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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1998
- **Citation:** 522 U.S. 1077

## Text

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
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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

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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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386013_1777%3A2. Public record. Not legal advice.