                                                                           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.

                                             -2-
      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.




                                         -3-
      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



                                        -4-
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.


                                          -5-
      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.

                                          -6-
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).



                                          -7-
      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.

                                           -8-
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



                                            -9-
         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).



                                          - 10 -
      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.

                                         - 11 -
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.

                                         - 12 -
             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

                                        - 13 -
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?

                                          - 14 -
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.

                                        - 15 -
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



                                        - 16 -
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

                                         - 17 -
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.”

                                         - 18 -
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.

                                        - 19 -
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...)

                                         - 20 -
                            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.

                                        - 39 -
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.

                                         - 40 -
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...)

                                          - 41 -
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)


                                         - 42 -
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.

                                         - 44 -
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 . . . .”).



                                        - 45 -
      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).

                                         - 46 -
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.

                                         - 47 -
