DCR, Inc. v. Pierce County

• Court: Washington Court of Appeals
• Writing for the Court: HUNT; HOUGHTON; ARMSTRONG
• Citation: DCR, Inc. v. Pierce County, 964 P.2d 380, 92 Wn.App. 660 (Wash. App. 1998)
• Decision Date: 02 October 1998
• Docket Number: No. 21416-4-II
• Parties: DCR, INC., a Washington corporation; and Kathy T. Johnson, Appellants. v. PIERCE COUNTY, Respondent.

Page 660

92 Wn.App. 660

964 P.2d 380

DCR, INC., a Washington corporation; and Kathy T. Johnson, Appellants. v. PIERCE COUNTY, Respondent.

No. 21416-4-II.

Court of Appeals of Washington Division 2.

Oct. 2, 1998.

Gilbert H. Levy, Seattle, for Appellants.

Frank H. Krall, Pierce County Prosecutors Office, Tacoma, for Respondent.

Stephen A. Smith, Preston Thorgrimson et al., Seattle, Amicus Curiae on behalf of Cities of Lakewood & Kent et al.

HUNT, Judge.

An adult entertainment corporation and a dancer challenge the constitutionality of a Pierce County (the County) ordinance regulating erotic dance studios. DCR, Inc., and table dancer Kathy Johnson (DCR) appeal the trial court's dismissal of their lawsuit on the County's motion for summary judgment. Finding no unconstitutional restraint on protected expressive conduct, we affirm.

I BACKGROUND

A. The Current Ordinance

Pierce County, Wash. Ordinance 94-5 (1994), codified as Pierce County Code (PCC) sec. 5.14 (1994) (the Ordinance), regulates erotic dance studios, managers, dancers, and employees. Its stated purpose is to eliminate the "historical" and regular occurrence of "prostitution, narcotics, breaches of the peace, and the presence within the industry of individuals with hidden ownership interests and outstanding arrest warrants." Ordinance 94-5.

Section 5.14.010(D) defines "erotic dance studio" and thus determines which businesses must comply with the Ordinance. ¹ Sections 5.14.030 through .090 establish licensing requirements for operators. Sections 5.14.100 through .170 establish licensing requirements for managers and dancers. Sections 5.14.220 and .230 establish standards for denial and revocation of licenses. Section 5.14.190(H) requires all dancing to occur on a platform raised at least 18 inches from the floor and no closer than 10 feet to any patron. Sections 5.14.190(K) and (L) prohibit direct tipping. Section 5.14.250 imposes penalties for violations of the Ordinance.

B. Enforcement Problems with Former Ordinance

The County presented evidence that law enforcement authorities conducted investigations in 1992 and 1993, which revealed erotic dance studio ² problems with prostitution, narcotics transactions, and sexual contact. The sexual contact included: mutual fondling; dancers sitting on customers' laps while simulating intercourse; dancers rubbing customers' faces, legs, and genitalia with their own genitalia and breasts; customers orally contacting the dancers' breasts and genitalia, including inserting monetary tips into the dancers' vaginas by mouth; and customers digitally penetrating the dancers' vaginas. With the club owners' knowledge, prostitution occurred between dancers and customers both inside and outside the premises. Narcotics transactions were prevalent and included the sale of cocaine and methamphetamines.

The County also presented evidence that erotic dance studio operators and performers ignored the former ordinance's prohibition of physical contact between dancers and customers, because such contact was lucrative and courts were lenient. Narcotics violations were difficult to curb because police could not find dancers willing to work undercover, for fear of retribution from club owners.

C. Summary Judgment

DCR, Inc., which operates an erotic dance studio called Fox's, and one of Fox's employees, dancer Kathy Johnson, filed suit to have the current Ordinance declared unconstitutional, to enjoin the County from enforcing the Ordinance, and to obtain damages. The County moved for summary judgment dismissal.

In support of its motion for summary judgment, the County presented a transcript of the Pierce County Council public hearing. At this hearing, law enforcement officers testified concerning sexual contact between patrons and dancers at adult nightclubs in Pierce County. In a declaration, Pierce County Sheriff's Lieutenant Larry Gibbs stated that he had personally observed the occurrence of sexual contact in adult entertainment studios and that the 10-foot setback between entertainers and patrons "will greatly reduce the number of occurrences of illegal sexual conduct."

The County presented a video tape depicting sexual contact at two adult nightclubs in Pierce County. It also presented crime statistics indicating the number of occasions on which entertainers had been charged with violating the existing adult entertainment ordinance. The County presented arrest reports and police reports documenting such violations.

DCR presented evidence that many adult nightclubs throughout the country, including Fox's, feature nude or semi-nude dancing on stage and on tables. The clubs charge an admission fee and sell non-alcoholic drinks. The dancers are not employees of the business but instead pay rent to the business for using space on the dance floor. Table dancers are paid directly by the customers. Dancers testified that the Ordinance would deprive them of the ability to earn a living. The business derives some revenue from entrance fees and the sale of beverages, but the primary source of revenue is rent from the dancers.

DCR presented the declaration of Steve Fueston, part owner of Papagayo's, an adult nightclub in the City of Bellevue. Fueston stated that after his business began complying with Bellevue's four-foot minimum distance restriction for adult cabarets, ³ entertainers were no longer willing to work there and the business was forced to close. DCR also presented the declaration of Paul Bem, comptroller for the Deja Vu nightclub in Federal Way, which began operating at a loss once it complied with Federal Way's four-foot separation requirement for adult entertainment.

To support its contention that the Ordinance will destroy the market for alcohol-free erotic dance clubs, DCR submitted Richard Wilson's declaration that prohibition of table dancing will eliminate the market for such clubs. Wilson is an attorney who has represented several adult nightclubs across the United States. He has been a legal and business consultant for several adult entertainment companies, is familiar with the business format of many clubs featuring live adult entertainment, and has spent considerable time in such clubs. His declaration states:

Based on my experience in the industry, as well as my personal knowledge, it is my opinion and belief that table dancing is the primary entertainment activity provided by adult nightclubs, and that attracts customers to the clubs. Without table dances, entertainers would not be able to earn a living, and adult nightclubs would suffer seere financial losses and be forced to close, thus terminating their presentation of entertainment which is protected by the First Amendment.

The Pierce County Superior Court held the Ordinance constitutional as a matter of law, granted summary judgment to the County, and dismissed the case.

D. Appeal

On appeal, DCR and Johnson claim the trial court erred in summarily dismissing their case, because there are genuine issues of material fact concerning the constitutionality of Pierce County Ordinance 94-5, involving the First, Fifth, and Fourteenth Amendments to the United States Constitution, and Article I, Sections 3 and 5, of the Washington Constitution. Specifically they argue that: (1) the 10-foot rule will force all erotic dance clubs out of business; and (2) a rule that thus destroys the market for erotic dancing is unconstitutional.

II ANALYSIS

A. Summary Judgment

A trial court may dismiss a case on summary judgment if the moving party establishes that there are no genuine issues of material fact. Olympic Fish Prods., Inc. v. Lloyd, 93 Wash.2d 596, 602, 611 P.2d 737 (1980). On review, we determine whether the affidavits, facts, and record have created an issue of fact and, if so, whether it is material. Seven Gables Corp. v. MGM/UA Entertainment Co., 106 Wash.2d 1, 12, 721 P.2d 1 (1986). We view the evidence and offers of proof in the light most favorable to the non-moving party. Wilson v. Steinbach, 98 Wash.2d 434, 437, 656 P.2d 1030 (1982). Construction of an ordinance ⁴ and whether certain conduct is constitutionally protected are questions of law, ⁵ which we review de novo.

B. Regulation of Distance Between Dancer and Patron

Pierce County Code Section 5.14.190(H) requires all erotic dancers to perform on a stage 18 inches high and 10 feet from the closest patron. ⁶ DCR contends that this restriction violates free speech rights and infringes on its right to substantive due process. More specifically, DCR argues that: (1) the 10-foot rule effectively bans table dancing and does not leave open "practically available" alternative avenues of communication; (2) allowing dancers to perform on stage is not a comparable alternative; and (3) no one will pay to see erotic dancers on a stage 10 feet away, as compared to nearby on table tops. DCR contends that the Ordinance thus constitutes an unconstitutional prior restraint, the effect of which will be eradication of the erotic dance studio market.

A governmental attempt to restrict the content of future speech, deemed "prior restraint," bears "a heavy presumption against its constitutional validity" under the First Amendment to the federal constitution, and unconstitutional per se under Article I, Section 5, of the state constitution. JJR Inc. v. City of Seattle, 126 Wash.2d 1, 6 n. 4, 891 P.2d 720 (1995) (quoting Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 70, 83 S.Ct. 631, 639, 9 L.Ed.2d 584 1963)). But "a regulation may not rise to the level of a prior restraint if it merely restricts the time, place, or manner of expression." Ino Ino, Inc. v. City of Bellevue, 132 Wash.2d 103, 126, 937 P.2d 154 (1997), cert. denied, --- U.S. ----, 118 S.Ct. 856, 139 L.Ed.2d 755 (1998) (citing State v. Coe, 101 Wash.2d 364, 373, 679 P.2d 353 (1984)). The threshold question here is whether table dancing is constitutionally protected expressive conduct.

1. Dance as Expression

In an abstract sense, all conduct...