Edge v. City of Everett, Mun. Corp., No. 17-36038

• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)
• Writing for the Court: CHRISTEN, Circuit Judge
• Citation: 929 F.3d 657
• Parties: Jovanna EDGE, an individual; Leah Humphrey, an individual; Liberty Ziska, an individual; Amelia Powell, an individual; Natalie Bjerke, an individual; Matteson Hernandez, an individual, Plaintiffs-Appellees, v. CITY OF EVERETT, a Washington Municipal Corporation, Defendant-Appellant.
• Docket Number: No. 17-36038
• Decision Date: 03 July 2019

929 F.3d 657

Jovanna EDGE, an individual; Leah Humphrey, an individual; Liberty Ziska, an individual; Amelia Powell, an individual; Natalie Bjerke, an individual; Matteson Hernandez, an individual, Plaintiffs-Appellees,
v.
CITY OF EVERETT, a Washington Municipal Corporation, Defendant-Appellant.

No. 17-36038

United States Court of Appeals, Ninth Circuit.

Argued and Submitted February 4, 2019 Seattle, Washington
Filed July 3, 2019

929 F.3d 659

Ramsey Everett Ramerman (argued), City of Everett, Everett, Washington; Sarah C. Johnson and Matthew J. Segal, Pacifica Law Group LLP, Seattle, Washington; for Defendant-Appellant.

Melinda W. Ebelhar (argued) and Gerald M. Serlin, Benedon & Serlin LLP, Woodland Hills, California, for Plaintiffs-Appellees.

Before: Sandra S. Ikuta and Morgan Christen, Circuit Judges, and Jennifer Choe-Groves,^* Judge.

OPINION

CHRISTEN, Circuit Judge:

929 F.3d 660

"Bikini barista" stands are drive-through businesses where scantily clad employees sell coffee and other non-alcoholic beverages. In Everett, Washington, a police investigation confirmed complaints that some baristas were engaging in lewd conduct at these establishments, that some baristas had been victimized by patrons, and that other crimes were associated with the stands. The City responded by adopting Everett Municipal Code (EMC) § 5.132.010–060 (the Dress Code Ordinance) requiring that the dress of employees, owners, and operators of Quick-Service Facilities cover "minimum body areas." Separately, the City also broadened its lewd conduct misdemeanor by expanding the Everett Municipal Code’s definition of "lewd act" to include the public display of specific parts of the body. EMC § 10.24.010. The City also created a new misdemeanor called Facilitating Lewd Conduct for those who permit, cause or encourage lewd conduct. EMC § 10.24.020.

A stand owner and several baristas sued the City pursuant to 42 U.S.C. § 1983, contending that the Dress Code Ordinance and the amendments to the Lewd Conduct Ordinances violate their First and Fourteenth Amendment rights. The district court granted plaintiffs’ motion for a preliminary injunction and enjoined enforcement of these provisions. The City appeals. We have jurisdiction over the City’s interlocutory appeal pursuant to 28 U.S.C. § 1292. Because we conclude that plaintiffs did not show a likelihood of success on the merits of their two Fourteenth Amendment void-for-vagueness challenges, nor on their First Amendment free expression claim, we vacate the district court’s preliminary injunction and remand this case for further proceedings.

I. Factual Background

Bikini barista stands have operated in and around Everett since at least 2009. The baristas working at these stands wear what they call "bikinis," but the City describes them as "nearly nude employees," and the district court made clear that their attire is significantly more revealing than a typical bikini. The district court’s finding that at least some of the baristas wear little more than pasties and g-strings is well-supported by the record.

Beginning in summer 2009, the Everett Police Department (EPD) began fielding numerous citizen complaints related to bikini barista stands. One complainant asserted that she observed a female barista wearing "pasties" and "a thong and what appeared to be garter belts sitting perched in the window with her feet on the ledge[.]" The complainant went on to describe how a customer in a truck approached the window and began "groping" the barista in intimate areas. According to the complainant, "the next customer in line ... was clearly touching his genitals through his clothes as he was waiting his turn." Stuck in traffic, the complainant wrote that she "had to sit there w/ my 2 young daughters and was so disgusted[.]"

After receiving upwards of forty complaints, EPD launched an undercover investigation

929 F.3d 661

and documented that some baristas at this type of stand were openly violating the existing criminal code prohibiting various forms of lewd conduct. At the time, EMC § 10.24.010 defined lewd conduct to include exposure or display of one’s genitals, anus or any portion of the areola or nipple of the female breast, but EPD’s investigation revealed that some of the bikini baristas removed their costumes entirely. EPD also discovered that some baristas were not paid hourly wages and worked for tips only, resulting in pressure to engage in lewd acts, and that other baristas were paid wages but still performed lewd acts in exchange for large tips. Everett undercover police officers took a series of graphic photos documenting the extremely revealing nature of the baristas’ garb and instances in which baristas removed their tops and bottoms altogether. Officers also documented a wide variety of customer-barista physical contact. At least one bikini stand owner was convicted of sexually exploiting a minor after he was caught employing a sixteen-year old at one of the bikini stands. See State v. Wheeler , No. 72660-9-I, 2016 WL 1306132, at *1–3 (Wash. Ct. App. 2016). Another stand turned out to be a front for a prostitution ring, and some of the baristas, who worked in isolated locations late at night, reported being victims of sexual violence. A Snohomish County Sheriff’s Deputy was convicted of a criminal offense after helping an owner evade the City’s undercover officers in exchange for sexual favors.

Enforcing the City’s existing lewd conduct ordinance required extensive use of undercover officers and proved to be both expensive and time consuming. The City also complained that policing the stands detracted from EPD’s efforts to address the City’s other priorities.

After five years of using undercover operations to prosecute individual offenders, EPD decided its "investigative approach was an ineffective and resource-intensive method of motivating stand owners to stop the illegal conduct" and it began collaborating with the City on a legislative fix. The City complied by enacting EMC §§ 5.132.010–060, a Dress Code Ordinance applicable only to "Quick-Service Facilities" like drive-throughs and coffee stands. The City also amended its criminal code to broaden the definition of "lewd act" and created the crime of Facilitating Lewd Conduct. See EMC §§ 10.24.010; 10.24.025. Because the constitutional challenges in this case focus on the text and effect of these enactments, we describe each in some detail.

A. The Lewd Conduct Amendments

The Lewd Conduct Amendments expanded the definition of "lewd act" to include:

An exposure or display of one’s genitals, anus, bottom one-half of the anal cleft, or any portion of the areola or nipple of the female breast[ ] or [a]n exposure of more than one-half of the part of the female breast located below the top of the areola; provided that the covered area shall be covered by opaque material and coverage shall be contiguous to the areola.

EMC § 10.24.010(A)(1)–(2). An "owner, lessee, lessor, manager, operator, or other person in charge of a public place" commits the offense of Facilitating Lewd Conduct if that person "knowingly permits, encourages, or causes to be committed lewd conduct" as defined in the ordinance. Id. § 10.24.025(A). Findings supporting the City’s Lewd Conduct Amendments state that the City "seeks to protect its citizens from those who profit from facilitating others to engage in the crime of Lewd Conduct,

929 F.3d 662

and so deems it necessary ... to create the new crime Facilitating Lewd Conduct, a gross misdemeanor punishable by a maximum penalty of 364 days in jail and a $ 5,000.00 fine[.]"

B. The Dress Code Ordinance

The City did not hide its effort to specifically address the problems associated with the bikini barista stands when it adopted the Dress Code Ordinance. The very first factual finding in the enactment establishing the Dress Code stated that "[t]he City has seen a proliferation of crimes of a sexual nature occurring at bikini barista stands throughout the City[.]" The next paragraph memorialized the City’s conclusion "that the minimalistic nature of the clothing worn by baristas at these ‘bikini’ stands lends itself to criminal conduct[.]"

The Dress Code Ordinance requires all employees, owners, and operators of "Quick-Service Facilities" to comply with a "dress requirement" mandating coverage of "minimum body areas." EMC § 5.132.020(A). Minimum body areas are further defined as "the upper and lower body (breast/pectorals, stomach, back below the shoulder blades, buttocks, top three inches of legs below the buttocks, pubic area and genitals)." Id. § 5.132.020(B). The Dress Code Ordinance defines Quick-Service Facilities as "coffee stands, fast food restaurants, delis, food trucks, and coffee shops" in addition to all other drive-through restaurants. Id. § 5.132.020(C). This ordinance prohibits owners of Quick-Service Facilities from operating their businesses if any employee is not in full compliance with the dress requirement. EMC § 5.132.040(A)(1). Violations are deemed civil infractions. Id. To ensure that stand owners are motivated to enforce the...