Court Decisions - Adult Entertainment Regulation

Acorn Investments v. City of Seattle, 887 F.2d 219 (1989):

Imposition of license fees on panoram owners cannot be justified as necessary to cover law enforcement costs stemming from crimes being committed on the premises when the evidence fails to show panorams pose a special law enforcement problem. Forcing adult businesses to disclose the names of shareholders is unconstitutional because it has a chilling effect on protected expression and city cannot identify a substantial governmental interest that is furthered by requiring such disclosure. Officers, directors, or managers of adult businesses, not shareholders, are legally responsible for the management of a corporation’s business.

Adult Entertainment v. Pierce County, 57 Wn. App. 435 (1990):

Open booth requirements for businesses displaying sexually explicit videotapes are valid; but a license to engage in constitutionally protected activity must be issued or denied within a period that is reasonably brief under the circumstances.

Brockett v. Spokane Arcades, Inc., 472 U.S. 491 (1985):

Invalidated sections of a Washington moral nuisance law which relied on an unconstitutionally overbroad definition of "prurient."

BSA, Inc. v. King County, 804 F.2d 1004 (1984):

Complete ban on topless dancing directly suppresses free expression. and is unconstitutional because the county failed to show topless clubs present more of a law enforcement problem than other establishments.

City of Everett v. Heim, 71 Wn. App. 392, 859 P.2d 55 (1993):

Ordinance forbidding entertainers from touching, fondling, or caressing patrons, sitting on a patron’s lap, or separating a patron’s legs is constitutional because it regulates conduct and does not suppress artistic expression or protected speech.

City of Los Angeles v. Alameda Books, Inc., 122 S.Ct. 1728, 70 USLW 4369 (5/13/02):

The U.S. Supreme Court upheld the city's ordinance which prohibited the establishment or maintenance of more than one adult entertainment business in the same building. The Court held that the city could reasonably rely on a study it conducted some years before enacting the present versxion of the ordinance to demonstrate that its ban on multiple-use adult establishments served its interest in reducing crime.

Colacurcio v. City of Kent, No. 9636197, ___F. 3d___ (12/8/98, 9th Cir.):

Ordinance requiring nude dancers to maintain 10 foot distance from patrons is permissible under the First Amendment because it is justified without reference to the content of the regulated speech, prevents public sexual contact, and leaves open alternative channels for the protected speech.

D.C.R. Entertainment v. Pierce County, 55 Wn. App. 505, 778 P.2d 10 (1989):

County auditor has no discretion to deny an adult entertainment license; issuance of license is mandatory when grounds for denial are not present. A county may deny a license only if ordinance violations are so pervasive that denying a license is the only practical remedy. For example, although the county’s interest in preventing the employment of minors as nude dancers is compelling, the county cannot deny an adult entertainment license to an establishment employing minors unless it is the only way to ensure minors will not be hired in the future.

D.C.R, Inc. v. Pierce County, ___ Wn.App. ___ (10/2/98):

In this case, the court upheld Pierce County's ordinance regulating erotic dance studios. The county's requirement of a 10-foot separation between the dancer and patron was found to be constitutional, with the court holding that proximity is not an expressive component of erotic dance entitled to protection under either the First Amendment or the State Constitution. The court also determined that the County's licensing scheme was constitutional because it provides a reasonable and definite time limit on the County's discretion to issue a license to an erotic dance studio.

Deja Vu-Everett-Federal Way, Inc. v. City of Federal Way, ___ Wn.App.___ (6/28/99)

The collateral estoppel effect of the Supreme Court's decision in Ino Ino (132 Wn.2d. 103, May 1997), completely bars Deja Vu, a plaintiff in that action, from relitigating the constitutionality of a four-foot limitation for erotic dancers. Note also that the court granted attorney fees to the City of Federal Way for having to defend a frivolous claim.

Ino Ino, Inc. v. Bellevue, 132 Wn.2d 103 (1997):

Upheld the municipality's right to (1) require an applicant for a nude dancer's license to disclose information such as recent criminal convictions and employment history; (2) restrict nude or semi-nude erotic dancers from performing not less than four feet away from their patrons; (3) impose a particular level of illumination in locations where nude or semi-nude erotic dancing may be performed; (4) impose a restriction on times when erotic dancing may be performed (not during early morning hours); (5) prohibit outdoor performances or depictions of performances of nude or semi-nude erotic dancing; and (6) rely on the experiences of other jurisdictions or agencies to establish that legislation enacted by the agency restricting expressive conduct furthers the agency's substantial interest in curbing secondary unlawful behavior.

JJR Inc. v. City of Seattle, 126 Wn.2d 1 (1995):

An administrative licensing scheme must provide a stay of adult entertainment license revocation or suspension pending judicial review. Revocation or suspension without a stay constitutes prior restraint in violation of the state constitution, article 1, section 5.

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

Upheld an ordinance regulating "erotic dance" facilities which required licenses for both operators and dancers. Upheld provisions which prohibited touching and require dancers to perform on a two-foot high stage 10 feet away from patrons. A provision requiring a five-day delay period between a dancer's filing an application and the granting of the license was found to be unreasonable.

O' Day v. King County, 109 Wn.2d 796, 749 P.2d 142 (1988):

Requirement that dancers not expose certain body parts except on a stage 18 inches highand at least six feet from patrons regulates only conduct, not free expression, and does not violate the First Amendment. Subjecting employees of adult "soda pop" entertainment establishments to criminal penalties for conduct violations while not subjecting employees of taverns and premises holding liquor licenses to the same penalties is not a violation of equal protection, and is not unconstitutional. Distinguishing between the two types of clubs has a rational connection to the County’s need to protect younger patrons since a patron must be at least 21 years old to enter a liquor-serving establishment but only 18 years old to patronize a "soda pop" club.

Renton v. Playtime Theatres, Inc., 475 U.S. 41 (1986):

Upheld zoning restrictions on adult motion picture theatres based on reports showing the secondary effects of such businesses in other cities. No adult motion picture theater could be located within 1000 feet of any residential zone, single- or multi-family dwelling, church or park, or within one mile of any school. The First Amendment does not require a city, before enacting an adult theater zoning ordinance, to conduct new studies or produce evidence independent of studies already generated by other cities as long as whatever the city relies on is reasonably believed to be relevant to the problem that the city is addressing.

Spokane Arcade, Inc. v. City of Spokane, 75 F.3d 663 (1996):

Upheld the validity of requiring video arcade booths to be visible to employees in adjacent public rooms and requiring an employee to be on duty in the public room whenever a customer was present. Regulations which increase the cost of doing business but do not prohibit businesses from engaging in protected speech are constitutional.

World Wide Video v. City of Tukwila, 117 Wn.2d 382, 816 P.2d 18 (1991):

Permitting adult uses to locate only within a heavy industrial zone violates the First Amendment because the ordinance’s definition of "adult use" includes adult businesses with predominantly take-home merchandise which are not shown to cause the harmful secondary effects traditionally associated with adult movie theaters and peep shows.