Abilene Retail # 30, Inc. v. Board of Com'Rs

• Decision Date: 10 July 2007
• Docket Number: No. 05-3473.,05-3473.
• Citation: 492 F.3d 1164
• Parties: ABILENE RETAIL # 30, INC., Plaintiff-Appellant, v. BOARD OF COMMISSIONERS OF DICKINSON COUNTY, KANSAS; Keith D. Hoffman, Defendants-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

492 F.3d 1164

ABILENE RETAIL # 30, INC., Plaintiff-Appellant, v. BOARD OF COMMISSIONERS OF DICKINSON COUNTY, KANSAS; Keith D. Hoffman, Defendants-Appellees.

No. 05-3473.

United States Court of Appeals, Tenth Circuit.

July 10, 2007.

J. Michael Murray, Berkman, Gordon, Murray, & DeVan, Cleveland, OH (Raymond V. Vasvari, Jr., Berkman, Gordon, Murray, & DeVan, and Richard T. Bryant, Richard T. Bryant & Associates, Kansas City, MO, with him on the briefs), for the Plaintiff-Appellant.

Scott D. Bergthold, Chattanooga, TN (J. Steven Pigg and Teresa L. Sittenauer, Fisher, Patterson, Sayler, & Smith, Topeka, KS, with him on the briefs), for the Defendants-Appellees.

Before LUCERO, Circuit Judge, McWILLIAMS, and EBEL, Senior Circuit Judges.

LUCERO, Circuit Judge.

Abilene Retail # 30, Inc. ("Abilene") appeals from a district court order granting summary judgment in favor of the Board of County Commissioners of Dickinson County, Kansas (the "Board"). Abilene, which owns and operates an adult bookstore in Dickinson County named "The Lion's Den," challenged a zoning ordinance which restricts The Lion's Den's location and mode of operation. Abilene contends the ordinance violates the First Amendment. The district court held the ordinance to be a content-neutral effort to address the secondary effects of adult businesses in Dickinson County. It further concluded that the ordinance survived intermediate scrutiny, which we apply to content-neutral zoning ordinances under City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 106 S.Ct. 925, 89 L.Ed.2d 29 (1986), and its progeny. We agree the ordinance is facially content neutral, but conclude a genuine dispute of material fact exists as to whether the Board reasonably relied on studies analyzing the secondary effects of adult businesses on surrounding communities in passing the ordinance. If the Board's reasonable reliance were not in dispute, we agree that Abilene has cast sufficient doubt on the Board's rationale to preclude summary judgment. On that basis, we join in the concurrence of Judge Ebel as an alternative ground for our holding. Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we REVERSE the district court's grant of summary judgment, and REMAND to the district court for further consideration of this claim. We AFFIRM the district court's judgment with respect to Abilene's Fourth and Fourteenth Amendment claims.

I

Abilene opened The Lion's Den at a rest stop off of Interstate 70 ("I-70") in Dickinson County, Kansas in September 2003. The Lion's Den appears to be the first sexually oriented business in the County in at least 25 years, and it may be the first such business in County history. It is located just off an exit ramp on I-70, in an unincorporated portion of the County. The total population of the unincorporated portions of Dickinson County is small, numbering just over six thousand people. Adult bookstores located near highway exit ramps rely on business from passing interstate traffic. The store's inventory is almost entirely adult-oriented, and consists of a variety of sexual devices and sexually explicit magazines, videos, and DVDs.

Soon after The Lion's Den opened for business, local residents began protesting outside its doors. As early as September 22, 2003, individual Dickinson County residents appeared before the Board and testified to a variety of possible negative consequences of the store's continued operation.¹ They requested the Board, composed of one chairman and two commissioners, consider options to limit the proliferation of adult businesses in the County.

In response, the Board passed "Dickinson County Kansas Sexually Oriented Business Ordinance No. 070804" (the "First Ordinance") on July 8, 2004. In the preamble to the First Ordinance the Board noted that the operation of sexually oriented businesses leads to a variety of negative secondary effects, and cited to a number of cases and studies that support such a finding. In an attempt to curb these secondary effects, the First Ordinance: (1) provided that all businesses devoting ten percent or more of their floor space to adult materials must obtain a license from the County; (2) required disclosure of certain corporate documents as part of the application for a license, including ownership documents related to the land on which the store sits; (3) required disclosure of all owners with a ten-percent or greater ownership stake as part of the application for a license, and further requires those owners to provide fingerprint cards and disclose their social security numbers; (4) imposed a $500 licensing fee; (5) limited the business' operating hours from 10 a.m. to 10 p.m.; (6) provided for a variety of limitations on signage; (7) set a one-year amortization period; and (8) imposed a distance requirement of 1500 feet between adult businesses and certain uses, including residences, schools, houses of worship, and any section of interstate highway.

Although the First Ordinance contains a lengthy preamble citing to a variety of secondary-effects studies and case law, the Board did not consider any of the cited materials before passing the First Ordinance. In fact, the evidence shows it is unlikely any of the commissioners had those documents at that time.

On July 16, 2004, Abilene challenged the First Ordinance in federal district court, seeking a restraining order and preliminary injunction. After the parties agreed to a preliminary injunction staying enforcement of the First Ordinance, the Board concluded the ordinance might be vulnerable to constitutional challenge, and began to consider passing a second ordinance. The Board retained a lawyer to assist it with drafting a new ordinance. Counsel provided copies of the materials cited in the preamble to the First Ordinance, and also delivered a presentation on those materials. Multiple drafts were prepared and considered by the Board before it settled on a final text. On December 6, 2004, the Board held a public hearing, during which it solicited comment from interested parties. Especially vocal in his support of restricting sexually oriented businesses was Philip Cosby, a Dickinson County resident who led "Operation Daniel," a group that opposed The Lion's Den. Cosby noted that the draft currently before the Board, which set a distance requirement of 750 feet between sexually oriented businesses and any private residence, was insufficient to force The Lion's Den to move from its current location, which is approximately 1150 feet from the nearest residence. One week later, on December 13, 2004, the Board voted to adopt Ordinance No. 121304A (the "Second Ordinance").

Relevant provisions of the Second Ordinance are as follows: (1) Owners of stores devoting more than 35 percent of the inventory or floor space to adult materials must obtain a license from the County; (2) The owner of a qualifying store must disclose certain financial information; (3) A license applicant must pay a one-time license fee of $100; (4) Judicial review of all adverse licensing decisions is available; (5) Sexually oriented businesses must be located no less than 1200 feet from any residence, school, house of worship, or other specified establishment; (6) Non-conforming sexually oriented businesses are allowed an amortization period of two years to achieve compliance; and (7) Such businesses may only be open between the hours of 6:00 a.m. and midnight. On March 28, 2005, the Board further amended the ordinance to set aside certain specific areas in the County where adult businesses could locate.

Like the First Ordinance, the Second Ordinance contains a lengthy preamble stating the Board's purpose in enacting it, as well as a list of the materials on which the Board relied. In particular, the preamble identifies numerous secondary-effects studies, all purporting to evidence the adverse impact of adult businesses on the neighborhoods in which they are located. Case precedent is included to establish the constitutional validity of the ordinance as enacted.² As noted above, it is undisputed that the Board considered at least some of these materials prior to its passage of the Second Ordinance. The extent to which they were considered, however, is an open question.

Abilene filed an amended complaint challenging the Second Ordinance on February 11, 2005. Shortly thereafter, the district court entered an order modifying the preliminary injunction to cover the Second Ordinance. The Board then moved for summary judgment on all of Abilene's claims, at which point pretrial discovery commenced. Both parties retained experts, who submitted conflicting testimony as to the validity of the secondary effects studies cited in the Second Ordinance. Abilene's expert, Daniel Linz, disputed the methodologies and findings of most of the studies on which the Board relied. The Board offered the testimony of its own expert, Richard McCleary, who testified that "a strong, empirically-validated criminological theory" supports the relationship between crime and adult businesses, and that the studies support the Board's stated rationale for enacting the Second Ordinance. Neither Linz nor McCleary are strangers to litigation challenging municipal zoning ordinances that target adult businesses — both have testified in many such cases.

Following extensive discovery, the district court issued an order on December 1, 2005, granting summary judgment in favor of Dickinson County.

II

We review the district court's findings of constitutional fact, conclusions of law, and grant of summary judgment regarding Abilene's First Amendment claims de novo, pursuant to the standard provided in Federal Rule of Civil Procedure 56(c). Z.J. Gifts D-2, L.L.C. v. City of Aurora, 136 F.3d 683, 685 (10th Cir.1998). Although we ordinarily review a district court's findings of fact for clear error, "[w]here First Amendment interests are implicated, this court is obligated to make an independent...