F I L E D

United States Court of Appeals

Tenth Circuit

FEB 10 1998

PATRICK FISHER

Clerk

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

Z.J. GIFTS D-2, L.L.C., doing business as 

CHRISTIE’S, an Oklahoma limited

partnership, 

Plaintiff-Counter-DefendantAppellee,

v.

CITY OF AURORA, an Incorporated

Municipality,

Defendant-Counter-ClaimantAppellant.

No. 96-1483

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.
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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 sexuallyoriented 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 contentbased 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 NonViolence, 468 U.S. 288, 293 (1984). In determining whether a regulation is contentneutral, “[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
1See 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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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
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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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 offsite 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
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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
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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
14

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
15

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.