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Doctor John's Loses Appeal In Utah

Court rules that adult retailer must comply with new city ordinance

Doctor John's Loses Appeal In Utah

SALT LAKE CITY - The Tenth Circuit Court of Appeals has affirmed, for the second time, a summary judgment against adult retailer Doctor John's and in favor of Roy, Utah, a small community about 30 miles north of Salt Lake City.

The case arises out of an adult business ordinance passed by Roy after Doctor John's opened its location several years ago. Among other provisions, the ordinance requires that these businesses and their employees obtain special licenses, that they pay an application and annual renewal fees, and that they limit their operating hours to 10 a.m. to 11 p.m. Also, once an application has been filed, a temporary license is immediately issued, and a permanent license will follow except under certain circumstances including, for example, when an employee has convictions for specified crimes, the business has refused inspection of the premises within the last year, or the business has provided incomplete or false information to the City.

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Since the ordinance was passed after the store opened and had been operating for several months, rather than submit a licensing application, Doctor John's sued in federal court, arguing that the ordinance was an unconstitutional restriction on speech. The City counter-sued to force compliance with its licensing scheme. The district court granted summary judgment to the city on all of its federal claims, but declined jurisdiction over the state law claims.

"On appeal, we affirmed summary judgment for the City on all claims except the First Amendment claim, remanding because we were uncertain whether the district court considered articles Doctor John's submitted in its district court pleadings to cast doubt on the City's rationale as required by [City of Los Angeles v.] Alameda Books Step 2," wrote Judge Kelly for a unanimous panel. "We remanded reasoning that because the parties' evidence is essential to determining whether an ordinance is narrowly tailored to serve a municipality's interest in preventing secondary effects, it was necessary to allow the district court to thoroughly review Doctor John's evidence since the evidence was not mentioned in the district court's order."

In reviewing Doctor John's submissions, however, the district court judge ruled that Doctor John's had provided the documents in an untimely fashion, and deemed them inadmissible for that reason - and that in any case, Doctor John's submissions were insufficient to cast doubt on the City's rationale for its ordinance.

The Tenth Circuit panel agreed with the district court's analysis, finding that the City had "satisfied its burden" under Alameda Books that the city had relied on evidence that it "reasonably believed to be relevant to the problem that the city addresses" - namely that the Doctor John's location had created enough secondary effects to justify the ordinance - even though the appeals court admitted that the City had not, and indeed need not, "initially produce specific evidence regarding the precise type of business." In fact, the City had produced no evidence that the Doctor John's outlet - a video store with no arcade booths - created any secondary effects at all by renting or selling videos to customers, which they would watch in their own homes.

Even so, the panel moved right along to the next step of the Alameda analysis, ruling that, "[b]ecause Doctor John's had produced no evidence regarding off-site adult businesses, that argument failed to cast doubt on the City's rationale."

"We ultimately remanded because the record was not clear whether the district court considered the articles Doctor John's submitted to cast doubt on the City's rationale," Judge Kelly wrote. "Therefore, the only surviving issue on appeal is whether the evidence Doctor John's submitted to the district court casts doubt on the City's rationale for its ordinance at Alameda Books Step 2."

However, the panel ultimately agreed with the district court that Doctor John's submissions to challenge the City's (non-) evidence of the secondary effects of take-home-only video stores were unpersuasive.

Specifically, the panel focused on an exhibit authored by Bryant Paul, Daniel Linz, and Bradley J. Shafer, titled "Government Regulation of 'Adult' Businesses through Zoning and Anti-Nudity Ordinances: Debunking the Legal Myth of Negative Secondary Effects," which had previously been part of an amicus brief submitted by the First Amendment Lawyers Association in the 2000 U.S. Supreme Court case of City of Erie v. Pap's A.M.

"Doctor John's closest evidence is the Linz article," Judge Kelly admits. "At first glance, the article does appear to cast doubt on secondary effects studies generally in stating that its authors reviewed 107 relevant studies. However, the article only analyzes the 10 most frequently cited studies by municipalities, and the City of Roy only relies on 4 of those 10 studies. Consequently, it is difficult to see how the article casts doubt on the other 14 studies relied on by the City, let alone the other 7 reports and the many cases cited by the ordinance."

What isn't clear from the Court's decision is why, with such compelling evidence that at least seven of the studies upon which Roy relied were unreliable, the Court would not order a trial to see if Doctor John's could produce additional evidence about why the other 14 studies were equally unreliable.

"The article's main premise is also problematic because it argues that secondary effects studies relied on by municipalities should meet the requirements of Daubert v. Merrell Dow Pharm., Inc.," Judge Kelly continued. "However, the Supreme Court has 'flatly rejected [the] idea' of requiring cities to rely on empirical analysis. In fact, among the specific empirical studies that the Supreme Court rejected in City of Erie, were Dr. Linz's studies ... However, in light of the Supreme Court's rejection of this specific analysis by Dr. Linz, we see little need to continue." [Citations omitted here and below]

The panel opinion goes on to cite several other Linz studies, all of which are considered to be scientifically impeccable, which it similarly rejected, noting that, "We acknowledge that the distinction between on-site and off-site adult businesses may be relevant under Step 2 of Alameda Books. But Doctor John's has produced absolutely no evidence relevant to this distinction."

In the end, the appeals court upheld the district court's decision to sanction Doctor John's untimely exhibit submission, and ruled that in any case, those exhibits failed to cast the necessary doubt on the City's rationale in passing its ordinance.






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Mark Kernes

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