JJR Inc. v. City of Seattle

• Decision Date: 23 March 1995
• Docket Number: No. 61217-0,61217-0
• Citation: 126 Wn.2d 1,891 P.2d 720
• Parties: JJR INC., a Washington Corp., Autumn Willows, and Gina Ware, Appellants, v. The CITY OF SEATTLE, Respondent.
• Court: Washington Supreme Court

Page 1

126 Wn.2d 1

891 P.2d 720

JJR INC., a Washington Corp., Autumn Willows, and Gina WareAppellants, v.The CITY OF SEATTLE, Respondent.

No. 61217-0.

Supreme Court of Washington En Banc.

March 23, 1995.

Reconsideration Denied June 9, 1995.

Gilbert H. Levy, Seattle, for appellants.

Mark H. Sidran, Seattle City Atty., Ada Ko, Shelley J. Hickey, Assts., Seattle, for respondent.

DURHAM, Chief Justice.

JJR Inc., Autumn Willows, and Gina Ware challenge Seattle Municipal Code(SMC) 6.202.230, an administrative licensing scheme governing adult entertainment license revocation and suspension.JJR is a Washington corporation operating Rick's, a Seattle nightclub featuring nude dancing.Willows and Ware perform nude dancing at Rick's.The City of Seattle(Seattle) requires that nude dancing establishments, and the performers who work there, obtain adult entertainment licenses.JJR, Willows and Ware ¹ contend that Seattle's administrative licensing scheme is facially unconstitutional because it fails to provide a stay of license revocation or suspension pending judicial review.They argue this violates the first amendment to the United States Constitutionandarticle 1, section 5 of the Washington State Constitution.

Seattle argued to the King County Superior Court that the statutory writ procedures under RCW 7.16 allow for the cessation of penalties pending judicial review of adult entertainment license revocation and suspension.After cross motions for summary judgment and following a motion for reconsideration, the Superior Court held that RCW 7.16 provided necessary procedural safeguards rendering Seattle's licensing ordinance constitutional.We reverse, and hold a portion of Seattle's licensing ordinance unconstitutional because it lacks the minimum procedural safeguards required by article 1, section 5 of the Washington State Constitution.

In facial challenges such as this, we consider only if the language of the ordinance violates the constitution.We do not contemplate whether the ordinance would be constitutional "as applied" to the facts of a particular case.Seattle v. Webster, 115 Wash.2d 635, 640 n. 2, 802 P.2d 1333, 7 A.L.R.5th 1100(1990), cert. denied, 500 U.S. 908, 111 S.Ct. 1690, 114 L.Ed.2d 85(1991).As a result, the focus is not on how SMC 6.202.230 has been applied to Rick's and its performers.Instead, the language of the ordinance is examined to determine its constitutional validity.

While not contested, Seattle's adult entertainment regulations set forth in SMC 6.270 provide necessary background information.These regulations, enacted to promote public health, safety, and general welfare, are numerous and extensive.SMC 6.270.010(A).For example, nude dancing may occur only on a stage set back from the audience.SMC 6.270.100(A)(1).Adult entertainers, when nude or seminude, are prohibited from mingling with patrons.SMC 6.270.100(A)(3).Adult entertainers may not engage in sexual contact with patrons, nor with one another.SMC 6.270.100(A)(4)(b), (c);SMC 6.270.100(A)(5).

Violation of the adult entertainment regulations can result in license revocation or suspension proceedings under SMC 6.202.230.²JJR argues that the administrative procedures pursuant to SMC 6.202.230 act as a prior restraint on protected expression and, therefore, must provide certain procedural safeguards such as a stay of adult entertainment license revocation and suspension pending judicial review.We turn now to those procedures.

Seattle authorizes police officers to conduct routine inspections of adult entertainment establishments.SMC 6.202.360(D).When a police officer finds a violation, a police incident report is filed.This sets into motion administrative proceedings for license revocation or suspension.

The Finance Director of Seattle (Director) or a representative reviews the police incident report and determines whether to revoke or suspend the license.Upon revocation or suspension the Director provides the licensee with a written statement that includes the basis for the decision and notice of the right to an administrative hearing.SMC 6.202.260.A licensee can contest the Director's decision by filing a notice of appeal with the Hearing Examiner within 10 days.SMC 6.202.270(A).If an appeal is not pursued, the Director's decision becomes final.SMC 6.202.270(C).The licensee generally may continue to engage in the licensed activity pending a decision by the Hearing Examiner.SMC 6.202.280.

The Hearing Examiner is part of Seattle's administrative scheme for licensing appeals and may affirm or deny the Director's determinations.SMC 6.202.300.The Hearing Examiner's function is quasi-judicial, Francisco v. Board of Directors of The Bellevue Pub. Schs., Dist. 405, 85 Wash.2d 575, 579, 537 P.2d 789(1975), and the Director's decisions are reviewed de novo.Strict rules of evidence do not apply at an administrative hearing; instead the examiner "shall admit and give probative effect to evidence which possesses probative value".SMC 3.02.090(J).The Hearing Examiner's decision is final when mailed to the licensee.The Director has discretionary power to stay enforcement of the revocation or suspension pending judicial consideration.SMC 6.202.310.While the licensing ordinance contains no provisions for judicial review following a Hearing Examiner's decision, a licensee may file a writ of review in superior court under the general certiorari statute.RCW 7.16.030;seeResponsible Urban Growth Group v. Kent, 123 Wash.2d 376, 384, 868 P.2d 861(1994).

PRIOR RESTRAINT

An establishment featuring nude dancing may not operate under a revoked or suspended adult entertainment premise's license; similarly, an individual whose adult entertainment license has been revoked or suspended may not perform nude dance anywhere in Seattle.³Seattle argues that license revocation or suspension operates merely as a subsequent punishment for nude conduct violating the adult entertainment regulations.While it is true that nude conduct has no constitutional protection, O'Day v. King Cy., 109 Wash.2d 796, 749 P.2d 142(1988), nude dancing is protected expression under both Const. art. 1, § 5 and the First Amendment.Barnes v. Glen Theatre, Inc., 501 U.S. 560, 565, 111 S.Ct. 2456, 2459-60, 115 L.Ed.2d 504(1991);O'Day, 109 Wash.2d at 803, 749 P.2d 142.The fact that license revocation or suspension prohibits individuals from performing nude dance raises concerns that the government is engaging in a prior restraint of constitutionally protected expression.

Under Const. art. 1, § 5, we have held that prior restraint of constitutionally protected expression is per se unconstitutional.O'Day, at 804, 749 P.2d 142(citingState v. Coe, 101 Wash.2d 364, 374-75, 679 P.2d 353(1984)).⁴Prior restraints are "official restrictions imposed upon speech or other forms of expression in advance of actual publication."Seattle v. Bittner, 81 Wash.2d 747, 756, 505 P.2d 126(1973)(quoting Thomas I. Emerson, The Doctrine of Prior Restraint, 20 L. & Contemp.Probs.648 (1955)).Licensing power operates as a prior restraint when used as an "instrument of punishment".Bittner, at 755, 505 P.2d 126.⁵Licensing of constitutionally protected expression places censorship power in the hands of government, and government officials who attempt to control future expression through license revocation and suspension engage in a prior restraint.This is inimical to protection of free expression under Const. art. 1, § 5.

While we upheld a similar adult entertainment licensing scheme in O'Day, we based our ruling on double jeopardy principles and did not engage in a prior restraint analysis.O'Day, 109 Wash.2d at 816-18, 749 P.2d 142.Although O'Day recognized that license revocation differs from license denial because revocation implies that the licensee violated the terms of the license, O'Day, at 817, 749 P.2d 142, both license denial and license revocation lead to the future suppression of constitutionally protected speech and as a result constitute prior restraint.Seattle relies on the argument that license revocation and suspension differ from outright license denial because they occur "after the licensee has violated the Ordinance, not prior to the licensee's dance."Br. of Resp't Seattle, at 13.However, the relevant issue is whether license revocation and suspension prohibit future expression protected under Const. art. 1, § 5.

We are sensitive to the dangers of prior restraint and have invalidated legislation on this basis.For example, in Seattle v. Bittner, supra, we held that government officials engage in prior restraint when they attempt to limit obscenity by denying adult entertainment licenses to applicants who previously engaged in illicit activities.Although license denial acts as a punishment for unlawful activity, it nevertheless constitutes a prior restraint because it suppresses future, protected expression.Bittner, 81 Wash.2d at 755, 505 P.2d 126.

Seattle argues that license revocation and suspension operate as a postpublication sanction similar to the one upheld in Bering v. Share, 106 Wash.2d 212, 721 P.2d 918(1986), cert. denied, 479 U.S. 1050, 107 S.Ct. 940, 93 L.Ed.2d 990(1987).Seattle maintains that like the anti-abortion picketers in Bering, nude dancers who abuse their free speech rights can be deprived of them.However, Bering recognized that postpublication sanctions take only one of two forms: "(1) an award of damages in a tort action, or (2) an injunctive order prohibiting further dissemination of speech."Bering, 106 Wash.2d at 243, 721 P.2d 918.License revocation and suspension fall outside this limited definition of postpublication sanctions.Moreover, the picketers in Bering were prohibited from protesting directly in front of a medical clinic, but were still permitted to engage in demonstrations nearby.License revocation, in comparison, amounts to the total suppression of protected...