Appeal from Superior Court of King County. Docket No: 95-2-02025-9. Judge signing: Hon. Carol Schapira.
As Amended September 23, 1997.
Authored by Barbara A. Madsen. Concurring: James M. Dolliver, Charles Z. Smith, Richard P. Guy, Philip A. Talmadge, Barbara Durham. Dissenting: Gerry L. Alexander, Richard B. Sanders, Charles W. Johnson.
The opinion of the court was delivered by: Madsen
MADSEN, J. At issue in this case are provisions of a Bellevue City ordinance regulating adult cabarets. Two adult entertainment corporations and three dancers (Respondents) challenged the constitutionality of the ordinance under both the First Amendment and Washington Const. art. I, sec. 5. The trial court upheld all but one of the challenged provisions and awarded fees to the City of Bellevue for dissolving a temporary restraining order. The City of Bellevue (Appellant) appealed and the Respondents cross-appealed. We affirm in part, reverse in part, and remand for a determination of attorneys' fees.
In November 1993, the Bellevue City Council adopted Ordinance 4602, the City's first ordinance regulating adult cabarets. Clerk's Papers (CP) at 311 (Ino Ino, Inc., finding of fact 6). *fn1 The ordinance contained a statement that the City would regulate adult cabarets to prevent "significant criminal activity" that "historically and regularly" has occurred, while preserving constitutionally protected expression. Ordinance 4602 (1993). The City later amended the ordinance by adopting Ordinance 4735 in January 1995, and Ordinance 4745 in March 1995.
The challenged ordinances, codified as Bellevue City Code (BCC) sec. 5.08, regulate various aspects of adult cabarets. Specifically, BCC sec. 5.08.010(B) defines "adult entertainment" and thus determines which businesses must comply with the regulations. Section 5.08.070(A)(1) provides that nude or semi-nude dancers must perform on an elevated stage at least eight feet from patrons. According to section 5.08.070(A)(6), dancers performing on the nonstage area of the adult cabaret must be at least four feet from any member of the public. Section 5.08.070(D)(2) establishes a minimum level of lighting; and section 5.08.070(E) requires adult cabarets to close from 2 a.m. to 10 a.m. Section 5.08.040 establishes licensing requirements for operators, managers, and dancers. Section 5.08.070(B)(2) prohibits nude performances or graphic representations of such performances outside of adult cabarets.
Respondents Deja Vu-Bellevue, Inc.; Ino Ino, Inc. (owner of adult cabarets Papagayo's and Babes); and dancers Rhonda Remus, Esmeralda Silva, and Victoria McKnight filed suit to have the ordinances declared unconstitutional. On February 24, 1995, the King County Superior Court issued an order temporarily restraining the City from enforcing the four-foot distance requirement for individual dances in adult cabarets. Under Civil Rule (CR) 65(c), the court required that the adult cabarets post a bond for $5,000. At the request of the adult cabarets and dancers, the court consolidated the preliminary hearing with a trial on the merits under CR 65(a)(2). From March 13 to March 20, 1995, the court heard evidence regarding the manner in which adult cabarets operate in King County.
At trial, Respondents presented evidence that dancers, or entertainers, are independent contractors who pay adult cabarets $65 or more to work a six-to eight-hour shift. An entertainer performs uncompensated nude dances on stage in order to attract the attention of patrons, who can then purchase individual performances near their tables and couches, hence the term "table dance" or "couch dance." CP at 313, 316 (Ino Ino, Inc. findings of fact 11, 23). Entertainers receive their income from the individually compensated dances. Under this system, numerous dancers may perform simultaneously throughout the cabaret, but they are prohibited from engaging in sexual contact with patrons. BCC sec. 10A.88 ("Offenses Against Public Morals").
Individual Respondents testified that patrons would be unwilling to pay for table dances that complied with the new restrictions on distance and lighting. These restrictions would detract from the intimacy that is part of the message in table dances. Corporate Respondents presented evidence that compliance with the four-foot minimum distance rule would hurt them economically to the point of shutting down their businesses, and thus would restrict constitutionally protected speech. Respondents made this prediction on the assumption that the ordinance required at least four feet between the patrons' and dancers' outstretched arms (or about eight to nine feet between torsos).
At the Conclusion of the evidence, the trial court dissolved the temporary restraining order and denied a temporary or permanent injunction. The court upheld all of the provisions of the Bellevue ordinances except the outdoor prohibition in BCC sec. 5.08.070(B)(2), which the court struck down as overbroad. The court awarded the City attorneys' fees for dissolving the temporary restraining order, but limited the award to the amount of the bond. The court declined to award the adult cabarets and the individual dancers attorneys' fees under 42 U.S.C. sec. 1988 (1994).
Trial Court's Findings of Fact
Initially, Respondents challenge several of the trial court's findings of fact. An appellate court must affirm a trial court's findings of fact if they are based on live testimony and supported by substantial evidence. Bering v. Share, 106 Wash. 2d 212, 220-21, 721 P.2d 918 (1986), cert. dismissed, 479 U.S. 1050 (1987). Substantial evidence exists when the record contains evidence of sufficient quantity to persuade a fair-minded, rational person that the declared premise is true. World Wide Video, Inc. v. City of Tukwila, 117 Wash. 2d 382, 387, 816 P.2d 18 (1991) (quoting Bering, 106 Wash. 2d at 220), cert. denied, 503 U.S. 986, 118 L. Ed. 2d 391, 112 S. Ct. 1672 (1992).
In this case, the trial court found that illegal exposure and sexual contact occurred at adult cabarets. These findings were based on testimony from Bellevue police officers who had performed undercover investigations and communicated with officers from surrounding jurisdictions. The Bellevue officers reported numerous instances of improper sexual conduct at Babes and Papagayo's.
Some entertainers rubbed their buttocks into the groin areas of undercover officers. Others fondled customers' genitals or exposed their breasts and genitals during individual dances. Based upon the officers' testimony, the trial court also found that low lighting and close proximity between patrons and dancers hindered the officers' ability to detect violations that may have been occurring elsewhere in the club.
The court found further that the City had enacted the ordinances in order to control the illegal exposure and sexual contact, or "secondary effects," of live adult entertainment. CP at 314 (Ino Ino, Inc., finding of fact 15). The court based this finding on the testimony of an Assistant City Attorney who had drafted the four-foot rule and former city council members who had voted for its adoption. According to their testimony, they had intended that this provision place patrons and dancers just out of arm's reach.
The trial court also found that the distance restrictions did not prevent patrons from perceiving the eroticism of the dancers' performances. With respect to the restriction for stage dances, the court found that patrons can receive a dancer's erotic message even when they are 8 to 40 or more feet away from the stage. Increasing the minimum distance between patrons and stage dancers from six feet to eight feet resulted only in a loss of some seating.
With respect to the restriction for table dances, the trial court found that a dancer can convey eroticism from a distance of four feet from the patron's torso. Based upon a dance expert's testimony, the court found that the four-foot rule allowed a patron to see the dancer's entire body and expressive activity. The trial court also found that Papagayo's had not complied with the City's four-foot restriction on table and couch dances. Moreover, the adult cabaret, Babes, which was owned by Respondent Ino Ino, Inc., had eliminated individual dances rather than comply with the four-foot rule.
Based on the record, we hold that substantial evidence supports the challenged findings and accordingly affirm the trial court's findings of fact.
Constitutionality of Bellevue's Adult Entertainment Ordinances
Respondents next challenge the trial court's Conclusion that the provisions of Bellevue's ordinances, with the exception of BCC sec. 5.08.070(B)(2), restrict only conduct, and that even if they restrict expression they permissibly regulate only the time, place, or manner of expression. Respondents claim that the ordinances violate the federal and state constitutions. Respondents also argue that the expressive element of nude dancing is entitled to broader protection under the Washington Constitution. Because Respondents' primary argument centers on the state constitution we begin there.
An appellate court reviews issues of law de novo. State v. Campbell, 125 Wash. 2d 797, 888 P.2d 1185 (1995). The State bears the burden of justifying a restriction on speech. Collier v. City of Tacoma, 121 Wash. 2d 737, 753, 854 P.2d 1046 (1993); Spokane Arcades, Inc. v. Brockett, 631 F.2d 135, 138 (9th Cir. 1980), aff'd, 454 U.S. 1022, 70 L. Ed. 2d 468, 102 S. Ct. 557 (1981). In State v. Gunwall, 106 Wash. 2d 54, 58, 720 P.2d 808 (1986), we enumerated several nonexclusive criteria which a court should consider to determine whether, in a given situation, it is appropriate to resort to the Washington Constitution for separate and independent state grounds of decision: (1) the textual language; (2) differences in the texts; (3) constitutional history; (4) preexisting state law; (5) structural differences; and (6) matters of particular state or local concern. The same factors have been analyzed to determine whether the state constitution ultimately provides greater protection than its corresponding federal provision. State v. Boland, 115 Wash. 2d 571, 575, 800 P.2d 1112 (1990).
As this court noted in State v. Reece, "the question to be asked here is not whether the concept of free speech is interpreted more broadly under the state constitution than under the federal constitution. This court has already answered this question in the affirmative." State v. Reece, 110 Wash. 2d 766, 778, 757 P.2d 947 (1988), cert. denied, 493 U.S. 812 (1989). Instead, the inquiry must focus on the specific context in which the state constitutional challenge is raised. Even where a state constitutional provision has been subject to independent interpretation and found to be more protective in a particular context, it does not follow that greater protection is provided in all contexts. See State v. Russell, 125 Wash. 2d 24, 57, 882 P.2d 747 (1994), cert. denied, U.S. , 115 S. Ct. 2004 (1995); State v. Reece, 110 Wash. 2d 766, 777-78, 757 P.2d 947 (1988) (stating that the proper inquiry under Gunwall is whether "on a given subject matter" the Washington constitutional provision should give greater protection than the minimum protection afforded by the federal constitution), cert. denied, 493 U.S. 812, 107 L. Ed. 2d 26, 110 S. Ct. 59 (1989). Application of this principle has also been evident in this court's interpretation of Const. art. I, sec. 7. See, e.g., Bedford v. Sugarman, 112 Wash. 2d 500, 507, 772 P.2d 486 (1989) (noting that art. I, sec. 7 gives enhanced protection against certain governmental searches and seizures, but declining to consider the extent to which this provision guarantees a more general right of privacy); see also Ramm v. City of Seattle, 66 Wash. App. 15, 27, 830 P.2d 395 (holding that art. I, sec. 7 offers the same degree of protection as its federal counterpart in matters not involving search and seizure), review denied, 120 Wash. 2d 1018, 844 P.2d 437 (1992).
Thus, in Reece we identified the issue as "whether obscenity is to be afforded broader protection under the state constitution than under the federal constitution." Reece, 110 Wash. 2d at 178. We examined the Gunwall factors and concluded that in the context of obscenity, art. I, sec. 5 does not afford broader protection. Similarly, when faced with a challenge to Seattle's telephone harassment law, under art. I, sec. 5 we found no justification for extending greater protection under the state constitution for speech in nonpublic fora and applied the federal standard. City of Seattle v. Huff, 111 Wash. 2d 923, 926, 767 P.2d 572 (1989). The federal analysis also applies when confronting art. I, sec. 5 challenges to regulations of commercial speech. National Fed'n of Retired Persons v. Insurance Comm'r, 120 Wash. 2d 101, 119, 838 P.2d 680 (1992). In JJR, Inc., we declined to extend the full protection of art. I, sec. 5 to licensure of nude dancing, observing that nude dancing "clings to the edge of protected expression." JJR, Inc. v. City of Seattle, 126 Wash. 2d 1, 9, 891 P.2d 720 (1995). Most recently, we reaffirmed that art. I, sec. 5 extends no greater protection than its federal counterpart when evaluating false or defamatory statements. Richmond v. Thompson, 130 Wash. 2d 368, 382, 922 P.2d 1343 (1996).
The issue here, then, is whether nude or sexually explicit dancing is to be afforded greater protection under the state constitution than under its federal counterpart.
The first factor to consider in the Gunwall inquiry is the text of the state constitution. Article I, sec. 5 provides that "every person may freely speak, write and publish on all subjects, being responsible for the abuse of that right." This court has interpreted the text of this provision in evaluating time, place, and manner regulations, and claims of prior restraint and overbreadth.
In Collier, the court recognized that the "broad language of Const. art. I, sec. 5" justifies a more protective standard for evaluating governmental restrictions on political speech. Collier, 121 Wash. 2d at 748. The standard adopted by this court for evaluating time, place, and manner restrictions on speech requires the government to show a compelling state interest. Id. at 747; Bering, 106 Wash. 2d at 234.
Regulations which rise to the level of prior restraints may be subject to an even stricter standard. Holding that the language of art. I, sec. 5 forbids prior restraints on publication, we have struck down prior restraints in most contexts, allowing only postpublication sanctions to punish the abuse of free speech rights. See, e.g., State v. Coe, 101 Wash. 2d 364, 374-75, 679 P.2d 353 (1984) (holding that the language of art. I, sec. 5 forbids prior restraints on the publication or broadcast of constitutionally protected speech that was lawfully obtained, true, and a matter of public record). The strict standard for evaluating prior restraints under the state constitution lies in the plain language of Const. art. I, sec. 5 which "seems to rule out prior restraints under any circumstances." Bering, 106 Wash. 2d at 242 (quoting Coe, 101 Wash. 2d at 374). In the context of adult entertainment, however, the court has declined to afford the full protection of art. I, sec. 5, observing that nude dancing "clings to the edge of protected expression." See JJR, Inc. 126 Wash. 2d at 9.
In regard to claims of overbreadth, the text of art. I, sec. 5 is less tolerant than the First Amendment of overbroad restrictions on expression when such restrictions rise to the level of a prior restraint. O'Day v. King County, 109 Wash. 2d 796, 804, 749 P.2d 142 (1988).
The broad language of art. I, sec. 5 has been found to warrant greater protection for speech, both spoken and written, in some contexts. However, it has not previously been applied to extend greater protection to expressive conduct or sexually explicit dance. Moreover, art. I, sec. 5 mentions only the right to speak, write and publish. In the absence of language relating to expressive conduct, we do not find that the text of art. I, sec. 5 justifies extending greater protection to the adult performances at issue here.
The second factor to consider is the difference in the texts of the federal and state constitutions. The text of the First Amendment provides that "Congress shall make no law . . . abridging the freedom of speech." U.S. Const. amend. I. This court has found the difference in text between art. I, sec. 5 and the First Amendment justifies an independent interpretation as noted above.
With respect to time, place, and manner restrictions, federal courts have interpreted the First Amendment as requiring only a substantial or important state interest. See City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 50, 106 S. Ct. 925, 89 L. Ed. 2d 29 (applying to time, place, and manner restrictions on pure speech a test requiring a "substantial" governmental interest), reh'g denied, 475 U.S. 1132, 90 L. Ed. 2d 205, 106 S. Ct. 1663 (1986); United States v. O'Brien, 391 U.S. 367, 377, 88 S. Ct. 1673, 20 L. Ed. 2d 672 (applying to time, place, and manner restrictions on expressive conduct a test requiring an "important or substantial" governmental interest), reh'g denied, 393 U.S. 900 (1968).
In contrast, because of its broad language, Const. art. I, sec. 5 has been interpreted to offer greater protection than the First Amendment in the context of pure noncommercial speech in a traditional public forum. See Collier, 121 Wash. 2d at 747 (time, place, and manner restriction on political speech in traditional public forum of streets and sidewalks must serve compelling state interest); Bering, 106 Wash. 2d at 233-34 (time, place, and manner restriction on abortion clinic protest on city streets and sidewalks must meet compelling governmental interest test).
In other contexts, however, this court has followed the federal standard when evaluating time, place, and manner restrictions. See Huff, 111 Wash. 2d 923, 767 P.2d 572; Reece, 110 Wash. 2d 766, 757 P.2d 947; National Fed'n of Retired Persons, 120 Wash. 2d 101, 838 P.2d 680.
In some cases, art. I, sec. 5 also provides more protection against prior restraints. For example, federal courts have held under the First Amendment that delays in issuing dancers' licenses, but not operators' licenses, constitute a prior restraint. *fn2 By contrast, in JJR, Inc., we made no distinction between operators' and dancers' licenses in holding that suspension or revocation of either type of license constitutes a prior restraint. However, as noted above, the court did not extend the full protection of Const. art. I, sec. 5.
With respect to claims of overbreadth, the Supreme Court has interpreted the First Amendment by stating, "particularly where conduct and not merely speech is involved, we believe that the overbreadth of a statute must not only be real, but substantial as well, Judged in relation to the statute's plainly legitimate sweep." New York v. Ferber, 458 U.S. 747, 770, 102 S. Ct. 3348, 73 L. Ed. 2d 1113 (1982) (quoting Broadrick v. Oklahoma, 413 U.S. 601, 615, 93 S. Ct. 2908, 37 L. Ed. 2d 830) (1973)).
A comparison of the language in the First Amendment and Const. art. I, sec. 5 does not dictate adoption of a more protective state doctrine for determining overbreadth. See State v. Talley, 122 Wash. 2d 192, 209, 858 P.2d 217 (1993) (stating that Washington courts apply a federal analysis to claims of overbroad restrictions on speech). See also O'Day, 109 Wash. 2d at 804 (applying the federal test for overbreadth but finding more protection if overbreadth rises to the level of a prior restraint).
It is clear that the differences in the texts of art. I, sec. 5 and the First Amendment may justify a different interpretation under the state constitution. It is also clear that greater protection under the state constitution is not warranted in every context. Respondents have failed to explain how the difference in texts justifies greater state constitutional protection in the context of sexually explicit nude and semi-nude dancing.
The third factor to consider is constitutional history. Although the State Constitutional Convention adopted the most protective of three proposed free speech provisions, this choice sheds no light on whether the drafters intended that art. I, sec. 5 give greater protection than the federal constitution in this context. See Russell, Reece, Sugarman, and Ramm, (indicating that state constitutional provisions may offer greater protection only in certain contexts).
The fourth factor in a Gunwall analysis is preexisting state law. State cases and statutes from the time of the constitution's ratification, rather than recent case law, are more persuasive in determining whether the state constitution gives enhanced protection in a particular area. See Reece, 110 Wash. 2d at 779 (noting, as part of its Gunwall analysis, that Washington criminalized obscenity both immediately prior to and after ratification of the state constitution); Gunwall, 106 Wash. 2d at 66 (looking to the prestatehood Code of 1881 for evidence that the state constitution gives enhanced protection for telephonic communications).
The city cites a case published in 1893 in which this court interpreted a statute to proscribe only businesses providing a public show "which openly outrages decency and tends to corrupt the public morals." State v. Brown, 7 Wash. 10, 13, 34 P. 132 (1893). The statute in question provided for the abatement as nuisances of "all . . . structures used as a place of resort, where women are employed to draw custom, dance, or for purposes of prostitution . . . ." Id. at 11 (citing Hill's Gen. Stat., Vol. I, sec. 2894 (1891)).
Respondents offer no evidence that the constitution's drafters intended, in the context of sexually explicit nude and semi-nude dancing, to impose a stricter standard for regulations challenged as overbroad or as unduly restricting the time, place, or manner of expression. Neither do Respondents cite recent case law to support this proposition.
In regard to prior restraints, Respondents cite our recent decision in JJR, Inc., to argue that the state constitution provides more protection than its federal counterpart against prepublication sanctions. In JJR, Inc., we invalidated as a prior restraint a provision allowing revocation and suspension of operators' licenses without sufficient procedural safeguards. JJR, Inc., 126 Wash. 2d at 9. The provision suppressed future expression because establishments with revoked or suspended licenses were prohibited from showcasing nude dancing. Id. at 8. We declined to apply the general rule categorically invalidating all prior restraints, stating that an adult entertainment licensing scheme providing for revocation or suspension of licenses was valid provided that procedural safeguards were available. *fn3 Id.
Thus, pre-existing state law justifies a greater degree of protection from regulations which impose prior restraint on the expressive conduct of sexually explicit dance, but does not support application of the more rigorous time, place, and manner analysis developed in the context of pure speech in a traditional public forum.
The fifth Gunwall factor to consider is the structural difference between the federal and state constitutions. The federal constitution is a grant of enumerated powers, while the state constitution acts as a limitation on the otherwise plenary powers of state government. Reece, 110 Wash. 2d at 780 (citing Gunwall, 106 Wash. 2d at 62). This distinction simply reinforces this court's responsibility to engage in independent state analysis and afford broader protection when necessary. Id.
The sixth factor is whether this case raises a matter of particular state or local concern. With regard to adult entertainment, Respondents state only that "activities of this nature have been traditionally regulated by municipalities." Br. of Resp't at 28. This factor favors an independent state analysis; however, we do not agree that greater protection follows, because, as Appellant points out, both state and local law regulated or prohibited dancing early in this state's history. Appellant cites a Washington statute enacted in 1889 granting cities the authority to "prohibit or suppress, or license or regulate all dance houses . . . .". Bal. Code sec. 855(4) (1897). Appellant also points to Pearson v. City of Seattle, 14 Wash. 438, 439, 44 P. 884 (1896), concerning a City of Seattle ordinance prohibiting dances in any saloon or in any place in connection with liquor sales. We conclude that while traditional regulation by municipalities supports independent analysis under the state constitution, it does not support enhanced protection for self-expression through sexually explicit dancing.
Respondents fail to show that the sexually explicit dance at issue in this case warrants application of the more protective time, place, and manner analysis developed under art. I, sec. 5 of the state constitution. Nor is greater protection indicated with regard to the claims of overbreadth not rising to the level of prior restraint. Therefore, we will evaluate Respondents' claims of overbreadth and challenges to time, place, or manner regulations by applying federal constitutional law. However, the text and history of Const. art. I, sec. 5 dictate enhanced protection under the state constitution in the context of adult entertainment regulations that impose prior restraints.
Respondents argue that the 14-day processing period for managers' licenses established in BCC sec. 5.08.040(C)(3), with no issuance of temporary licenses during this period, is an unconstitutional prior restraint. Respondents point out that section (C)(4) provides for the issuance of temporary licenses to dancers, but not to managers.
We find that a 14-day delay in issuing a manager's license is similar to the revocation and suspension of an operator's license in JJR, Inc. The delay in issuing a manager's license suppresses future expression because the City permits nude dancing only if licensed managers are present. Although in JJR, Inc., we stated that a provision revoking or suspending licenses was constitutional if it provided for a stay pending judicial review, no such procedural safeguards would cure the constitutional infirmities of BCC sec. 5.08.040(C)(3). JJR, Inc., 126 Wash. 2d at 10-11. Therefore, we hold that the ...