F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
FEB 10 1998
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT
Z.J. GIFTS D-2, L.L.C., doing business as
CHRISTIE’S, an Oklahoma limited
partnership,
Plaintiff-Counter-Defendant-
Appellee,
v. No. 96-1483
CITY OF AURORA, an Incorporated
Municipality,
Defendant-Counter-Claimant-
Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
(D.C. No. 93-M-2310)
Charles H. Richardson (Teresa Kinney of the Office of the Aurora City Attorney, Aurora,
Colorado, and Barry Arrington of the Law Offices of Barry K. Arrington, P.C., Denver,
Colorado, with him on the briefs), Office of the Aurora City Attorney, Aurora, Colorado,
for Defendant-Counter-Claimant-Appellant.
Michael Gross (Arthur M. Schwartz with him on the briefs), Arthur M. Schwartz, P.C.,
Denver, Colorado, for Plaintiff-Counter-Defendant-Appellee.
Before ANDERSON, KELLY, and HENRY, Circuit Judges.
KELLY, 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
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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
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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, 117 S. Ct. 2515 (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 (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
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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, 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 (1984). In determining whether a regulation is content-
neutral, “[t]he government’s purpose [in enacting the regulation] is the controlling
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consideration.” Ward v. Rock Against Racism, 491 U.S. 781, 791 (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 (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 (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 (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.
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.
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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 (quoting United States v. O’Brien, 391 U.S. 367, 383-84 (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 case remarkably similar to this one, examining the similarity of the businesses
utilized in the studies relied on to the businesses regulated in determining an ordinance’s
content-neutrality “confuses distinct aspects of the City of Renton test.” ILQ
Investments, Inc. v. City of Rochester, 25 F.3d 1413, 1416 (8th Cir.), cert. denied, 513
U.S. 1017 (1994). The district court’s inquiry 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. Id. at 1417. But where, as here,
the studies relied upon adequately support the city’s purpose in enacting the ordinance--
regulating the harmful secondary effects associated with sexually oriented businesses--the
government’s regulation of such businesses is “justified without reference to the content
of the regulated speech.” Rock Against Racism, 491 U.S. at 791 (emphasis in original).
Thus, we are satisfied that differences in the mode of delivery of sexually oriented
materials are constitutionally insignificant for purposes of determining an ordinance’s
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content-neutrality. See Renton, 475 U.S. at 49 (“[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.’”) (emphasis added). The
city need only rely upon “evidence . . . reasonably believed to be relevant to the problem
that the city addresses.” Id. at 51-52 (emphasis added). If the city can show that the
ordinance affects “that category of [businesses] shown to produce the unwanted
secondary effects,” id. at 52, the ordinance will stand. So long as cities do not use “the
power to zone as a pretext for suppressing expression,” id. at 54 (citing Young, 427 U.S.
at 84 (Powell, J. concurring)), attempts to regulate the adverse effects associated with
sexually oriented businesses are properly classified as content-neutral.
Given the uncontroverted sexual nature of Z.J. Gifts’ business, we are convinced
the city has met its burden. The record indicates several of the studies examine the
effects of adult businesses or sexually oriented businesses generally. Significantly, at
least three of these studies examine the effects of adult bookstores on surrounding
communities.1 Although Z.J. Gifts argues and attempts to prove that all other adult
1
See I Aplt. App. at 158 (summary of Garden Grove, California land use study
reviewing impact of adult businesses); id. at 161 (summary of Austin, Texas land use
study reviewing crime rates, property values, and trade area characteristics for areas
surrounding adult bookstore, theater, and topless bar); id. at 162 (summary of Oklahoma
City, Oklahoma study examining effect of adult bookstore on property values and crime);
id. at 163 (summary of Indianapolis, Indiana study examining the effects of sexually
oriented businesses on crime rates and property values in surrounding areas; report
concludes that “even relatively . . . passive use[s] such as . . . adult bookstore[s] . . . have
a serious negative effect on their immediate environs.”); id. at 166 (summary of
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bookstores provide some form of on-premises viewing of sexually explicit materials, see
Aplee. Br. at 13, 16, 22, II Aplt. App. at 344 (Jackson aff.), we think the record fully
supports the city’s regulation of sexually oriented businesses providing both on- and off-
site viewing of sexually explicit materials.
Properly analyzed as a content-neutral regulation, Aurora’s zoning ordinance
survives constitutional scrutiny, and the city is entitled to relief, if the city can establish
the ordinance is narrowly tailored to serve a significant governmental interest and leaves
open ample alternative channels of communication. See Renton, 475 U.S. at 45; Rock
Against Racism, 491 U.S. at 791; Clark, 468 U.S. at 293. The district court, however,
analyzed the ordinance under the test set out in O’Brien. 391 U.S. at 377. O’Brien
provides that content-neutral regulations having an incidental impact on expressive
conduct are constitutional if they further an important or substantial governmental interest
and restrict First Amendment freedoms no greater than essential to further the interest.
See id. We need not choose between the two tests, however, because the O’Brien
analysis “is, in the last analysis, . . . little, if any, different from the standard applied to
time, place or manner restrictions.” Clark, 468 U.S. at 298. Review of the record and the
Minneapolis, Minnesota land use report concluding “concentrations of sexually oriented
businesses have [a] significant relationship to higher crime and lower property values.”);
id. at 168 (summary of Whittier, California study of effects of sexually oriented
businesses, including two adult bookstores, on surrounding residential and commercial
areas); id. at 169 (summary of Amarillo, Texas study of adult businesses, including
“bookstores . . . with publications featuring nudity and explicit sexual activities,”
concluding that such businesses lead to increases in street crime).
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legal principles which govern the city’s claims indicates that the city prevails under either
standard.
Z.J. Gifts does not in any real sense question the substantiality of Aurora’s
interests in preventing crime and disease, protecting property values, and preserving the
quality of life of the city’s residents. Indeed, the district court recognized that the city had
demonstrated “the legitimacy of its concern” regarding adult uses which provide on-site
adult entertainment, but not to those which provide adult materials for off-site
consumption. See Z.J. Gifts, 932 F. Supp. at 1257-58. As noted earlier, this distinction is
constitutionally irrelevant in determining whether Aurora’s interests are important or
substantial, particularly in light of the Court’s strong statements regarding the
government’s interest in regulating such businesses in Young and Renton. Our analysis
of Aurora’s interest in regulating sexually oriented businesses thus remains unaffected by
the district court’s distinction between off-site and on-site viewing of sexually explicit
materials.
To the extent Z.J. Gifts argues that the city has not “demonstrate[d] that the recited
harms are real, not merely conjectural,” Turner, 512 U.S. at 664, we disagree. Aurora
need not wait for sexually oriented businesses to locate within its boundaries, depress
property values, increase crime, and spread sexually transmitted diseases before it
regulates those businesses. It may rely on the experience of other cities to determine
whether the harms presented by sexually oriented businesses are real and should be
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regulated. See Renton, 475 U.S. at 51-52. In other words, the city may control a
perceived risk through regulation. The Court has long held, and we agree, that Aurora’s
stated governmental interests in circumscribing the adverse secondary effects of sexually
oriented businesses “must be accorded high respect.” Renton, 475 U.S. at 50 (quoting
Young, 427 U.S. at 71); ILQ Investments, 25 F.3d at 1416.
Similarly, Z.J. Gifts cannot dispute that Aurora’s ordinance allows for reasonable
alternative avenues of communication. Sexually oriented businesses may locate within
the city’s industrial zones, which comprise approximately 10.9 percent of the city’s area.
See I Aplt. App. at 120. Approximately 3,200 acres of this land--fully 3.6 percent of the
city’s total area--are located near existing water and sewer services. See id. Thus, Z.J.
Gifts is left with more land on which to relocate than was found to be adequate in Renton
and its progeny. See, e.g., Renton, 475 U.S. at 53 (five percent of city’s land “in all
stages of development from raw land to developed, industrial, warehouse, office and
shopping space” available); S&G News, Inc. v. City of Southgate, 638 F. Supp. 1060,
1066 (E.D. Mich. 1986), aff’d 819 F.2d 1142 (6th Cir. 1987) (2.3 percent of city’s land
available); Lakeland Lounge of Jackson, Inc. v. City of Jackson, 973 F.2d 1255, 1260,
1262-63 (5th Cir. 1992) (majority opinion and Politz, C.J., dissenting), cert. denied 507
U.S. 1030 (1993) (1.2 percent of city’s land available).
Z.J. Gifts’ only remaining argument is that Aurora’s zoning provision is not
narrowly tailored to further the interests asserted. See Renton, 475 U.S. at 52-53;
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O’Brien, 391 U.S. at 377. The district court held that Aurora had “far less restrictive
means of achieving [its] purpose with respect to a business like Christie’s [which
provides only off-site viewing of adult materials] than [a] zoning provision that would
require it to relocate . . .” Z.J. Gifts, 932 F. Supp. at 1260. We believe the district court
construed the narrow tailoring inquiry too narrowly, and held Aurora to a far more
stringent standard than required by Renton and O’Brien.
The district court derived its “least restrictive means” language from O’Brien,
which stated that an incidental restriction on free speech should be “no greater than is
essential to the furtherance of [the] interest.” O’Brien, 391 U.S. at 377. In recent cases,
however, the Court elaborated on O’Brien, explicitly holding that time, place or manner
regulations on protected speech must be narrowly tailored, but “need not be the least
restrictive or least intrusive means of doing so.” Rock Against Racism, 491 U.S. at 798.
Instead, “[s]o long as the means chosen are not substantially broader than necessary,” an
ordinance is narrowly tailored if the regulation “promotes a substantial governmental
interest that would be achieved less effectively absent the regulation.” Id. at 799, 800; see
ILQ Investments, 25 F.3d at 1417-18.
This reading of O’Brien’s narrow tailoring inquiry harmonizes with that crafted by
the Court in Renton. In regulating the harmful effects of sexually oriented businesses, the
city need not address all the potential problems created by adult businesses at once. See
Renton, 475 U.S. at 52-53. Nor is it limited to one method of regulation over another in
12
attempting to curb harmful secondary effects. See id. at 53 (“Cities may regulate adult
theaters by dispersing them . . . or by effectively concentrating them.”). Instead, Renton’s
consititutional framework grants the city broad discretion to choose the means and scope
of its regulation of sexually oriented businesses.
The Court’s interpretation of the narrow tailoring prong in time, place and manner
analyses recognizes the judiciary’s limited role in reviewing content-neutral limitations on
speech. “It is not [the court’s] function to appraise the wisdom of [the city’s] decision[.]”
Renton, 475 U.S. at 53 (citing Young, 427 U.S. at 71). Instead, because legislative bodies
are entitled to “reasonable inferences” suggested by the legislative record before them,
see Turner, 512 U.S. at 666, the court simply determines whether 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, 25 F.3d at 1418. 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. Where the legislative record validates the legislature’s
judgment, our obligation to exercise independent judgment “is not a license to . . . replace
[legislative] factual predictions with our own.” Turner, 512 U.S. at 666. Courts must
allow cities like Aurora “reasonable opportunity to experiment with solutions to
admittedly serious problems.” Young, 427 U.S. at 71 (emphasis added).
In invalidating Aurora’s reasonable legislative choices, the district court exceeded
13
the limits imposed by Renton and O’Brien. Unlike other zoning provisions held
unconstitutional, Aurora’s ordinance does not attempt to regulate businesses which have a
minimal or nonexistent connection to sexually oriented entertainment. See, e.g., Schad v.
Borough of Mount Ephraim, 452 U.S. 61, 74-77 (1981) (invalidating ordinance
prohibiting all live entertainment within city’s limits); Faraone v. City of East Providence,
935 F. Supp. 82, 88-89 (D.R.I. 1996) (granting preliminary injunction against
enforcement of ordinance prohibiting rental of “adult oriented x-rated” videotapes on
holidays and Sundays by businesses having only ten percent x-rated or adult oriented
videos in total video rental inventory); World Wide Video v. City of Tukwila, 816 P.2d
18, 21 (Wash. 1991) (en banc), cert. denied, 503 U.S. 986 (1992) (invalidating ordinance
regulating sexually oriented businesses, defined to include businesses with ten percent or
more of their stock in trade consisting of sexually oriented merchandise). Nor does the
city seek to justify its actions with a completely barren legislative record. See, e.g.,
Discotheque, Inc. v. City Council of Augusta, 449 S.E.2d 608, 609-10 (Ga. 1994)
(summary judgment improper in favor of City where City produced no probative evidence
of experience of other municipalities regarding negative secondary effects of sexually
oriented businesses); Quetgles v. City of Columbus, 450 S.E.2d 677, 678 (Ga. 1994), cert.
denied, 514 U.S. 1083 (1995) (same). Instead, Christie’s, and businesses like it, are
indisputably sexually oriented businesses--specifically, “adult bookstores” as defined by
the ordinance. See Aurora Mun. Code § 32.5-2 (adult bookstore means “a commercial
14
establishment which devotes a significant or substantial portion of its stock-in-trade . . . to
the sale, rental or viewing . . . of books, magazines, periodicals, . . . films, motion
pictures, video cassettes, . . . or other visual representations . . . of ‘specified sexual
activities’ or ‘specified anatomical areas.’”); I Aplt. App. at 263-75 (Inventory list for
Christie’s); id. at 119 (Anderson aff.). The legislative record before the city fully
supported the city’s concerns regarding the negative secondary effects caused by sexually
oriented businesses, such as decreased property values and increased crime, which were
precisely the problems Aurora sought to regulate by enacting the ordinance. See I Aplt.
App. 124-26 (Preamble to Aurora Mun. Code § 32.5). In short, even if, as Z.J. Gifts
claims, Christie’s is “a new type of adult business, it may not avoid time, place and
manner regulation that has been justified by studies of the secondary effects of reasonably
similar businesses.” ILQ Investments, 25 F.3d at 1418 (footnote omitted).
On this record, Aurora’s ordinance satisfies Renton and O’Brien, as it promotes
the city’s well-established interest in regulating harmful secondary effects caused by
sexually oriented businesses reasonably similar to those studied by other municipalities
without unnecessarily regulating dissimilar businesses. We accordingly REVERSE the
district court’s judgment. On REMAND, the district court shall vacate its judgment and
conduct further proceedings consistent with this opinion.
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