793 F.2d 1053 (9th Cir. 1986), 84-4088, Kev, Inc. v. Kitsap County

Docket Nº:84-4088.
Citation:793 F.2d 1053
Party Name:KEV, INC., Plaintiff-Appellant, v. KITSAP COUNTY and the Honorable Ray Aardal and John Horsley, County Commissioners of Kitsap, etc., et al., Defendants-Appellees.
Case Date:July 07, 1986
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

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793 F.2d 1053 (9th Cir. 1986)

KEV, INC., Plaintiff-Appellant,


KITSAP COUNTY and the Honorable Ray Aardal and John Horsley,

County Commissioners of Kitsap, etc., et al.,


No. 84-4088.

United States Court of Appeals, Ninth Circuit

July 7, 1986

Argued and Submitted Aug. 8, 1985.

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[Copyrighted Material Omitted]

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Jack R. Burns, Burns & Meyer, Bellevue, Wash., for plaintiff-appellant.

Ronald A. Franz, Deputy Pros. Atty., Port Orchard, Wash., for defendants-appellees.

An Appeal From United States District Court For the Western District of Washington.

Before PREGERSON and WIGGINS, Circuit Judges, and SCHNACKE, District Judge. [*]

PREGERSON, Circuit Judge.

Kev, Inc. challenges the constitutionality of a Kitsap County ordinance regulating non-alcoholic topless dancing establishments and appeals from the district court's order denying its motion for injunctive and declaratory relief. We affirm in part and reverse in part.


Appellant, Kev, Inc., ("Kev"), a Washington corporation, leased premises in Kitsap County ("the County") to operate a live entertainment facility called "Fantasies," which was to feature topless dancing and sell non-alcoholic beverages to adults for consumption on the premises. In early 1983, Kev secured the appropriate business licenses and began remodeling the premises to commence business operations.

On January 24, 1983, the Kitsap County Board of Commissioners proposed Ordinance No. 92, entitled "An Ordinance Regarding Erotic Dance Studios," to regulate adult entertainment facilities. The stated purpose of the proposed ordinance was to regulate topless dancing to minimize perceived

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side effects, such as illegal drug dealing, fights, and prostitution, which would purportedly threaten the community's well-being. On February 7, 1983, the County held a public hearing on the proposed ordinance. Law enforcement officials from Kitsap and surrounding counties testified that "soft drink, topless dancing" establishments in adjacent counties were the sites of crime problems such as prostitution and drug dealing. The County Board of Commissioners passed the proposed ordinance that same day.

On February 14, 1983, Kev filed suit, pursuant to 42 U.S.C. Sec. 1983, in the United States District Court for the Western District of Washington, seeking a preliminary and permanent injunction and a declaratory judgment finding Ordinance No. 92 unconstitutional. Three weeks later, the County Board of Commissioners passed Ordinance No. 92-A as an amendment to Ordinance No. 92. Kev then filed an amended complaint challenging, on constitutional grounds, the provisions of Ordinance No. 92 as amended by Ordinance No. 92-A ("the ordinance"). Primarily, Kev alleges that topless dancing is entitled to first amendment protection and that the ordinance unduly restricts the exercise of that protected right.

The ordinance defines an "erotic dance studio" as "a fixed place of business which emphasizes and seeks, through one or more dancers, to arouse or excite the patrons' sexual desires." Sections 2c and 3a. The ordinance regulates erotic dance studios in various ways. It requires licensing of erotic dance studios and their dancers. Sections 3-6. It also requires that dancers and patrons be at least eighteen years of age; that dancing occur on a raised platform at least ten feet from patrons; and that all books and records of erotic dance studios be open to official inspection. Sections 9d, e, i, j, and Section 10. The ordinance also proscribes the sale or possession of intoxicating liquor and controlled substances, Section 9g; fondling or caressing between dancers and patrons, Section 9k; and the payment or receipt of gratuities, Sections 9l and m.

On June 9, 1983, Kev opened the business to the public. On January 14, 1984, Kev was administratively dissolved for failure to comply with state corporate licensing regulations. But, after curing the deficiencies, Kev was reinstated as a corporation on April 24, 1984. The certificate of reinstatement was back-dated to and took effect as of the January 14, 1984 dissolution date.

After a hearing on Kev's motion for a preliminary injunction, the district court held the closing hour provision of the ordinance unconstitutional, but refused to enjoin enforcement of other provisions of the ordinance pending a hearing on the merits. On July 19, 1984, following a hearing on the merits, the district court found the ordinance constitutional in its entirety. 1 Kev timely appealed.


I. Jurisdiction

The County contends that the district court did not have jurisdiction when it entered judgment on July 19, 1984. The County argues that because Kev was dissolved on January 14, 1984, there were no adverse parties and, therefore, no case or controversy when the district court entered judgment on July 19, 1984. For the same reasons, the County argues that this court does not have jurisdiction in the present appeal. We disagree.

Although Kev was "administratively dissolved" on January 14, 1984 for failure to comply with state corporate licensing regulations, it was reinstated as a corporation on April 24, 1984 after curing its problems with the state authorities. The certificate of reinstatement provided that Kev's reinstatement dated back to and took effect as of the January 14, 1984 dissolution. For

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this reason, we find the County's motion to dismiss for mootness itself to be moot. We, therefore, have jurisdiction to hear the present appeal.

II. Standard of Review

This case presents questions of law, which we review de novo. See United States v. McConney, 728 F.2d 1195, 1202 (9th Cir.) (en banc), cert. denied, --- U.S. ----, 105 S.Ct. 101, 83 L.Ed.2d 46 (1984).

III. Merits

A. Due Process

Kev contends that ordinance section 2e (defining erotic dance studios) and section 9k (prohibiting dancers from "fondling" or "caressing" any patron) are unconstitutionally vague and thus violate due process requirements. We disagree.

A fundamental requirement of due process is that a statute must clearly delineate the conduct it proscribes. Grayned v. City of Rockford, 408 U.S. 104, 108, 92 S.Ct. 2294, 2298, 33 L.Ed.2d 222 (1972). Vague laws are offensive because they may entrap the innocent by not giving fair warning of what conduct is prohibited. Id.; Papachristou v. City of Jacksonville, 405 U.S. 156, 162, 92 S.Ct. 839, 843, 31 L.Ed.2d 110 (1972). Further, to avoid discriminatory or arbitrary enforcement, due process requires that laws set forth reasonably precise standards for law enforcement officials and triers of fact to follow. Smith v. Goguen, 415 U.S. 566, 572-73, 94 S.Ct. 1242, 1246-47, 39 L.Ed.2d 605 (1974); Grayned, 408 U.S. at 108-09, 92 S.Ct. at 2298-99. Moreover, where first amendment freedoms are at stake, an even greater degree of specificity and clarity of laws is required. Grayned, 408 U.S. at 108-09, 92 S.Ct. at 2298-99; see also Erznoznik v. City of Jacksonville, 422 U.S. 205, 217-218, 95 S.Ct. 2268, 2276-2277, 45 L.Ed.2d 125 (1975); Goguen, 415 U.S. at 573, 94 S.Ct. at 1247; Ashton v. Kentucky, 384 U.S. 195, 200, 86 S.Ct. 1407, 1410, 16 L.Ed.2d 469 (1966).

Section 2e defines an erotic dance studio as as "a fixed place of business which emphasizes and seeks, through one or more dancers, to arouse or excite the patron's sexual desires." The ordinance classifies erotic dance studios according to the manifest intent of the operator of the studio. Thus, one who exhibits erotic dancing with an intent to arouse the sexual desires of his patrons would know that his business falls within the purview of the ordinance. The fact that the prosecutor must prove the intent of the operator of the business does not by itself render the statute void for vagueness. See Boyce Motor Lines, Inc. v. United States, 342 U.S. 337, 342, 72 S.Ct. 329, 331, 96 L.Ed. 367 (1952) (statute requiring drivers transporting explosives to avoid crowded thoroughfares, "so far as practicable," not void for vagueness since statute requires a knowing violation); United States v. Doyle, 786 F.2d 1440, 1443 (9th Cir.1986) (presence of scienter requirement in statute prohibiting sale, transportation, or receiving of wildlife without a permit issued by the state enables law to withstand vagueness challenge). Thus, section 2e provides an adequate standard for enforcement and gives fair warning to the business it targets.

Section 9k provides that: "No dancer shall fondle or caress any patron and no patron shall fondle or caress any dancer." "Caressing" and "fondling" are ordinary, commonly used terms. Both words describe forms of affectionate touching and are not limited in meaning to affectionate touching that is sexual. See Webster's Third New International Dictionary 339, 883 (1971). However, in the context of the other definitions provided in the ordinance, e.g., Sec. 2c ("[d]ancer--a person who dances or otherwise performs for an erotic dance studio and who seeks to arouse or excite the patrons' sexual desires" (emphasis added)), section 9k is easily understood to prohibit sexual conduct between dancers and patrons whom the dancers intend to arouse sexually while the dancers are acting in the scope of their employment at the erotic dance studio.

Further, to find a violation of the prohibition against "caressing" and "fondling," prosecutors must prove that a dancer or

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patron engaged in a specified act, i.e., fondling or caressing with the intention to sexually arouse or excite. Section 9k thus provides an adequate standard for law enforcement officers. Cf. Kolender v. Lawson, 461 U.S. 352, 358, 103 S.Ct. 1855, 1858, 75 L.Ed.2d 903 (1983) (ordinance requiring persons who loiter or wander the streets to provide "credible and reliable" identification and account for their presence held unconstitutional for failing to provide adequate law enforcement...

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