court i'm filbert levy representing the appellant worldwide video i'd like to reserve three minutes of my time if i may there are primarily two issues before the court in this p l first of all whether the district court erred in granting summary judgment in favor of the city on the question of whether or not the ordinance was inactive in furtherance of a substantial governmental interest as applied to retail only adult businesses and secondly whether or not the ordinance is overly broad as applied to mixed businesses which do not hold themselves out to the public  being sexually oriented businesses or businesses which have as their stock in trade only a small percentage of adult material i framed the issue in the even though one of the locations has arcades were not suggesting for purposes of of the superhero that there is no evidence that businesses with arcades don't cause secondary however that's not the only secondary effect on which the city has for line there's also the issue about protection of minors there's also the issue about property values and i'm wondering what  indicated that the the retail business is in fact none of the adult businesses in spokane had an appreciable effect on diminution of property values and the issue with respect in the minors was  pornographic litter whether or not these businesses were responsible for pornographic litter the code inspector mr emerson in his deposition testified that with respect to the retail significant complaints about pornographic litter the neighbors who were interviewed in the private investigators survey didn't complain about pornographic litter so there was substantial evidence presented in opposition to the city's motion for summary judgment that pornographic litter was not a problem with respect to the retail only businesses and we submit that at the very least that was sufficient to rebut the city's evidence and in alameda bull works with respect to the substantial governmental interest issue cities evidence this initially afforded great deference but if the plaintiff comes forward with evidence to cast doubt on the city's evidence then it becomes a genuine issue of material fact and one for the fact finder it is not appropriately resolved on summary judgment as it was in this case we rely first of all on one alameda book itself i would point out that in alameda books the parties challenging the los angeles ordinance did not present any affirmative evidence as we did in this case but simply relied on deficiencies in the city study and nevertheless the supreme court sent the matter back to the district court for trial even though no affirmative evidence had been presented in this case we did present considerable affirmative evidence to rebut the city's claims the city's evidence i think roughly falls into two categories there were a series of studies which were kind of generic studies and did not use the civically with this type of business and then there were citizens who provided testimony to the city council and then provided  the anecdotal evidence our submissions raised questions about their credibility and also tended to show that the claims that they were making about the criminal activity associated with the retail only  businesses simply their claims simply were crude we maintain that this was sufficient to cast direct doubts on the city's evidence to ensure require a trial this is a regulatory yes as far as i know although i haven't analyzed all of the the rich have not analyzed carefully the regulatory regime of the federal waywardness i think so the difference between this case and the federal way ordinance is that the plaintiff in this case was a nightclub was not a retail only business and having read the court's opinion in the federal way case i'm confident also that the plaintiff in that case deja vu did not present affirmative evidence in support of its constitutional challenge that that was the case like the center for public policy which is another recent case of this court where they were books does throw the secondary effects issue opened contest in the case of an individual ordinance if there has to be some evidence in the legislative record parties challenging the ordinance have a right to come forward with evidence regarding the evidence in the legislative record if they do come forward with additional evidence on an ordinance by ordinance basis and a cast direct doubt on the city's claims then indicated otherwise it does seem to recognize the plaintiffs have a right to challenge the city's evidence and if they do come forward with enough evidence to challenge the city's evidence then it creates an issue of fact with the fact finder where we're presumably the fact finder which still defer to the evidence but would nevertheless require some credible evidence to support the city's  credible evidence supporting the city's claims in this case where we challenge to the credibility of the city's anecdotal sources credibility is an issue for the fact finder new word were to find that evidence credible that that would tend to support the city's ordinance and i'm not suggesting otherwise good and at least i should get my day and court if i can just spend a moment on the sec because i think it's equally important to the first this wardens applies on its face to a business which devotes a substantial portion of a portion of its business to sexually oriented material so if you hypothesize a video store which sells a thousand tapes and it has a separate room hollywood video would be required to relocate to the heavy industrial zone and there was all the businesses considered by smoking and were businesses which build exclusively in adult material there was no evidence in the legislative record that this type of mixed use small percentage business generated secondary effects so alameda books was a case where there was some evidence in the legislative record through his support the restriction with respect to a mixed business this is no evidence case it's more analogous to this court's decision in tolerance versus san bernadino or the fifth circuit an encore videos or the washington supreme court worldwide video i'd like to reserve the rest of my time thank you  morning the place the court my name is stephen smith i'm from preston gates and alice i represent the city of spokane in this case and spend most of my time this morning addressing the main issue in the case and that is whether the city of spokane had sufficient evidence of adverse impacts to justify the zoning ordinance setting back adult retail businesses from sensitive eustace would like to spend a little bit of my time addressing over breath issue particularly the issue that mr levy raced for the first time in his reply brief and not in the trial court below and that is whether a portion of a portion of the business is regulated by this ordinance in the way i believe he has waived the argument i would like to point out the fact that this particular argument that was raised for the first time in the reply brief was not raised below and he's also raised it again oral arguments i want to make sure that i covered that because i had a chance to do so i think it's important to spend one minute to discuss what i believe are pretty much under sputum facts to put this in the proper context as the family knows there were two specific zoning ordinances an act by the city of spokane want to stablish to step back between adult retail uses and certain sensitive uses like residential zones places of worship schools and parts and then the second ordinance provided a specific part of the city in addition to other parts of the city in which they businesses could relocate so that there clearly was enough places for them to relocate in acting the ordinance in the city had a variety of types of  evidence at the evidentiary stage of the legislative stage there input from neighbors of the business they relied on studies and police records from other cities and they relied on court cases these were the three types of the evidence that  supreme court's directions to the lower courts that if if the city proffers what appears to be reasonable evidence i feel evidence contradicting casting doubt on the required two different types of businesses in the same locale to separate all nine justices in alameda books and based upon the studies in that particular case you could have a separation of adult uses there are several specific adverse impacts that are addressed or several different types of evidence under the charter communications cape decision of the circuit you got to address all of them i know he concedes that  of the specific interests involved and each one of the types of evidence the contest that because of the if they just ignore type of evidence and i think it's clear that the city reasonably relied on that type of evidence and that's where you get to the question that  is what is the role of the court the course is not a truth finding function i mean the court is not to decide whether or not the corner graphic litter does adversely impact neighbors or minors or whether it whether it does it's the court's role under alameda books in america count case is looking at the evidence that the city saw at the time of its legislative enact was it reasonable to assume that that evidence was of sufficient adverse impact and that the ordinance was reasonably directed to address those adverse impacts i trial that would be your definition if you were trying yes in other words you did and i don't know if the use of discretion is the right standard but did the city have reasonably rel on each of the items of evidence or any one of the items of evidence at the legislative stage and what i was about to say when i was just presenting the facts and i've made this is the only thing that really is relevant is that at the legislative stage worldwide video interviews no evidence at all when we got to the summary judgment stage they pick and choose to among the types of evidence that they looked at let's let's look first at the types that out that half for this eerie case said that you could you could could rely on your own experience you could rely on studies from other cities you could rely on court cases now as to the experience of the city's residents i don't believe that any serious doubt was placed upon any of competent evidence sufficient to convince a reasonable trier of fact we had five the class one is a former employee of worldwide video one is a code enforcement officer and three neighbors they testified under oath how did they raise the serious doubts sufficient to convince a reasonable trier of fact they sent out an investigator bryce payne whose instruction was we don't want you to interview the people that we know are going to give  us bad examples of conduct we just want you to interview the other folks and if you find bad evidence we don't want you to include that in your report he went out and interviewed folks some of whom were a block two blocks away and they said well we don't have any problem with that business we don't see an issue i don't think that is sufficient to raise an issue of fact to any reasonable trier of fact i know this court had some problems with an analogy earlier on arm in  taking a risk here but it would be as if someone testified to on september first at noon i saw a person a assault person b and then you had other witnesses that said well i was at the same place on september fourth and i didn't see any crime committed the testimony that they produced did not negate the testimony of the folks that said i saw this i saw this and i saw that so under the enderson versus liberty lobby standard that they haven't raised an issue of material fact that's the first type of evidence and it applies both to the deposit of litter and to the sexual conduct on the premises adult retail only businesses the second type of evidence are  studies now i'll concede that the studies are not a model of clarity in saying whether there are retail only are not receive the district court in its decision went through and picked out the cases that if thought dealt with retail only cases and we tried to do the same in our grief as well there were studies from indianapolis and st paul that were identified as dealing with retail only businesses but there are also three studies that were cited in the stringfellow as case dealing with new york city adult businesses there are more than two hundred fifty businesses in new york city some of them had to have dealt with retail only establishment themselves so we sell they don't sell they don't say that there is no on premises view and that's how the district court read it that's how i read it that's how the court spins e j gives i l q investments and stringfellow it's all reading and that leads me to the third item of evidence and the pap's case says you can rely on court decisions it's reasonable for a municipality to look at a judicial decision that says you as a city can separate sensitive uses from adult retail only businesses and all three of those cases dealt with retail only businesses so in answer to your question not only did they not address properly i think the so called anecdotal evidence of the five witnesses they didn't address the court study that came in that was produced and said well these other studies are invalid or if the court case that they were relying on had been reversed then you would put into doubt none of that was placed before the city and  many theaters case it was applied in the elmina books case the two cases we found that squarely addressed the issue found it constitutional not only that but this was particularly the type of ordinance that is properly reserved to a state court for limiting construction because mr levy is not arguing that it applies to this client he says he's saying that applied to some other clients out there that it might be overbroad he's provided no authority that supports that with respect to this ordinance the issue that he raised in his response of grief is that he said that the language of the organs the talks about a portion of a building somehow incorporates a mainstream like hollywood video or a blockbuster video that's not what the ordinance says that all the ordinance says that aid an adult retail establishment whether it's located in a standalone building or whether it's located in a portion of a building like a strip mall or a shopping center has to have a substantial or significant portion of its stock in trade that's all it sets that has been up held and there's no basis for reversal just in summary if you have another question in summary this city of spokane residents have put up with this behavior long enough ordinance has been enforced there awaiting the decision of this court i think you just briefly the businesses are still in existence but they're no longer operating as adult businesses within the city of spokane's definition of an adult business so the type of the businesses that existed nature i think it's changed the nature of what they sell with respect to the raise the issue the first time in my reply brief in our opening three and in the district court  argued that the ordinance was overbroad because it applied to businesses which had not been considered by the city of spokane in an act in the ordinance in response to the city  raise the argument well to the extent that it may be overly broad it's susceptible to a narrowing construction of the point about a portion of a portion was in response to the city's argument that certainly that portion of the definitional so action of the ordinance is not susceptible to a narrowing construction but i believe that the basic theory has been consistently argued throughout this case that the ordinance on its face applies to throughout that this ordinance is in the definitional section of this ordinance would apply to businesses selling ten percent  anything i'm sure they would but my only question is whether or not the language in this ordinance is susceptible to narrowing construction i mean i don't know how a state court would decide which significant means or what the legislator intended when it used the word significant and also i think the portion of a portion language is pretty clear and unambiguous and not susceptible to narrowing construction of a portion of the building contains adult all i don't know that it would i don't know when it's going just briefly going back to with respect to the anecdotal evidence which cities of the three neighbors we believe that we cast doubt on their testimony that three neighbors had been recruited by the local and i pornography organization none of the heard of the claims that they were making about her renders conduct the ca did with the retail only businesses were reflected in police calls police reports or complaints to the neighborhood police statements where one would nacton reasonably expect that they would be made so with respect to the anecdotal to and the code inspector that with respect to the retail only businesses there were no problems with the pornographic litter which is what council's mainly talking about also with respect to the studies the numerous studies that the city relied on mr mclaughlin had read all of those studies are and was through intimately familiar with each one of them and was in a position to say that these studies don't relate to this type of business and they do use to this similar studies