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154 Criminal Justice Policy Review the relevance of secondary effects evidence. If a business could demonstrate that the government's evidence was irrelevant to the problem that its ordinance purported to address, the ordinance could be struck down. Relevance challenges fall into two categories. The first centers on the fact that secondary effects studies have typically ignored salient differences among distinct adult business models. In Encore Videos v. City of San Antonio, an adult bookstore argued that its products were sold for "off-site" use only and, thus, that it could not have the same secondary effects as cabarets, video arcades, and other"on-site" adult businesses. Accepting part of this argument, the Fifth Circuit struck down a San Antonio ordinance whose evidentiary predicate failed to include secondary effects studies of"off-site" adult bookstores. An ambiguous passage in the Encore Videos decision left the impression that the Fifth Circuit had endorsed an interpretation of criminological theory favoring the plaintiffs. Citing the ambiguous passage, "off-site," adult businesses argued subse- quently that criminological theory precluded secondary effects for their business model. Four years later, however, in H and A Land Corp. v. City of Kennedale, the Fifth Circuit upheld an ordinance the evidentiary predicate of which included studies of"off-site"adult bookstores.The three-judge panel,including one member who had participated in the Encore Videos decision, took the unusual step of retracting the passage that seemed to endorse an interpretation of criminological theory (McCleary &Weinstein, 2007). The second category of Constitutional challenges centers on the fact that secondary effect studies have ignored idiosyncratic local conditions. In 2004, an adult book- store in rural Kansas used criminological theory to argue that the sparsely populated rural environment precluded the possibility of secondary effects. And because the local government had not studied this issue prior to enactment,the ordinance should be struck down.Rejecting this ar g ument,the trial court granted the defendant's summary judgment motion. On appeal, however, in Abilene Retail #30 v. Dickinson County, the Tenth Circuit agreed with the plaintiff's interpretation of criminological theory: All the studies relied on by the Board examine the secondary effects of sexually ori- ented businesses located in urban environments; none examines businesses situated in an entirely rural area. To hold that legislators may reasonably rely on those studies to regulate a single adult bookstore, located on a highway pullout far from any business or residential area within the County would be to abdicate "independent judgment" entirely. Such a holding would require complete deference to a local government's reliance on prepackaged secondary effects studies from other jurisdictions to regulate any single sexually oriented business of any type, located in any setting. (p. 1175) Because the adult bookstore was located in an isolated rural area, and because the County had no evidence to suggest that rural adult businesses would have secondary effects,the Tenth Circuit reversed the summary judgment and remanded the case for trial. Downloaded from http.//cjpsnyeputq l�YWyp�LIFORNIA IRVINE on May 25,2008 ®2008 SAGE Publications.All nights rase merclal use or unauthorized distribution.