                                                                       F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                 UNITED STATES COURT OF APPEALS
                                                                     February 2, 2006
                                   TENTH CIRCUIT                    Elisabeth A. Shumaker
                                                                       Clerk of Court



 FLONA M. HEIDEMAN, MARIEA M.
 BERRYMAN; CRYSTAL DIERINGER;
 HEATHER R. LILJENQUIST; and
 JENNIFER GOFF,

          Plaintiffs-Appellants,

 ASHLEIGH MANN; LEAH RAE
                                                          No. 04-4199
 MALCOLM; and AMERICAN BUSH,
                                                   (D.C. No. 2:01-CV-918-BSJ)
                                                              (Utah)
          Plaintiffs-Intervenors-Appellants,

 v.

 SOUTH SALT LAKE CITY, a Utah
 Municipal Corporation,

          Defendant-Appellee.




                          ORDER AND JUDGMENT *


Before MURPHY, O’BRIEN, and SEYMOUR, Circuit Judges.



      Plaintiffs, former nude dancers and an adult entertainment establishment

      *
       This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
that employs some of them, American Bush, Inc., filed this § 1983 action

challenging on First Amendment grounds the enactment by South Salt Lake City

(“the City”) of an ordinance banning nudity in adult businesses. The district court

granted the City’s motion for summary judgment. Plaintiffs appeal, and we

affirm.

      The factual background of this action was set forth in a detailed and

comprehensive opinion by this court addressing Plaintiffs’ appeal of the district

court’s denial of their motion for preliminary injunction. Heideman v. S. Salt

Lake City, 348 F.3d 1182, 1184-87 (10th Cir. 2003) (Heideman I). Only facts

relevant to the present appeal are included here.

      The City permitted nude entertainment at certain licensed establishments

until May 2, 2001, when it enacted an ordinance which, among other things,

prohibits all nude conduct in adult business establishments, either by employees

or patrons. S. S ALT L AKE C ITY , U TAH , ch. 5.56 (2001) (the “Ordinance”). This

ban on nude conduct applies to all adult oriented businesses, not only businesses

like Plaintiff American Bush, Inc., which provide live entertainment. The

Ordinance does not prohibit erotic dancing, but instead requires employees

engaged in erotic dancing to wear “G-strings” and “pasties.”

      In assessing the necessity of the nudity ban and other restrictions set forth

in the Ordinance, the City council reviewed numerous court opinions and fifty-six


                                         -2-
reports and studies from other municipalities regarding the negative secondary

effects associated with adult oriented businesses. Aplt. App., vol. I at 76-77, 175-

81. Upon review of these materials, the City Council made the following factual

findings, which are set forth in the preamble and “purpose and findings” section

of the Ordinance:

      (1) Sexually oriented businesses lend themselves to ancillary
      unlawful and unhealthy activities that are presently uncontrolled by
      the operators of the establishments . . . . (2) Certain employees of
      sexually oriented businesses defined in this ordinance as adult
      theaters and cabarets engage in higher incidents of certain types of
      illicit sexual behavior than employees of other establishments. (3)
      Sexual acts, including masturbation, and oral and anal sex, occur at
      sexually oriented businesses . . . . (5) Persons frequent certain . . .
      sexually oriented businesses for the purpose of engaging in sex
      within the premises of such sexually oriented businesses. (6)
      Numerous communicable diseases may be spread by activities
      occurring in sexually oriented businesses . . . . (7) According to
      research from the Kaiser Family Foundation, an estimated 650,000 to
      900,000 Americans are infected with HIV. The number of new HIV
      infections occurring each year is now about 41,000. Men and
      [w]omen of all races are most likely to be infected by sexual contact.
      (8) A total of 1,672 AIDS cases had been reported in Utah as of
      January 1, 1999 . . . . (9) The Center for Disease Control and
      Prevention estimate that as many as 1 in 3 people with HIV do not
      know they are infected. (10) The number of cases of early . . .
      syphilis in the United States reported annually has risen with 33,613
      cases reported in 1982 and 45,200 through November of 1990. (11)
      The number of cases of gonorrhea in the United States reported
      annually remains at a high level, with over one-half million cases
      being reported in 1990. (12) The Surgeon General of the United
      States in his report of October 22, 1986, has advised the American
      public that AIDS and HIV infection may be transmitted through
      sexual contact, . . . and from an infected mother to the newborn. (13)
      According to the best scientific evidence, AIDS and HIV infection,
      as well as syphilis and gonorrhea, are principally transmitted by

                                         -3-
      sexual acts. (14) Sanitary conditions in some sexually oriented
      businesses are unhealthy, in part, because the activities conducted
      there are unhealthy, and, in part, because of the unregulated nature of
      the activities and the failure of the owners and the operators of the
      facilities to self-regulate those activities and maintain those
      facilities. (15) Numerous studies and reports have determined that
      semen is found in the areas of sexually oriented businesses where
      persons view ‘adult’ oriented films. (16) The [preceding] findings . .
      . raise substantial governmental concerns.

Id. at 77-79.

      Based on these factual findings, the Ordinance’s preamble states that it is

necessary “to protect and preserve the health, safety, morals and welfare of the

patrons of [adult entertainment establishments] as well as the citizens of the City”

id. at 75, because nude conduct increases the prevalence of, among other things,

unsanitary conditions, unlawful sexual activities and sexually transmitted

diseases. The Ordinance further states that “[t]he general welfare, health, morals

and safety of the citizens of the City will be promoted by the enactment of this

Ordinance,” id. at 80, which includes a total ban on nudity in adult entertainment

establishments.

      After the Ordinance was enacted, Plaintiffs filed the present action

claiming that the nudity ban is an illegal infringement of their First Amendment

rights. They sought a preliminary injunction, which the district court denied. We

upheld the district court’s ruling. Heideman I, 348 F.3d at 1200. After the

parties conducted discovery, the City filed a motion for summary judgment,


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asserting among other things that Plaintiffs failed to submit sufficient evidence to

cast doubt on the evidence relied on by the City in enacting its Ordinance, or on

the reasonableness of the City’s reliance on that evidence. The district court

granted the City’s motion.

         We review the district court’s grant of summary judgment de novo,

applying the same legal standard it used. Summary judgment is appropriate “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.” F ED . R. C IV . P. 56(c). When applying this standard, we view the evidence

and draw reasonable inferences therefrom in the light most favorable to the

nonmoving party. See Garrison v. Gambro, Inc., 428 F.3d 933, 935 (10th Cir.

2005).

         In so doing, we affirm the district court’s summary judgment, but on

different grounds. See United States v. Knox, 124 F.3d 1360, 1362 (10th Cir.

1997) (citing Keyes v. Sch. Dist. No. 1, 521 F.2d 465, 472-73 (10th Cir. 1975))

(appellate court will affirm rulings of lower court on any ground that finds

support in record). We agree with the district court that the City’s evidence meets

the “reasonably believed to be relevant” standard set forth by the Supreme Court

in City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 51-52 (1986).


                                          -5-
However, we disagree with the court’s characterization of Plaintiffs’ challenge,

namely, that Plaintiffs’ action simply asks the court to re-weigh the City’s

evidence de novo and assess the wisdom of the City’s judgment. Rather, we view

Plaintiffs’ claims within the evidentiary burden-shifting framework set out by the

Supreme Court in City of Los Angeles v. Alameda Books, Inc., 535 U.S. 425, 438-

39 (2002) (plurality opinion), and City of Erie v. Pap’s A.M., 529 U.S. 277, 297-

98 (2000) (plurality opinion). See also Heideman I, 348 F.3d at 1198 (stating that

City’s “initial burden to present empirical support for its conclusions [regarding

necessity of ordinance] is minimal, but that plaintiffs must have an opportunity to

present their own evidence, to which the city is then entitled to respond”). Under

this approach, we examine whether Plaintiffs’ evidence was sufficient to cast

doubt on the City’s evidence and its reliance thereon to support passage of the

Ordinance. If so, Plaintiffs shift the burden of proof back to the City and

foreclose summary judgment. Plaintiffs failed to clear this evidentiary hurdle.

      On appeal, Plaintiffs claim they did present sufficient evidence to call into

question the reasonableness of the City’s Ordinance and the reliability of the

evidence supporting its enactment. Specifically, Plaintiffs point to testimony

from their expert witness attacking the validity of studies and reports from other

cities relied upon by the City, as well as affidavits from neighboring property

owners stating that their properties and businesses have not been adversely


                                         -6-
affected by their proximity to Plaintiff American Bush, Inc.’s establishment.

Aplt. App., vol. I at 172-74, 186-87, 189-90. Plaintiffs also point to affidavits

and testimony from the owner of American Bush, Inc., stating that his

establishment, for the most part, has complied fully with existing regulations, and

that banning nude dancing would force it to start serving alcohol in order to

compete with other adult entertainment businesses providing semi-nude dancing,

thereby increasing, not limiting, the potential for negative secondary effects. Id.

at 138-39, 192-98. We conclude, however, that this evidence fails to raise a

genuine issue of material fact as to the reasonableness of the City’s clear interest

in the diminishment of such secondary negative effects as unsanitary conditions,

unlawful sexual activity, and the transmission of sexually transmitted diseases.

      Simply put, the record does not contain any evidence to counter the City’s

concern over unsanitary conditions or the possibility of public health concerns

associated with unregulated nude conduct in adult business establishments.

Although Plaintiffs submitted evidence in rebuttal of other negative secondary

effects cited by the City in its Ordinance, such as diminished property values and

crime, they presented no evidence whatsoever that nude conduct does not result in

unsanitary conditions, unlawful sexual conduct, or the transmission of sexually




                                         -7-
transmitted diseases. 1 To the contrary, at least one piece of evidence submitted by

Plaintiffs could be read to support the reasonableness of the City’s concerns. In

an affidavit Hallard Cannon, president and chief executive officer of American

Bush, Inc., stated that in December 1999, two dancer-employees at his

establishment “were cited for violations of the ordinance prohibiting ‘touching

while performing.’” Id. at 196. Regardless of the final outcome of those citations,

Mr. Cannon’s statement at the very least suggests that nude employees were either

simulating masturbation or engaging in physical contact with patrons. Both of

these activities reasonably could relate to the City’s concern over unsanitary

conditions and unlawful sexual activity and their relationship to sexually


      1
        In their reply brief, Plaintiffs claim that at least some of the evidence the
City relied upon in finding that unsanitary conditions are connected with nude
entertainment involves establishments different from those employing Plaintiffs
and from Plaintiff American Bush, Inc. Reply. Br. at 4-5. Specifically, Plaintiffs
claim that evidence of unsanitary conditions and unlawful sexual activity
associated with “peep shows” and video booths is not probative as to the
existence of unsanitary conditions and unlawful sexual activity at nude dancing
establishments. Plaintiffs, however, misunderstand the nature of their burden of
proof. The City is permitted to rely on evidence of conditions at adult oriented
businesses in general. See City of Erie v. Pap’s A.M., 529 U.S. 277, 296-97
(2000) (“Because the nude dancing [at plaintiff’s establishment] is of the same
character as the adult entertainment at issue in Renton [v. Playtime Theatres, Inc.,
475 U.S. 41 (1986), namely, adult motion pictures], Young v. American Mini
Theatres, Inc., 427 U.S. 50 (1976) [same], and California v. LaRue, 409 U.S. 109
(1972) [erotic dancing], it was reasonable for [the city] to conclude that such
nude dancing was likely to produce the same secondary effects.”). Plaintiffs’
only means of rebutting this evidence, therefore, is to submit evidence showing
how and why their particular activities and/or establishments do not present
similar concerns. Plaintiffs simply did not do this.

                                         -8-
transmitted diseases. Regardless of the ultimate probative value of this evidence,

the reality remains that Plaintiffs did not submit any evidence showing that nude

conduct does not present the kinds of negative secondary effects the City seeks to

curtail or eliminate by requiring employees and patrons to wear some measure of

clothing. Accordingly, Plaintiffs failed to shift the burden of proof from

themselves back to the City.

      Their failure to present sufficient evidence countering that proffered by the

City compels us to further conclude that Plaintiffs did not raise any genuine issues

of material fact to preclude the district court’s grant of summary judgment against

it. In Heideman I, we stated that the City’s Ordinance, as a “time, place and

manner” regulation designed to ameliorate negative secondary effects rather than

to suppress speech, is to be reviewed under intermediate scrutiny pursuant to the

four part test laid out by the Supreme Court in United States v. O’Brien, 391 U.S.

367, 377 (1968). Under that test, the City’s Ordinance will survive intermediate

scrutiny if it “(1) [is] within the constitutional power of the government to adopt;

(2) further[s] an important or substantial government interest; which (3) is

unrelated to the suppression of expression; and (4) [is] no greater restriction of

First Amendment freedom than is essential to furtherance of the government’s

purpose.” Heideman I, 348 F.3d at 1197 (citations omitted). Plaintiffs’ evidence

is insufficient to raise genuine issues of material fact under the O’Brien test.


                                          -9-
      As we stated in Heideman I, “[t]here is no doubt that the Ordinance is

within the lawful powers” of the City to enact. Id. See also Pap’s A.M., 529 U.S.

at 296 (a city’s “efforts to protect public health and safety are clearly within the

city’s [zoning] powers”). Therefore, the first prong of the O’Brien test is easily

disposed of. As to the third prong, the Supreme “Court has consistently held that

the control of negative secondary effects, such as those invoked by [the City], is

unrelated to the suppression of the expression.” Heideman I, 348 F.3d at 1200.

Hence, Plaintiffs cannot gain ground on the third prong. 2 Finally, as to the fourth

prong, the district court observed, and we agree, that the requirement that dancers


      2
        Plaintiffs assert, to the contrary, that the purpose of the Ordinance is the
suppression of disfavored speech and that the amelioration of negative secondary
effects is merely pretext for the City’s impermissible aim. In support of their
argument, Plaintiffs point to the deposition testimony of one council member and
the City’s Assistant Police Chief. Aplt. App., vol. III at 682-710. The City
claims that transcripts of these depositions were not submitted to the district
court. Indeed, the confusing nature of Plaintiffs’ appendix makes it difficult to
discern what evidence was, in fact, before the district court. We need not try to
ascertain whether Plaintiffs’ evidence, in fact, was submitted to the district court
because even if it was, it is insufficient to raise a genuine issue of material fact as
to whether the City’s stated concern over negative secondary effects is pretext for
the aim of suppressing protected speech. Regarding the council member’s
testimony, the Supreme Court has stated on several occasions that evidence of the
impermissible motives of one legislator is insufficient to overcome the
presumption that a legislative body’s primary aim in enacting a given piece of
legislation was not the suppression of disfavored speech. See City of Renton v.
Playtime Theatres, Inc., 475 U.S. 41, 48 (1986). As to the testimony of the
Assistant Police Chief, he was not involved in the decision to enact the
Ordinance, and therefore any motive he may have had, impermissible or
otherwise, is irrelevant to whether the Ordinance was enacted with the primary
goal of suppressing speech.

                                         -10-
wear “G-strings” and “pasties” has a de minimis effect on their ability to

communicate their message of eroticism. Aplt. App., vol. III at 863 (citing

Heideman I, 348 F.3d at 1200). Therefore, the City’s nudity ban and its

accompanying requirement that dancers wear “G-strings” and “pasties” presents a

restriction no greater than is necessary to further the City’s stated interest in

decreasing the likelihood of unsanitary conditions, unlawful sexual activity and

sexually transmitted diseases.

      Turning at last to the second prong of the O’Brien test, namely, whether the

City’s nudity ban is necessary to the furtherance of eliminating negative

secondary effects, we reiterate that the City bears the initial burden of proving the

reasonableness of its concerns over negative secondary effects as well as the

reasonableness of its belief that the challenged regulation will successfully

address those secondary effects. See Turner Broad SYS., Inc. v. FCC, 512 U.S.

622, 664 (1994). As we noted in Heideman I and as the Supreme Court has held

time and again, however, this burden is not an onerous one. Heideman I, 348

F.3d at 1197-99. The City may rely on “seemingly pre-packaged studies, as well

as the findings of courts in other cases.” Id. at 1197; see also Pap’s A.M., 529

U.S. at 296 (“in terms of demonstrating that . . . secondary effects pose a threat,

[a] city need not ‘conduct new studies or produce evidence independent of that

already generated by other cities’ to demonstrate the problem of secondary


                                          -11-
effects, ‘so long as whatever evidence the city relies upon is reasonably believed

to be relevant to the problem that the city addresses’”) (quoting Renton, 475 U.S.

at 51-52)). We agree with the district court that the City met its initial burden of

presenting evidence “reasonably believed to be relevant.” It was the Plaintiffs’

burden then to submit evidence casting doubt on the reasonableness or relevance

of the City’s evidence and the inferences it drew from that evidence. As we have

already stated, Plaintiffs failed to do this.

      In sum, we conclude that Plaintiffs have not shown a genuine issue of

material fact as to any of the four O’Brien prongs, and therefore the district court

did not err in granting the City’s motion for summary judgment. Accordingly, we

AFFIRM.

                                         ENTERED FOR THE COURT


                                         Stephanie K. Seymour
                                         Circuit Judge




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