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McKibben v. Snohomish County

United States District Court, W.D. Washington

December 5, 2014

PHIL MCKIBBEN, Plaintiff,
v.
SNOHOMISH COUNTY, Defendant

Page 1191

For Phil McKibben, Plaintiff: Kristin Gjesdahl Olson, LAW OFFICES OF KRISTIN G OLSON, KIRKLAND, WA.

For Snohomish County, Defendant: Lyndsey Marie Downs, SNOHOMISH COUNTY PROSECUTING ATTORNEY (ROCKEFELLER), EVERETT, WA; Robert Tad Seder, SNOHOMISH COUNTY PROSECUTING ATTORNEY (CIVIL), CIVIL DIVISION, EVERETT, WA.

Page 1192

ORDER ON CROSS MOTIONS FOR SUMMARY JUDGMENT

JAMES L. ROBART, United States District Judge.

I. INTRODUCTION

The matter comes before the court on the parties' cross motions for summary judgment. ( See Plf. Mot. (Dkt. # 20); Def. Mot. (Dkt. # 23).) This case arises from Plaintiff Phil McKibben's attempts to open an adult cabaret. Mr. McKibben argues that Defendant Snohomish County's (" County" ) zoning restrictions on adult entertainment violate the First Amendment. Having considered the submissions of the parties, the balance of the record, and the relevant law, and having heard oral argument, the court DENIES Mr. McKibben's motion for summary judgment and GRANTS the County's motion for summary judgment.

II. BACKGROUND

The following facts are undisputed. In 1994, the County established an Adult Entertainment Zoning Committee (" Committee" ) to study the community effects of adult entertainment venues. (Lubrin Decl. (Dkt. # 28) ¶ ¶ 2-7; Comm. Rep. (Dkt. # 28-1).) The Committee reviewed studies of the secondary effects of adult entertainment, ordinances from other jurisdictions, and federal and state court decisions; heard testimony from law enforcement officers and community members; held a public hearing; and authored a final report. ( See Comm. Rep.; Olson Decl. (Dkt. # 21) Ex. 7 (" Meeting Minutes" ); 1996 Ordinance (Dkt. # 28-2); Olson Decl. Ex. 17 (transcript of Council proceedings).) In 1996, the County enacted the following zoning requirements pursuant to the recommendation of the Committee. ( See 1996 Ordinance.)

First, adult entertainment businesses may only be located on parcels zoned for light industrial, heavy industrial, or industrial park use. Snohomish County Code (" SCC" ) § 30.22.100. Second, adult entertainment businesses must be dispersed a minimum distance from " any public or private school, preschool, educational institution, church or other religious facility, public

Page 1193

or private park, youth oriented facility, establishment serving alcohol by the drink," or other parcel whose zoning does not permit adult entertainment use. SCC § 30.28.015. For adult entertainment dance studios, such as Mr. McKibbon's proposed adult cabaret, the minimum dispersion distance is 660 feet. Id.

In August 2011, Mr. McKibben filed an application for a license to operate an adult cabaret at 10809 Mukilteo Speedway in unincorporated Snohomish County. (Lubrin Decl. ¶ 11, Application (Dkt. # 28-3).) The County denied Mr. McKibben's application because the proposed cabaret was located within 660 feet of two restaurants that served alcohol by the drink. (Denial (Dkt. # 28-4); see also Lubrin Decl. ¶ 11.) Mr. McKibben was previously a part owner of the only live adult entertainment venue to operate in the unincorporated County within the last 30 years. (Lubrin Decl. ¶ 8; Def. Mot. at 5.) This venue closed in 2012 amid allegations by the federal government that the dancers were engaging in acts of prostitution and illegal dancing. (Lubrin Decl. ¶ 8; Plea Agreement (Dkt. # 27-1) ¶ 4.)

To date, Mr. McKibben's 2011 application is only the second application for a live adult entertainment venue that the unincorporated County has received since 1994. (Lubrin Decl. ¶ ¶ 9-10.) The County, which stretches from Puget Sound to the Cascade Mountains, comprises 68% forest land, 18% rural land, 5% agricultural land, and only 9% urban or city development. (2013 Annual Rep. (Dkt. # 34-1).) The majority of the population lives in incorporated cities within the County. ( Id.)

Upon denial of his application, Mr. McKibben filed this action, alleging that the County's zoning restrictions regarding adult entertainment dance studios violate his First Amendment rights. ( See generally Compl. (Dkt. # 1).) Both parties now move for summary judgment in their favor. ( See Pfl. Mot.; Def. Mot.)

III. ANALYSIS

A. Summary Judgment Standard

Federal Rule of Civil Procedure 56 permits a court to grant summary judgment where the moving party demonstrates (1) the absence of a genuine issue of material fact and (2) entitlement to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); see also Galen v. Cnty. of L.A., 477 F.3d 652, 658 (9th Cir. 2007). The moving party bears the initial burden of showing the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323.

If the moving party does not bear the ultimate burden of persuasion at trial, it can show the absence of an issue of material fact in two ways: (1) by producing evidence negating an essential element of the nonmoving party's case, or, (2) by showing that the nonmoving party lacks evidence of an essential element of its claim or defense. Nissan Fire & Marine Ins. Co. v. Fritz Cos., 210 F.3d 1099, 1106 (9th Cir. 2000). If the moving party will bear the ultimate burden of persuasion at trial, it must establish a prima facie showing in support of its position on that issue. UA Local 343 v. Nor-Cal Plumbing, Inc., 48 F.3d 1465, 1471 (9th Cir. 1994). That is, the moving party must present evidence that, if uncontroverted at trial, would entitle it to prevail on that issue. Id. at 1473.

If the moving party meets its burden of production, the burden then shifts to the nonmoving party to identify specific facts from which a factfinder could reasonably find in the nonmoving party's favor. Celotex, 477 U.S. at 324; Anderson v. Liberty Lobby, ...


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