Opposition Brief — Ino Ino, Inc. v. City of Bellevue

Supréme Coust, U.S.

Sy FILED

~ DEC 19 1997

No. 97-858 ons

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1997

INO INO, INC., RHONDA REMUS, ESMERALDA SILVA,

VICTORIA MCKNIGHT, and DEJA VU-BELLEVUE, INC,

Petitioners,

v.

CITY OF BELLEVUE, WASHINGTON,

Respondent.

Petition For Writ Of Certiorari To The

Washington Supreme Court

RESPONDENT'S BRIEF IN OPPOSITION TO PETITION

FOR WRIT OF CERTIORARI

*Stephen A. Smith

Robert B. Mitchell

PRESTON GATES & ELLIS LLP

5000 Columbia Seafirst Center

701 Fifth Avenue

Seattle, WA 98104-7078

(206) 623-7580

Attorneys for Respondent

*Counsel of Record

QUESTIONS PRESENTED

If a plaintiff obtains a temporary restraining order

enjoining a valid city ordinance by misstating a state

constitutional claim, is the trial court precluded by

42 U.S.C. § 1988 from applying state law and awarding

the city its reasonable attorneys’ fees incurred in lifting the

injunction?

Did the Washington Supreme Court err in refusing

to award attorneys’ fees to plaintiffs under 42 U.S.C. § 1988,

when they succeeded on only one of several claims asserted

under the Washington State Constitution, and the court

explicitly rejected all claims asserted under federal law?

PARTIES TO THE PROCEEDING

Respondent in this Court is the City of Bellevue,

Washington, the defendant in three cases that were

consolidated in Washington state court proceedings.

Petitioners in this Court are the plaintiffs in those

proceedings. Ino Ino, Inc. was the owner and operator of

an erotic nightclub, "Papagayo's," located in Bellevue.

Petitioners Remus, Silva and McKnight were entertainers

at "Papagayo's." Petitioner Deja Vu-Bellevue, Inc.

planned to open another erotic nightclub in Bellevue.

iil

TABLE OF CONTENTS

Fe ge 8 gk 9 SR ee

PARTIES TO THE PROCEEDING ......................0.0.... ii

py Fo 2S oy od 9. eae incase. iil

pe a yy. 8. 5: re ane

SUP eN I oe as l

CONSTITUTIONAL AND STATUTORY

ok og TCT RE IS pe le Siac as

PPCM Rae Ss COW LMU CASE ooo cocoa ce ooseecsenecclecs |

ARGUMENT AND AUTHORITIES ....002..o0200.00000..... 5

hY

TABLE OF AUTHORITIES

Page

Cases:

Blue v. U.S. Dept. of Army, 914 F.2d 525

CE Fannie dubiomnemi aes 7

BSA, Inc. v. King Co., 804 F.2d 1104 (9th Cir. 1986)...4

Del Rio v. Jetton, 55 Cal. App. 4th 30, 63

Cal. Rptr.2d 712 (Cal.App. 2 Dist. 1997)........... 8

East-Bibb Twiggs Neighborhood Ass'n v.

Macon-Bibb Planning and Zoning Com'n,

674 F. Supp. 1475 (M.D. Ga. 1987), affd on

other grounds, 888 F.2d 1576, as amended,

896 F.2d 1264 (11th Cir. 1989)...............000000... 8

Exeter-West Greenwich Regional School District

v. Pontarelli, 788 F.2d 47 (1st Cir. 1986)......... 1]

Ino Ino, Inc. v. City of Bellevue, 132 Wn.2d 103,

937 P.2d 154, amended, 943 P.2d 1358

REPROD iiicss tenes nase ciated mine aca ies ]

Kelly v. City of Leesville, 897 F.2d 172 (Sth Cir. 1990) 11

Key, Inc. v. Kitsap Co., 793 F.2d 1053

SR Se Roiacciui ti ircatecckeck Eas 4

Maher v. Gagne, 488 U.S. 136, 100 S.Ct. 2579,

Fe ee Pin iis esc scacsdarsbccccasicccsiins 9,10, 11, 12

Marek v. Chesny, 473 U.S. 1, 105 S.Ct.

ARE he, WE Ra Oe Fassia sieesnektsntinceicoss 7,8

Robert M. v. Benton, 671 F.2d 1104 (8th Cir. 1972).....11

Seals v. Quarterly County Court of Madison Co.,

ee F20 SOO CU, TOE basin ness cccsicsesndeicinass 1]

Snohomish County v. Anderson, 124 Wn.2d 834,

ee PEEL | ESR eer me gt mest Elen

Southeast Legal Defense Group v. Adams,

GS? F.20 1118 Geb Car. 1989)... o.oo occ ccs.

Varney v. O'Brien, 147 Mich. App. 397, 383

N.W. 2d 213 (1985), vacated sub nom,

Varney v. Genesee County Sheriff,

426 Mich. 855, 393 N.W.2d 1, on remand,

156 Mich. App. 539, 402

ge es GRAD areata ence tar conan neni aaT

White v. Wilhelm, 34 Wn. App. 763, 665

P 2d 407, rev. denied, 100 Wn.2d

A I it ie. fet iis en

World Wide Video, Inc. v. City of Tukwila,

117 Wn.2d 382, 816 P.2d 18 (1991),

cert. denied, 503 U.S. 986 (1992) ..............0......

Other:

Federal Rules of Civil Procedure, Rule 68.....................

Oe US Gee ts iran

AS BS 8 sk isis hesdaann

U.S. Constitution, First Amendment .............................

Washington Constitution, Article I, Section $ ...............

Washington Rules of Civil Procedure, Rule 68..............

OPINION BELOW

The decision of the Washington Supreme Court is

reported as /no Ino, Inc. v. City of Bellevue, 132 Wn.2d 103,

937 P.2d 154, amended, 943 P.2d 1358 (1997).

CONSTITUTIONAL AND STATUTORY PROVISIONS

United States Constitution, First Amendment.

Washington Constitution, Article I, Section 5.

42 U.S.C. Sections 1983 and 1988

STATEMENT OF THE CASE

Petitioners filed three separate actions challenging the

validity of an adult entertainment ordinance enacted by the

City of Bellevue (the "City"). Their complaints alleged that

the ordinance violated the Washington State and United

States Constitutions.'! Petitioners sought and obtained a

temporary restraining order enjoining the City from enforcing

a provision of its ordinance that established a four-foot

| See Appendix for Petition for Certiorari (hereinafter "Pet.

App.") 113, 120 and 127.

minimum distance between performer and patron for off-

stage "table dances."? Pet. App. 164.

Petitioners challenged the distance restriction

principally on the basis that it violated their rights under

Article I, Section 5 of the Washington Constitution.

Appendix, pp. 23-36. Petitioners argued that the state

constitution provides broader protection than the First

Amendment. /d. at 23, 26, 27, and 29. Petitioner Ino Ino

attempted to distinguish cases that had upheld even greater

distance limitations by arguing that they had been decided

under the federal constitution. /d. at 29-30.

After obtaining the temporary restraining order,

petitioners moved successfully to consolidate the preliminary

injunction hearing with a trial on the merits. Pet. App. 83.

2 A "table dance” is an individually compensated

performance during which the performer dances in close

proximity to the patron. The performance frequently involves

the exposure of breasts and/or genitalia and unlawful sexual

conduct. Pet. App. 4-7.

The temporary restraining order also enjoined a portion of

the ordinance prohibiting actual or simulated acts of sexual

conduct. Pet. App. 164.

3 Petitioner Ino Ino's Motion for Temporary Restraining

Order is attached in the Appendix hereto.

SR he pe eo ee

The trial court heard substantial evidence relating to the City's

four-foot distance restriction upon "table dances" and the

efficacy of the four-foot setback in preventing sexual conduct

during those performances. Evidence at trial showed that

table dances typically involve contact and unlawful sexual

conduct between performers and patrons. Pet. App. 76-87.

After a six-day trial, the court rejected petitioners’

arguments and vacated the restraining order. The court

determined that the distance restriction was a permissible

regulation of conduct under state law. Pet. App. 86 ({ 9).

The trial court also determined that there was "no need" to

engage in an analysis of the distance regulation as a time,

place or manner restriction under federal law. Pet. App. 86

(| 9-10). If such an analysis were undertaken, however, the

court ruled that the City's ordinance would satisfy it.4 Pet.

App. 86 (¥ 10).

The City moved for and obtained a post-trial award of

attorneys’ fees under state law for its expenses in vacating a

wrongful injunction. Pet. App. 95. The Washington

4 The trial court also found that the ordinance's prohibition

on actual or simulated sexual conduct was valid under state

law. Pet. App. 88 (4 15).

Supreme Court affirmed the propriety of this award, but it

remanded the case to the trial court for recalculation of the

City's fees. Pet. App. 44-46. Rather than contest the amount

of fees owing, petitioners conceded that the City was entitled

to the amount it claimed.* Pet. App. 104-106.

The Washington Supreme Court's analysis of the four-

foot rule focused largely on petitioners’ state constitutional

arguments. Compare Pet. App. 8-18 and 21-24 (analyzing

Article 1, Section 5 in the context of erotic expression) with

Pet. App. 25-30 (analyzing four-foot restriction under the

First Amendment). The Washington Supreme Court

ultimately concluded that the Washington State Constitution

does not require a departure from well-settled federal

standards for analyzing distance restrictions on erotic speech.

See Kev, Inc. v. Kitsap Co., 793 F.2d 1053 (9th Cir. 1986);

BSA, Inc. v. King Co., 804 F.2d 1104 (9th Cir. 1986).

> The amount sought by the City ($36,172.53) represented

the fees expended to vacate the temporary restraining order in

the trial court. The Washington Supreme Court declined to

award attorneys’ fees on appeal, and City neither sought nor

obtained an award of the fees incurred in the trial court on

other issues. See Pet. App. 44-48, 104-05. The total amount

of attorneys’ fees and costs incurred by the City in this matter

exceeds $200,000.00.

The Washington Supreme Court denied petitioners’

claim for attorneys’ fees under 42 U.S.C. § 1988. The court

noted that petitioners did not succeed on any federal claim.

Pet. App. 48-49 and n. 18.

ARGUMENT AND AUTHORITIES

A. No Federal Issue is Raised By the Award of

Attorneys’ Fees to the City. The Award Was

Made Under State Law After Petitioners

Asserted and Failed to Prove State Claims.

Petitioners sought equitable relief in state court

principally under the Washington Constitution, because case

law denied them any right to relief under federal law.

Petitioner Ino Ino's motion for a temporary restraining order

demonstrates both points. First, Ino Ino asserted its claims

against the City's four-foot distance requirement primarily

under the Washington Constitution. Appendix 23 ef seq.

Second, Ino Ino distinguished applicable federal case law on

the ground that those cases were decided under the "First

Amendment rather than the broader protection of Article |

Section 5 of the Washington Constitution." Appendix 29.

Petitioners’ preemption arguments all share a

fundamental flaw: they ignore that state and not federal rights

were really at issue. Because petitioners did not obtain the

temporary restraining order under federal law, the fees

provision in 42 U.S.C. § 1988 was never triggered .°

Accordingly, the preemption cases they cite are not germane.

In any event, petitioners overstate their preemption

argument. No case has held that a state-court equitable rule

may not be enforced in an action brought under state law

simply because plaintiffs also alleged federal rights.

Petitioners rely on Varney v. O’Brien, 147 Mich. App.

397, 383 N.W.2d 213, 217 (1985), for the proposition that

section 1988 preempts a state procedural rule requiring an

attempt to mediate before attorneys’ fees may be awarded.

Petitioners fail to disclose that Varney was vacated and

effectively overruled, based on this Court's decision in Marek

v. Chesny, 473 U.S. 1, 105 S.Ct. 3012, 87 L_Ed.2d 1 (1985).

In Marek, this Court held that a fee award under

section 1988 must be considered in light of an applicable

© Just as petitioners sought injunctive relief primarily under

the state constitution and attempted to distinguish authorities

applying a federal constitutional standard, so the Washington

Supreme Court discussed the state standard extensively

before rejecting its application to the four-foot rule. Pet.

App. 8-18 and 21-24.

procedural rule that might limit or preclude such fees. Rule

68 of the Federal Rules of Civil Procedure was enacted to

encourage settlement and avoid litigation. /d. at 5. This

Court found nothing incompatible in a statute awarding fees

for meritorious lawsuits and a court rule encouraging the

settlement of litigation.’ /d. at 11. In short, the statute did

not preempt the procedural rule.

After Marek was decided, the Michigan Supreme

Court remanded the appeal in Varney with instructions to

reconsider it in light of Marek. Varney v. Genesee County

Sheriff, 426 Mich. 855, 393 N.W.2d 1 (1986). On remand

the Michigan Court of Appeals held that both section 1988

and the state procedural rule must be applied by the trial

court in determining what fees, if any, may be awarded.

Varney, 402 N.W.2d at 60.

7? Similarly, despite the fact that 42 U.S.C. § 20004-5(k)

forbids the award of fees to the federal government as a

prevailing defendant in a civil rights action, many courts have

held that the assessment of legal fees against a civil rights

plaintiff may be imposed on a variety of legal grounds. F.g.,

Blue v. U.S. Dept. of Army, 914 F.2d 525, 535-36 (4th Cir.

1990) (awarding fees to United States under common-law

bad faith exception to American rule and FED.R.CIv.P. 11),

and cases cited therein.

The only other case cited by petitioners as applying

preemption analysis to section 1988 rights was also eroded by

a subsequent decision. Although the district court found

preemption under section 1988 in East-Bibb Twiggs

Neighborhood Ass'n v. Macon-Bibb Planning and Zoning

Com'n, 674 F. Supp. 1475, 1477 (M.D. Ga. 1987), the court

of appeals affirmed on other grounds, without analyzing the

preemption issue. 888 F.2d 1576, as amended, 896 F.2d

1264 (11th Cir. 1989).8

Petitioners sought equitable relief in state court upon

state constitutional grounds. Appendix 23 ef seq. The

equitable relief they obtained was "wrongful" under

Washington law. Pet. App. 44-45. Petitioners were subject

to a long-standing state court rule that required them to pay

for the costs of vacating a wrongful injunction. Like the

court rules in Marek and Varney, the rule in this case is

designed to encourage an economical resolution on the

8 The district court decision in East-Bibb has been criticized.

In Del Rio v. Jetton, 55 Cal. App.4th 30, 63 Cal. Rptr.2d

712, 716-17 (Cal. App. 2 Dist. 1997), the court held that a

state common-law claim for malicious prosecution, seeking

damages which included attorneys’ fees in defense of a prior

42 U.S.C. § 1983 civil rights action, was not preempted by

42 U.S.C. § 1988.

ee ee

merits. White v. Wilhelm, 34 Wn. App. 763, 773-74, 665

P.2d 407, rev. denied, 100 Wn.2d 1025 (1983).

Even if there were a basis to construe section 1988 as

antithetical to a state rule such as that applied here, this is not

the case to consider that issue. At a minimum, there is very

serious doubt that federal law had anything to do with the

trial court's decision to grant and then vacate equitable relief.

B. Because the Washington Supreme Court

Rejected Petitioners’ Federal Law Claims,

They Have No Basis for Claiming Attorneys'

Fees under 42 U.S.C. § 1988.

Petitioners appear to argue that the mere presence of

a federal law claim requires the award of attorneys' fees under

42 U.S.C. § 1988 if a plaintiff prevails on a pendant state

claim. Petitioners misread Maher v. Gagne, 448 U.S. 136,

100 S.Ct. 2579, 65 L.Ed.2d 653 (1980), and its progeny for

this proposition.

Petitioners contended under state and federal

constitutional law that the City's 14-day delay in issuing

managers’ licenses was a prior restraint. The Washington

Supreme Court rejected petitioners’ claim under federal

constitutional law, citing World Wide Video, Inc. v. City of

Tukwila, 117 Wn.2d 382, 392-94, 816 P.2d 18 (1991), cert.

CP CT IONE I

10

denied, 503 U.S. 986 (1992) (holding that 30-delay in

issuance of operator's license does not violate federal

constitution). Pet. App. 49 n. 18. The court found that the

delay violated the broader prohibition on prior restraint that

exists only under the Washington State Constitution. Id_.; see

also Pet. App. 19-21.?

The text of 42 U.S.C. § 1988 limits the recovery of

attorneys’ fees to the enforcement of a federal right. A

limited exception was recognized in Maher v. Gagne: in

may be recovered when a court refrains from deciding the

federal issue but makes a determination for plaintiffs on a

pendant state claim arising from the same facts. /d., 448 U.S.

at 132 n. 15 (pendant state law claim justified section 1988

award when court "declines" to decide federal issue).

Petitioners cite no case holding that a section 1988 award is

proper when all federal claims are denied. The rationale for

the Maher rule--the avoidance of an unnecessary federal

constitutional decision--disappears when the plaintiff's federal

law claims are rejected, as in this case.

9 Of the combined 22 separate constitutional claims raised by

petitioners in the trial court, this was the only claim on which

they ultimately prevailed. See Pet. App. 49, 83-94.

sina iil

1]

None of the cases cited by petitioners support the

award of section 1988 fees when all federal claims are

expressly rejected. Cf Exeter-West Greenwich Regional

School District v. Pontarelli, 788 F.2d 47, 51 (1st Cir. 1986)

(court abstained from deciding federal claims); Seals v.

Quarterly County Court of Madison Co., 562 F.2d 390, 392

(6th Cir. 1977) (decision on federal claim unnecessary);

Robert M. v. Benton, 671 F.2d 1104, 1106 (same); Southeast

Legal Defense Group v. Adams, 657 F.2d 1118, 1124 (9th

Cir. 1981) (same).

Courts that have considered and rejected federal

claims routinely refuse to award section 1988 attorneys’ fees,

even though plaintiffs have prevailed on a state law claim.

See e.g., Kelly v. City of Leesville, 897 F.2d 172, 177 (Sth

Cir. 1990); Snohomish County v. Anderson, 124 Wn.2d 834,

843-44, 881 P.2d 240 (1994): see also Southeast Legal

Defense, supra, 657 F.2d at 1124 (award of fees on pendant

claim assumes a meritorious but undecided federal claim).

Under petitioners’ reading of Maher v. Gagne,

success on any state law claim would trigger an award of

section 1988 relief if a federal claim is merely alleged. No

12

court has applied Maher in this fashion. Unless a court rules

in favor of the plaintiff on a federal-law claim or declines to

decide a federal claim because it has resolved the case on

non-federal grounds, no section 1988 award is proper. In this

case, the Washington Supreme Court considered and rejected

all federal claims asserted by petitioners. It would have been

improper to award fees under section 1988 in such

circumstances. The court did not err, and there is no basis

for this Court to grant further review.

CONCLUSION

Petitioners raise no issue justifying the grant of

certiorari. The award of partial attorneys’ fees for the

wrongful obtaining of preliminary injunctive relief by

petitioners under state law in a state court served state

policies protecting judicial resources and promoting the

enforcement of valid laws. No federal right is implicated.

13

Petitioners did not prevail on any claim under the

federal constitution or federal laws. They have no right to

attorneys’ fees under 42 U.S.C. § 1988.

DATED this 15th day of December, 1997.

Respectfully submitted,

PRESTON GATES & ELLIS LLP

*Stephen A. Smith

Robert B. Mitchell

5000 Columbia Seafirst Center

701 Fifth Avenue

Seattle, WA 98104-7078

(206) 623-7580

Attorneys for Respondent

City of Bellevue, Washington

*Counsel of Record

CONTENTS OF APPENDIX

Page

Motion for Temporary Restraining Order and

Order to Show Cause in /no Jno, Inc. v.

City of Bellevue, King County Superior

EME TOG, PIT cas ccriieeacskcnevcevivecceccanes App. |

App. |!

IN THE SUPERIOR COURT OF THE STATE OF

WASHINGTON

IN AND FOR THE COUNTY OF KING

Ino Ino, Inc., a Washington )

corporation, ) No. 95-2-02025-9

)

Plaintiff, ) MOTION FOR TEMPORARY

) RESTRAINING ORDER AND

v. ) ORDER TO SHOW CAUSE

)

City of Bellevue, a municipal )

corporation, )

)

Defendant.

I.

RELIEF REQUESTED

The Plaintiff requests issuance of a temporary

restraining order and order to show cause preventing the

Defendant, its agents and employees, from enforcing Bellevue

Ordinances 4692, 4695 and 4735 against the Plaintiff pending

a hearing on the motion for a preliminary injunction. The

Plaintiff also requests an order requiring the Defendant to

appear and show cause as to why a preliminary injunction

should not be issued, restraining the enforcement of City of

Bellevue Ordinances 4692, 4695 and 4735 against the

Plaintiff.

App. 2

Il.

STATEMENT OF FACTS

The Plaintiff, Ino Ino Inc., is a Washington

corporation in good standing. The Plaintiff does business as

Papagayo's, a restaurant and nightclub located at 2239 148th

Avenue NE, Bellevue, Washington. In October 1994, the

Plaintiff was issued an adult cabaret license although it did

not at the time present adult entertainment. Recently, the

Plaintiff has begun providing adult entertainment. The

entertainment consists of nude dancing on stage and table

dancing by female entertainers. The entertainers are not

employees of the business, but independent contractors. The

entertainers are compensated directly by customers for the

table dances that they perform. Each table dance is an

individualized performance which traditionally is performed in

close physical proximity to the customer in order to create a

sense of intimacy and rapport. Entertainers pay a portion of

their earnings to the business as rent. The business does not

serve alcoholic beverages.

On September 6, 1994, the Bellevue City Council

enacted Ordinance 4692, which amended and supplemented

the existing provisions of the Adult Cabaret Licensing

Ordinance, BCC § 5.08.010 et seq. As amended by

Ordinance 4692, Bellevue City Code, (hereinafter BCC),

§ 5.08.010A defines as an “adult cabaret" as:

_. . any premises, including any cabaret premises, to

which any member of the public is invited or admitted

and where an entertainer provides adult entertainment

to any member of the public.

As amended by Ordinance 4692, BCC § 5.08.010B

defines "adult entertainment" as:

App. 3

l. Any exhibition, performance or dance of any type

conducted in a premises where such exhibition, performance

or dance involves a person who is unclothed or in such

costume, attire or clothing as to expose any portion of the

female breast below the top of the areola or any portion of

the pubic region, anus, buttocks, vulva or genitals or wearing

any device or covering exposed to view which simulates the

appearance of any portion of the female breast below the top

of the areola or any portion of the public region, anus,

buttocks, vulva or genitals, or human male genitals in a

discernibly turgid state, even if completely and opaquely

covered; or

2. Any exhibition, performance or dance conducted in a

premises where such exhibition, performance or dance is

performed within the view of one or more members of the

public and is intended or is likely to sexually stimulate any

member of the public.

On September 19, 1994, the Bellevue City Council

enacted Ordinance 4695, which further amended and revised

the provisions of the adult cabaret licensing ordinance. As

revised in 4695, § 5.08.070 contains various standards

governing the conduct of the business, entertainers, and

managers. Subsection A(6) of 5.08.070 provides:

No employee or entertainer mingling with members of the

public shall conduct any dance, performance or exhibition in

or about the non-stage area of the adult cabaret unless that

dance, performance or exhibition is performed at a distance of

no less than four feet from any member of the public.

Subsection D(2) of § 5.08.070 provides:

App. 4

Sufficient lighting shall be provided and equally

distributed throughout the public areas of the

premises so that all objects are plainly visible at all

times. A minimum lighting level of 30 lux semi-

cylindrical measured at 30 inches from the floor on

10 foot centers is hereby established for all areas of

the adult cabaret where members of the public are

admitted.

On January 23, 1995, the Bellevue City Council

enacted Ordinance 4735, which is not scheduled to go into

effect until February 23, 1995. Ordinance 4735 contains a

new definition of "adult entertainment". The definition of

"adult entertainment" is not a material issue in dispute

because the Plaintiff agrees that it will provide "adult

entertainment" under either the old or new definitions in the

ordinance.

The Plaintiff maintains that subsection A(6)

§ 5.08.070 which requires all dances to be performed, “at a

distance of no less than four feet from any member of the

public” constitutes an unreasonable restrain on the exercise of

fee speech rights. This provision of the ordinance was

ostensibly adopted by the Bellevue City Council as a means

to prevent entertainers and customers from engaging in illegal

conduct. However, it goes far beyond what is necessary to

achieve that purpose. Table dances are performed as dances

for individual customers. Entertainers use space and close

physical proximity to the customer to establish a sense of

intimacy and rapport. Requiring a dance to dance four feet

away substantially detracts from the aesthetic quality of the

performance, and does not serve any legitimate governmental

purpose. In addition, the requirement that the dancer remain

four feet away from "any member of the public" is vague,

impossible to comply with, and significantly reduces the

| )

App. 5

number of entertainers and customers that the business can

accommodate at one time. When this ordinance was being

considered by the Bellevue City Council, Dick Andrew, the

Bellevue City Attorney, testified that the goal of maintaining

of physical space between customers and entertainers could

be effectively attained with a one foot setback requirement.

The "30 lux" illumination standard contained in

subsection D(2) of 5.08.070 requires a much higher level of

illumination than is necessary for persons and objects in the

premises to be plainly visible to inspecting officers. The level

or illumination required by the "30 lux" standard is glaring,

uncomfortable and makes it impossible for the business to

accentuate or spotlight the performance on the stage.

The Plaintiff maintains that the four foot clear

distance requirement and the 30 lux illumination standard

were not adopted by the Bellevue City Council to eradicate

so called secondary effects alleged to be associated with adult

entertainment. Instead, the Council members knew at the

time that the ordinance was adopted that these unnecessary

restrictions would tend to make it unprofitable for the

Plaintiff to be able to operate its business. The following is 2

summary of the evidence relevant to this claim:

The original City of Bellevue Adult Cabaret licensing

ordinance, Ordinance 4602, was adopted by the Bellevue City

Council in November 1993. That Ordinance, which is fairly

typical of adult entertainment licensing ordinances, permitted

table dancing but prohibited nude dancing from taking place

except upon a stage, six feet from the nearest customer and

eighteen inches off the ground. At the time that 4602 was

adopted, there were no nude dancing establishments

operating in the City of Bellevue.

App. 6

Sometime during the summer of 1994, the company

which operates the Deja Vu nightclub chain applied for a

building permit to construct an adult nightclub in the City of

Bellevue, In July 1994, Andrea Vangor, the Executive

Director of an organization known as Washington Together

Against Pornography wrote a letter to Bellevue City Council

member Margot Blacker. The letter recommended that the

City of Bellevue adopt legislation imposing minimum distance

requirements. Washington Together Against Pornography is

an organization which advocates imposition of the strictest

possible regulations against sexually oriented business and is,

in fact, a pro-censorship organization. In October 1993,

Washington Together Against Pornography hosted a seminar

at the Bellevue Conference Center which was presented by

attorneys with the National Family Legal Foundation, another

pro-censorship organization. Bellevue City Council Member

Margot Blacker is on the Advisory Board of Washington

Together Against Pornography. Throughout the various

public hearings dealing with licensing regulations applicable

to adult nightclubs, Ms. Blacker never disclosed her

connection with Washington Together Against Pornography,

nor did she mention the fact that there had been ex parte

communications between herself and Ms. Vangor.

Ms. Vangor wrote a letter to Mayor Davidson and all

the City Council members on September 6, 1992, the day that

the Bellevue City Council adopted Ordinance 4692. In this

letter, Ms. Vangor made references to conversations that she

had with Council Member Blacker, Mayor Davidson and

Assistant City Attorney Lon Riordan with respect to the

pending legislation. Again, none of these ex parte contacts

were publicly disclosed. in the letter Ms. Vangor specifically

took issue with the recommendation by City Attorney Dick

Andrew that there be a one foot distance between

App. 7

entertainers and customers and she recommended instead a

four foot setback requirement.

Bob Wyrich, a representative of Washington Together

Against Pornography, spoke to the Council at the public

hearing on September 6, 1994, which preceded adoption of

Ordinance 4692. According to the official minutes of that

Council Session:

... Mr. Wyrich urged the Council to retain the four-

foot rule regarding table dancing and indicated that

adult entertainment establishments will go out of

business if the existing regulations are strictly

enforced.

(Emphasis supplied).

Following the presentation of Mr. Wyrich, the

Council rejected the one foot setback suggested by

Mr. Andrew, and opted for the four foot setback that was

being proposed by Washington Together Against

Pornography. The four foot setback requirement was

specifically proposed by Council Member Margot Blacker.

According to the official minutes:

Thanking the Legal Department, the citizens and

Wash TAP for their work on this issue, Mrs. Blacker

offered an amendment to Ordinance 4692 to change

table dancing minimum distance from one foot to four

feet. Mrs. Zumdieck seconded the amendment.

Most of the legislative business of the Bellevue City

Council is conducted in what are referred to as "study

sessions” at which no members of the public are permitted to

address the Council. Public discussion of pending legislation

is limited to five minutes at the public hearing which

App. 8

immediately precedes enactment. Although there were

extensive contacts between council members and Washington

Together Against Pornography prior to the adoption of

Ordinances 4692, 4695 and 4735, no representatives of the |

adult industry were ever invited by the Council to comment

on the pending legislation nor were they even advised that the

legislation was pending.

Ill.

STATEMENT OF ISSUES

The issue presented by this motion is whether or not

the Plaintiff is entitled to issuance of a temporary restraining

order and order to show cause.

IV.

EVIDENCE RELIED UPON

The evidence relied upon consists of the following:

Declaration of David Brown

Declaration of Kris Wheeler

Declaration of David Ebert.

Declaration of Gilbert H. Levy and attachments thereto.

V.

AUTHORITY AND ARGUMENT

A. The Plaintiff is entitled to the issuance of a

temporary restraining order

In order to obtain a temporary or permanent

injunction, a party must show: (1) That he has a clear, legal

or equitable right, (2) That he has a well-grounded fear of

immediate invasion of that right; and (3) That the acts

complained of either are or will result in actual or substantial

App. 9

injury. Tyler Pipe Industries, Inc. v. Dept. of Revenue, 96

Wn.2d 785, 638 P.2d 1213 (1982); Federation of State

Employees v. State, 99 Wn.2d 878, 665 P.2d 1337 (1983).

The purpose of a preliminary injunction is to preserve the

status quo until trial can be had on the merits. McLean v.

Smith, 4 Wn. App. 394, 482 P.2d 798 (1971). In order to

prove a "clear legal right", the moving party must prove

likelihood of prevailing on the merits. Federal Way Family

Physicians, Inc. v. Tacoma Stands Up for Life, 106 Wn.2d

261, 721 P.2d 946 (1986).

The Plaintiff maintains that unless injunctive relief is

granted, it will suffer immediate and ongoing deprivation of

free speech rights, as well as economic injury. The federal

courts have held that deprivation of First Amendment rights

for even minimal periods of time constitutes a sufficient

showing of threatened injury to justify issuance of a

preliminary injunction. Elrod v. Burns, 427 U.S. 347, 49 L.

Ed. 2d 547, 96 S. Ct. 2673 (1976), Citizens for a Better

Environment v. City of Parkridge, 567 F.2d 689 (7th Cir.

1975). In addition, deprivation of First Amendment rights,

coupled with economic injury, has been held to be a sufficient

showing of immediate or irreparable injury to justify issuance

of a preliminary injunction. Doran v. Salem Inn, Inc., 422

U.S. 922, 932, 45 L. Ed. 2d 648, 95 S. Ct. 2561 (1975).

Unless temporary relief is granted, the Plaintiff

Factoria Center Investments will suffer injury that it will not

be able to operate its business or exercise its free speech

rights. Discussion of the likelihood of success on the merits

is contained in the following portion of this motion.

B. Overview of applicable law.

App. 10

Topless or nude dancing is a form of speech which is

at least minimally protected under the First Amendment to

the United States Constitution. Barnes v. Glen Theater, Inc.,

5O1U.S. _, 1ISL. Ed. 2d 504, 111 S. Ct. 2456 (1991);

O'Day v. King County, 109 Wn.2d 796, 749P.2d |

(1988).

Courts have analyzed licensing schemes similar to the

one involved in this case in terms of whether or not they

constitute an impermissible prior restraint of freedom of

speech. FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 107

L. Ed. 2d 603, 110 S. Ct. 596 (1990). A licensing

requirement raises first amendment concerns when it inhibits

the ability or inclination to engage in protected expression.

KEV v. Kitsap County, 793 F.2d 1053, 1059 (9th Cir. 1986).

A prior restraint is a restraint of speech in advance of

dissemination or in advance of a judicial determination that

the speech is protected by the First Amendment. Tribe,

American Constitutional Law, § 12-34 (2d ed.). Not all prior

restraints violate the First Amendment, but they come into

court bearing a heavy presumption against their

constitutionality. Freedman v. Maryland, 380 U.S. 51, 13 L.

Ed. 2nd 649, 85 S. Ct. 734 (1965). There are two primary

evils associated with primary restraints. FW/PBS Inc. v. City

of Dallas, supra. The first is a scheme that places unbridled

discretion in the hands of a governmental official or agency.

Id. And see also Staub v. City of Baxley, 355 U.S. 313, 2 L.

ed. 2d 302, 78 S. Ct. 277 (1958). The second is where the

licensing scheme doesn't take place "under procedural

safeguards designed to obviate the dangers of a censorship

system". Freedman, supra, at 58. The essential safeguards

are: (1) the licensing official must be required to issue or

deny a license within a reasonable period of time, and

App. 11

(2) there must be a provision for prompt judicial review.

FW/PBS v. City of Dallas, supra.

License requirements such as the one involved in this

case are also analyzed under the principals applicable to time,

place and manner restrictions. Acorn Investments, Inc. v.

City of Seattle, 887 F.2d 219 (9th Cir. 1989); Adult

Entertainment v. Pierce County, 57 Wn. App. 435, 788 P.2d

1102 (199). Under the First Amendment, time, place and

manner restrictions are constitutional if they are narrowly

tailored to further a substantial governmental interest and

afford reasonable alternative channels of communication.

City of Renton v. Playtime Theater, Inc., 475 U.S. 41, 89 L.

Ed. 2d 29, 106 S. Ct. 925 (1986).

Article 1 Section 5 of the Washington Constitution

provides greater protection for freedom of speech than the

First Amendment. Bearing v. Share, 106 Wn.2d. 212, 234,

721 F.2d 918 (1986). Time, place and manner restrictions

must be narrowly tailored to serve a "compelling"

governmental interest. Id.

S The licensing provisions of ordinances 4692 and 4735

are invalid because they fail to specify what the

qualifications are for obtaining a license.

Four different kinds of licenses are required by

Ordinances 4692 and 4735. A "cabaret" license is required

under subsection (A) of 5.08.040 for businesses which are

defined in BCC § 5.08.010(E) as a "cabaret". Businesses

defined as "adult cabarets" are required to be licensed under

subsection (B) of 5.08.040. Persons who work in "adult

cabarets” as "managers" or "entertainers" are required to be

licensed under subsection (C) of 5.08.040. BCC § 5.08.030

App. 12

sets forth general qualifications applicable to all licensees. It

provides:

No license shall be issued to:

A. A natural person who has not attained the age of

twenty-one years, except that licenses may be issued

to persons who have attained the age of eighteen

years with respect to cabarets where no intoxicating

liquors are served or provided.

B. A person whose place of business is conducted by a

manager or agent, unless such manager or agent

possesses the same qualifications required of the

licensee, or in the case of a manager or an adult

cabaret, the manager has obtained a manager's license.

4 A co-partnership, unless all the members thereof are

qualified to obtain a license as provided in this

chapter. Such license shall be issued to the manager

or agent thereof.

D. A corperation, unless all the officers and directors

thereof are qualified to obtain a license as provided

herein. Such license shall be issued to the manager or

agent thereof.

Other than the general qualifications set forth in

5.08.030, Ordinance 4692 and 4735 permit the City Clerk to

issue or deny licenses for adult cabarets, managers and

entertainers based upon standards which are completely

vague and undefined. For example, with respect to the adult

cabaret license, BCC § 5.08.040(B)(8) provides in the

pertinent part:

App. 13

Upon receipt of the complete application and fee, the

clerk shall provide copies to the police, fire, and

community development department for their

investigation and review to determine compliance of

the proposed adult cabaret with the laws and

regulations which each department administers. Each

Department shall, within thirty day of the date of such

application, inspect the application and premises and

shall make a written report to the clerk whether such

application and premises complies with the laws

administered by each department. No license shall be

issued unless each department reports that the

application and premises comply with the relevant

laws.

(Emphasis supplied).

Under the subsection quoted above, the Clerk is free

to deny an adult cabaret license based upon a determination

that the business fails to comply with "relevant laws", but

there is not indication in the text of the ordinance as to what

the laws might be.

Similarly, subsection (B) (9) of 5.08.040 provides:

An adult cabaret license shall be issued by the clerk

within thirty days of the date of filing a complete

license application and fee, unless the clerk determines

that the applicant has failed to meet any of the

requirements of this chapter or provide any

information required under this subsection or that the

applicant has made a false, misleading or fraudulent

statement of material fact on the application for a

license.

(Emphasis supplied).

App. 14

Under the subsection quoted above, the Clerk is free

to deny an adult cabaret license based upon non-compliance

with "any of the requirements of this chapter,” but there is no

indication elsewhere as to what the requirements are. Similar

language is also found in the section dealing with the issuance

of denial of licenses for managers and entertainers. BCC

§ 5.08.040(C)(3) provides:

An adult manager's or adult entertainer's license shall

be issued by the clerk within 14 days from the date the

complete application form and fee are received unless

the clerk determines that the applicant has failed to

provide any information required to be supplied

according to this chapter, has made any, false,

misleading or fraudulent statement of material fact in

the application, or has failed to meet any of the

requirements for issuance of a license under this

chapter.

Statutes which authorize public officials to license

conduct protected by the First Amendment must set forth

definite, objective guidelines for the issuance of such licenses.

Entertainment Concepts v. Maciejewski, 631 F.2d 497 (7th

Cir. 1980); Perrine v. Municipal Court, 5 Cal. 3d 656, 97 Cal.

Rptr. 320, 488 P.2d 648 (1971); Ebel v. City of Garden

Grove, 120 Cal. App. 3d 399, 176 Cal. Rptr. 312 (1981);

Seattle v. Bittner, 81 Wn.2d 747, 505 P.2d 126 (1973).

Statutes which do not contain adequate standards and thereby

vest licensing officials with unfettered discretion to issue or

deny a speech related license are impermissible prior

restraints.

This is not a case of inadequate standards, but simply

no standards at all. The Bellevue City Code provides that the

Clerk may refuse to issue an adult cabaret license if the

App. 15

applicant fails to comply with "any requirements of this

Chapter," or if applicant fails to comply with "relevant laws,"

but the Clerk has unlimited discretion to decide what those

requirements or "relevant laws" might be.

D. The licensing provisions of Ordinance 4692 and 4735

are invalid because they require disclosure of

extensive amounts of information which is unrelated

to the qualifications to obtain a license.

The Plaintiff incorporates by reference the argument

in the preceding section that there are essentially no

requirements specified in the Bellevue City Code for issuance

or denial of licenses for adult cabarets, managers and

entertainers.

Bellevue City Code § 5.08.040 requires applicants for

the adult cabaret, managers and entertainers licenses to

submit a lengthy and detailed license application which

requires the disclosure of information which has nothing to

do with any qualifications to obtain a license. For example,

subsection (B)(1)(b) requires disclosure as to whether or not

a general partnership or corporation is in good standing under

the laws of Washington although this has nothing to do with

qualifications to obtain a license. Subsections (B)(1)(c) and

(d) require disclosure of the applicant's interests in any other

sexually oriented business, and disclosure of whether or not

the applicant has ever had a license suspended or revoked,

although this information has nothing to do with

qualifications to obtain a license. Subsection (B)(1)(e)

requires disclosure of prior criminal convictions, and

forfeitures, other than minor traffic infractions, although the

applicant may not be disqualified from obtaining a license on

these grounds.

App. 16

Compelled content-neutral disclosure of owner and

employee information can chill protected expression. Taller

v. California, 362 U.S. 60, 64, 4 L. Ed. 2d 559, 80S. Ct.

536, 538-539 (1960), N Py. x rel. Patterson,

357 U.S. 449, 461-462, 2 L. Ed. 2d 1488, 78 S. Ct. 1163,

1171-72 (1957). This chill can occur even if suppressing

particular expression is unintended. NAACP, supra, at 461.

Compelled disclosure of information in connection with an

adult entertainment licensing ordinance cannot stand if the

information sought is not reasonably related to the

furtherance of a legitimate and substantial governmental

interest. Acorn Investments, Inc. v. City of Seattle, 887 F.2d

219, 226 (9th Cir. 1989); Genusa v. Peoria, 619 F.2d 1203

(7th Cir. 1980).

In Genusa v. Peoria, supra, the Court struck down

portions of an adult bookstore licensing ordinance which

required the disclosure of information which is substantially

the same as that required by the Bellevue ordinance, for the

reason that there was an invasion of the Plaintiff's privacy

without any legitimate justification. 619 F.2d 1202, 1203.

The information that was sought by the ordinance in that

case, which was held to be unjustified, included all residences

for the past three years, prior license history, a statement as

to whether a license had previously been suspended or

revoked, prior criminal convictions, and a list of officers and

shareholders. Id. For the same reason, a shareholder

disclosure requirement was held to be unconstitutional in

Acorn Investments v. City of Seattle, supra.

The reasoning in Acorn Investments was implicitly

adopted by the Washington Supreme Court in World Wide

Video v. City of Tukwila, 117 Wn.2d 382, 816 P.2d 18

(1991). In that case, the ordinance required disclosure of the

names and address of persons holding "an ownership,

——e

App. 17

leasehold or other interest", in the business. Recognizing that

this broad language presented a potential constitutional defect

under Acorn, the Court avoided the infirmity by construing

the phrase “or other interest" to mean a "significant interest",

with significance based upon responsibility for management

of the business. Id. at 392.

Bellevue City Code § 5.08.040 requires disclosure of

a great deal of information which is unrelated to the

qualifications to obtain a license, and which cannot otherwise

be justified by any substantial governmental interest. This

includes the information which is sought by the following

subsections: (B)(1)(a), (b), (c), (d), (e), (f) and (j). As to

managers and entertainers, it includes the information

required by subsections (C)(1)(d). In essence, the complex

and detailed license application is a trap for the unwary, in

that it provides pretext to deny issuance of a license on the

ground that the application contains false or misleading

information. The defendant should be restrained from

enforcing these portions of its ordinance.

fF Ordinance 4692 fails to contain reasonable time limits

BCC 5.08.040C(3) provides:

An adult cabaret manager's or an adult entertainer's

license shall be issued by the clerk within 14 days

from the date of the complete application and fee

were received unless the clerk determines that the

applicant has failed to provide any information

required to be supplied according to this chapter, or

that the applicant has made any false, misleading or

fraudulent statement of material fact in the application

for a license. The clerk may grant the applicant an

App. 18

extension of time in which to supply the required

information. If the clerk determines that the applicant

has failed to meet any of the requirements for issuance

of a license under this subsection, the clerk shall deny

the application in writing and shall cite the specific

reasons therefor, including applicable laws. Ifa

request for extension of time is not made, and the

clerk has failed to approve or deny the license within

fourteen days of filing of a complete application for an

adult cabaret manager's license, the applicant may,

subject to all other applicable laws, commence work

as an adult cabaret manager in a duly licensed adult

cabaret until notified by the clerk that the license has

been denied. An applicant for an adult entertainer's

license shall be issued a temporary license upon

receipt of a complete license application and fee. Said

temporary license will automatically expire on the

fourteenth day following the filing of a complete

application and fee, unless the clerk has failed to

approve or deny the license application in which case

the temporary license shall be valid until the clerk

approves or denies the application, or until the final

determination of any appeal from a denial of the

application.

BCC § 5.08.040(C)(4) authorizes issuance of a |

temporary entertainer’s license immediately upon application,

which remains in effect for fourteen days. However, there is

no similar provision for issuance of a manager's license

Hence, even though the qualifications for issuance of

manager's license are no different than the qualifications for

issuance of an entertainer's license, there is a fourteen day

waiting period with respect to the manager's license only.

oO

App. 19

FW/PBS Inc. v. City of Dallas, supra, provides that a

speech related license must be issued or denied within a

reasonable period of time in order to avoid invalidation on the

grounds that it constitutes an impermissible prior restraint. In

KEV Inc. v. Kitsap County, 793 F.2d 1053, 1060 (9th Cir.

185), the Court of Appeals struck down a portion of a

licensing scheme similar to this one which provided for a five

day waiting period for issuance of an entertainer's license.

The Court held that the five day waiting period unreasonably

prevented the exercise of the First Amendment rights because

the County provided no justification for the waiting period.

Id. Similarly, in this case, there can be no justification for the

fourteen day waiting period for issuance of manager's license

because: (1) there are essentially no qualifications for

issuance of a manager's license other than that the person be

twenty one years old, and (2) there is no similar delay with

respect to issuance of an entertainer's license even though the

requirements for licensing managers and entertainers are the

same.

In the absence of any reasonable justification, the

fourteen day waiting period for issuance or denial of a

manager's license constitutes an impermissible prior restraint.

F. The thirty lux illumination standard and the four clear

i requi itute invalid time, place

and manner restrictions under First Amendment

-teliees

Bellevue Municipal Code § 5.08.070(A)(6) provides:

No employee or entertainer mingling with members of

the public shall conduct any dance, performance or

exhibition in or about the non-stage area of the adult

cabaret unless that dance, performance or exhibition is

App. 20

performed at a distance of no less than four feet from

any member of the public.

The Plaintiff's business is intended to feature stage

dancing and table dancing by female entertainers. The female

entertainers are not employees of the business, but are

engaged in their own business, which consists of performing

table dances for individual patrons. Typically, the

entertainers do not charge for the stage dances, but only for

table dances. They are compensated directly by the

customers and pay rent to the business in return for the use of

the dressing room and performance areas. The table dances

are unique performances intended to create a sense of

intimacy between the entertainer and the individual patron for

whom the dance is performed. The manner in which table

dances are performed and the entertainers are compensated is

not unique to the City of Bellevue, but exists as the custom

and practice of the industry.

The four foot clear distance requirement contained in

subsection (A)(6) presumably was adopted to prevent illegal

contact between the patrons and entertainers, while the

entertainers are performing table dances. However, the

ordinance goes beyond requiring physical separation between

the entertainer and the patron who is the recipient of the table

dance; it also requires a four foot separation between the

entertainer and "any member of the public". This language in

the ordinance has the unintended consequence of drastically

reducing the number of entertainers and patrons who may be

accommodated in the assembly area of the business because it

requires a moving circle of clear space, with a four foot

radius, around each entertainer. Indeed, the reduction in

patrons and entertainers required by this provision in the

ordinance is so drastic as to prevent the business from

operating. In addition, the four foot clear distance

a

App. 21

requirement is a restriction on the content of expression

because the sense of intimacy and the personal nature of the

dance, which the performer attempts to convey, is

significantly less effective if the performer is separated by

four feet from her intended audience.

Licensing restrictions of this nature are analyzed

under the principals applicable to time, place and manner

restrictions. Acorn Investments v. City of Seattle, supra,

Adult Entertainment Center v. Pierce County, 57 Wn. App.

435, 788 P.2d 1102 (1990). Under the First Amendment,

time, place and manner restrictions are valid if they are

content neutral, if they are narrowly tailored to further a

substantial governmental interest, and if they afford

reasonable alternative channels of communication. City of

Renton v. Playtime Theater Inc., 475 U.S. 41, 89 L. Ed. 2d

29, 106 S. Ct. 925 (1986).

An ordinance is deemed to be content neutral if it is

justified without reference to the content of the speech. City

of Renton, supra, at 47. However, an ordinance may be

deemed to be content based rather than content neutral if the

"predominate purpose" of enactment was the suppression of

constitutionally protected speech. Id. at 48. The

determination of whether an ordinance is content based rather

than content neutral is fact specific and turns on whether or

not there is sufficient evidence in the legislative record to

justify the restriction imposed. Walnut Properties v. City of

Whittier, 808 F.2d 1311 (9th Cir. 1986).

The government bears the burden of establishing that

its time place and manner restriction is "narrowly tailored" to

further a substantial governmental interest and that it leaves

open, "ample alternative channels of communication." Ward

v. Rock Against Racism, 491 U.S. 781, 105 L. Ed. 2d 661,

App. 22

109 §. Ct. 2746 (1989). An ordinance is not narrowly

tailored if it burdens substantially more speech than is

necessary to further the government's legitimate interest. Id.

There must be a "reasonable fit" between the legislative end

and the means chosen by government to accomplish that end.

Board of Trustees SUNY v. Fox, 492 U.S. 469, 106 L. Ed.

2d 388, 109 S. Ct. 3028 (1989). On a number of occasions,

Courts have invalidated time, place and manner ordinances

where the restrictions imposed by the legislation were

broader than necessary to accomplish the intended legislative

goals. Acorn Investments, Inc. v. City of Seattle, supra, at

221, Tollis Inc. v. San Bernardino County, 827 F.2d 1329

(9th Cir. 1987); World Wide Video v. Tukwila, supra, at

388-390.

In this case, the four foot clear distance requirement

of subsection (A)(6) goes beyond prohibiting physical contact

between entertainers and patrons who are the recipients of

table dances. It requires an artificial and unnecessary clear

distance between entertainers and "any member of the

public," which drastically reduces the number of entertainers

and patrons that the business may accommodate. It also

imposes an unnecessary restraint on the content of the

entertainers’ expression by preventing them from using

physical proximity as a means of creating a sense of intimacy

and personal rapport with their customers. For these reasons,

the Defendant is not in a position to demonstrate that its

restriction is "narrowly tailored” to further a substantial

governmental interest, or that it leaves open ample alternative

channels of communication. The evidence to be presented at

the show cause hearing will also demonstrate that the

ordinance is content based rather than content neutral

because it was adopted entirely at the insistence of an

organization known as Washington Together Against

Pornography, a pro-censorship organization.

App. 23

G. The four foot clear distance requirement is an invalid

time, place and manner restriction under Article 1,

Section 5 of the Washington Constitution.

l. In this case, Article 1, Section 5 of the

Washington Constitution confers greater

protection than the First Amendment.

Nude expression is protected speech under Article |

§ 5 of the Washington Constitution. O'Day v. King County,

109 Wn.2nd 796, 749 P.2d 142 (1988). Generally speaking,

Article 1 § 5 of the Washington Constitution is more

protective of freedom of speech than the First Amendment.

Pre-publication prior restraints are absolutely prohibited by

Article 1 § 5 of the Washington Constitution. State v. Coe,

101 Wn.2d 364, 679 P.2d 853 (1984); Bering v. Share, 106

Wn.2d 212, 721 P.2d 918 (1986). Time, place and manner

restrictions are measured under the more rigorous compelling

governmental interest test, rather than the substantial

governmental interest tests, which is applied under the First

Amendment. See Bering v. Share, supra., at p. 234; Collier

v. Tacoma, 121 Wn.2d 737, 854 P.2d 1046 (1993); Adult

Entertainment Center v. Pierce County, 57 Wn. App. 435,

788 P.2d 1102 (1990). Article 1 § 5 of the Washington State

Constitution is less tolerant than the First Amendment of

overly broad restrictions on speech. O'Day v. King County,

supra., at p. 804.

In order to determine in a given situation whether

Article 1 § 5 of the Washington Constitution provides greater

protection than the Federal Constitution, reference must be

had to be six (6) non-exclusive criteria of State v. Gunwall,

106 Wn.2d 54, 720 P.2d 808 (1986). See Forbes v. Seattle,

113 Wn.2d 54, 720 P.2d 808 (1986) and Collier v Tacoma,

App. 24

supra, at p. 7046. The Gunwall factors: 1) The textual

language; 2) Differences in text; 3) Constitutional history;

4) Pre-existing state law, 5) Structural differences; and

6) Matters of particular state and local concern. In this case,

the Plaintiff maintains that Article | § 5 confers greater

protection, based upon the following is a discussion of the

relevant Gunwall factors:

Textual Language

Article | § 5 of the Washington Constitution

provides:

Every person may freely speak, write and publish on

all subjects, being responsible for the abuse of that

right.

One of the fundamental premises of First Amendment

cases dealing with nude dancing is that such activity is

entitled to only the minimum amount of constitutional

protection. See Barnes v. Glen Theater, Inc.,501 U.S. ___,

115 L. Ed. 2d 504,111 S.Ct. _ (1991). To a large extent,

the federal courts have not been particularly sensitive to

restrictions on nude dancing because the right to engage in

nude dancing is considered to be a less important

constitutional right. However, Article 1 § 5 of the

Washington Constitution extends to the right to speak freely,

"on all subjects." On at least two occasions, the Washington

Supreme Court has rejected any suggestion that sexually-

oriented speech is entitled to a lesser degree of constitutional

protection than other forms of speech. Northend Cinema v.

Seattle, 90 Wn.2d 709, 718, F.N. 6, 585 P.2d 1153 (1978);

Worldwide Video v. Tukwila, 117 Wn.2d 382, 390, 810 P.2d

18 (1991).

i ics

App. 25

Differences in Text

The dissent in State v. Reece, 110 Wn.2d 766, 757

P.2d 947 (1988), pointed out:

This court has held in the most recent cases

addressing this issue that the very different language

of the two constitutions require giving our

constitution a broader interpretation.

110 Wn.2d 788.

Constitutional History

The constitutional history of Article 1 § 5 is discussed

in the Reece dissent and in State v. Rinaldo, 36 Wash. App.

86, 673 P.2d 614 (1984). The court in Rinaldo observed that

the State Constitutional Convention that was convened in

1899 considered three different free speech provisions and

adopted the one that was most protective of speech. The

court stated:

Those hearty frontier lawyers, newspaper people, and

their colleagues of the 1899 Constitutional

Convention said it as clearly as they possibly could--

the right to free speech and press in the State of

Washington is a privilege guaranteed to all, and so

long as it is not abused, it is absolute. Then to insure

that this right would not be tampered with by future

legislators or courts, they wrote the privilege into our

state constitution.

673 P.2d 618.

Pre-Existing Case Law

App. 26

In Adult Entertainment Center v. Pierce County,

supra., the Court of Appeals, Division II, employed the

heightened scrutiny of the compelling governmental interest

test to measure the constitutionality of a Pierce County

licensing scheme which regulated sexually-oriented motion

picture arcades. Adult Entertainment Center was cited with

approval in the recent Washington Supreme Court decision,

Collier v. Tacoma, supra., at pp. 753, 754. The regulation

under consideration in Adult Entertainment Center was very

similar to the regulation involved in this case; i.e., it employed

licensing and configuration requirements to deal with the so-

called secondary effects of sexually-oriented businesses. The

court in Adult Entertainment Center determined that

heightened scrutiny was the appropriate method of analysis in

dealing with adult entertainment licensing regulations, and

there is no reason to take a different approach in this case.

Structural Differences

As the majority observed in State v. Reece, the

Federal Constitution is grant of enumerated powers, and the

State Constitution acts as a limitation on the otherwise

plenary powers of government. 110 Wn.2d 780. This means

that the Washington Supreme Court has to engage in

independent state analysis and confer greater protection

where appropriate. It is particularly appropriate for the

Washington courts to intervene when the United States

Supreme Court has decided to limit federal guarantees in a

manner inconsistent with prior pronouncements. 110 Wn.2d

781. Barnes v. Glen Theater, supra., represents a radical

departure from previous decisions of various federal courts

which held that topless dancing is fully-protected speech

under the First Amendment. Chase v. Davelaar, 645 F.2d

735 (9th Cir. 1981); Grand Faloon Tavern, Inc. v. Wicker,

App. 27

670 F.2d 943 (11th Cir. 1982); Miller v. Civil City of

Southbend, 904 F.2d 1081 (7th Cir. 1990); Salem Inn, Inc. v.

Frank, 501 F.2d 18 (2nd Cir. 1974). To the extent that

Barnes represents an erosion of previously existing

constitutional protections, it is particularly appropriate for the

Washington courts to adopt independent state analysis.

Matters of Particular State or Local Concern

In Washington, activities of this nature have been

traditionally regulated by the municipalities. It is difficult to

imagine why there would be a federal interest in this area at

all, or why it would not be a matter of exclusively local

concern.

The preceding discussions suggests that in this case,

Article 1 § 5 of the Washington Constitution provides greater

protection than the First Amendment. The Plaintiff maintains

that this greater protection should manifest itself in three

ways. First, the Court should apply the compelling

governmental interest test rather than the less rigorous

substantial governmental interest test, which is applied in the

federal cases. Secondly, to the extent that the asserted defect

in the ordinance is one of overbreadth, this Court should

adopt the "less tolerant" approach, which is suggested by the

Supreme Court's decision in O'Day v. King County, supra., at

p. 804.2. Finally, the court should determine whether or not

the restriction contained in subsection (A)(6) of 5.08.070

constitute the "least restrictive means" or accomplishing the

asserted legislative goals.

4 The restrictions on table dancing are invalid

under Article 1, Section 5 of the Washington

Constitution because they are not justified by a

compelling governmental interest and they fail

App. 28

to afford reasonable alternative avenues of

communication.

Generally speaking, topless dancing licensing

ordinances, such as the one at issue in this case, are analyzed

under the principles applicable to time, place and manner

restrictions. See BSA, Inc. v. King County, 804 F.2d 1104

(9th Cir. 1986); KEV Inc. v.-Kitsap County, 793 F.2d 1053

(9th Cir. 1986); Adult Entertainment Center v. Pierce

County, supra. Under Article 1 § 5 of the Washington

Constitution, time, place and manner restrictions are valid

only if they are content-neutral, are narrowly tailored to serve

a compelling governmental interest, and leave open ample

alternative avenues of communication. Bering v. Share,

supra, at p. 234, Collier v. Tacoma, supra, at p. 747. To

achieve a compelling governmental interest, the purpose of

the ordinance must be a fundamental one, and the legislation

must bear a reasonable relation to that purpose. Collier v.

Tacoma, supra, at p. 753. The reasonableness of a time,

place and manner restriction is determined by balancing the

public interest advanced by the legislation against the

restriction of free speech rights. Id. The government has the

burden of meeting each element of the time, place and manner

test. Id. In determining that there are alternative avenues or

communication, the court will consider whether or not these

avenues are "practically available." Id. at 759.

In KEV, Inc. v. Kitsap County, supra, the Ninth

Circuit upheld a Kitsap County adult entertainment

ordinance, which contained restrictions which are somewhat

similar to the ordinance involved in this case. The Kitsap

County ordinance provided that no dancing was to occur

closer than ten feet to the nearest patron, and it also

prohibited the direct payment of gratuities to dancers.

ie ee area ane cer eer enaaaaraes

App. 29

793 F.2d 1061. In upholding these restrictions, the Court of

Appeals stated:

The alleged purpose of these requirements is to

prevent patrons and dancers from negotiating for

narcotics transfers and sexual favors on the premises

of erotic dance studio. Separating dancers from

patrons would reduce the opportunity for prostitution

and narcotics transactions. Similarly, prohibiting

dancers and patrons from engaging in sexual fondling

and caressing in an erotic dance studio would

probably deter prostitution. Preventing the exchange

of money between dancers and patrons would also

appear to reduce the likelihood of drug and sex

transactions occurring on regulated premises.

Further, these regulations do not significantly burden

First Amendment rights. While the dancers’ erotic

message may be slightly less effective from ten feet,

the ability to engage in protected expression is not

significantly impaired. Erotic dancers still have

reasonable access to their market. See Ellwest Stereo

Theaters, 681 F 2d 1246, (regulation did not affect

access to adult films). Similarly, while the tipping

prohibition may deny the patron one means of

expressing pleasure with a dancer's performance,

sufficient alternative methods of communication exist

for the patron to convey the same message. Thus, the

regulations of reasonable time, place and manner

restrictions, that only slightly burden speech.

793 F.2d 1061, 1062.

There are several reasons why the KEV case is

distinguishable. Fist, it was based upon the First

——— —

App. 30

Amendment rather than the broader protection of Article |

§ 5 of the Washington Constitution. Secondly, the plaintiff in

that case apparently made no showing as to the impact of the

regulation on protected speech. There was no demonstration

by the plaintiff in that case that compliance with the ten-foot

set-back requirement would interfere with the dancer's erotic

message and compromise the quality of the performance.

The court in KEV did not understand that the dancer's

"market" consisted of the patrons and thus, the regulation

would deny reasonable access to the market. The court in

KEV erroneously assumed that the money that dancers

received from patrons was extra income or "tips," and not

their principal source of revenue.

The plaintiffs challenged a stage requirement in the

King County ordinance in O'Day v. King County, supra. The

court in O'Day declined to analyze this portion of the

ordinance as a time, place and manner restriction because of

the lack of any showing that the ordinance impacted

protected speech. The Washington Supreme Court stated:

Before we consider whether the stage requirement is a

valid time, place and manner restriction, we must

determine whether it regulates protected expression

or whether it regulates only conduct. Pure conduct

does not enjoy the protections of either Article 1 § 5

or the First Amendment. Seattle v. Buchanan,

90 Wn.2d 584, 584 P.2d 918 (1978).

Unlike similar local regulatory regimes that have been

invalidated, the stage requirement does not prohibit

nude entertainment. (Cites omitted). The stage

requirement allows any type of expression by nude

entertainers as long as the nude expression is made in

minimal distance from patrons.

App. 31

Respondents have failed to demonstrate how the stage

requirement infringes on their right to free expression

rather than simply their conduct. (Cite omitted). The

requirement is aimed not at expression, but only

public sexual contact between entertainers and

patrons by keeping nude entertainers out of reach of

the nearest patron. (Cite omitted). We conclude that

the eighteen inch stage requirement of

K.C.C. 6.08.050(A)(6) regulates only conduct, and

not expression protected by Article 1 § 5.

109 Wn.2d 809, 810.

The critical distinction between the ordinance in this

case and the King County ordinance considered in O'Day is

that the King County ordinance did not completely ban table

dancing, but only nude table dancing. The set-back

requirement in the King County ordinance does not apply to

dancers who are clothed. Finally, the plaintiff in O'Day made

no showing that the set-back requirement would adversely

impact and diminish the quality of protected speech, nor was

there any showing that the King County Ordinance under

consideration in O'Day would prevent the dancers from

making a living.

The Bellevue ordinance involved in this case is also

similar to a Snohomish County ordinance that was challenged

in 1987 in the King County Superior Court under Article |

§ 5 of the Washington Constitution. The name of that case

was Treshea M. Davis v. Suohomish County, King County

Cause No. 87-2-01335-9, consolidated with PD&MK vy.

Snohomish County, King County Cause No. 87-2-04201-4.

The trial in that matter was held before the Honorable Susan

Agid, who is now on the Washington Court of Appeals,

App. 32

Division I. Judge Agid's findings and judgments are attached

to this Memorandum and incorporated by reference herein.

In the Davis case, the Snohomish County ordinance required

licenses for "erotic dance studios" and "erotic dancers” and

the definition of those phrases in the Snohomish County

ordinance is similar to the definitions contained in the current

Bellevue Ordinance. See Findings of Fact and Conclusions of

Law, p. 5. The Snohomish County ordinance provided that

“erotic dancing" would occur only on a stage eighteen inches

off the ground and six feet from the nearest customer.

Findings of Fact and Conclusions of Law, pp. 5, 6.

In her findings in the Davis case, Judge Agid observed

that a principal distinction between the Snohomish County

ordinance and the Kitsap ordinance under consideration in

Kev is that the Kitsap ordinance applied to “all dancing,”

whereas the Snohomish County ordinance applied to only

“erotic dancing." Findings of Fact and Conclusions of Law,

at p. 8. Judge Agid agreed with the plaintiffs that the phrase

“erotic dancing" was vague in that it failed to provide

adequate guidance to law enforcement officials. However,

she solved the vagueness problem through judicial

construction. Findings of Fact and Conclusions of Law, at

p. 9. The judicial construction consisted of limiting the

phrase “erotic dancing" to certain core behavior, which

included:

(a) Nudity,

(b) Displaying or exposing, with less than full

opaque covering, that portion of the female breast below the

upper edge or the areola,

(c) Displaying or exposing, with less than full

opaque covering, the dancer's public area, pubic hair, or anus,

App. 33

(d) Any dancer fondling or caressing any patron,

or an patron fondling or caressing any dancer,

(e) | A dancer touching herself on the breast, pubic

area, or anal area, or allowing a patron or other dancer to

touch her in those areas;

(f) Simulating, by touching or otherwise,

masturbation or intercourse,

(g) | Bringing any portion of the dancer's body

closer than six inches to the patron or rubbing any portion of

the dancer's body on a patron,

(h) Sitting on a patron's lap or separating a

patron's legs.

Findings of Fact and Conclusions of Law, at p. 10.

In her findings, Judge Agid concluded that once the

phrase “erotic dancing” was given the narrowing construction

described above, the legislative record was devoid of any

evidence that non-erotic dancing caused the so-called adverse

secondary effects that were the reason for enactment of the

ordinance. Finding of Fact No. 30 provides:

The regulations of Chapter 6.25 SCC formulated by

the County Council were based upon the secondary

effects of erotic dancing, as defined by the core

activity described above, and not on secondary effects

of non-erotic dancing.

Finding of Fact No. 31 provides

App. 34

The County Council did not find that there was a

nexus between prostitution, drug dealing and crime

problems and non-erotic dancing. Based upon the

evidence, the Court cannot find that such a nexus

exists.

Finding of Fact No. 32 provides:

There was not sufficient evidence to establish a nexus

between tipping for non-erotic table dancing and the

evils that Snohomish County seeks to prevent by

regulating erotic dancing.

Since restrictions on non-erotic dancing could not be

justified by the reasons for enactment of the ordinance, Judge

Agid determined that the ordinance would be overbroad as

applied to non-erotic dancing. Finding of Fact No. 35

provides:

Under the analysis set out in Conclusion of Law

No. 13, the regulations at issue are content neutral.

They are aimed at the way that dancers and

management have conducted themselves in exercising

their free speech rights (e.g., dirty dances, assaultive

behavior, drug and prostitution deals) and not at the

content of the dance itself. While the restrictions are

aimed only at erotic dancers, they are justified by the

secondary effects of the erotic dance in the clubs at

which it takes place. A restriction that was similar to

thi t appli in mish Count

includin which was n v

n f di tive or ill uct

woul verbr

(Emphasis supplied).

se ab ten

App. 35

In the findings and in the judgment, Judge Agid did

not rule that the six-foot setback requirement was

unconstitutional because, under the narrowing construction, it

did not apply to dancing which did not involve the core

behaviors associated with adverse secondary effects.

Following entry of the judgment in the Davis case,

Snohomish County elected not to appeal, but instead

amended its ordinance to incorporate Judge Agid's decision.

As revised, Snohomish County Code § 6.01.010(25) defines

"erotic dance" and "erotic dancing" to encompass only the so-

called core behaviors that are set forth in Judge Agid's

decision.

Lacking an authoritative judicial construction, such as

the one adopted by Judge Agid, the provisions in the Bellevue

ordinance, which impose a four-foot set-back requirement on

"all dancing" are overly broad. The legislative record is

devoid of any evidence that all dancing, regardless of its

content, will cause the secondary effects which are the reason

for the enactment of the ordinance. Analyzing the issue

under the principles set forth in Collier v. Tacoma, supra, the

ordinance in its present form does not serve a compelling

governmental interest because the restrictions imposed by the

legislation are not justified by the legislative purpose. Ina

similar vain, the Washington Supreme Court in Worldwide

Video v. Tukwila, supra, ruled that a set of zoning

restrictions that applied to retail only adult businesses were

not narrowly tailored to serve a significant governmental

interest because there was no indication in the legislative

record that retail-only adult businesses would cause the same

adverse secondary effects as those which had facilities for on-

premises viewing. Also, in this case, the legislation is

defective because the defendant is not in a position to sustain

its burden of demonstrating the availability of alternative

App. 36

avenues of communication. The plaintiffs have made a

preliminary showing that revenue from table dancing is the

primary source of income for the business and the dancers,

and the industry as a whole is dependent on table dancing.

Thus, the Defendant is not in a position to demonstrate that

alternative avenues or communication are “practically

available."

3. The four-foot clear distance requirement is an

invalid time place and manner restriction

because it does not constitute the "least

restrictive means" for attaining the goals of the

legislation.

A statute which burdens the exercise of a fundamental

right is subject to "strict scrutiny." Dunn v. Blumstein, 405

U.S. 330, 343, 31 L. Ed. 2d 274, 92 S. Ct. 995 (1972);

Darrin v. Gould, 85 Wn.2d 859, 540 P.2d 882 (1975);

Duranceau v. Tacoma, 27 Wn. App. 770, 620 P.2d 533

(1980). Under the strict scrutiny test, the government must

prove that 1) a compelling state interest exists to justify the

legislation; and 2) the regulation constitutes the least

restrictive means to accomplish the government's objective.

First Covenant Church v. Seattle, 114 Wn.2d 393, 402, 787

P.2d 1352 (1990).

In this case, the Defendant is not in a position to

demonstrate that the four-foot clear distance requirement is

the least restrictive means capable of attaining the legislative

goals. For one thing, there is no reason why the entertainer

would have to be set back four feet from persons who are not

receiving the table dance. Furthermore, the City is not in a

position to demonstrate that a lesser distance would not be

just as effective in preventing illegal contact between

entertainers and patrons. The Plaintiff is prepared to present

App. 37

evidence that at the City council session which was

considering the enactment or Ordinance 4692, Bellevue City

Attorney Dick Andrews testified that the City would be able

to accomplish its legislative goals with a one-foot setback

requirement, and the four-foot clear distance requirement was

not the "least restrictive means."

VI.

CONCLUSION

The Court should issue the temporary restraining

order and order to show cause requested by the Plaintiff.

DATED this day of February, 1995.

[Filed 2/17/95, unsigned and undated.|

GILBERT H. LEVY, WSBA No. 4805

Attorney for Plaintiff