Z.J. Gifts D-2, L.L.C. v. City of Aurora

• Decision Date: 10 February 1998
• Docket Number: No. 96-1483,D-2,L,96-1483
• Parties: 98 CJ C.A.R. 1041 Z.J. GIFTSL.C., doing business as Christie's, an Oklahoma limited partnership, Plaintiff-Counter-Defendant-Appellee, v. CITY OF AURORA, an Incorporated Municipality, Defendant-Counter-Claimant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 683

136 F.3d 683

98 CJ C.A.R. 1041

Z.J. GIFTS D-2, L.L.C., doing business as Christie's, an Oklahoma limited partnership Plaintiff-Counter-Defendant-Appellee, v. CITY OF AURORA, an Incorporated Municipality Defendant-Counter-Claimant-Appellant.

No. 96-1483.

United States Court of Appeals Tenth Circuit.

Feb. 10, 1998.

Charles H. Richardson (Teresa Kinney, Office of the Aurora City Attorney, Aurora, CO, and Barry Arrington, Law Offices of Barry K. Arrington, P.C., Denver, CO, with him on the briefs), Office of the Aurora City Attorney, Aurora, CO, for Defendant-Counter-Claimant-Appellant.

Michael Gross (Arthur M. Schwartz with him on the briefs), Arthur M. Schwartz, P.C., Denver, CO, for Plaintiff-Counter-Defendant-Appellee.

Before ANDERSON, KELLY, and HENRY, Circuit Judges.

PAUL KELLY, JR., Circuit Judge.

Defendant/Counterclaimant-appellant, the City of Aurora, appeals from the district court's grant of summary judgment in favor of Plaintiff/Counterdefendant-appellee Z.J. Gifts. The district court invalidated a city zoning regulation requiring sexually oriented businesses to locate in industrially-zoned areas and enjoined its enforcement against Z.J. Gifts. Interpreting federal constitutional law, the district court held that the regulation was a content-based restriction of speech as applied to Z.J. Gifts' retail business which sold and leased adult videos and magazines for off-site viewing only. See Z.J. Gifts v. City of Aurora, 932 F.Supp. 1256, 1257-60 (D.Colo.1996). We exercise jurisdiction pursuant to 28 U.S.C. §§ 1291 and 1292(a)(1), reverse, and remand for proceedings consistent with this opinion.

Background

In early 1993, Aurora city officials became concerned that the city lacked regulatory and enforcement mechanisms to minimize negative effects resulting from sexually-oriented businesses locating within city limits. In response, the city attorney's office presented a draft ordinance regulating the operation and location of sexually-oriented businesses to the city council in September 1993.

In October 1993, Z.J. Gifts, a limited partnership, leased space in the Granada Park Shopping Center, located in a commercially-zoned area, and prepared the space for retail sales of adult novelties, magazines, and videos. After applying for sales tax and business licenses, the shop, named "Christie's," opened for business on October 30, 1994, and has since been in continual operation. Unlike other adult uses, such as adult theaters, peep shows, and nude dance clubs, Christie's provides no on-site adult entertainment. The shop instead sells and rents adult materials to customers for viewing off premises.

After review of a thorough legislative record, deliberation and public hearings, the Aurora City Council enacted an ordinance regulating all sexually-oriented businesses, including adult bookstores, novelty shops and video stores, on December 13, 1994. The ordinance established comprehensive licensing, operating, and inspection requirements for sexually oriented businesses located within city limits. The ordinance further required sexually oriented businesses to locate in industrially-zoned areas, and prohibited them from locating within 1500 feet of churches, schools, residential districts or dwellings, public parks, and other sexually oriented businesses. See Aurora Mun.Code § 32.5-52; I Aplt.App. at 43-44.

Z.J. Gifts filed suit against the city, challenging the constitutionality of several provisions of the ordinance, including the zoning requirements. The city counterclaimed to enjoin Z.J. Gifts from operating Christie's in violation of the ordinance. The city also sought a declaration that Christie's operates in violation of the zoning provision of the ordinance and requested a permanent injunction barring Christie's from operating in that location. The parties filed cross-motions for summary judgment, and the district court granted Z.J. Gifts' motion. The district court held that as applied, the zoning provision requiring Christie's to locate within an industrially zoned area unconstitutionally infringed Z.J. Gifts' free speech interests. Z.J. Gifts' remaining claims for relief were dismissed as moot. The city appealed.

Discussion

Where First Amendment interests are implicated, this court is obligated to make an independent examination of the record in its entirety to ensure the challenged regulation does not improperly limit expressive interests. See Revo v. Disciplinary Bd. of the Supreme Court, 106 F.3d 929, 932 (10th Cir.), cert. denied, --- U.S. ----, 117 S.Ct. 2515, 138 L.Ed.2d 1017 (1997). Thus, we review constitutional facts and conclusions of law de novo. See id. Similarly, we review a district court's grant of summary judgment de novo, using the standard provided in Fed.R.Civ.P. 56(c). See Kaul v. Stephan, 83 F.3d 1208, 1212 (10th Cir.1996). Just as we may affirm a grant of summary judgment on any ground adequately supported by the record, we may direct that judgment be entered in favor of any moving party if the record adequately supports it. See Dickeson v. Quarberg, 844 F.2d 1435, 1444-45 n. 8 (10th Cir.1988).

We recognize that governmental limitations which limit expressive interests strike "[a]t the heart of the First Amendment." Turner Broadcasting System, Inc. v. FCC, 512 U.S. 622, 641, 114 S.Ct. 2445, 2458, 129 L.Ed.2d 497 (1994). We are also aware that First Amendment doctrine must be informed by the complex tangle of social, political, and cultural interests in limiting speech as well as protecting it, for the tension between individual rights and community needs is at the core of every First Amendment issue. This tension is most pronounced in cases like this one, where the speech regulated is unpopular and the community's interest in regulating it significant. We undertake review of the Aurora zoning provision against this backdrop of competing community and individual interests.

As an initial matter, the district court reviewed Aurora's ordinance as a content-based regulation of speech. See Z.J. Gifts, 932 F.Supp. at 1260. Recognizing that most ordinances regulating sexually oriented businesses are considered content-neutral, the court rejected that conclusion because it believed "none of the material relied on by the city council shows that the business of Christie's bears any relationship to [harmful secondary] effects." Id. at 1258. Though we recognize that "[d]eciding whether a ... regulation is content-based or content-neutral is not always a simple task," Turner, 512 U.S. at 642, 114 S.Ct. at 2459, the district court's emphasis on the relationship between the materials used to justify the ordinance and the nature of Z.J Gifts' retail business is misplaced.

Content-based restrictions on speech, those which "suppress, disadvantage, or impose differential burdens upon speech because of its content," id., are subject to "the most exacting scrutiny." Id. Conversely, content-neutral regulations "pose a less substantial risk of excising certain ideas or viewpoints from the public dialogue" because they are unrelated to the content of speech. Id. Content-neutral regulations are accordingly subject to intermediate scrutiny. See Clark v. Community for Creative Non-Violence, 468 U.S. 288, 293, 104 S.Ct. 3065, 3068-69, 82 L.Ed.2d 221 (1984). In determining whether a regulation is content-neutral, "[t]he government's purpose [in enacting the regulation] is the controlling consideration." Ward v. Rock Against Racism, 491 U.S. 781, 791, 109 S.Ct. 2746, 2754, 105 L.Ed.2d 661 (1989). If the regulation "serves purposes unrelated to the content of expression" it is considered neutral, "even if it has an incidental effect on some speakers or messages but not others." See id. (citing City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 47-48, 106 S.Ct. 925, 928-29, 89 L.Ed.2d 29 (1986)).

The Supreme Court has long held that city zoning ordinances which place limits on the location of adult uses are valid exercises of the city's police power. See Young v. American Mini Theatres, Inc., 427 U.S. 50, 62-63, 96 S.Ct. 2440, 2448-49, 49 L.Ed.2d 310 (1976). Though such regulations treat adult uses differently from other uses based on their sexually explicit nature, they are "designed to prevent crime, ... maintain property values, ... and preserve ... the quality of urban life." Renton, 475 U.S. at 48, 106 S.Ct. at 929 (quotation marks omitted). Because ordinances zoning adult uses are intended to curb the secondary effects of those uses on surrounding communities and burden free speech interests only incidentally, they are generally reviewed as content-neutral regulations subject to a less stringent standard of review. See id. at 48-50, 106 S.Ct. at 929-30.

The record clearly establishes Aurora's purpose in enacting the ordinance: to regulate the harmful secondary effects of sexually oriented businesses. The preamble to the ordinance indicated the City's intent to "protect[ ][its] citizens from increased crime; preserve[ ] the quality of life, property values, and character of neighborhoods and businesses; deter[ ] the spread of urban blight; and protect[ ] against the spread of sexually transmitted diseases...." I Aplt.App. at 126; see Renton, 475 U.S. at 49, 106 S.Ct. at 929-30. Further, even if Z.J. Gifts could support its allegation that "[m]embers of the Aurora City Council[ ] openly avowed ... that the ordinance was enacted for the express purpose of closing Plaintiff's business[,]" Aplee. Br. at 4, " 'alleged illicit ... motive[s]' " hidden in legislators' comments will not support a determination that a restriction is content-based. Renton, 475 U.S. at 48, 106 S.Ct. at 929 (quoting United States v. O'Brien, 391 U.S. 367, 383-84, 88 S.Ct. 1673, 1682-83, 20 L.Ed.2d 672 (1968)).

Most importantly, we disagree that the ordinance's content-neutrality is affected by the city's reliance on studies utilizing slightly dissimilar businesses. As the Eighth Circuit noted in a...