Adult Entertainment Center, Inc. v. Pierce County

• Decision Date: 29 March 1990
• Docket Number: No. 12336-3-II,12336-3-II
• Citation: 788 P.2d 1102,57 Wn.App. 435
• Parties: ADULT ENTERTAINMENT CENTER, INC., a Washington corporation, Jerry Holt, Eldoro Distributing Inc., a Washington corporation, and Preview Books, Inc., a Maryland corporation, Appellants, v. PIERCE COUNTY, Joe Stortini, Pierce County Executive, in his representative capacity, William Griffies, Pierce County Prosecutor, in his representative capacity, Bill Stoner, Barbara Gelman, Barbara Skinner, Chuck Gordon, Jake Bujacich, Wendell Brown and Jim Salitino, Members of the Pierce County Council, in their representative capacity only, Respondents.
• Court: Washington Court of Appeals

Page 435

57 Wn.App. 435

788 P.2d 1102

ADULT ENTERTAINMENT CENTER, INC., a Washington corporation,

Jerry Holt, Eldoro Distributing Inc., a Washington

corporation, and Preview Books, Inc., a Maryland corporation, Appellants, v. PIERCE COUNTY, Joe Stortini, Pierce County Executive, in his

representative capacity, William Griffies, Pierce County

Prosecutor, in his representative capacity, Bill Stoner,

Barbara Gelman, Barbara Skinner, Chuck Gordon, Jake

Bujacich, Wendell Brown and Jim Salitino, Members of the

Pierce County Council, in their representative capacity

only, Respondents.

No. 12336-3-II.

Court of Appeals of Washington,

Division 2.

March 29, 1990.

Jack R. Burns, Burns & Hammerly, P.S., Bellevue, for appellants.

Christine J. Quinn-Brintnall, Deputy Pros. Atty., Tacoma, for respondents.

PETRICH, Judge.

This case represents a challenge to the constitutionality of a Pierce County ordinance requiring the licensing of businesses that offer customers the opportunity to view selected videos via panoram machines. The appellants are Adult Entertainment Center, Inc. (AEC), Eldoro Distributing, Inc., and Preview Books, Inc., corporations that operate businesses dealing in various forms of sex-related entertainment, and Gerald Holt, president and majority shareholder of AEC. All of appellants' businesses provide panoram machines which, for a fee, play video tapes exhibiting explicit sexual activity. The machines are located in booths furnished with full-length and sometimes lockable doors.

Effective August 26, 1986, the Pierce County Council established licensing provisions for panorams, adding chapter 5.16 to the county code. This ordinance requires premises, owner's, and device licenses, and sets fees of $500 per year for the premises license, $800 per year for the owner's license, and $30 per year for each panoram device. In addition, it provides for inspections of the premises, establishes qualifications for licensees, including criteria which permit denial based on criminal records, and requires that the premises conform to certain specifications, concerning the level of illumination and the visibility of panoram booth interiors.

AEC, Holt, Eldoro and Preview initiated this suit on August 26, 1986, challenging the constitutionality of the entire ordinance and seeking a preliminary injunction. The trial court denied the motion for injunction and decided the substantive issues via summary judgment. It found all provisions of the ordinance to be constitutional, except section 5.16.090(A)(3), pertaining to the restrictions on licenses for convicted felons.

Holt and the three corporations appeal raising issues pertaining to the constitutionality of the open booth requirement, the reasonableness of the license fees, and the adequacy of the ordinance's procedural safeguards. They also contend that the trial court should have awarded them attorney's fees pursuant to 42 U.S.C. § 1983 and § 1988 because they were prevailing parties. We affirm the trial court's decision and lift the temporary stay of enforcement previously granted by this court.

Appellants first contend that the open booth requirement constitutes an impermissible burden on free speech because the county has demonstrated no compelling governmental interest to be served by the regulation. ¹ We disagree.

Article I § 5 of Washington's state constitution guarantees that "every person may freely speak, write and publish on all subjects, being responsible for the abuse of that right." However, a government may impose reasonable time, place, and manner restrictions upon all expression, whether written, oral, or symbolized by conduct. Such restrictions are valid if they are (1) content neutral, (2) narrowly tailored to serve a compelling state interest, and (3) leave ample alternative channels of communication. Bering v. SHARE, 106 Wash.2d 212, 234, 721 P.2d 918 (1986), cert. dismissed, 479 U.S. 1050, 107 S.Ct. 940, 93 L.Ed.2d 990 (1987). Regulations which pertain only to the arrangement of the interior of panoram booths and the conditions of the premises involve no subject matter restraint. See Bitts, Inc. v. Seattle, 86 Wash.2d 395, 399, 544 P.2d 1242 (1976). To constitute a compelling interest, the purpose must be a fundamental one and the legislation must bear a reasonable relation to the achievement of the purpose. See Bates v. Little Rock, 361 U.S. 516, 524-26, 80 S.Ct. 412, 417-18, 4 L.Ed.2d 480, 486-87 (1960). However, the necessity for the legislation need not be proven absolutely. Governments have broad latitude in experimenting with possible solutions to problems of vital local concern. Whalen v. Roe, 429 U.S. 589, 598-600, 97 S.Ct. 869, 875-877, 51 L.Ed.2d 64, 72-73 (1977). See also Paris Adult Theatre I v. Slaton, 413 U.S. 49, 61-62, 93 S.Ct. 2628, 2637, 37 L.Ed.2d 446, 459 (1973), in which the court held that although there was no conclusive proof of a connection between antisocial behavior and obscene material, the Legislature could quite reasonably determine that such a connection does or might exist; and State v. Smith, 93 Wash.2d 329, 337, 610 P.2d 869, cert. denied, 449 U.S. 873, 101 S.Ct. 213, 66 L.Ed.2d 93 (1980), holding that the court may not substitute its judgment for that of the Legislature regarding the necessity of a law.

Evidence material to the County's purpose included affidavits from two members of the Pierce County Sheriff's Department, stating that deposits of semen observed frequently in the panoram booths indicated that sexual activity occurred there on a regular basis; and the deposition testimony of Lieutenant Gary Smith, head of the department's special investigative unit, that masturbation occurred often in the booths, and there was some homosexual activity as well. Additionally, a number of private citizens, among them members of the Pierce County Pornography Task Force, spoke at the public hearing. They told the council that there were semen stains on the walls, that floors and doorknobs in some booths were sticky with what they believed was semen, that the booths were sometimes occupied by more than one person at a time, and that they believed some of these patrons were minors. One man reported that he had been approached twice by persons outside the booths who wanted to accompany him inside. He said one man had a handful of quarters and offered to pay for the videos if he could perform sexual acts on the witness. He also said that someone had tried to enter his booth while he was watching the videos.

Appellants did not dispute this evidence ², but they presented the deposition testimony of Jack Jourdan, Director of the Sexually Transmitted Disease United of the Tacoma Pierce County Health Department. Jourdan said that semen is a risk factor, especially for AIDS, and also for other kinds of viral infection, if it is directly contacted; i.e., placed inside a rectum, a mouth, a vagina, or an open wound. On environmental surfaces, it is not a risk factor for sexually transmitted diseases, he said, because the organisms do not survive outside the body for more than a few seconds.

Because this issue was resolved below by summary judgment, we must view all of this evidence in the light most favorable to appellants. Hontz v. State, 105 Wash.2d 302, 311, 714 P.2d 1176 (1986). Nevertheless, undisputed evidence showed that more than one person sometimes occupied a booth at the same time, that sexual activity was solicited on the premises and did occur in the booths, and that such activity created unsanitary conditions. From this evidence, the council could properly infer that the operation of the panoram machines presented a health hazard, at least in those instances in which there was two-party sexual activity in the booths, that the conditions of the booths was offensive to decency, and that solicitation outside the booths was a dangerous activity, possessing the potential for violence.

This is more than enough to justify the County's intervention. See Wall Distributors, Inc. v. City of Newport News, 782 F.2d 1165 (4th Cir.1986) (similar ordinance justified by the reasonable determination that it would prevent masturbation and its related unsanitary conditions and other activities offensive to decency that demonstrably accompany furtive viewings of sexually explicit materials; Ellwest Stereo Theatres, Inc. v. Wenner, 681 F.2d 1243 (9th Cir.1982) (similar ordinance upheld for the reasons expressed in EWAP, infra); and EWAP, Inc. v. City of Los Angeles, 97 Cal.App.3d 179, 158 Cal.Rptr. 579 (1979) (similar ordinance justified by interest in preventing the kind of dangerous or unlawful conditions, as well as the health and safety problems, which may be anticipated in a picture arcade where the booths are concealed or enclosed).

The preservation of the public health and safety is one of the chief objects of local government. State v. Mountain Timber Co., 75 Wash. 581, 586-87, 135 P. 645 (1913), aff'd, 243 U.S. 219, 37 S.Ct. 260, 61 L.Ed. 685 (1916). It clearly constitutes a fundamental purpose. The ordinance is also designed to deal with the problems identified. We agree with the court in Wall Distributors, Inc. v. City of Newport News, 782 F.2d at 1170, that the open booth requirement is the least burdensome means of controlling offensive, dangerous, and illegal activity within the panoram booths. It does not affect the content of what is shown; it does not restrict the time of operation or the number of booths; and it does not subject patrons to disruptive inspections. The partial doors suggested by appellants would not be as effective in preventing sexual activity and other dangerous conduct.

We also reject the argument that the ordinance should be invalidated because of the personal motives of certain council members. It is a familiar principle of constitutional law that the court will not strike down an otherwise constitutional statute on the basis of an alleged illicit legislative motive. United States...