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Edge v. City of Everett

United States District Court, W.D. Washington, Seattle

December 4, 2017

JOVANNA EDGE, et al., Plaintiff,
v.
CITY OF EVERETT, Defendant.

          ORDER GRANTING PLAINTIFFS' MOTION FOR PRELIMINARY INJUNCTION

          MARSHA J. PECHMAN UNITED STATES DISTRICT JUDGE.

         THIS MATTER comes before the Court on Plaintiffs' Motion for a Preliminary Injunction (Dkt. No. 8) and Defendant's Motion to Strike (Dkt. No. 40). Having reviewed the Motions, the Response (Dkt. No. 28), the Reply (Dkt. No. 36), the Surreply (Dkt. No. 40) and all related papers, the Court GRANTS Defendant's Motion to Strike and GRANTS Plaintiffs' Motion for a Preliminary Injunction.

         Opinion Summary

         Plaintiffs Jovanna Edge and others are employed by “bikini barista stands, ” drive-through stands where baristas serve coffee to customers while wearing bikinis. Plaintiffs challenge the constitutionality of two ordinances recently enacted by the City of Everett. The Citywide Ordinance restricts dress citywide, and prohibits exposure of “more than one-half of the part of the female breast located below the top of the areola, ” “the genitals, anus, bottom one-half of the anal cleft, or any portion of the areola or nipple of the female breast.” The Dress Code Ordinance requires “bikini baristas” and employees of similar facilities to wear clothing that covers “the upper and lower body (breast/pectorals, stomach, back below the shoulder blades, buttocks, top three inches of the legs below the buttocks, pubic area and genitals).” Plaintiffs have moved for a preliminary injunction to prevent the City from enforcing these ordinances.

         The Court finds that the Citywide Ordinance and the Dress Code Ordinance are likely void for vagueness under the Fourteenth Amendment. The term “bottom one-half of the anal cleft” is not well-defined or reasonably understandable, and the ordinances otherwise fail to provide clear guidance and raise risks of arbitrary enforcement. The Court finds that the Dress Code Ordinance likely violates Plaintiffs' right to free expression under the First Amendment. Accordingly, the Court GRANTS Plaintiffs' Motion for a Preliminary Injunction.

         Background

         Plaintiffs Jovanna Edge, challenge the constitutionality of two ordinances recently enacted by Defendant City of Everett. (See Dkt. No. 1.) Plaintiffs include the owner and employees of “bikini barista stands, ” which are drive-through stands where baristas serve coffee to customers while wearing bikinis. (Dkt. No. 8 at 8.)

         The challenged ordinances are Ordinance No. 3559-17 (the “Citywide Ordinance”) and Ordinance No. 3560-17 (the “Dress Code Ordinance”) (collectively, the “Ordinances”). (Id. at 10.)

         The Citywide Ordinance amends the City's existing definition of “Lewd Conduct” to include “exposure of more than one-half of the part of the female breast located below the top of the areola” and “exposure or display” of “one's genitals, anus, bottom one-half of the anal cleft, or any portion of the areola or nipple of the female breast.” (Dkt. No. 8-1 at 4.) Violation is punishable by up to 90 days in jail and a fine of up to $1, 000. (Id. at 2.) An owner, manager, or operator of a public place who “knowingly permits, encourages, or causes to be committed lewd conduct” is guilty of “facilitating lewd conduct, ” and is subject to up to one year in jail and a $5, 000 fine. (Id. at 5.)

         The Dress Code Ordinance requires employees of “Quick-Service Facilities, ” including coffee stands and coffee shops, fast food restaurants, delis, food trucks, and “businesses that provide drive-thru forms of food and/or beverage service” to wear clothing that covers “the upper and lower body (breast/pectorals, stomach, back below the shoulder blades, buttocks, top three inches of the legs below the buttocks, pubic area and genitals).” (Dkt. No. 8-2 at 5.) Violations are issued against the owner of the Quick-Service Facility, and are punishable by a fine of up to $500 and revocation of license to operate. (Id. at 6-7.)

         Plaintiffs contend the Ordinances violate their rights to free expression and discriminate on the basis of gender, and bring causes of action for violations of the First Amendment; the Equal Protection Clause of the Fourteenth Amendment; Substantive Due Process under the Fifth and Fourteenth Amendments; Article I, Sections 5 and 12 of the Washington State Constitution; and 42 U.S.C. § 1983. (Dkt. No. 1 at 11-22.) Plaintiffs further contend the Ordinances are void for vagueness under the Fourteenth Amendment and Article I, Section 5 of the Washington State Constitution. (Id. at 15, 18.) Plaintiffs move for a preliminary injunction to prevent the city from enforcing the Ordinances until the Court rules on their constitutionality.[1] (See Dkt. No. 8.)

         Plaintiffs claim they wear bikinis to express personal and political messages, including messages of “freedom, empowerment, openness, acceptance, approachability, vulnerability, and individuality.” (Id.) Plaintiffs claim that “[b]y confidently revealing tattoos, scars, and personal attributes in the bikinis they select, ” they “convey their fearless body acceptance and freedom from judgment, ” “express[] personal viewpoints, ” and invite “customers to ask questions and open dialogue.” (Id. at 7, 16.) Plaintiffs claim these messages are understood by customers and prompt conversations about “body image and self-confidence.” (Id. at 16.)

         The City contends the Ordinances are needed to “prevent dangerous and unlawful conduct” inherent to bikini barista stands, including “flashing, explicit shows, sexual contact in exchange for money and public masturbation” and “prostitution, lewd conduct, drug use, sexual exploitation and sexual assault.” (Dkt. No. 28 at 14.) The City contends that “the minimalistic nature of the clothing” worn by bikini baristas lends itself to this conduct because baristas can quickly and easily remove or adjust their bikinis to engage in sexual contact with customers. (Dkt. No. 8-2 at 2.) The City cites a series of law enforcement investigations which led to “numerous arrests for lewd conduct and prostitution” over several years. (Dkt. No. 28 at 3-4, 7.) The City claims its existing laws are insufficient, and that the Ordinances will allow it to more readily impose penalties on stand owners who permit employees to engage in such conduct. (Id. at 5-6.)

         Discussion

         I. Motion to Strike

         The City moves to strike the Declaration of Hannah Ard, filed in support of Plaintiffs' Reply. (Dkt. No. 40.) The declaration was prepared by counsel and purports to compare crime rates in areas surrounding bikini barista stands and other businesses. (See Dkt. No. 37.) The Court finds that the declaration is based upon hearsay not subject to any exception, and is therefore inadmissible. The screenshots attached to the declaration are not public records, are not properly authenticated under Fed.R.Evid. 901, and are not self-authenticating under Fed.R.Evid. 902. The declaration relies upon the screenshots to form improper expert opinions not permitted under Fed.R.Evid. 702 and 703. Therefore, the ...


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