# Edge v. City of Everett

> District Court, W.D. Washington · October 19, 2022

URL: https://www.frixlaw.com/law-library/cases/10707188

## Case

- **Court:** District Court, W.D. Washington
- **Decided:** October 19, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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UNITED STATES DISTRICT COURT
7
WESTERN DISTRICT OF WASHINGTON
8 AT SEATTLE

9
JOVANNA EDGE, et al., Case No. C17-1361RSM
10

11 Plaintiffs, ORDER RE: MOTIONS FOR SUMMARY
JUDGMENT
12 v.
13
CITY OF EVERETT, a Washington
14 Municipal Corporation,

15 Defendant.
16

17 I. INTRODUCTION
18
This case comes before the Court on the parties’ Motions for Summary Judgment, Dkts.
19
#74 and #76. The Court has determined that it can rule without oral argument. For the
20
following reasons, the Court GRANTS IN PART and DENIES IN PART these Motions as
21
22 stated below.
23 II. BACKGROUND
24
The general background facts of this case have been set forth previously by this Court
25
when granting Plaintiff’s Motion for Preliminary Injunction, Dkt. #55, and by the Ninth Circuit
26
when that Order was appealed, Dkt. #65. These facts are generally sufficient for the Court’s
27
28
analysis below.1 The Court adopts the factual and procedural background set forth in the Ninth
1
2 Circuit’s Opinion. See Dkt. #65.
3 Plaintiffs Jovanna Edge and others are or were employed by “bikini barista stands.”
4
Plaintiffs challenge the constitutionality of two ordinances enacted by the City of Everett,
5
Ordinance No. 3559-17 (the “Lewd Conduct Ordinance”) and Ordinance No. 3560-17 (the
6
“Dress Code Ordinance”). The Lewd Conduct Ordinance expanded the definition of a lewd act
7
8 to include an exposure of “more than one-half of the part of the female breast located below the
9 top of the areola,” “the genitals, anus, bottom one-half of the anal cleft, or any portion of the
10
areola or nipple of the female breast” and created the new crime of Facilitating Lewd Conduct.
11
Dkt. #65 at 7–8. The Dress Code Ordinance requires all employees, owners, and operators of
12
13 “Quick-Service Facilities” to wear clothing that covers “the upper and lower body
14 (breast/pectorals, stomach, back below the shoulder blades, buttocks, top three inches of the
15 legs below the buttocks, pubic area and genitals).” Id. at 8. The Ordinance defines Quick-
16
Service Facilities as “coffee stands, fast food restaurants, delis, food trucks, and coffee shops”
17
in addition to all other drive-through restaurants. Id. Violations are deemed civil infractions.
18
19 Id. To ensure that stand owners are motivated to enforce the dress code, the City instituted a
20 $250 fine for first time offenders. Id. Repeat offenders face increased fines and risk losing their
21
business licenses.
22
Although the Dress Code Ordinance defines “Quick-Service Facilities” broadly, it is
23
clear from the title (“an Ordinance concerning the regulation of Quick Service Facilities
24
25 including Barista Stands”) and the preamble (e.g., “The City has seen a proliferation of crimes
26
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1 The parties have stipulated to “rely solely on the factual record already presented to the Court during the
28 preliminary injunction proceedings, with the exception of expert witness testimony and supporting materials” in
filing and defending the instant Motions. Dkt. #73.
of a sexual nature occurring at bikini barista stands…”) that this Ordinance was enacted to
1
2 respond to the perceived problems associated with bikini barista stands. See Dkt. #1-2 at 2.
3 In their Complaint, Plaintiffs allege both Ordinances violated the First Amendment, the
4
Fifth and Fourteenth Amendments (equal protection, vagueness and substantive due process),
5
and corollary provisions in the Washington Constitution (art. I, sec. 5 (free speech) and art. I,
6
sec. 12 (equal protection)). Dkt. #1.
7
8 This Court granted Plaintiffs’ Motion for a Preliminary Injunction on December 4, 2017.
9 Dkt. #55. In that Order, the Court found a likelihood of success on the merits with regard to
10
Plaintiffs’ Fourteenth and First Amendment claims. Specifically, the Court found that the Lewd
11
Conduct Ordinance was likely void for vagueness and that both ordinances create dangers of
12
13 arbitrary enforcement. The Court found that Plaintiffs’ choice of clothing was communicative,
14 the dress code ordinance was content neutral, that it was subject to intermediate scrutiny, and
15 that it did not satisfy that test. Everett filed an appeal, which was granted. The Ninth Circuit
16
found that the Lewd Conduct Ordinance was not void for vagueness and did not “create a
17
constitutional problem by inviting discretionary enforcement.” Dkt. #65 at 14–17. The Ninth
18
19 Circuit ruled that “the vagueness doctrine does not warrant an injunction prohibiting
20 enforcement of the Dress Code Ordinance.” Id. at 19. Plaintiffs’ First Amendment claims
21
failed to “show a likelihood that their intended message will be understood by those who
22
receive it.” Id. at 22; see also id. at 23 (“The baristas’ act of wearing pasties and g-strings in
23
close proximity to paying customers creates a high likelihood that the message sent by the
24
25 baristas’ nearly nonexistent outfits vastly diverges from those described in plaintiffs’
26 declarations.”). The Ninth Circuit then provided a framework for this Court in thinking about
27
the First Amendment claims:
28
We stress that plaintiffs deny that they engage in nude dancing and
1
erotic performances, thereby disavowing the First Amendment
2 protections available for that conduct. See Barnes, 501 U.S. at 566.
The outcome of this case turns on the plaintiffs’ contention that the
3 act of wearing almost no clothing while serving coffee in a retail
establishment constitutes speech. Because wearing pasties and g-
4
strings while working at Quick-Service Facilities is not “expressive
5 conduct” within the meaning of the First Amendment, the Dress
Code Ordinance does not burden protected expression.
6
The district court’s application of intermediate scrutiny under the
7
“secondary effects” line of authority was inapposite because that
8 doctrine applies to regulations that burden speech within the ambit
of the First Amendment’s sphere of protection. See World Wide
9 Video of Wash., Inc. v. City of Spokane, 368 F.3d 1186, 1192 (9th
Cir. 2004). Here, because the Dress Code Ordinance does not
10
burden expressive conduct protected by the First Amendment, the
11 City need only demonstrate that it “promotes a substantial
government interest that would be achieved less effectively absent
12 the regulation.” Rumsfeld v. Forum for Acad. & Institutional
13 Rights, Inc., 547 U.S. 47, 67 (2006) (quoting United States v.
Albertini, 472 U.S. 675, 689 (1985)). The district court did not
14 analyze the ordinance under this framework, so we vacate its
preliminary injunction and remand for further proceedings.
15
16 Id. at 23. The Court now considers these claims on summary judgment.
17 III. DISCUSSION
18
A. Legal Standard for Summary Judgment
19
Summary judgment is appropriate where “the movant shows that there is no genuine
20
dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.
21
22 R. Civ. P. 56(a); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). Material facts are
23 those which might affect the outcome of the suit under governing law. Anderson, 477 U.S. at
24
248. In ruling on summary judgment, a court does not weigh evidence to determine the truth of
25
the matter, but “only determine[s] whether there is a genuine issue for trial.” Crane v. Conoco,
26
Inc., 41 F.3d 547, 549 (9th Cir. 1994) (citing Federal Deposit Ins. Corp. v. O’Melveny &
27
28 Meyers, 969 F.2d 744, 747 (9th Cir. 1992)).
On a motion for summary judgment, the court views the evidence and draws inferences
1
2 in the light most favorable to the non-moving party. Anderson, 477 U.S. at 255; Sullivan v. U.S.
3 Dep't of the Navy, 365 F.3d 827, 832 (9th Cir. 2004). The Court must draw all reasonable
4
inferences in favor of the non-moving party. See O’Melveny & Meyers, 969 F.2d at 747, rev’d
5
on other grounds, 512 U.S. 79 (1994). However, the nonmoving party must make a “sufficient
6
showing on an essential element of her case with respect to which she has the burden of proof”
7
8 to survive summary judgment. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
9 B. No Genuine Disputes of Material Fact
10
As an initial matter, the parties appear to agree that there are no genuine disputes as to
11
any material facts such that entry of judgment as a matter of law would be precluded. See Dkt.
12
13 #74 at 8. The parties have stipulated to the facts, although they disagree with the admissibility
14 of certain expert testimony. They have apparently agreed to submit the remaining issues in this
15 case to the Court on these cross motions.
16
C. First Amendment Claims
17
Plaintiffs allege in the Complaint that they use their clothing (or lack of it) to convey
18
19 messages including “female empowerment, positive body image, freedom of choice, and
20 personal and political viewpoints,” and claim that the Dress Code and Lewd Conduct
21
Ordinances infringe on their First Amendment right to convey such messages at work and on
22
their free time in public areas of the City. Dkt. #1 at 11-13. Plaintiffs affirmatively “deny that
23
they engage in nude dancing and erotic performances.” Edge, 929 F.3d at 669; Dkt. #32-1 at 4,
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25 116, 208-09.
26
27
28
Plaintiffs do not contest dismissal of their First Amendment challenge to the Lewd
1
2 Conduct Ordinance. The Court agrees that this claim should be dismissed for the reasons stated
3 by the City of Everett. See Dkt. #74 at 11–12.
4
Turning to the Dress Code Ordinance, the Ninth Circuit has already ruled that it does not
5
burden expressive conduct protected by the First Amendment and that the City of Everett need
6
only demonstrate that it “promotes a substantial government interest that would be achieved less
7
8 effectively absent the regulation.” See Dkt. #65 at 23 (citing Rumsfeld, supra).
9 The City of Everett points to the record before the Everett City Council and this Court as
10
sufficient to explain why this Ordinance “promotes a substantial government interest in
11
reducing crime and other negative impacts stemming from the Quick Service business model
12
13 and why the ability to do so would be less effective absent the regulation.” Dkt. #74 at 10–11
14 (citing Dkt. #9-1 at 71; Dkt. #9-2; Dkt. #9-4 at 82-96; Dkt. #9-5 at 67-90; Dkt. #29 at 2-18; Dkt.
15 #9-6 at 54-57). The City passed this Ordinance after seven police investigations of bikini
16
barista stands uncovered criminal conduct. These investigations revealed that “baristas
17
routinely appeared in the windows of coffee stands nude or partially nude, posed in various
18
19 states of nudity, allowed customers to photograph and/or touch them for a fee, performed sexual
20 ‘shows,’ openly advertised prostitution activities, and allowed customers to masturbate while
21
watching them perform, all within public view.” Id. at 5. The City Council considered the
22
alternative of sticking with “existing enforcement tools,” but the City argues that “prosecution
23
of the baristas has proven ineffective and prosecuting stand owners required extensive,
24
25 expensive undercover operations, which resulted in the creation of pornographic videos and
26 photographs that engendered numerous public records requests and lawsuits over those images.”
27
Id. at 6 (citing Dkt. #9-5 at 71-75, 84; Dkt. #9-4 at 92-93, 96). The City notes that the
28
Ordinance “puts the burden on stand owners to regulate the conduct at their establishments at
1
2 risk of losing their business license.” Id. at 11.
3 The Court agrees that the undisputed existing record is sufficient to reach a ruling here.
4
The Court need not consider the City’s expert testimony. Reducing the crime associated with
5
the bikini barista stands would alone be a substantial government interest, and Plaintiffs do not
6
contend otherwise. The attempts by Plaintiffs to cloud the issue with expert testimony are
7
8 unpersuasive and ultimately insufficient to overcome the test set forth by the Ninth Circuit. See,
9 e.g., Dkt. #82 at 26 (“[Plaintiffs’ expert] concluded that the Ordinances have no positive impact
10
on preventing crime…. Instead, commercial establishments, such as Starbucks or McDonald’s
11
actually experience higher incidents of crimes, specifically violent crimes, than the bikini-
12
13 barista stands in Everett…. This evidence shows that crime prevention will be achieved more
14 effectively absent the regulation because the bikini-barista stands are not the primary cause of
15 serious crime.”). The crimes at the bikini barista stands include sexual assault, but also
16
prostitution. See Dkt. #65 at 6. The reduction of any of these crimes constitutes a substantial
17
government interest, even if the ordinance cannot eliminate such crime. Plaintiffs speculate that
18
19 a reduction in crime in one area comes at the expense of fighting crime in another. Although
20 police resources are finite, the Dress Code Ordinance is designed to be enforced by the owners
21
of the establishments, not with constant police patrols. The City of Everett need not show that
22
this Ordinance is perfectly effective, or that it is better than an ordinance crafted by Plaintiffs’
23
expert. The City need only show that a substantial government interest would be achieved less
24
25 effectively without it. The City has clearly met this reduced standard. There is no genuine
26 dispute of material fact, and this claim can be dismissed on summary judgment.2
27

28 2 The Court declines to speculate as to the adoption of the Eleventh Circuit’s reasonable-person test by the Ninth
Circuit or Supreme Court, as sought by Plaintiffs. See Dkt. #76 at 27–28.
Under the above reasoning, Plaintiffs’ claims under Article 1, Section 5 of the
1
2 Washington State Constitution are also dismissed.
3 D. Equal Protection Clause Claim
4
Plaintiffs claim the Ordinances violate the Equal Protection Clause by discriminating
5
against women and women-only businesses because (1) the Lewd Conduct Ordinance
6
criminalizes the partial exposure or touching of female breasts but not male breasts and (2) the
7
8 Dress Code Ordinance targets bikini-barista stands at which “only women work.” Dkt. #1 at
9 13-14. The Complaint also indicates that the Ordinances discriminate against women by
10
targeting “bikini wearing.” Id. at 14.
11
The Equal Protection Clause requires that all similarly situated persons be treated alike.
12
13 City of Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985). Gender-based
14 classifications require a heightened standard of review—intermediate scrutiny. United States v.
15 Virginia, 518 U.S. 515, 531 (1996). Classifications based on sex must have an “exceedingly
16
persuasive” justification, serve “important governmental objectives” and the means must be
17
“substantially related to the achievement of those objectives.” Id. at 533. Unlike race, sex is
18
19 not a proscribed classification. Id. The Supreme Court has noted that “[p]hysical differences
20 between men and women . . . are enduring” and “[t]he two sexes are not fungible[.]” Id.
21
Therefore, there are “‘[i]nherent differences’ between men and women” that “we have come to
22
appreciate [and] remain cause for celebration, but not for denigration of the members of either
23
sex or for artificial constraints on an individual’s opportunity.” Id.
24
25 If the Ordinances do not impose gender-based classifications, the Court exercises a
26 rational-basis review. That would require, at minimum, the Ordinances to “bear a rational
27
28
relationship to an independent and legitimate legislative end.” Romer v. Evans, 517 U.S. 620,
1
2 633 (1996).
3 1. Lewd Conduct Ordinance
4
The City of Everett argues that this Ordinance does not discriminate on the basis of
5
gender because it “prohibits both men and women from engaging in lewd conduct in public
6
places, and it defines what constitutes lewd conduct by reference to both genders’ most intimate
7
8 body parts.” Dkt. #74 at 14. To the City, the Ordinance’s definition of lewd conduct to include
9 exposure of the female but not male breast simply reflects the fact that “men and women are not
10
fungible with respect to the traditional understanding of what constitutes nudity.” Id. (citing
11
State v. Lilley, 204 A.3d 198, 208 (N.H. 2019)).
12
13 Plaintiffs point out that Lilley, a New Hampshire state case, hardly summarizes the state
14 of federal law on this issue:
15 Every federal appellate decision to confront the issue after Virginia
16 has either assumed or directly held that laws like the Lewd
Conduct Ordinance trigger intermediate scrutiny. Where on “its
17 face, the ordinance plainly does impose different rules for women
and men,” intermediate scrutiny must apply. Tagami v. City of
18
Chicago, 875 F.3d 375, 380 (7th Cir. 2017), as amended (Dec. 11,
19 2017) (emphasis in original) (rejecting the same position advanced
by the City here); see Ways v. City of Lincoln, 331 F.3d 596, 600
20 (8th Cir. 2003) (assuming without deciding); see also Buzzetti v.
City of New York, 140 F.3d 134, 141 (2d Cir. 1998) (considering
21
issue in context of challenge to adult-entertainment zoning law
22 rather than lewd conduct ordinance).

23 Dkt. #82 at 15–16. The Court agrees with Plaintiffs’ analysis of the law and concludes that the
24
Lewd Conduct Ordinance on its face imposes different rules for women and men, triggering
25
intermediate scrutiny.
26
The City of Everett nevertheless argues that the “‘overwhelming majority’ of courts
27
28 have held that laws or ordinances prohibiting public exposure of female (but not male) breasts
do not violate equal protection.” Dkt. #74 at 15 (citing State v. Vogt, 775 A.2d 551, 558 (N.J.
1
2 Super. Ct. 2001); Dkt. #74 at 15 n.13 (citing Ways v. City of Lincoln, 331 F.3d 596, 600 (8th
3 Cir. 2003); Buzzetti v. City of New York, 140 F.3d 134, 142-43 (2d Cir. 1998); United States v.
4
Biocic, 928 F.2d 112, 115-16 (4th Cir. 1991); SDJ, Inc. v. City of Houston, 837 F.2d 1268,
5
1279-80 (5th Cir. 1988); J & B Social Club No. 1, Inc. v. City of Mobile, 966 F. Supp. 1131,
6
1139-40 (S.D. Ala. 1996); Craft v. Hodel, 683 F. Supp. 289, 299-301 (D. Mass. 1988); Tolbert,
7
8 568 F. Supp. at 1290; City of Tucson v. Wolfe, 917 P.2d 706, 707-09 (Ariz. Ct. App. 1995);
9 Locker v. Kirby, 31 Cal. App. 3d 520, 526 (Cal. Ct. App. 1973); State v. Turner, 382 N.W.2d
10
252, 255-56 (Minn. Ct. App. 1986); City of Jackson v. Lakeland Lounge of Jackson, Inc., 688
11
So.2d 742, 751-52 (Miss. 1996)). The City maintains that its objectives in “preventing the
12
13 secondary adverse effects of public nudity and protecting the order, morality, health, safety, and
14 well-being of the community are important or substantial interests” and that the Lewd Conduct
15 Ordinance’s “distinction between male and female breasts is substantially related to the City’s
16
objectives in protecting unwilling audiences from exposure to nudity (which, consistent with
17
community standards, includes the public exposure of female breasts) and in simplifying
18
19 enforcement activities with respect to lewd conduct violations.” Id. at 16. In support of its
20 contention that the treatment of public exposure of female breasts is consistent with community
21
standards, the City of Everett notes:
22
Numerous jurisdictions across Washington have adopted similar
23 lewd conduct prohibitions applicable to conduct in streets,
sidewalks, parks, and other public places. See, e.g., Pierce Cty.
24
Code 9.16.080 (criminalizing exposure of “any portion of the
25 female breast lower than the upper edge of the areola”);
Snohomish Cty. Code 10.04.010, .025 (criminalizing exposure of
26 “[a]ny part of the areola or nipple of the female breast” and
“[m]ore than one-half of the part of the female breast located
27
below the top of the areola”); Kent Mun. Code 9.02.800 (similar);
28 Olympia Mun. Code 9.24.010, .110 (criminalizing exposure of
“female breasts”); Bellevue Mun. Code 10.04.010- .020
1
(criminalizing exposure of “the female breast lower than the upper
2 edge of the areola”); Tacoma Mun. Code 8.32.010-.020
(criminalizing exposure or display of “female breasts” in public
3 places); Yakima Mun. Code 6.55.020 (criminalizing exposure of
the “areola, the nipple and/or the area of the breast below the
4
bottom of the areola of the female breasts” in a public place).
5
Id. at 16 n.16.
6
Plaintiffs’ briefing relies on Free the Nipple - Fort Collins v. City of Fort Collins, 237 F.
7
8 Supp. 3d 1126 (D. Colo. 2017), aff’d, 916 F.3d 792 (10th Cir. 2019), where the Tenth Circuit
9 ruled in favor of challengers claiming equal protection violations arising from a lewd conduct
10
ordinance prohibiting exposure of female breasts. As the City of Everett points out, the Tenth
11
Circuit recognized its position was the minority viewpoint nationwide and that most other
12
13 courts had upheld similar laws. Subsequent federal cases in other districts have declined to
14 follow the Tenth Circuit’s holding. See City of Springfield, 923 F.3d 508, 510 (8th Cir. 2019);
15 Eline v. Town of Ocean City, 452 F. Supp. 3d 270, 281 (D. Md. 2020) aff’d, 7 F.4th 214 (4th
16
Cir. 2021). Plaintiffs argue:
17
As the Ninth Circuit noted, “the particular history of sex
18
discrimination has led to judicial recognition that certain forms of
19 purported state interest are illegitimate as justifications for sex
discrimination, such as interests stemming from romantic
20 paternalism toward women or sex stereotyping.” Tucson Woman’s
Clinic v. Eden, 379 F.3d 531, 543 (9th Cir. 2004).
21

22 The City’s bare bones appeal to community standards and
protecting women from exploitation are rooted in exactly such
23 impermissible “romantic paternalism toward women or sex
stereotyping.” It is the embodiment of the belief that women must
24
dress a certain way to avoid exciting men to sexual misconduct. Or
25 that society should be able to tell women—but not men—to cover
up certain body parts because others might find those parts sexual.
26 Those beliefs are rooted in impermissible stereotypes about what is
and is not proper dress and behavior for one’s sex.
27

28
By contrast, the Baristas offer ample evidence that both
1
Ordinances fail to serve the interests identified by the City, and
2 that differences in sex and gender are not substantially related to
those interests.
3
Dkt. #82 at 20. Plaintiffs rely on the expert testimony of Dr. Tomi-Ann Roberts, professor of
4
5 psychology and Chair of the Psychology Department at Colorado College in Colorado Springs.
6 While her testimony has value academically, it does little to illuminate community standards.
7
Ms. Roberts did not speak with City of Everett community members about this issue. See Dkt.
8
#80 at 53-54 (Roberts Dep. at 8:15-9:6).
9
The Court has considered the record and the case law above and finds that the Lewd
10
11 Conduct Ordinance does not violate the Equal Protection Clause because the City’s objectives
12 in preventing the secondary adverse effects of public nudity and protecting the order, morality,
13
health, safety, and well-being of the community are important or substantial interests properly
14
addressed by the Ordinance. Although public attitudes about gender and sexuality are
15
16 constantly changing and evolving, there is simply no basis on this record to conclude that the
17 public exposure of female breasts no longer violates the community standards of the City of
18
Everett, or that protecting those public sensibilities is not an important government interest.
19
The Court finds that the City of Everett has met its burden of providing an exceedingly
20
persuasive justification for treating the public exposure of bare breasts by females and males
21
22 differently in the Ordinance, and that this is substantially related to the important governmental
23 interest of protecting the public sensibilities of the City of Everett.
24
As acknowledged by the Fourth Circuit when addressing this issue last year, “[t]he
25
judicial legacy of justifying laws on the basis of the perceived moral sensibilities of the public is
26
far from spotless.” Eline v. Town of Ocean City, 7 F.4th 214, 222. However, the Court agrees
27
28
here, as in that case, that “in this situation, protecting public sensibilities serves an important
1
2 basis for government action.” Id.
3 The Court agrees with the City of Everett that Plaintiffs’ state law privileges and
4
immunities claim under Article 1, Section 12 is subject to federal equal protection analysis and
5
fails for the same reasons above. See Dkt. #74 at 20–21. Because Plaintiffs did not plead it, a
6
claim under Washington State’s Equal Rights Amendment is not properly before the Court.
7
8 2. Dress Code Ordinance
9 The parties appear to agree that the Dress Code Ordinance is “gender-neutral on its
10
face.” Dkt. #74 at 18; Dkt. #82 at 16. That would typically shift the Court’s analysis from
11
intermediate scrutiny to rational-basis review.
12
13 However, Plaintiffs can still trigger heightened scrutiny here in at least three ways.
14 First, they can show that the law is covertly targeted at one gender. Pers. Adm’r of
15 Massachusetts v. Feeney, 442 U.S. 256, 274, (1979). Second, they can show that adverse
16
effects of the law reflect invidious gender-based discrimination—i.e., that “a gender-based
17
discriminatory purpose has, at least in some measure, shaped” the law at issue. Id. at 274, 276.
18
19 “Discriminatory purpose… implies more than intent as volition or intent as awareness of
20 consequences…. [i]t implies that the decisionmaker… selected or reaffirmed a particular course
21
of action at least in part ‘because of,’ not merely ‘in spite of,’ its adverse effects upon an
22
identifiable group.” Id. at 279. Third, plaintiffs can show that an ostensibly neutral
23
classification is an obvious pretext for discrimination based on the law’s application. Id. at 275
24
25 (citing Yick v. Hopkins, 118 U.S. 356, 373–74 (1886)). If any of these tests are met, heightened
26 scrutiny applies because “[c]lassifications based upon gender, not unlike those based upon race,
27
have traditionally been the touchstone for pervasive and often subtle discrimination…[and] such
28
classifications must bear a close and substantial relationship to important governmental
1
2 objectives…” Id. at 273.
3 The Court declines to find that the Dress Code Ordinance is covertly targeting one
4
gender. Based on the undisputed facts, there is nothing covert in the Ordinance’s intentions—it
5
was clearly meant to address secondary problems caused by women wearing bikinis or “pasties
6
and g-strings” in drive-thru settings.3 To respond to those problems, it sets a dress code that
7
8 applies to workers of all genders.
9 A better fit can be found in the other two tests. The Court finds that “a gender-based
10
discriminatory purpose has, at least in some measure, shaped” the Ordinance. The record shows
11
this Ordinance was passed in part to have an adverse impact on female workers at bikini barista
12
13 stands. The Ordinance’s ostensibly neutral classification is also an obvious pretext for
14 discrimination based on the law’s application. Plaintiffs’ expert Dr. Roberts points out that the
15 Dress Code Ordinance prohibits clothing typically worn by women rather than men, including
16
mid-riff and scoop-back shirts, as well as bikinis. Dkt. #83-1 (“Roberts Report”), ¶ 18. There is
17
evidence in the record that the bikini barista profession, clearly a target of the Ordinance, is
18
19 entirely or almost entirely female. It is difficult to imagine how this Ordinance would be
20 equally applied to men and women in practice. It appears designed to ban not just “pasties and
21
g-strings” or bikinis, but a wide range of women’s clothing. Intermediate scrutiny is
22
appropriate here.
23
Under this heightened standard, the Ordinance must have an “exceedingly persuasive”
24
25 justification, serve “important governmental objectives” and the means must be “substantially
26 related to the achievement of those objectives.” The City of Everett addresses this standard in
27

28 3 As Plaintiffs point out, the City does not point to a single instance of a man being employed as a bikini barista in
Everett. Dkt. #82 at 17.
its Response to Plaintiffs’ Motion. See Dkt. #78 at 14–19. Plaintiffs point to at least some
1
2 expert testimony indicating that this Ordinance fails to serve the interests identified by the City.
3 See Dkt. #76 at 19–20.
4
Some of this evidence is strong, and some of it weak. The City of Everett clearly has an
5
interest in reducing secondary effects of the bikini barista stands like crime, lewd conduct, and
6
exploitation. As stated above, the record shows that this business model has been linked to at
7
8 least some incidents of prostitution, lewd conduct, and sexual assault. However, it does not
9 necessarily follow that the Dress Code Ordinance “will further the City’s goal of preventing
10
these harms by establishing minimum dress requirements and making it easier to detect
11
violations and hold owners accountable,” as stated by the City. Dkt. #78 at 14. The means by
12
13 which the City is attempting to reduce crime and lewd conduct—a dress code for drive-thrus
14 that bans midriffs and scoop back shirts—is so broad as to veer from being “substantially
15 related” to just “related.” The Court is particularly swayed by Dr. Roberts’ observations that
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this Ordinance poses an unreasonable risk of demeaning enforcement. Assuming the owners of
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bikini barista stands are unable or unwilling to enforce this dress code, at some point law
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19 enforcement will be asked to measure exposure of skin by some method. This “encourage[s] a
20 humiliating, intrusive, and demoralizing search on women, disempowering them and stripping
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them of their freedom.” Roberts Report at ¶ 31.
22
The Court finds that, although this Ordinance satisfies the lower standard set forth by the
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Ninth Circuit under the First Amendment, it does not satisfy the heightened standard under the
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25 Equal Protection Clause of the Fourteenth Amendment. This Ordinance clearly treats women
26 differently than men by banning a wide variety of women’s clothing, not just pasties and g-
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strings, or bikinis. The restrictions are so detailed they effectively prescribe the clothes to be
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worn by women in quick service facilities. In sum, the City has failed to demonstrate how this
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2 disparate treatment of women is substantially related to the achievement of the Ordinance’s
3 stated objectives. Summary judgment in favor of Plaintiffs is warranted on this claim.4
4
E. Substantive Due Process Claim
5
Plaintiffs challenge the Ordinances on substantive due process grounds, claiming that
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both Ordinances infringe on their “liberty right to dress in the manner they so choose” and that
7
8 the Dress Code Ordinance further infringes their “liberty right to engage in the occupation of
9 their choice.” Dkt. #1 at 16-17.
10
There is a limited “liberty interest” in one’s personal appearance/dress. See Kelley v.
11
Johnson, 425 U.S. 238, 244 (1976); Neinast v. Bd. of Trustees of Columbus Metro. Library, 346
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13 F.3d 585, 596 (6th Cir. 2003). To prevail on this claim, Plaintiffs must prove the Ordinances
14 are “so irrational that [they] may be branded ‘arbitrary,’ and therefore a deprivation of
15 [Plaintiffs’] ‘liberty’ interest[.]” Kelley, 425 U.S. at 248.
16
The City of Everett argues:
17
As detailed above, the City has made reasonable determinations
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that the Ordinances are necessary to stem harmful effects of bikini
19 barista stands and lewd conduct more generally. This satisfies
rational basis review.
20
Nor can Plaintiffs establish that the Dress Code Ordinance
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infringes on their right to engage in an occupation. To implicate
22 this right, the Ninth Circuit has held that the regulation at issue
must “operate as a complete prohibition” on the ability to pursue a
23 profession. Franceschi, 887 F.3d at 938. And even when a law
amounts to a complete prohibition, it will only be subject to the
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rational basis standard of review. As Plaintiffs admitted in
25 depositions, neither Ordinance at issue here prevents them from
working in the coffee service business. See Dkt. #32-1 at 220
26 (Powell at 102:20-25). The Ordinances simply impose minimum
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4 Because the Court has granted summary judgment on this claim, it finds a discussion of Article I, Section 12 of
28 the Washington State Constitution unnecessary. It is not analyzed by Plaintiffs, other than to state that it affords at
least the same equal protection guarantees as those in the Fourteenth Amendment. See Dkt. #76 at 13.
clothing requirements on Plaintiffs and all other employees of
1
Quick Service Facilities. These requirements do not amount to a
2 complete prohibition and, thus, do not violate substantive due
process. See Franceschi, 887 F.3d at 938-39. And even if they did,
3 the record demonstrates the reasonableness of the Ordinances and
they easily pass rational basis review as discussed above. 29
4
Because Plaintiffs fail to show that the City “could have had no
5 legitimate reason for its decision,” their substantive due process
claim should be dismissed. Kawaoka v. City of Arroyo Grande, 17
6 F.3d 1227, 1234 (9th Cir. 1994) (quotations and emphasis
omitted).
7

8 Dkt. #74 at 21–22.
9 The Court agrees. Under the undisputed facts, Plaintiffs have failed to show that these
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Ordinances are so irrational as to be arbitrary. These laws are clearly related, thinly at times, to
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the City’s identified harms of crime prevention and the upholding of the community’s
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13 sensibilities. While the Court agrees that the Dress Code Ordinance’s language as to which
14 body parts must be covered and by how many inches is excessive, such specifics are left to
15 legislators under applicable case law and in any event the rational basis standard does not
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require that the City “choose the best means of advancing its goals;” all that is needed is some
17
“rational connection” between the rule and the governmental interest, regardless of whether that
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19 rule is an “exact fit” for the interest at issue. United States v. Navarro, 800 F.3d 1104, 1114
20 (9th Cir. 2015) (citing Vermouth v. Corrothers, 827 F.2d 599, 603 (9th Cir. 1987); Mauro v.
21
Arpaio, 188 F.3d 1054, 1059-60 (9th Cir. 1999)). The Ordinances do not infringe on Plaintiffs’
22
right to engage in the occupation of serving coffee, and Plaintiffs have failed to convince the
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Court that their occupation should be construed more narrowly for purposes of this
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25 constitutional analysis. This claim is properly dismissed.
26 //
27
//
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F. Vagueness Claim
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2 Plaintiffs concede that their claim that the Ordinances are void for vagueness is
3 foreclosed by the Ninth Circuit’s decision. Dkt. # 82 at 14 n.6 (citing 929 F.3d at 666-67). This
4
claim is dismissed.
5
G. Motions to Strike
6
The Court has considered the evidence submitted by the parties and the objections and
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8 declines to strike any of it. The evidence submitted into the record is consistent with the
9 parties’ stipulation. The Court has properly weighed the admissibility of hearsay testimony
10
attacks on the opinions of experts go to the weight, not admissibility. Plaintiffs’ expert reports
11
have been properly submitted into the record. See Dkts. #83 – #85.
12
13 IV. CONCLUSION
14 Having reviewed the relevant briefing and the remainder of the record, the Court hereby
15 finds and ORDERS:
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1) Defendant City of Everett’s Motion for Summary Judgment, is GRANTED IN
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PART and DENIED IN PART. All of Plaintiffs’ claims are DISMISSED except for
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19 Plaintiffs’ claims that the Dress Code Ordinance violates the Equal Protection
20 Clauses of the U.S. and Washington State Constitutions.
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2) Plaintiffs’ Motion for Summary Judgment, Dkt. #76, is GRANTED as to Plaintiffs’
22
claims that the Dress Code Ordinance violates the Equal Protection Clause of the
23
Fourteenth Amendment.
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25 3) The Court DIRECTS the parties to meet and confer within 14 days of this Order
26 regarding how to proceed, including the submission of an additional proposed order
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if necessary.
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DATED this 19th day of October, 2022.
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RICARDO S. MARTINEZ
5 UNITED STATES DISTRICT JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10707188. Public record. Not legal advice.