City of Pasco v. Rhine

• Decision Date: 10 May 1988
• Docket Number: No. 8306-3-III,8306-3-III
• Citation: 51 Wn.App. 354,753 P.2d 993
• Parties: CITY OF PASCO, Respondent, v. Joseph C. RHINE, Petitioner.
• Court: Washington Court of Appeals

Page 354

51 Wn.App. 354

753 P.2d 993

CITY OF PASCO, Respondent, v. Joseph C. RHINE, Petitioner.

No. 8306-3-III.

Court of Appeals of Washington,

Division 3, Panel Two.

May 10, 1988.

Joseph C. Rhine, pro se

Greg Rubstello, Pasco City Atty., Pasco, for respondent.

THOMPSON, Acting Chief Judge.

Joseph Rhine was found guilty in Pasco Municipal Court of: (1) violating a zoning ordinance prohibiting certain kinds of advertisement of adult motion Joseph Rhine is the president of Argus Foundation, the lessee of the Liberty Theater in Pasco, Washington. The theater is leased from Playtime Theatres, Inc., and during the time relevant to the appeal primarily showed adult motion pictures.

                pictures on theaters granted nonconforming use permits based on their location, and;  (2) two counts of facilitating unlawful public exposure, prohibited by a Pasco municipal ordinance, for putting on a "strip show" at his theater.   On appeal to superior court, the court upheld the zoning ordinance violation, but reversed the public exposure convictions.   Mr. Rhine seeks review of his zoning ordinance conviction and the City of Pasco seeks review of the unlawful public exposure reversal.   We affirm
                

On November 19, 1979, the Pasco City Council approved a permit for continuance of a nonconforming use, pursuant to PMC 22.72.020(2). ¹ The permit allowed continued operation of the Liberty Theater to end litigation between the City and Playtime Theatres, Inc., in which Playtime had challenged provisions of a Pasco city ordinance concerning the location of adult motion picture theaters. Those ordinances, PMC 22.68.020(i) and (j) and PMC 22.72.020, are identical to the zoning ordinance later upheld by the United States Supreme Court in Renton v. Playtime Among the several conditions contained in the nonconforming use permit were the following:

Theatres, Inc., 475 U.S. 41, 106 S.Ct. 925, 89 L.Ed.2d 29 (1986).

1. ... no encasements or other display articles shall be allowed anywhere else on the facade of the building or in any other portion of the outside of the building....

* * *

4. There shall not be visible to passersby standing anywhere outside the building any drawings, pictures, and other illustrative material.

* * *

7. Informational material on the building, including the sign/reader board, shall be limited to the name of the theater, ownership information, a designation or identification that adult films are showing, the days and hours of its operation, and the titles of any films showing or coming attractions. Nowhere on the building visible to passersby standing outside the building shall be any words suggestive of sexual acts except that the permittee shall not have to make changes in the titles if such changes cannot be made without interfering with the copyright name of the motion picture.

The permit was effective until January 1, 1995, unless the building was abandoned or use was voluntarily discontinued for 30 days or more.

In October 1985, Mr. Rhine placed photo display advertisements of X-rated films on the front of the Liberty Theater. The City then cited him for continued operation of an adult motion picture theater contrary to the terms of his nonconforming use permit. On stipulated facts, Mr. Rhine was convicted in Pasco Municipal Court. His conviction was upheld upon appeal to the Franklin County Superior Court.

In addition, Mr. Rhine had been cited by the City for two counts of facilitating unlawful public exposure, PMC 9.10.030. These charges resulted from a live show held at the Liberty Theater in July 1985 where two male and two female performers took their clothes off while dancing to the sound of taped music in front of approximately 50 people in the theater audience. The stipulated facts, consisting The trial court found Mr. Rhine guilty of two counts of facilitating unlawful public exposure, based upon the stipulated facts. Mr. Rhine appealed. The Franklin County Superior Court reversed Mr. Rhine's convictions on these two counts, finding there was insufficient evidence that "the conduct complained of in the police reports did not amount to an 'expressive dance' exempted from the prohibitions in Sections 9.10.020 and .030 of the PMC and that the finding of guilty was not supported by substantial evidence ..."

                of police reports, reveal that two officers with the Pasco Police Department observed the performance.   Before the performance the officers informed Mr. Rhine that if the performers were fully nude as a result of the performance, they and Mr. Rhine would be cited pursuant to the municipal ordinance.   The performers did not simulate sexual acts and stayed on a stage at least 18 inches high and at least 6 feet away from the nearest patron.   After the show, the citations were issued
                

NONCONFORMING USE

The issue in Mr. Rhine's petition for review of the zoning violation is whether PMC 22.72.020 is unconstitutional, as applied to him, based on a violation of his First and Fourteenth Amendment rights to free speech. The United States Supreme Court has repeatedly emphasized, when dealing with challenges to laws restricting freedom of expression, that "each medium of expression presents special First Amendment problems", FCC v. Pacifica Foundation, 438 U.S. 726, 748, 98 S.Ct. 3026, 3039, 57 L.Ed.2d 1073 (1978). For this reason, analysis begins with a categorization process. Here, the relevant inquiry involves that body of law concerned with regulation of commercial speech.

A distinction exists in First Amendment analysis between commercial and noncommercial speech. Metromedia, Inc. v. San Diego, 453 U.S. 490, 505-07, 101 S.Ct. 2882, 2891-92, 69 L.Ed.2d 800 (1981); Ohralik v. Ohio State Bar Ass'n, 436 U.S. 447, 455-56, 98 S.Ct. 1912, 1918, 56 L.Ed.2d 444 (1978). If the restriction being challenged affects commercial speech While no definitive test has been devised to distinguish commercial from noncommercial speech, the Supreme Court has said commercial speech is "expression related solely to the economic interests of the speaker and its audience". Central Hudson, 447 U.S. at 561, 100 S.Ct. at 2349. Another definition is "speech proposing a commercial transaction", Central Hudson, 447 U.S. at 562, 100 S.Ct. at 2349 (quoting Ohralik, 436 U.S. at 455-56, 98 S.Ct. at 1918). See also Washington Mercantile Ass'n v. Williams, 733 F.2d 687, 689 (9th Cir.1984).

                only, the First Amendment requirements are less rigorous.   Metromedia, 453 U.S. at 507, 101 S.Ct. at 2892;   Central Hudson Gas & Elec. Corp. v. Public Serv. Comm'n, 447 U.S. 557, 562 n. 5, 100 S.Ct. 2343, 2349 n. 5, 65 L.Ed.2d 341 (1980).   As Justice Stevens noted in  Young v. American Mini Theatres, Inc., 427 U.S. 50, 68-69, 96 S.Ct. 2440, 2451, 49 L.Ed.2d 310 (1976), "The measure of constitutional protection to be afforded commercial speech will surely be governed largely by the content of the communication."
                

Here, the nonconforming use permit prohibited advertising in the form of posters on the outside of the theater. Condition 4 of the permit, which prohibited "any drawings, pictures, and other illustrative material" potentially extends beyond expressions of economic interests or speech proposing commercial transactions. However, the parties stipulated that the ban affected advertising of only those films which were X-rated or "adult" motion pictures. It is apparent this was the City's intent in placing these conditions in the permit. No argument is made that this limiting construction does not cure any potential overbreadth, and Mr. Rhine does not make an overbreadth argument, instead attacking the nonconforming use ordinance as applied to him.

We conclude the City of Pasco intended to reach only those posters and informational materials advertising the X-rated or adult films that were the subject of the original zoning ordinance, not other forms of speech. These advertisements, posters, etc., are as noted by Mr. Rhine "a theater's major advertising resource". As such, they propose The United States Supreme Court has devised a 4-part test for deciding whether governmental regulation of commercial speech is valid. (1) Is the speech protected by the First Amendment? (2) Does the restriction seek to implement a substantial governmental interest? (3) Does the restriction directly advance that governmental interest? (4) Does the restriction reach no further than necessary to accomplish the interest? Metromedia, 453 U.S. at 507, 101 S.Ct. at 2892; Central Hudson, 447 U.S. at 566, 100 S.Ct. at 2351.

a commercial transaction and are properly classified commercial speech. ²

1. Protected Speech

No argument is made that these posters are obscene, inaccurate, or propose unlawful activity. The posters are protected by the First Amendment.

2. Substantial Governmental Interest

The United States Supreme Court in Renton v. Playtime Theatres, Inc., supra, upheld what is conceded by Mr. Rhine to be essentially the identical location restriction ordinance for adult motion picture theaters as the Pasco ordinance here; this ordinance precipitated the need for the nonconforming use permit. In that case, the Court reiterated its holding in Young v. American Mini Theatres, Inc., supra, that a governmental classification based on the sexually explicit content of the activity or expression involved, and differing treatment accorded such speech by certain locational restrictions, was a valid time, place, and manner restriction.

Renton also resolved any doubts whether such an ordinance is designed to serve a substantial governmental interest. The Court cited Northend Cinema, Inc. v. Seattle Also, specific to the issues here, Northend held the benefit to the public welfare through termination of the nonconforming use of the adult theater within 90 days outweighed any harm to the theater owners. Northend, at 722, 585 P.2d 1153. There is no evidence in this case tending to show a contrary conclusion as to the Liberty Theater. PMC 22.72.020(2)...