presented here when
the attorney-client privilege and work product doctrine are more applicable to the issue
presented, namely whether Attorney Bergthold may be deposed concerning his thought
process and reasoning for presenting certain documentation in support of the licensing
ordinance. We affirm the trial court’s issuance of the protective order with all of the above
considerations in mind. This court “may affirm a judgment on different grounds than those
relied on by the trial court when the trial court reached the correct result.” City of
Brentwood v. Metro. Bd. of Zoning Appeals, 149 S.W.3d 49, 60 n.18 (Tenn. Ct. App. 2004).
C.
Plaintiffs ask this court to reverse the grant of summary judgment. Plaintiffs first
claim that the ordinance is facially overbroad and vague, specifically in reference to its
definitions of sexually oriented business, specified anatomical areas, and employee. The
City asserts that the ordinance is clearly defined, narrowly tailored, and is not substantially
broader than necessary to promote the governmental interest in combating negative
secondary effects.
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A panel of this court has previously stated that “[a]n ordinance is unconstitutionally
vague when a person of common intelligence must necessarily guess at its meaning. To
avoid unconstitutional vagueness, a statute must define the criminal offense with sufficient
definiteness that ordinary people can understand what conduct is prohibited and in a
manner that does not encourage arbitrary and discriminatory enforcement.” Am. Show Bar
Series, Inc. v. Sullivan Cnty., 30 S.W.3d 324, 339 (Tenn. Ct. App. 2000) (internal citations
and quotations omitted). “A statute is overbroad when it poses a realistic danger that the
statute itself will significantly compromise recognized First Amendment protections of
parties not before the Court.” Id. (internal quotation omitted). However, the ordinance
may be upheld if the definition at issue is “readily susceptible to a narrowing construction
that would salvage its constitutionality.” Id. (citations omitted).
The definitions of the relevant terms at issue are as follows:
1. Sexually oriented business: “adult bookstore,” an “adult video store,”
an “adult cabaret,” an “adult motel,” an “adult motion picture theater,” a
“semi-nude model studio,” “sexual device shop,” or “sexual encounter
center.”
2. Specified anatomical areas: (1) Less than completely and opaquely
covered: human genitals or anus; pubic region; buttock; and female breast
below a point immediately above the top of the areola; and (2) Human male
genitals in a discernibly turgid state, even if completely and opaquely
covered.
3. Employee: any person who performs any service on the premises of a
sexually oriented business, on a full time, part time, or contract basis,
whether or not the person is denominated an employee, independent
contractor, agent, or otherwise. “Employee” does not include a person
exclusively on the premises for repair or maintenance of the premises or for
the delivery of goods to the premises.
The terms “adult cabaret” and “employee” are more clearly defined by the narrowing
construction in the Adult-Oriented Registration Act as follows:
(2) “Adult cabaret” means an establishment that features as a principal use
of its business, entertainers, waiters, or bartenders who expose to public view
of the patrons within such establishment, at any time, the bare female breast
below a point immediately above the top of the areola, human genitals, pubic
region, or buttocks, even if partially covered by opaque material or
completely covered by translucent material, including swim suits, lingerie,
or latex covering. “Adult cabaret” includes a commercial establishment that
features entertainment of an erotic nature, including exotic dancers, strippers,
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male or female impersonators, or similar entertainers[.]
***
(9)(B) “Employee” does not include a person exclusively on the premises for
repair or maintenance of the premises or equipment on the premises, or for
the delivery of goods to the premises, nor does it include an independent
accountant, attorney, or other similar professional incidentally visiting the
premises solely to perform accounting, legal or other similar professional
services; provided, that the accountant, attorney or other similar professional
is not a manager, owner, operator, entertainer, or escort connected with the
adult-oriented establishment or the providing of adult entertainment[.]
Tenn. Code Ann. § 7-51-1102(2), (9). Further, the preamble to the licensing ordinance
itself provides as follows:
[I]t is not the intent of this ordinance to suppress any speech activities
protected by the United States Constitution or the Tennessee Constitution,
but to enact a narrowly tailored ordinance to further the content-neutral
governmental interests of the City, to wit, the controlling of secondary effects
of sexually oriented businesses.
Plaintiffs suggest that the definitions leave no exception for communication that
includes genuine artistic, political, or scientific merit and that the definition of employee
does not include any exception for those performing unrelated services on the premises.
We disagree. We, like the trial court, do not find that the definitions pose a real and
substantial danger to significantly compromise constitutionally protected speech and that
the words are clearly and narrowly tailored to target the performances at sexually oriented
business that cause negative secondary effects. The terms adult cabaret and employee are
subject to a narrowing construction that more clearly defines those subject to the ordinance.
We affirm the trial court’s finding on this issue.
Plaintiffs next claim that the ordinance is subject to strict scrutiny, not the
intermediate scrutiny utilized by the trial court in analyzing the ordinance. Here, the
ordinance is not specifically targeted at the content of the speech, e.g. the erotic message
conveyed by the entertainment, but is instead targeted at combating the negative secondary
effects of the protected expression and is more closely aligned to a time, place, and manner
restriction, thereby requiring intermediate scrutiny of the subject ordinance. Am. Show Bar
Series, Inc., 30 S.W.3d at 333-34.
Plaintiffs next reassert their original claim in Lovelace I that the trial court’s grant
of summary judgment to the City was improper under the test set forth in O’Brien. As
previously stated, the four-factor test is as follows:
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1. whether the ordinance is within the city’s constitutional power to
enact;
2. whether the ordinance furthers an important government interest:
3. whether the government interest is related to suppression of free
expression; and
4. whether the restriction is no greater than is essential to furtherance of
the government interest.
O’Brien, 391 U.S. at 377 (citations omitted). The licensing ordinance is clearly within the
City’s constitutional powers to protect the public health, safety, and welfare.3 The third
and fourth factors are also easily satisfied as we have already found that the ordinance is
content neutral, not overly broad, and narrowly tailored to combat the secondary effects of
such businesses. However, upon remand, the trial court was specifically tasked with
determining whether Plaintiffs’ evidence, consisting of expert affidavits as well as a study
and report based on empirical data specific to the City of Knoxville, was successful in
casting doubt upon the City’s factual findings regarding adverse secondary effects on the
community in accordance with the second factor.
The evidentiary standards applicable to analyzing this issue are as follows:
[A] municipality may rely on any evidence that is “reasonably believed to be
relevant” for demonstrating a connection between speech and a substantial,
independent government interest. This is not to say that a municipality can
get away with shoddy data or reasoning. The municipality’s evidence must
fairly support its 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 [City of
Renton v. Playtime Theaters, Inc., 475 U.S. 41 (1986)] standard. 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
renewing support for a theory that justifies its ordinance.
City of Los Angeles v. Alameda Books, Inc., 535 U.S. 425, 438-39 (2002) (citations
omitted). The trial court offered the following reasoning in support of its finding of the
fulfillment of the second factor:
3
Plaintiffs do not appear to dispute this fact.
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The plaintiffs contend that the City failed to show that the ordinance furthers
an important governmental interest in combating negative secondary effects
because: (1) the City enacted the Ordinance based upon shoddy reasoning
and data; and (2) [Plaintiffs] succeeded in casting direct doubt on the City’s
findings by furnishing contrary evidence. Most notable among [Plaintiffs’]
evidence are affidavits of two experts, Dr. Larry S. Miller and Dr. Randy D.
Fisher. Specifically, Dr. Miller contended that he did not find any adverse
secondary effects caused by the sexually oriented businesses in Knoxville,
explaining that: (1) the sexually oriented business establishments in
Knoxville are not “hot spots” of criminal activity, and there were few police
calls for service and crimes being reported at or near these establishments;
(2) what has the most effect on surrounding property value is zoning, signage
and structural design and maintenance, as opposed to sexually oriented
businesses; and (3) there is no epidemiological evidence to suggest that
Sexually Transmitted Diseases (STDs) are traceable to sexually oriented
businesses in Knoxville. Further, Dr. Fisher challenged the methodologies
used in the reports and studies in other localities, which were relied upon by
the City in enacting the Ordinance.
The Court finds that [Plaintiffs] failed to cast direct doubt on the City’s
findings. The City provided sufficient evidence that is “reasonably believed
to be relevant” to demonstrate the City’s interest in combating and preventing
the negative secondary effects of sexually oriented businesses. Specifically,
the City relied upon extensive legislative findings, including court opinions,
reports and studies from other cities, periodical articles, and police reports
from other localities, which contain evidence of secondary effects caused by
sexually oriented businesses. Although not required, the City also provided
the Knoxville Police Department’s reports of crimes at sexually oriented
businesses in Knoxville.
While the City may reasonably rely on evidence from other localities and
anecdotal evidence, plaintiffs’ burden [to cast doubt upon the City’s findings]
is heavier and cannot be met with unsound inference or similarly anecdotal
information. [Plaintiffs] finding is that there is insufficient evidence to prove
that sexually oriented businesses have actually been causing high crime rates,
reduced property values, and transmission of STDs in Knoxville.
[Plaintiffs’] evidence suggests, at best, that: (1) it is unclear whether and, to
what extent, sexually oriented businesses cause negative secondary effects in
Knoxville; and that (2) the City could have reached a different conclusion.
This does not render the City’s contrary findings and its rationale “shoddy.”
The second prong of the O’Brien test is satisfied, as the City showed that the
Ordinance furthers an important governmental interest, and [Plaintiffs] failed
to cast direct doubt on the City’s rationale.
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(internal citations omitted). We agree with the trial court’s reasoning on this issue. See
Richland Bookmart, Inc. v. Knox Cnty., Tenn., 555 F.3d 512, 527 (6th Cir. 2009)
(“[E]vidence suggesting that a different conclusion is also reasonable does not prove that
the County’s findings were impermissible or its rationale unsustainable.”) (citation
omitted). We likewise conclude that the City established that the ordinance furthers an
important governmental interest and that Plaintiffs failed to cast direct doubt on the City’s
rationale. Having found that the second factor has been fulfilled, we affirm the trial court’s
grant of summary judgment in favor of the City.
V. CONCLUSION
For the reasons stated, we affirm the decision of the trial court and remand for such
further proceedings as may be necessary. Costs on appeal are assessed equally to the
appellants, Gene Lovelace Enterprises, LLC and Bambi’s, LLC.
_________________________________
JOHN W. MCCLARTY, JUDGE
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