IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
October 2, 2014 Session
GENE LOVELACE ENTERPRISES, LLC ET AL. v. CITY OF KNOXVILLE
Appeal from the Circuit Court for Knox County
Nos. 2-391-05 & 2-494-05 Harold Wimberly, Judge
No. E2013-01584-COA-R3-CV-FILED-DECEMBER 15, 2014
This case involves the enforceability of an ordinance enacted by the City of Knoxville to
impose licensing requirements for owners and employees of sexually oriented businesses.
Plaintiffs, Gene Lovelace Enterprises, LLC a/k/a Last Chance Theatre & Musical Club 2000
at Alcoa Highway and Eugene Lovelace d/b/a Bambi’s,1 filed this action against the City,
seeking a judgment declaring the ordinance unconstitutional and an injunction prohibiting
enforcement. A similar action was subsequently filed by plaintiffs, Business Financial
Services of Knoxville, Inc. d/b/a West Knoxville News and Katch One, Inc. d/b/a Katch One
Lounge. The two cases were consolidated. The City filed a motion for summary judgment,
asserting that the City Council had appropriately enacted the ordinance to combat negative
secondary effects caused by sexually oriented businesses. The plaintiffs presented evidence
that there were no negative secondary effects associated with such businesses in the
Knoxville area, including expert opinions and a study based on empirical data from the
relevant locality. The trial court granted summary judgment to the City, finding that
“relevant authorities cited by the City establish that the ordinance in question is of a type
which may be validly and constitutionally enacted by a municipality such as defendant.”
Gene Lovelace Enterprises, LLC and Bambi’s LLC have appealed that ruling. We reverse
the trial court’s grant of summary judgment to the City and remand the case for further
proceedings.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court
Reversed; Case Remanded
T HOMAS R. F RIERSON, II, J., delivered the opinion of the Court, in which D. M ICHAEL
S WINEY, J., and D. K ELLY T HOMAS, J R., Sp. J., joined.
1
Mr. Lovelace died during the pendency of these proceedings, and Bambi’s LLC was substituted as
a party.
Arthur G. Seymour, Jr., and Matthew A. Grossman, Knoxville, Tennessee, for the appellants,
Gene Lovelace Enterprises, LLC a/k/a Last Chance Theatre & Musical Club 2000 at Alcoa
Highway, and Bambi’s LLC.
Scott D. Bergthold, Stephen S. Duggins, and Bryan A. Dykes, Chattanooga, Tennessee, for
the appellee, the City of Knoxville.
OPINION
I. Factual and Procedural Background
In late 2003, the City’s adult business location ordinances were struck down as
unconstitutionally vague by this Court in City of Knoxville v. Entm’t Resources, LLC, No.
E2002-01143-COA-R3-CV, 2003 WL 22762195 at *7 (Tenn. Ct. App. Nov. 21, 2003). That
decision was affirmed by our Supreme Court in City of Knoxville v. Entm’t Resources, LLC,
166 S.W.3d 650 (Tenn. 2005). Thereafter, the City enacted both a location ordinance and
a licensing ordinance to regulate sexually oriented businesses.2 The licensing ordinance at
issue requires that any person operating a sexually oriented business possess a sexually
oriented business license granted by the City. Further, any person employed by such an
establishment must also have a license. The ordinance defines “employ, employee, and
employment” as “any person who performs any service on the premises of a sexually oriented
business, on a full time, part time, or contract basis, whether or not the person is denominated
an employee, independent contractor, agent, or otherwise.”
These ordinances were presented to the Metropolitan Planning Commission (“MPC”)
for its approval prior to being placed before the City Council (“Council”). The MPC voted
to deny recommendation regarding the licensing ordinance. The licensing ordinance was
subsequently placed on the Council’s agenda. The Council held discussions regarding the
ordinance and considered numerous documents in support of the ordinance submitted by the
City’s retained outside counsel, Scott Bergthold. Those documents included court opinions
regarding adult businesses and the regulation thereof, reports and studies from other cities
regarding the negative secondary effects of adult businesses, periodical articles, and police
reports from other localities. The ordinance was approved by the Council in May 2005.
Following enactment of the ordinance, the instant action was filed by Gene Lovelace
Enterprises, LLC a/k/a Last Chance Theatre & Musical Club 2000 at Alcoa Highway and
Bambi’s LLC (“Plaintiffs”), and other adult businesses to challenge the validity of the
2
The plaintiffs did not challenge the location ordinance as their existing businesses were determined
to be “grandfathered” by the City.
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ordinance. Their claim was that the City Council’s decision to pass the ordinance was based
on “shoddy” or misleading information provided by attorney Bergthold. The City filed an
answer and counter-claim, seeking a judgment declaring the ordinance constitutional.
The City filed a motion for summary judgment in March 2010. Plaintiffs sought and
were granted additional time for discovery following the filing of the motion for summary
judgment. Plaintiffs deposed Dr. Larry Miller and filed an affidavit from him, as well as two
other expert affidavits regarding the alleged inaccuracy of the information provided to the
Council in general and as applied to the City of Knoxville. Plaintiffs subsequently sought
to depose the City’s retained outside counsel, Scott Bergthold. The City filed a motion for
a protective order, and the court granted the motion based on “immunities and privileges
claimed.” On December 5, 2012, the court granted summary judgment to the City. Plaintiffs
timely appealed.3
II. Issues Presented
Plaintiffs present the following issues for our review, which we have restated slightly:
1. Whether the trial court erred by granting summary judgment to the City.
2. Whether the trial court erred by failing to consider Plaintiffs’ contention that
enactment of the subject ordinance was invalid and ineffective due to unmet
procedural requirements.
3. Whether the trial court erred by applying intermediate scrutiny analysis to the
ordinance rather than strict scrutiny analysis.
4. Whether the ordinance is facially overbroad and invalid due to its definition
of “employee.”
5. Whether the trial court erred by granting a protective order to prevent Plaintiffs
from deposing attorney Bergthold.
3
The other adult businesses that were plaintiffs in the original action did not join in this appeal.
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III. Standard of Review
Our Supreme Court has succinctly described the applicable4 standard of review of a
trial court’s grant of summary judgment:
A summary judgment is appropriate only when the moving party can
demonstrate that there is no genuine issue of material fact and that it is entitled
to judgment as a matter of law. Tenn. R. Civ. P. 56.04; Hannan v. Alltel
Publ’g Co., 270 S.W.3d 1, 5 (Tenn. 2008). When ruling on a summary
judgment motion, the trial court must accept the nonmoving party’s evidence
as true and resolve any doubts concerning the existence of a genuine issue of
material fact in favor of the nonmoving party. Shipley v. Williams, 350 S.W.3d
527, 536 (Tenn. 2011) (quoting Martin v. Norfolk S. Ry., 271 S.W.3d 76, 84
(Tenn. 2008)). “A grant of summary judgment is appropriate only when the
facts and the reasonable inferences from those facts would permit a reasonable
person to reach only one conclusion.” Giggers v. Memphis Hous. Auth., 277
S.W.3d 359, 364 (Tenn. 2009) (citing Staples v. CBL & Assocs., Inc., 15
S.W.3d 83, 89 (Tenn. 2000)). “The granting or denying of a motion for
summary judgment is a matter of law, and our standard of review is de novo
with no presumption of correctness.” Kinsler v. Berkline, LLC, 320 S.W.3d
796, 799 (Tenn. 2010).
Dick Broad. Co., Inc. of Tenn. v. Oak Ridge FM, Inc., 395 S.W.3d 653, 671 (Tenn. 2013).
Pursuant to Tennessee Rule of Civil Procedure 56.04, the trial court must “state the
legal grounds upon which the court denies or grants the motion” for summary judgment, and
our Supreme Court has recently instructed that the trial court must state these grounds
“before it invites or requests the prevailing party to draft a proposed order.” Smith v. UHS
of Lakeside, Inc., 439 S.W.3d 303, 316 (Tenn. 2014).
Review of a trial court’s grant of a protective order is performed utilizing an abuse
of discretion standard. See Summers v. Cherokee Children & Family Servs., Inc., 112
S.W.3d 486, 530 (Tenn. Ct. App. 2002). “The burden of establishing abuse of discretion is
4
The recently enacted Tennessee Code Annotated § 20-16-101 (Supp. 2014) is applicable only to
cases commenced on or after July 1, 2011, and therefore is not applicable to this case. Tennessee Code
Annotated § 20-16-101 provides a standard of review for summary judgment with the stated purpose “to
overrule the summary judgment standard for parties who do not bear the burden of proof at trial set forth in
Hannan v. Alltel Publishing Co., its progeny, and the cases relied on in Hannan.” See Sykes v. Chattanooga
Hous. Auth., 343 S.W.3d 18, 25 n.2 (Tenn. 2011).
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on the party seeking to overturn the trial court’s ruling on appeal.” Id.
IV. Summary Judgment
A. Sufficiency of Order
During oral argument, Plaintiffs questioned whether the trial court’s order granting
summary judgment complied with our Supreme Court’s recent directive in Smith, 439
S.W.3d at 316, regarding summary judgment orders. In Smith, the Supreme Court elucidated
that when ruling on a motion for summary judgment, the trial court must “state the grounds
for its decision before it invites or requests the prevailing party to draft a proposed order.”
Id. (citing Tenn. R. Civ. P. 56.04). The stated purposes behind this requirement are to (1)
ensure that the decision is the trial court’s, (2) assure the parties that the trial court
independently considered their arguments, (3) enable the reviewing courts to ascertain the
basis for the trial court’s decision, and (4) promote independent and logical decision-making.
Id.
Based on our review of the trial court’s order granting summary judgment in this case,
we conclude that the court properly complied with the requirement set forth in Smith. After
reviewing the parties’ briefs and all submitted documentation regarding summary judgment,
the trial court stated in its own order granting summary judgment to the City:
Plaintiffs in these consolidated cases challenge certain ordinances of the
City of Knoxville which concern licensing and conduct of sexually oriented
businesses. The City has moved for summary judgments. The Court having
reviewed the pleadings, motions, responses, replies and the entire record
before it finds there are no genuine issues of material fact and the City is
entitled to summary judgment in each case as a matter of law.
Specifically, plaintiffs’ contentions in these cases that the ordinance in
question was enacted as a result of misleading, faulty or “shoddy” information
provided to the legislative body would not be determinative in these cases
since relevant authorities cited by the City establish that the ordinance in
question is of a type which may be validly and constitutionally enacted by a
municipality such as defendant.
Accordingly, the Court rules that the ordinance in question is valid and
the defendant’s motions for summary judgment are granted.
The trial court’s order appropriately complies with the indispensable requirement of
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Smith regarding stated grounds for its decision. See Smith, 439 S.W.3d at 316. Moreover,
the trial court drafted its own order rather than asking the prevailing party to do so.
Following our review, we conclude that the order ensures that (1) the decision is the trial
court’s, (2) the trial court independently considered the parties’ arguments, (3) this Court can
ascertain the basis for the trial court’s decision, and (4) the trial court exercised independent
and logical decision-making. See id. Whether the stated grounds are sufficient or form a
proper legal basis for granting summary judgment, however, will be discussed in the
following section.
B. Propriety of Grant of Summary Judgment
Plaintiffs assert that the trial court’s grant of summary judgment to the City was
improper because Plaintiffs provided the trial court with evidence sufficient to create a
genuine issue of material fact with regard to the accuracy of the evidence upon which the
City relied in enacting the ordinance. Specifically, Plaintiffs contend that the City’s
evidence, consisting of reports and studies from other cities regarding the negative secondary
effects of adult businesses, periodical articles on this topic, and police reports from other
localities, were inaccurate or misleading with regard to Knoxville. Plaintiffs presented three
expert affidavits that disputed the evidence relied upon by the City, as well as the report of
Dr. Larry Miller summarizing a study he conducted based on empirical data from Knoxville.
In his report, Dr. Miller concluded that the sexually oriented businesses in Knoxville imposed
no adverse secondary effects upon the community.
The City asserts that the Council was provided with United States Supreme Court and
other federal court precedent stating that a municipality may rely on studies performed in
other cities showing the negative secondary effects of sexually oriented businesses on the
community. Further, the City contends that it provided specific evidence of crimes occurring
in and around Knoxville adult businesses, proving the negative secondary effects of sexually
oriented businesses on Knoxville specifically. In enacting the subject ordinance, the Council
found that these businesses are associated with adverse secondary effects, including, inter
alia, crime, prostitution, spread of disease, obscenity, and drug use. The City argues that it
has a substantial government interest in abating these risks. The City also contends that
Plaintiffs’ presentation of some conflicting evidence regarding the negative secondary effects
of adult businesses does not render summary judgment invalid because the City negated an
essential element of Plaintiffs’ claims by showing that it relied upon evidence reasonably
believed to be relevant to the problem.
The City relies upon a seminal United States Supreme Court decision entitled City of
Renton v. Playtime Theatres, Inc., 475 U.S. 41 (1986), wherein the Court was asked to rule
on the constitutionality of a zoning ordinance that prohibited adult motion picture theaters
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from locating within 1,000 feet of a residential zone, church, park, or school. The City of
Renton had no such theaters within its borders at the time the ordinance was enacted. Id. at
44. When considering the ordinance, the Renton City Council reviewed reports from nearby
Seattle and other cities regarding adverse secondary effects of such theaters on the
surrounding communities. Id.
The following year, the plaintiffs acquired two theaters in the area of downtown
Renton proscribed by the ordinance with the intent of utilizing them to exhibit adult films.
Id. at 45. The plaintiffs filed suit challenging the constitutionality of the ordinance. Id. The
district court granted summary judgment to the City of Renton, but the Court of Appeals for
the Ninth Circuit reversed that ruling, finding that the subject ordinance placed a substantial
restriction on First Amendment interests. Id.
Upon its grant of certiorari to the City of Renton, the United States Supreme Court
explained that because the ordinance did not ban adult theaters altogether, but instead merely
regulated where such theaters could be located, the district court had properly analyzed the
ordinance as a content-neutral time, place, and manner regulation. Id. at 46-47. In reversing
the Ninth Circuit’s decision, the Court explained that such regulations would be deemed
constitutional so long as they were designed to serve a substantial government interest and
did not unreasonably limit alternative avenues of communication. Id. at 50.
The High Court in Renton determined that the substantial government interest being
served by the ordinance was to prevent negative secondary effects on the community
associated with such theaters, such as increased crime and decreased property values. Id.
The Court noted that the ordinance was enacted without the benefit of studies specifically
related to Renton, which was one reason cited by the Ninth Circuit to invalidate it. Id. The
Supreme Court held that the City of Renton was justified in relying upon studies produced
by the City of Seattle, stating:
The First Amendment does not require a city, before enacting such an
ordinance, to conduct new studies or produce evidence independent of that
already generated by other cities, so long as whatever evidence the city relies
upon is reasonably believed to be relevant to the problem that the city
addresses. That was the case here.
Id. at 51-52. The Court held that the ordinance in question was also “narrowly tailored” to
affect only the category of theaters that produced the unwanted secondary effects. Id. at 52.
The Court thus upheld the ordinance as constitutional. Id. at 54.
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The City in the instant action relies upon Renton as support for its position that in
order for the subject ordinance to be deemed constitutional, the City must only demonstrate
that the evidence it relied upon in enacting the ordinance was reasonably believed to be
relevant to the problem that the City wanted to address, namely the negative secondary
effects of such sexually oriented businesses on the surrounding community. Further relevant
United States Supreme Court precedent, however, has expounded upon Renton’s holding and
must also be considered.
In the more recent Supreme Court decision in City of Erie v. Pap’s A.M., 529 U.S. 277
(2000), the Court was asked to determine the constitutionality of an ordinance banning all
public nudity within the city limits. The ordinance was challenged by Pap’s A.M., which
operated an establishment named “Kandyland” that featured nude erotic dancing. Id. at 283.
The Pennsylvania Supreme Court upheld the validity of the ordinance, and the United States
Supreme Court granted certiorari regarding the matter. Id. at 287.
The Supreme Court explained that as the ordinance was designed to combat harmful
secondary effects unrelated to the suppression of expression, the ordinance would be valid
if it satisfied the four-factor test of intermediate scrutiny developed in United States v.
O’Brien, 391 U.S. 367 (1968), for evaluating restrictions on symbolic speech. Those factors
are:
1. whether the ordinance is within the city’s constitutional power to enact;
2. whether the ordinance furthers an important government interest:
3. whether the government interest is related to suppression of free
expression; and
4. whether the restriction is no greater than is essential to furtherance of
the government interest.
Id. at 296-300. The Supreme Court reasoned that Erie possessed police powers to protect
public health and safety, such that the first factor was satisfied. Id. at 296. The Court further
found positive support for the third and fourth factors. Id. at 300.
When evaluating the second factor regarding whether the ordinance furthered an
important government interest, the Court determined that the asserted interest in preventing
negative secondary effects upon the community was an important government interest. Id.
at 296. The Court further determined that the city “need not ‘conduct new studies or produce
evidence independent of that already generated by other cities’” in order to demonstrate the
existence of negative secondary effects, “‘so long as whatever evidence the city relies upon
is reasonably believed to be relevant to the problem that the city addresses.’” Id. (quoting
Renton, 475 U.S. at 51-52).
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The Court explained:
In any event, Erie also relied on its own findings. The preamble to the
ordinance states that “the Council of the City of Erie has, at various times over
more than a century, expressed its findings that certain lewd, immoral
activities carried on in public places for profit are highly detrimental to the
public health, safety and welfare, and lead to the debasement of both women
and men, promote violence, public intoxication, prostitution and other serious
criminal activity.” Pet. for Cert. 6a (emphasis added). The city council
members, familiar with commercial downtown Erie, are the individuals who
would likely have had firsthand knowledge of what took place at and around
nude dancing establishments in Erie, and can make particularized, expert
judgments about the resulting harmful secondary effects. Analogizing to the
administrative agency context, it is well established that, as long as a party has
an opportunity to respond, an administrative agency may take official notice
of such “legislative facts” within its special knowledge, and is not confined to
the evidence in the record in reaching its expert judgment. Here, Kandyland
has had ample opportunity to contest the council’s findings about secondary
effects—before the council itself, throughout the state proceedings, and before
this Court. Yet to this day, Kandyland has never challenged the city council’s
findings or cast any specific doubt on the validity of those findings. Instead,
it has simply asserted that the council’s evidentiary proof was lacking. In the
absence of any reason to doubt it, the city’s expert judgment should be
credited.
Id. at 297-298 (other internal citations omitted). The Court upheld the ordinance as
constitutional. Id.
In the more recent decision of City of Los Angeles v. Alameda Books, Inc., 535 U.S.
425 (2002), the United States Supreme Court was asked to resolve the question of the
constitutionality of a city ordinance prohibiting operation of multiple adult-oriented
businesses within a single building. When enacting the ordinance, the City of Los Angeles
determined that having multiple adult businesses concentrated in one area was associated
with higher crime rates in surrounding communities, based on a 1977 study performed by the
city. Id. at 429. The city thus enacted an ordinance prohibiting the establishment of such
businesses within 1,000 feet of one another. Id. In analyzing the propriety of the city’s
reliance upon the 1977 study, the High Court explained:
[A] municipality may rely on any evidence that is “reasonably believed to be
relevant” for demonstrating a connection between speech and a substantial,
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independent government interest. This is not to say that a municipality can get
away with shoddy data or reasoning. The municipality’s evidence must fairly
support 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 renewing support for a theory that
justifies its ordinance.
Id. at 438-439 (internal citations omitted).
This burden-shifting evidentiary standard developed in Alameda was applied by the
Court of Appeals for the Sixth Circuit in Richland Bookmart, Inc. v. Knox County, Tenn.,
555 F.3d 512 (6th Cir. 2009), wherein the licensing ordinance in question was substantially
the same as the ordinance enacted by the City in the case at bar. The ordinance required all
owners and employees of sexually oriented businesses to be licensed by the county while
additionally regulating the hours of the businesses and prohibiting the sale of alcohol therein.
Id. at 519. When enacting the ordinance, the county was presented with much of the same
evidence presented to the City Council in this case.
Certain sexually oriented businesses challenged the validity of the ordinance in
Richland, attacking the sufficiency and relevance of the evidence relied upon by the county
during enactment of the ordinance. Id. at 520. The district court granted summary judgment
to the county. Id. at 518. Upon appeal, the Sixth Circuit elucidated that the proper analysis
of the issue would be to “apply the O’Brien test, incorporating evidentiary standards
articulated in Renton and its progeny.” Id. at 523-524.
The Sixth Circuit further explained:
The next question is whether the Ordinance serves a substantial government
interest. It is now recognized that governments have a substantial interest in
controlling adverse secondary effects of sexually oriented establishments,
which include violent, sexual, and property crimes as well as blight and
negative effects on property values. Plaintiffs argue that the Ordinance does
not advance that admittedly important interest and that summary judgment in
favor of the County was improper because Plaintiffs adduced facts
demonstrating that at least a subset of the businesses regulated by the
Ordinance has not in fact generated any adverse secondary effects in Knox
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County. Under Renton, the County had to provide “a reasonable evidentiary
basis for concluding that its regulation would have the desired effect.”
***
The Supreme Court and this court have repeatedly held that local governments
need not conduct their own studies demonstrating that adverse secondary
effects result from the operation of sexually oriented businesses or that the
measures chosen will ameliorate these effects. “The First Amendment does
not require a city, before enacting such an ordinance, to conduct new studies
or produce evidence independent of that already generated by other cities, so
long as whatever evidence the city relies upon is reasonably believed to be
relevant to the problem that the city addresses.” Nor are local governments
required to demonstrate empirically that its proposed regulations will or are
likely to successfully ameliorate adverse secondary effects. Thus, insofar as
Plaintiffs merely dispute the relevance of “foreign” and outdated studies, they
fail to create a genuine issue of material fact to survive summary judgment.
This is not to say that, provided that the now-standard list of studies and
judicial opinions is recited, no plaintiff could ever successfully challenge the
evidentiary basis for a secondary-effects regulation. Albeit light, the burden
on the government is not non-existent, and a plaintiff may put forth sufficient
evidence to further augment that burden:
This is not to say that a municipality can get away with 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 renewing support for a theory that justifies its
ordinance.
Alameda Books, 535 U.S. at 438-39, 122 S.Ct. 1728. As we have recently
noted, the Alameda Books plurality thus “set forth a burden-shifting framework
governing the evidentiary standard in secondary-effects cases.”
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***
Because we find that the County met its initial evidentiary burden, only if
Plaintiffs succeed in casting “direct doubt” on the County’s rationale or factual
findings would the County need additional support for its decision to regulate
the contested business categories. We conclude that Plaintiffs’ efforts to cast
such doubt are unsuccessful. Assuming for the sake of argument that the
evidence offered by the Plaintiffs is not inadmissible on summary judgment,
as the County argues it is, it is of dubious substantive import. Unlike most
plaintiffs challenging similar regulations, Plaintiffs do not introduce their own
expert findings or studies, but rely on a private investigator and their own or
their attorney’s summaries of police incident reports and property value
assessments. Even if we were to accept this information as authoritative, its
probative value is minimal because elementary rules of logic and empirical
inference preclude the conclusions Plaintiffs urge.
***
Plaintiffs’ unsystematic and eclectic collection of information is insufficient
to cast direct doubt on the relevance of the evidence relied on by the County,
or the County’s rationale in enacting the Ordinance. For these reasons, we
conclude Plaintiffs did not meet their burden of casting direct doubt on the
factual findings or rationale underlying the County’s Ordinance.
Id. at 524-528 (other internal citations omitted).
The foregoing precedent provides us with the framework by which we must analyze
the propriety of the trial court’s grant of summary judgment in this action. These prior
decisions establish that although the City was justified in utilizing evidence of reports and
studies from other cities regarding the potentially adverse secondary effects of adult
businesses, this does not end the relevant inquiry. Rather, if the Plaintiffs can successfully
cast doubt upon the City’s factual findings, the burden shifts back to the City to demonstrate
additional evidence to support its theory justifying passage of the ordinance. See Alameda,
535 U.S. at 438-39; Richland, 555 F.3d at 525.
In the case at bar, the trial court determined that summary judgment should be granted
to the City because “relevant authorities cited by the City establish that the ordinance in
question is of a type which may be validly and constitutionally enacted by a municipality
such as defendant.” The court specifically found that “plaintiffs’ contentions in these cases
that the ordinance in question was enacted as a result of misleading, faulty or ‘shoddy’
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information provided to the legislative body would not be determinative.” We conclude that
the trial court applied an improper legal standard in granting summary judgment to the City.
As established by the above precedent, whether the ordinance in question is within the City’s
constitutional power to enact is only the first factor that the trial court must consider. See
Pap’s A.M., 527 U.S. at 296. The trial court should also have analyzed the other relevant
factors, including whether the ordinance in question serves a substantial government interest.
Id.; see also Richland, 555 F.3d at 524; City of Cleveland v. Wade, 206 S.W.3d 51, 57 (Tenn.
Ct. App. 2006). In making such a determination, the trial court would be required to consider
whether the City relied upon misleading or “shoddy” information when enacting the
ordinance. See Alameda, 535 U.S. at 438-39; Richland, 555 F.3d at 525; Wade, 206 S.W.3d
at 57.
Because the trial court did not perform the proper analysis in this case as set forth in
the foregoing precedent, we reverse the trial court’s grant of summary judgment to the City.
We remand this action to the trial court for an appropriate analysis utilizing the O’Brien test
and “incorporating evidentiary standards articulated in Renton and its progeny.” See
Richland, 555 F.3d at 524. Specifically, as regarding the second factor of the O’Brien test,
the trial court must consider whether Plaintiffs’ evidence, consisting of expert affidavits as
well as a study and report based on empirical data specific to the City of Knoxville, was
successful in casting doubt upon the City’s factual findings regarding adverse secondary
effects on the community. The trial court must apply the proper burden-shifting framework
as described in Alameda and Richland to determine whether the subject ordinance serves a
substantial government interest. See Alameda, 535 U.S. at 438-39; Richland, 555 F.3d at
525.
As the trial court did not address Plaintiffs’ other issues raised regarding
constitutionality of the ordinance or City legislative procedure, we cannot do so for the first
time on appeal. See Dorrier v. Dark, 537 S.W.2d 888, 890 (Tenn. 1976) (holding that
appellate courts are “limited in authority to the adjudication of issues that are presented and
decided in the trial courts”); see also Hayes v. Gentry, No. 03A01-9303-CH-00120, 1993 WL
191999 at *2 (Tenn. Ct. App. June 8, 1993) (“[S]ince this issue was not adjudicated in the
trial court, we cannot consider it on appeal.”). Those issues will be directed to the trial court
on remand.
V. Protective Order
The sole remaining issue raised by Plaintiffs that was ruled upon by the trial court is
the decision to grant the City a protective order preventing the deposition of attorney
Bergthold. Plaintiffs assert that they should have been allowed to depose Mr. Bergthold
regarding his “methodology” used in compiling the materials presented to the City Council.
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Plaintiffs argue that the trial court erred in granting a protective order because Mr. Bergthold
enjoyed no legislative immunity or attorney-client privilege and because the information
sought to be discovered was not protected by the work product doctrine. The City contends
that the plaintiffs cannot show an abuse of discretion in the trial court’s grant of the
protective order.
As previously stated, review of a trial court’s grant of a protective order is executed
utilizing an abuse of discretion standard. See Summers, 112 S.W.3d at 530. Pursuant to the
abuse of discretion standard, a trial court’s ruling “will be upheld so long as reasonable
minds can disagree as to propriety of the decision made.” State v. Scott, 33 S.W.3d 746, 752
(Tenn. 2000). “A trial court abuses its discretion only when it ‘applie[s] an incorrect legal
standard, or reache[s] a decision which is against logic or reasoning that cause[s] an injustice
to the party complaining.’” Eldridge v. Eldridge, 42 S.W.3d 82, 85 (Tenn. 2001) (quoting
State v. Shirley, 6 S.W.3d 243, 247 (Tenn.1999)).
Further, as specifically regarding the assertion of a privilege, our Supreme Court has
elucidated:
When a discovery dispute involves the application of a privilege, the court’s
judgment should be guided by the following three principles. First,
Tennessee’s discovery rules favor discovery of all relevant, non-privileged
information. Second, even though privileges do not facilitate the fact-finding
process, they are designed to protect interests and relationships that are
regarded as sufficiently important to justify limitations on discovery. Third,
while statutory privileges should be fairly construed according to their plain
meaning, they need not be broadly construed.
Powell v. Cmty. Health Sys., Inc., 312 S.W.3d 496, 504 (Tenn. 2010).
When Plaintiffs sought to depose attorney Bergthold in this matter, the City filed a
motion for a protective order, asserting legislative privilege and immunity, attorney-client
privilege, and the attorney work product doctrine. The trial court granted the protective
order, citing “the immunities and privileges claimed,” but failed to delineate the specific
privilege or immunity forming the basis for the protective order. We determine that the trial
court’s order is insufficient and does not allow for meaningful review by this Court. See
Heritage Operating, LP v. Henry County Propane Gas, Inc., No. W2011-01162-COA-R3-
CV, 2012 WL 2989120 at *8 (Tenn. Ct. App. July 23, 2012) (holding that although the trial
court maintains discretion regarding discovery orders, the trial court’s order must present
sufficient findings or reasoning to allow this Court to determine the basis of the trial court’s
decision). Without sufficient findings or stated reasoning by the trial court detailing the basis
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for its grant of a protective order, we cannot determine whether the trial court abused its
discretion. As this case is subject to remand for the reasons previously cited, we also vacate
the trial court’s grant of a protective order and direct that the court further consider this issue
and enter an order regarding the motion for protective order that fully explains the basis for
its decision.
VI. Conclusion
For the reasons stated above, we vacate the trial court’s grant of a protective order
regarding the deposition of Mr. Bergthold. We also reverse the trial court’s grant of
summary judgment to the City and remand for further proceedings consistent with this
opinion. Costs on appeal are taxed to the appellee, the City of Knoxville.
_________________________________
THOMAS R. FRIERSON, II, JUDGE
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