IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

April 21, 2021 Session

GENE LOVELACE ENTERPRISES, LLC, ET AL. V.

CITY OF KNOXVILLE, ET AL.

Appeal from the Circuit Court for Knox County

Nos. 2-391-05, 2-494-05 William T. Ailor, Judge

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No. E2019-01574-COA-R3-CV

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This is the second appeal of this action concerning the enforceability of a licensing 

ordinance applicable to sexually oriented businesses in the City of Knoxville. The trial 

court found the ordinance lawful upon remand from this court and granted summary 

judgment in favor of the City. We affirm. 

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court

Affirmed; Case Remanded

JOHN W. MCCLARTY,J., delivered the opinion of the court, in which D. MICHAEL SWINEY, 

C.J. and CARMA DENNIS MCGEE, J., joined. 

Matthew A. Grossman, Knoxville, Tennessee, for the appellant, Gene Lovelace 

Enterprises, LLC and Bambi’s, LLC. 

Scott D. Bergthold, Bryan A. Dykes, and Robert T. Noland, Chattanooga, Tennessee, for 

the appellee, the City of Knoxville. 

OPINION

I. BACKGROUND

The City of Knoxville (“the City”) drafted the licensing ordinance at issue to 

regulate the conduct permitted on the premises of sexually oriented businesses by, inter 

alia, (1) prohibiting total nudity and touching of patrons; (2) prohibiting alcohol on the 

premises; (3) limiting hours of operation; and (4) requiring sexually oriented businesses 

06/11/2021
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and their employees to obtain licenses. The ordinance was presented to the Metropolitan 

Planning Committee (“MPC”). Following a hearing over the course of two days on March 

10 and April 14, 2005, the MPC denied recommendation of the licensing ordinance. 

The ordinance was then presented to the Knoxville City Council (“the City 

Council”), at which the City’s outside counsel, Scott Bergthold, presented evidence, 

claiming that regulation was necessary because the subject businesses caused adverse 

secondary effects upon the community, namely diminished property values; increased 

personal, property, and drug crimes; spread of disease; and neighborhood blight.1 

Attorneys for the businesses at issue were present and objected to the passing of the 

ordinance with the support of their own documentary evidence. Members of the public 

were also present and offered their personal opinions on the matter. The ordinance was

approved following a full hearing over the course of two days in May 2005. 

Gene Lovelace Enterprises, LLC a/k/a Last Chance Theatre & Musical Club 2000 

at Alcoa Highway and Bambi’s, LLC (collectively “Plaintiffs”), and other adult businesses 

then filed the instant action to challenge the validity of the ordinance, claiming that (1) the 

ordinance is invalid because the City did not timely appeal the MPC’s denial of the 

ordinance and that (2) the ordinance violates the constitutional right of free speech because 

it was enacted based on “shoddy” or misleading information and contains 

unconstitutionally vague and overbroad terms. The City moved for summary judgment, 

providing specific evidence of crimes occurring in and around Knoxville near the subject 

businesses. The City also provided studies performed in other cities showing similar 

effects of such businesses in other municipalities. 

At the discovery stage, Plaintiffs requested permission to depose Attorney 

Bergthold to gain information concerning the basis for his selection of the materials 

presented to the City Council. The City moved for a protective order precluding his 

deposition based upon claims of legislative immunity, the attorney-client privilege, and the 

work product doctrine. The trial court entered a protective order, citing the immunities and 

privileges claimed without further explanation. 

Plaintiffs responded to the motion for summary judgment with, inter alia, their own 

affidavit, in which Larry Miller, Ph.D. alleged that the studies provided by the City 

contained flawed methodology or were otherwise unreliable. Dr. Miller attested that he 

found no evidence of adverse secondary effects resulting from the operation of the subject

businesses. Plaintiffs also provided a report from a cultural anthropologist, who concluded 

that displays of nudity such as those at issue here have artistic merit and communicative 

expression, and an article in which the writer concluded that crime was more common 

around fast food restaurants than around adult businesses. 

 

1 Plaintiffs refer to Attorney Bergthold’s evidence as “the legislative predicate.”
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Following a hearing, the trial court granted summary judgment in the City’s favor. 

Plaintiffs appealed to this court. We reversed the grant of summary judgment and 

remanded for further proceedings, holding that the trial court failed to fully analyze the 

requested enactment of the ordinance using the four-factor test developed in United States 

v. O’Brien, 391 U.S. 367 (1968). Lovelace v. City of Knoxville, No. E2013-01584-COAR3-CV, 2014 WL 7069956, at *8 (Tenn. Ct. App. Dec. 15, 2014) (“Lovelace I”). The test 

at issue is as follows:

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.

O’Brien, 391 U.S. at 377 (citations omitted). We directed the trial court as follows:

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 . . . to determine whether the 

subject ordinance serves a substantial government interest. 

Lovelace I, 2014 WL 7069956, at *8. We likewise held that the trial court’s ruling 

concerning the protective order did not allow for meaningful appellate review because it 

failed to delineate the specific privilege or immunity forming the basis for the order. 

Upon remand, Plaintiffs provided an updated report from Dr. Miller in which he 

again found no adverse secondary effects upon the community from the subject businesses.

The trial court renewed the protective order barring the deposition of Attorney Bergthold

with the following additional reasoning: 

[Plaintiffs] want to depose [Attorney Bergthold] to show the Court that the 

data relied upon by the [City] is “shoddy” by using the impressions of 

[Attorney Bergthold] and his opinions and why he chose the information he 

chose to present to the City which supported his conclusions. The Court is 

of the opinion that those things are clearly covered by the attorney-client 
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privilege as [Attorney Bergthold] was hired by the City to help them develop 

the ordinance which is a legal function and something that the City Attorney 

does on a regular basis. To rule otherwise would open up the City Attorney 

to being deposed every time someone decided to question the efficacy of an 

ordinance prepared by that office. Questioning [Attorney Bergthold] as to 

why he chose the information he chose will not test whether the data relied 

on was based on shoddy work by those who developed it. That would have 

nothing to do with the data but [Attorney Bergthold’s] opinions as to why he 

chose the data he chose. Any documents that were filed with the ordinance 

or in support thereof are now public record and have clearly lost any 

protection of attorney-client privilege and are discoverable. [Plaintiffs have] 

the right to hire their own expert who can examine those documents and 

make whatever determination and reach whatever conclusions about or 

opinions she or he may make. Any statements made by [Attorney Bergthold] 

in a public forum have also lost any attorney-client privilege but have already 

been disclosed. However, [Attorney Bergthold’s] thoughts, impressions, 

[and] reasoning as to why he decided to use certain information in making 

his recommendation is covered by the attorney-client privilege and work 

product and therefore not discoverable. 

In determining whether legislative immunity applies to [Attorney 

Bergthold], the Court . . . is of the opinion that legislative immunity should 

be applied to [Attorney Bergthold] as he was hired by [the City] to draft an 

ordinance which is a legislative function of [the City]. After that 

determination, the Court must determine the nature of the act he was hired to 

perform not his motivation. If it was legislative in nature, then legislative 

immunity should apply and he would be protected. In this case, as stated 

previously, he was hired to draft a city ordinance. It does not matter that the 

ordinance was affecting adult entertainment businesses only that he was 

hired to draft an ordinance which is legislative in nature. As a result, the 

Court, is of the opinion that he is protected by legislative immunity. 

Following a hearing, the court again granted the City’s motion for summary judgment, 

finding that the City was not required to appeal the MPC’s denial because the licensing 

ordinance is not a zoning ordinance. The court found that the ordinance was not overbroad 

or vague and that it passed the four-factor O’Brien test because Plaintiffs failed to cast 

direct doubt upon the evidence relied upon by the City Council. 
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II. ISSUES

A. Whether the trial court erred in its qualification of the subject 

ordinance as a non-zoning matter, thereby permitting the City to present the 

matter to the City Council without filing an appeal from the MPC.

B. Whether the trial court abused its discretion in its issuance of a 

protective order barring the deposition of Attorney Bergthold.

C. Whether the trial court erred in its grant of summary judgment.

III. STANDARD OF REVIEW

Rule 56.04 of the Tennessee Rules of Civil Procedure states that a motion for 

summary judgment should only be granted if “the pleadings, depositions, answers to 

interrogatories, and admissions on file, together with the affidavits, if any, show that there 

is no genuine issue as to any material fact and that the moving party is entitled to a judgment 

as a matter of law.” The standard of review following a trial court’s decision on a motion 

for summary judgment is de novo with no presumption of correctness. Tatham v. 

Bridgestone Ams. Holding, Inc., 473 S.W.3d 734, 748 (Tenn. 2015) (citing Parker v. 

Holiday Hospitality Franchising, Inc., 446 S.W.3d 341, 346 (Tenn. 2014)).

IV. ANALYSIS

A.

Plaintiffs assert that the licensing ordinance at issue is tantamount to a zoning 

ordinance subject to the zoning appeal process when one ground for denial of a permit is 

noncompliance with zoning requirements. Plaintiffs argue that the City’s failure to abide 

by its own appeal process renders the ordinance invalid. The City responds that the subject 

ordinance simply requires compliance with laws governing location as a prerequisite to 

obtaining a business license but does not prevent Plaintiffs from continuing to use the 

property as a sexually oriented business due to its location. Rather, it imposes ordinary 

licensing restrictions on that category of businesses and is not a zoning ordinance. 

The City Code provides an appeal process stating that any petitioner “aggrieved by 

any decision of the [MPC] may petition the City Council to consider the same.” Knoxville 

Municipal Code, Appx. B, Art. VII, Sec. 6F (emphasis added). The appeal ordinance then 

provides certain guidelines concerning the public notification requirement and the time 

limits applicable to such appeals of zoning decisions. 
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In considering this issue, we must first determine whether the ordinance at issue is 

a zoning ordinance. Tennessee courts utilize the following two-part test in determining 

whether an ordinance is a zoning ordinance: 

The first step requires courts to review the terms of the challenged ordinance 

and the municipality’s comprehensive zoning plan to determine whether the 

ordinance is so closely related to the zoning plan that it can be fairly 

characterized as tantamount to zoning. The second step requires the courts 

to determine whether the challenged ordinance substantially affects the use 

of the property that is the subject of the litigation. Both parts of the test must 

be satisfied before a challenged ordinance may be held to be tantamount to 

zoning.

SNPCO, Inc. v. City of Jefferson City, 363 S.W.3d 467, 478 (Tenn. 2012). Here, the 

challenged ordinance regulates the time and manner in which the subject businesses 

operate and cannot be fairly characterized as tantamount to zoning when the ordinance at 

issue does not depend upon the City’s zoning plan. Consideration of the second factor is 

unnecessary when both parts of the test must be satisfied to classify the challenged 

ordinance as a zoning matter. Accordingly, we hold that the City was not beholden to the 

appeal process for zoning matters under the circumstances presented here.2 

B.

Plaintiffs next argue that the trial court abused its discretion in entering a protective 

order, prohibiting the deposition of Attorney Bergthold based upon legislative immunity, 

the attorney-client privilege, and the work product doctrine. Plaintiffs assert that Attorney 

Bergthold, who is not a party to the lawsuit, does not have standing to plead legislative 

immunity because he does not face potential civil or criminal liability. They likewise assert 

that the City may not rely upon the attorney-client privilege or work product doctrine 

because they are not seeking his communications with the City. Finally, they suggest that 

a reasonable protective order may shield the City from any disclosure of unnecessary 

material while also allowing their requested discovery. The City responds that Plaintiffs 

possess the documents filed with the ordinance or those filed in support thereof and that 

Attorney Bergthold’s thought processes are protected and not subject to review. 

 

2 Plaintiffs suggest that review was somehow hampered by the failure to follow the appeal 

process, citing the fact that the appeal procedure requires notification to all interested parties and 

the general public at least 15 days prior to the hearing. Our review of the record reflects that 

Plaintiffs were afforded a full and fair hearing before both the MPC and the City Council and that

members of the public were present at the City Council hearing and offered an opportunity to 

present their opinions. 
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Decisions pertaining to discovery and the issuance of a protective order are subject 

to an abuse of discretion standard of review. To determine whether a decision constitutes 

an abuse of discretion, we review the trial court’s decision to ascertain: “(1) whether the 

factual basis of the decision is supported by sufficient evidence; (2) whether the trial court 

has correctly identified and properly applied the applicable legal principles; and (3) 

whether the trial court’s decision is within the range of acceptable alternatives.” Gooding 

v. Gooding, 477 S.W.3d 774, 780 (Tenn. Ct. App. 2015) (quotation omitted). The 

Tennessee Rules of Civil Procedure limit the scope of discovery to “any matter, not 

privileged, which is relevant to the subject matter involved in the pending action, whether 

it relates to the claim or defense of the party seeking discovery or to the claim or defense 

of any other party[.]” Tenn. R. Civ. P. 26.02. Our Supreme Court has provided the 

following additional guidance in such matters:

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) (citation omitted).

The attorney-client privilege, codified now at Tennessee Code Annotated section 

23-3-105, provides as follows: 

No attorney, solicitor or counselor shall be permitted, in giving testimony 

against a client or person who consulted the attorney, solicitor or counselor 

professionally, to disclose any communication made to the attorney, solicitor 

or counselor as such by such person during the pendency of the suit, before 

or afterward, to the person’s injury. 

Similarly, the work product doctrine, codified now at Rule 26.02(3) of the Tennessee Rules 

of Civil Procedure, provides as follows:

[A] party may obtain discovery of documents and tangible things otherwise 

discoverable under subdivision (1) of this rule and prepared in anticipation 

of litigation or for trial by or for another party or by or for that other party’s 

representative (including an attorney, consultant, surety, indemnitor, insurer, 

or agent) only upon a showing that the party seeking discovery has 

substantial need of the materials in the preparation of the case and is unable 

without undue hardship to obtain the substantial equivalent of the materials 
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by other means. In ordering discovery of such materials when the required 

showing has been made, the court shall protect against disclosure of the 

mental impressions, conclusions, opinions, or legal theories of an attorney 

or other representative of a party concerning the litigation.

(Emphasis added.). We agree with the trial court that Attorney Bergthold’s thoughts, 

impressions, and reasoning as to why he decided to use certain information in making his 

recommendation are covered by the attorney-client privilege and are his work product, 

thereby precluding their discoverability. 

Legislative immunity, codified now at Article II, Section 13 of the Tennessee 

Constitution, provides as follows: 

Senators and representatives shall, in all cases, except treason, felony, or 

breach of the peace, be privileged from arrest during the session of the 

General Assembly, and in going to and returning from the same; and for any 

speech or debate in either House, they shall not be questioned in any other 

place. 

Legislators or attorneys hired by legislators are not specifically covered by the doctrine of 

legislative immunity as codified; however, the immunity has been applied in a broad 

manner to insulate local legislators from judicial interference with their duties. Miller v. 

Wyatt, 457 S.W. 3d 405, 411-12 (Tenn. Ct. App. 2014) (holding that a city council member 

was immune from suit for statements made during the course of a city council hearing). 

We decline to extend the scope of such immunity to the circumstances presented here when 

the attorney-client privilege and work product doctrine are more applicable to the issue 

presented, namely whether Attorney Bergthold may be deposed concerning his thought 

process and reasoning for presenting certain documentation in support of the licensing 

ordinance. We affirm the trial court’s issuance of the protective order with all of the above 

considerations in mind. This court “may affirm a judgment on different grounds than those 

relied on by the trial court when the trial court reached the correct result.” City of 

Brentwood v. Metro. Bd. of Zoning Appeals, 149 S.W.3d 49, 60 n.18 (Tenn. Ct. App. 2004).

C.

Plaintiffs ask this court to reverse the grant of summary judgment. Plaintiffs first 

claim that the ordinance is facially overbroad and vague, specifically in reference to its 

definitions of sexually oriented business, specified anatomical areas, and employee. The 

City asserts that the ordinance is clearly defined, narrowly tailored, and is not substantially 

broader than necessary to promote the governmental interest in combating negative 

secondary effects. 
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A panel of this court has previously stated that “[a]n ordinance is unconstitutionally 

vague when a person of common intelligence must necessarily guess at its meaning. To 

avoid unconstitutional vagueness, a statute must define the criminal offense with sufficient 

definiteness that ordinary people can understand what conduct is prohibited and in a 

manner that does not encourage arbitrary and discriminatory enforcement.” Am. Show Bar 

Series, Inc. v. Sullivan Cnty., 30 S.W.3d 324, 339 (Tenn. Ct. App. 2000) (internal citations 

and quotations omitted). “A statute is overbroad when it poses a realistic danger that the 

statute itself will significantly compromise recognized First Amendment protections of 

parties not before the Court.” Id. (internal quotation omitted). However, the ordinance 

may be upheld if the definition at issue is “readily susceptible to a narrowing construction 

that would salvage its constitutionality.” Id. (citations omitted).

The definitions of the relevant terms at issue are as follows: 

1. Sexually oriented business: “adult bookstore,” an “adult video store,” 

an “adult cabaret,” an “adult motel,” an “adult motion picture theater,” a 

“semi-nude model studio,” “sexual device shop,” or “sexual encounter 

center.”

2. Specified anatomical areas: (1) Less than completely and opaquely 

covered: human genitals or anus; pubic region; buttock; and female breast 

below a point immediately above the top of the areola; and (2) Human male 

genitals in a discernibly turgid state, even if completely and opaquely 

covered.

3. Employee: 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. “Employee” does not include a person 

exclusively on the premises for repair or maintenance of the premises or for 

the delivery of goods to the premises. 

The terms “adult cabaret” and “employee” are more clearly defined by the narrowing 

construction in the Adult-Oriented Registration Act as follows: 

(2) “Adult cabaret” means an establishment that features as a principal use 

of its business, entertainers, waiters, or bartenders who expose to public view 

of the patrons within such establishment, at any time, the bare female breast 

below a point immediately above the top of the areola, human genitals, pubic 

region, or buttocks, even if partially covered by opaque material or 

completely covered by translucent material, including swim suits, lingerie, 

or latex covering. “Adult cabaret” includes a commercial establishment that 

features entertainment of an erotic nature, including exotic dancers, strippers, 
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male or female impersonators, or similar entertainers[.]

* * *

(9)(B) “Employee” does not include a person exclusively on the premises for 

repair or maintenance of the premises or equipment on the premises, or for 

the delivery of goods to the premises, nor does it include an independent 

accountant, attorney, or other similar professional incidentally visiting the 

premises solely to perform accounting, legal or other similar professional 

services; provided, that the accountant, attorney or other similar professional 

is not a manager, owner, operator, entertainer, or escort connected with the 

adult-oriented establishment or the providing of adult entertainment[.]

Tenn. Code Ann. § 7-51-1102(2), (9). Further, the preamble to the licensing ordinance 

itself provides as follows: 

[I]t is not the intent of this ordinance to suppress any speech activities 

protected by the United States Constitution or the Tennessee Constitution, 

but to enact a narrowly tailored ordinance to further the content-neutral 

governmental interests of the City, to wit, the controlling of secondary effects 

of sexually oriented businesses. 

Plaintiffs suggest that the definitions leave no exception for communication that 

includes genuine artistic, political, or scientific merit and that the definition of employee 

does not include any exception for those performing unrelated services on the premises. 

We disagree. We, like the trial court, do not find that the definitions pose a real and 

substantial danger to significantly compromise constitutionally protected speech and that 

the words are clearly and narrowly tailored to target the performances at sexually oriented 

business that cause negative secondary effects. The terms adult cabaret and employee are 

subject to a narrowing construction that more clearly defines those subject to the ordinance. 

We affirm the trial court’s finding on this issue. 

Plaintiffs next claim that the ordinance is subject to strict scrutiny, not the 

intermediate scrutiny utilized by the trial court in analyzing the ordinance. Here, the 

ordinance is not specifically targeted at the content of the speech, e.g. the erotic message 

conveyed by the entertainment, but is instead targeted at combating the negative secondary 

effects of the protected expression and is more closely aligned to a time, place, and manner 

restriction, thereby requiring intermediate scrutiny of the subject ordinance. Am. Show Bar 

Series, Inc., 30 S.W.3d at 333-34.

Plaintiffs next reassert their original claim in Lovelace I that the trial court’s grant 

of summary judgment to the City was improper under the test set forth in O’Brien. As 

previously stated, the four-factor test is as follows: 
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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.

O’Brien, 391 U.S. at 377 (citations omitted). The licensing ordinance is clearly within the 

City’s constitutional powers to protect the public health, safety, and welfare.3 The third 

and fourth factors are also easily satisfied as we have already found that the ordinance is 

content neutral, not overly broad, and narrowly tailored to combat the secondary effects of 

such businesses. However, upon remand, the trial court was specifically tasked with 

determining 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 in accordance with the second factor. 

The evidentiary standards applicable to analyzing this issue are as follows: 

[A] municipality may rely on any evidence that is “reasonably believed to be 

relevant” for demonstrating a connection between speech and a substantial, 

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 its 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 [City of 

Renton v. Playtime Theaters, Inc., 475 U.S. 41 (1986)] standard. 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.

City of Los Angeles v. Alameda Books, Inc., 535 U.S. 425, 438-39 (2002) (citations 

omitted). The trial court offered the following reasoning in support of its finding of the 

fulfillment of the second factor:

 

3 Plaintiffs do not appear to dispute this fact. 
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The plaintiffs contend that the City failed to show that the ordinance furthers

an important governmental interest in combating negative secondary effects 

because: (1) the City enacted the Ordinance based upon shoddy reasoning 

and data; and (2) [Plaintiffs] succeeded in casting direct doubt on the City’s 

findings by furnishing contrary evidence. Most notable among [Plaintiffs’] 

evidence are affidavits of two experts, Dr. Larry S. Miller and Dr. Randy D. 

Fisher. Specifically, Dr. Miller contended that he did not find any adverse 

secondary effects caused by the sexually oriented businesses in Knoxville, 

explaining that: (1) the sexually oriented business establishments in 

Knoxville are not “hot spots” of criminal activity, and there were few police 

calls for service and crimes being reported at or near these establishments; 

(2) what has the most effect on surrounding property value is zoning, signage 

and structural design and maintenance, as opposed to sexually oriented 

businesses; and (3) there is no epidemiological evidence to suggest that 

Sexually Transmitted Diseases (STDs) are traceable to sexually oriented 

businesses in Knoxville. Further, Dr. Fisher challenged the methodologies 

used in the reports and studies in other localities, which were relied upon by 

the City in enacting the Ordinance. 

The Court finds that [Plaintiffs] failed to cast direct doubt on the City’s 

findings. The City provided sufficient evidence that is “reasonably believed 

to be relevant” to demonstrate the City’s interest in combating and preventing 

the negative secondary effects of sexually oriented businesses. Specifically, 

the City relied upon extensive legislative findings, including court opinions, 

reports and studies from other cities, periodical articles, and police reports 

from other localities, which contain evidence of secondary effects caused by 

sexually oriented businesses. Although not required, the City also provided 

the Knoxville Police Department’s reports of crimes at sexually oriented 

businesses in Knoxville. 

While the City may reasonably rely on evidence from other localities and 

anecdotal evidence, plaintiffs’ burden [to cast doubt upon the City’s findings] 

is heavier and cannot be met with unsound inference or similarly anecdotal 

information. [Plaintiffs] finding is that there is insufficient evidence to prove 

that sexually oriented businesses have actually been causing high crime rates, 

reduced property values, and transmission of STDs in Knoxville. 

[Plaintiffs’] evidence suggests, at best, that: (1) it is unclear whether and, to 

what extent, sexually oriented businesses cause negative secondary effects in 

Knoxville; and that (2) the City could have reached a different conclusion. 

This does not render the City’s contrary findings and its rationale “shoddy.” 

The second prong of the O’Brien test is satisfied, as the City showed that the 

Ordinance furthers an important governmental interest, and [Plaintiffs] failed 

to cast direct doubt on the City’s rationale.
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(internal citations omitted). We agree with the trial court’s reasoning on this issue. See 

Richland Bookmart, Inc. v. Knox Cnty., Tenn., 555 F.3d 512, 527 (6th Cir. 2009)

(“[E]vidence suggesting that a different conclusion is also reasonable does not prove that 

the County’s findings were impermissible or its rationale unsustainable.”) (citation 

omitted). We likewise conclude that the City established that the ordinance furthers an 

important governmental interest and that Plaintiffs failed to cast direct doubt on the City’s 

rationale. Having found that the second factor has been fulfilled, we affirm the trial court’s 

grant of summary judgment in favor of the City. 

V. CONCLUSION

For the reasons stated, we affirm the decision of the trial court and remand for such 

further proceedings as may be necessary. Costs on appeal are assessed equally to the 

appellants, Gene Lovelace Enterprises, LLC and Bambi’s, LLC. 

_________________________________

JOHN W. MCCLARTY, JUDGE