Colacurcio v. City of Kent

• Decision Date: 08 December 1998
• Docket Number: No. 96-36197,96-36197
• Citation: 163 F.3d 545
• Parties: 98 Cal. Daily Op. Serv. 8965, 98 Daily Journal D.A.R. 12,449 Frank COLACURCIO, Jr., dba DDF & S Investment Co.; David Ebert, dba DDF & S Investment Co.; Steve Fueston, dba DDF & S Investment Co., Plaintiffs-Appellants, v. CITY OF KENT, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 545

163 F.3d 545

98 Cal. Daily Op. Serv. 8965, 98 Daily Journal

D.A.R. 12,449

Frank COLACURCIO, Jr., dba DDF & S Investment Co.; David

Ebert, dba DDF & S Investment Co.; Steve Fueston, dba DDF & S Investment Co., Plaintiffs-Appellants, v. CITY OF KENT, Defendant-Appellee.

No. 96-36197.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted April 10, 1998.

Decided Dec. 8, 1998.

Gilbert H. Levy, Levy & Hamilton, Seattle, WA, for plaintiffs-appellants.

William P. Schoel and Jayne L. Freeman, Keating, Bucklin & McCormack, Seattle, WA, Roger A. Lubovich, City Attorney, Laurie A. Evezich, Assistant City Attorney, Kent, WA, for defendant-appellee.

Appeal from the United States District Court for the Western District of Washington; Thomas S. Zilly, District Judge, Presiding. D.C. No. CV-95-01176-TSZ.

Before: HUG, Chief Judge, and REINHARDT and WIGGINS, Circuit Judges.

Opinion by Chief Judge HUG; Dissent by Judge REINHARDT.

HUG, Chief Judge:

In this case we examine whether the district court was correct in concluding as a matter of law that the City of Kent's ordinance, which requires nude dancers to perform at least ten feet from patrons, does not violate the First Amendment of the United States Constitution. Appellants, who planned to open a nightclub featuring nude dancing on stage and personalized table dancing, argue that the ten-foot distance requirement amounts to a complete ban on table dancing, which they allege is a unique form of expression entitled to separate First Amendment analysis. We have jurisdiction under 28 U.S.C. § 1291. We affirm.

I. Factual Background

Appellants desire to open a non-alcoholic adult nightclub in the City of Kent, Washington, featuring nude dancing on stage and personalized table dances. Appellants located a site in Kent and applied for a building permit.

The City of Kent has examined issues related to adult entertainment for several years. In 1982, the City's planning department published a study on the effects of adult entertainment on surrounding communities, including a discussion of various regulatory alternatives. Kent's initial regulatory effort involved a zoning ordinance, which Appellants challenged in 1994. The district court found that the zoning ordinance failed to designate a sufficient number of sites for the location of adult businesses. Pursuant to a settlement agreement, the City agreed to treat Appellants' proposed business as a lawful non-conforming use under the zoning law.

In March 1995, the Kent City Council adopted Adult Entertainment Ordinance 3214, establishing new standards for the licensing and operation of adult uses in Kent. In April 1995, that ordinance was amended by Ordinance 3221, in an effort to conform the legislation to the King County Superior Court's ruling on a similar ordinance in Bellevue, Washington. Ordinance 3221, which has been codified as Kent City Code § 5.10.010 et seq., provides, in relevant part:

The portion of the exotic dance studio premises in which dancing and adult entertainment by an entertainer is performed shall be a stage or platform at least twenty-four (24) inches in elevation above the level of the patron seating areas. KCC § 5.10.110(A).

No dancing or adult entertainment by an entertainer shall occur closer than ten (10) feet to any patron. KCC § 5.10.120(A)(3).

The code also specifies minimum lighting requirements and prohibits dancers from soliciting or receiving tips from patrons. Shortly after enactment of the ordinance, Appellants brought this action for declaratory relief and damages pursuant to 42 U.S.C. § 1983.

Appellants contend that the ten-foot rule would effectively eliminate table dancing, which they argue is a unique form of expression entitled to separate First Amendment analysis. Unlike nude dancing performed on stage, table dancing is performed in close proximity to patrons. Appellants have submitted declarations of a cultural anthropologist and a communications expert attesting to the uniqueness of table dancing and the potentially detrimental effects of the ten-foot rule on the dancers' erotic messages. Appellants also argue that table dancing is the primary source of income for exotic dancers, and that the Kent ordinance would make it uneconomical and therefore impossible for exotic dance studios to open or operate in Kent.

The City filed a motion for summary judgment, which the district court granted in November 1996. The district court ruled as a matter of law that (1) the ordinance was a content-neutral time, place and manner regulation; and (2) the ten-foot distance requirement was narrowly tailored and left open ample alternative avenues for communication of protected artistic expression. Appellants filed a timely notice of appeal.

II. Standard of Review

A grant of summary judgment is reviewed de novo. Covey v. Hollydale Mobilehome Estates, 116 F.3d 830, 834 (9th Cir.1997). We must determine, viewing the evidence in the light most favorable to Appellants, whether there are any genuine issues of material fact and whether the district court correctly applied the relevant substantive law. Id. We do not weigh the evidence or determine the truth of the matter but only determine whether there is a genuine issue of material fact for trial. Id. When a mixed question of fact and law involves undisputed underlying facts, summary judgment may be appropriate. Han v. Mobil Oil Corp., 73 F.3d 872, 875 (9th Cir.1995).

III. Level of Protection for Nude Dancing

The parties and the district court correctly acknowledge that nude dancing is a form of expressive conduct protected, to some degree, by the First Amendment. ¹ There is understandable confusion, however, about the level of such protection. The district court cited a plurality opinion of the Supreme Court indicating that nude dancing "is expressive conduct within the outer perimeters of the First Amendment, though ... only marginally so." Barnes v. Glen Theatre, Inc., 501 U.S. 560, 565-566, 111 S.Ct. 2456, 115 L.Ed.2d 504 (1991). Appellants cite to pre-Barnes Ninth Circuit precedent which accorded nude dancing full First Amendment protection. Kev, Inc. v. Kitsap County, 793 F.2d 1053, 1058 (9th Cir.1986).

The fragmented nature of Supreme Court opinions dealing with nude dancing in particular and sexually explicit but non-obscene conduct in general has resulted in a lack of clear guidance on the level of First Amendment protection afforded to this type of expression. In Young v. American Mini Theatres, Inc., 427 U.S. 50, 96 S.Ct. 2440, 49 L.Ed.2d 310 (1976), which involved a zoning ordinance governing the location of adult theaters, a plurality of the Court agreed that adult entertainment should be regarded as "low value" speech: "[F]ew of us would march our sons and daughters off to war to preserve the citizen's right to see 'Specified Sexual Activities' exhibited in the theaters of our choice." Id. at 70, 96 S.Ct. 2440. However, five Justices in Young, one concurring and four dissenting, argued that First Amendment protection should not vary with the social value ascribed to speech by the courts. See id. at 73 n. 1, 96 S.Ct. 2440 (Powell, J., concurring); Id. at 85-87, 96 S.Ct. 2440 (Stewart, J., dissenting). Writing for our court in 1986, Judge Pregerson in Kev alluded to the voting tally in Young when he ascribed full First Amendment protection to nude dancing. Kev, 793 F.2d at 1058.

Fifteen years after Young, a plurality of the Supreme Court including Justices Rehnquist, O'Connor, and Kennedy, reiterated that nude dancing enjoys only marginal First Amendment protection. Barnes, 501 U.S. at 565-66, 111 S.Ct. 2456. ² Two Justices concurred in Barnes, with four dissenters advocating full First Amendment protection. Because one concurrence did not reach the issue, Barnes represents a four-four split on the matter. ³

Scholars have grappled with the problem of the uncertain status of nude dancing and adult entertainment under the First Amendment. Professor Lawrence Tribe noted that "no Court has yet squarely held that sexually explicit but non-obscene speech enjoys less than full First Amendment protection." Tribe, American Constitutional Law §§ 12-18, p. 938 (2d Ed.1988). Although his comment was made prior to Barnes, the observation continues to be accurate today. Professor Erwin Chemerinsky views Supreme Court precedent as according sexually explicit expression "low-value" status. Chemerinsky, Constitutional Law § 11..3.4.4, p. 836-41 (1st Ed.1997). Professors Gerald Gunther and Kathleen Sullivan suggest that even in cases where courts do not explicitly treat sexual expression as lower-value speech, the decisions have implicitly treated such speech as a "subordinate species" in their tolerance of content-specific regulation. Gunther and Sullivan, Constitutional Law § 5(D), p. 1155-56 (13th Ed.1997).

IV. Content Neutrality

Appellants contend that the district court erred in determining that the Kent Ordinance is content-neutral as a matter of law. Appellants argue that the ordinance is content-based on its face, and that the record shows that the City's predominant intent in passing the Ordinance was to ban adult entertainment in Kent. This contention is based on statements made by the mayor and other city officials, in addition to Kent's alleged pattern of adopting restrictive ordinances in response to proposals to build exotic dance studios.

Municipalities may impose reasonable restrictions on the time, place or manner of protected speech, provided the restrictions are: (1) content-neutral; (2) narrowly tailored to serve a significant government interest; and (3) leave open ample alternative channels for communication of the information. Ward v. Rock Against Racism, 491 U.S. 781, 791, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989). The Supreme Court has determined that this test is similar or identical to the O'Brien test generally applied to regulations affecting symbolic speech. ⁴

In determining whether an...