King County ex rel. Sowers v. Chisman

• Decision Date: 31 January 1983
• Docket Number: No. 11262-7-I,11262-7-I
• Citation: 658 P.2d 1256,33 Wn.App. 809
• Parties: COUNTY OF KING ex rel. Leo M. SOWERS, Respondent, v. Kent D. CHISMAN and Toni S. Chisman, and their marital community; and Emory J. Bourdeau, Jr. and Shirley Bourdeau, and their marital community; Federal Way Tavern Corporation; and its president, vice-president, secretary, and treasurer, Kent D. Chisman, Defendants, Norm Ray Adams, Appellant, and Alexa Work, Defendant.
• Court: Washington Court of Appeals

Page 809

33 Wn.App. 809

658 P.2d 1256

COUNTY OF KING ex rel. Leo M. SOWERS, Respondent, v. Kent D. CHISMAN and Toni S. Chisman, and their marital community; and Emory J. Bourdeau, Jr. and Shirley Bourdeau and their marital community; Federal Way Tavern Corporation; and its president, vice-president, secretary and treasurer, Kent D. Chisman, Defendants Norm Ray Adams, Appellant and Alexa Work, Defendant.

No. 11262-7-I.

Court of Appeals of Washington, Division 1.

Jan. 31, 1983.

Rehearing Denied March 1, 1983.

[658 P.2d 1257] Victor V. Hoff, Seattle, for appellant Adams.

Norman K. Maleng, King County Pros. Atty., C. Craig Parker, Deputy Pros. Atty., Seattle, for respondent.

DURHAM, Acting Chief Judge.

Norm Ray Adams appeals an order In September 1981, Adams began operating the Booby Trap, a soft-drink and topless dancing establishment in unincorporated King County. He started operations before applying for a license as required by former King County Code 6.08. He then applied for a license, but was denied on four grounds: (1) he had been operating without a license; (2) he had a prior conviction ¹; (3) he allowed "table dancing," with dancers less than 6 feet away from the patrons ²; and (4) he had allowed people under 21 years of age into the Booby Trap. ³ He continued to operate even after the King County Board of Appeals affirmed the denial of his license, and on December 8, 1981 the County moved in superior court for a preliminary injunction. This motion was orally granted on December 18, 1981.

                finding him in contempt for violating a preliminary injunction by continuing to operate a topless dancing establishment without a King County license.   He also appeals the validity of the preliminary injunction
                

Later in December, Adams sold his interest in the business to Alexa Work, a dancer at the Booby Trap. In the sale agreement, the imminence of the injunction was specifically mentioned. The agreement gave Adams the option to repurchase the business in 1 year for $1,000. Work could not sell to anyone else in the interim, and she agreed to, in effect, maintain Adams' business practices. The Booby Trap continued operating as before, although Adams did not himself actively participate in running it.

On January 8, 1982 the court entered its order granting preliminary relief. The order prohibited Adams from operating without a license, operating in violation of the topless dancing regulations of section 6.08.027(A), allowing the premises to be used for any business in violation of chapter 6.08, accepting any money from such a business, or aiding in any way another person's acting in a manner prohibited to Adams. The Booby Trap continued to operate as before.

On January 15, the County moved that Adams and others not a party to this appeal be held in contempt. The court found Adams to be in contempt ⁴ and entered an enforcement order. Pursuant to this order, the Booby Trap was closed on about January 29, 1982. The order provided that Adams could purge the contempt by obtaining a license and operating the Booby Trap in accord with all applicable law.

PRELIMINARY INJUNCTION

Adams' challenges to the preliminary injunction fall into four categories: (1) The injunction violates the first amendment to the United States Constitution by abridging his freedom of expression, (2) the County's licensing requirements constitute a prior restraint of First Amendment rights, (3) the injunction was overly broad, and (4) the injunction was improper due to failure to prove actual and substantial injury. We shall discuss these in order.

Freedom of Expression

Adams' arguments are grounded on the contention that topless dancing is protected per se by the First Amendment right of freedom of expression. It is true that dancing does not lose its expressive quality simply because its performance involves nudity. Schad v. Borough of Mt. Ephraim, 452 U.S. 61, 101 S.Ct. 2176, 68 L.Ed.2d 671 (1981).

Nonetheless, while the communication of a nude dancer may be entitled to First Amendment protection, the nudity itself is not automatically protected. State v. Baysinger, Ind., 397 N.E.2d 580, appeal dismissed sub nom. Clark v. Indiana, 446 U.S. 931, 100 S.Ct. 2146, 64 L.Ed.2d 783 (1980). It becomes protected activity only on a showing that it contains an expressive element. ⁵ See State v. Baysinger, supra, Gabriele v. Town of Old Orchard Beach, 420 A.2d 252 (Me.1980), Major Liquors, Inc. v. Omaha, 188 Neb. 628, 198 N.W.2d 483 (1972). Nudity, in and of itself, is clearly conduct and has traditionally been subject to the police power of the State, particularly when used as sales promotion in bars and restaurants. ⁶ Portland v. Derrington In Crownover v. Musick, 9 Cal.3d 405, 509 P.2d 497, 107 Cal.Rptr. 681 (1973), cert. denied, 415 U.S. 931, 94 S.Ct. 1443, 39 L.Ed.2d 489 (1974), the court considered the constitutionality of ordinances prohibiting topless and bottomless entertainment in restaurants. It ruled that there was no prima facie First Amendment protection for topless dancing. Recognizing that nude conduct can be distinguished from protected communication, the court said:

                53 Or. 289, 451 P.2d 111, cert. denied, 396 U.S. 901, 90 S.Ct. 212, 24 L.Ed.2d 177 (1969).   See also Seattle v. Hinkley, 83 Wash.2d 205, 517 P.2d 592 (1973)
                

It is clear that these provisions of the ordinances are directed at conduct--topless and bottomless exposure--and not at speech or at conduct which is "in essence" speech or "closely akin to speech." A common sense construction ... of the pertinent provisions is that they proscribe nudity in specified public places. They do not prohibit entertainment but merely enjoin that if the entertainer or performer offers it, he or she must have some clothes on. In a word the ordinances regulate conduct.

Crownover, at 425. The court concluded that nude conduct by entertainers in the establishments governed by the ordinances was not "symbolic in the constitutional sense" and upheld the ordinances against a First Amendment challenge. Crownover, at 425.

Although we find the conclusion in Crownover highly persuasive, we need not resolve the issue of prima facie protection here. The ordinances before us are valid time, place, and manner restrictions of topless dancing, even assuming some degree of constitutional protection. See Young v. American Mini Theatres, Inc., 427 U.S. 50, 96 S.Ct. 2440, 49 L.Ed.2d 310 (1976).

These ordinances are unlike those overturned in Schad v. Borough of Mt. Ephraim, supra, and Doran v. Salem Inn, Inc., 422 U.S. 922, 95 S.Ct. 2561, 45 L.Ed.2d 648 (1975) upon which Adams mistakenly relies to find a per se protected right to present topless dancing. The ordinances in both Schad and Doran were overbroad, prohibiting clearly

                expressive activity.   In Schad, the ordinance prohibited all live entertainment within the Borough.   Section 6.08.027(A) refers to any place of "public amusement/entertainment," a category broadly defined by section 6.08.005(A). 7  Nonetheless, the requirements of section 6.08.027(A) clearly apply only to nude entertainment.   In Doran, the ordinance banned all nude entertainment whatever its expressive component.   Section 6.08.027(A) does not ban topless dancing, but merely regulates the way in which it is presented.   These restrictions do not apply to nudity when part of an "expressive" performance on a theater stage.   Section 6.08.027(E). 8  The scope of the activity covered by section 6.08.027 is, therefore, much narrower than that found protected in Schad and Doran.   Thus, even assuming some First Amendment right to present topless dancing, the requirements of section 6.08.027(A) are time, place, and manner restrictions which are reasonably related to the goal of regulating activity which is legitimately perceived as potentially disruptive of the social order, and which provide protections for expressive activity involving nudity.
                

Prior Restraint

Adams also challenges the constitutionality of licensing requirements for operating a topless establishment. He Adams claims that this case is controlled by Seattle v. Bittner, 81 Wn.2d 747, 505 P.2d 126 (1973). In Bittner, the court struck down a Seattle ordinance which prohibited the issuance of licenses to exhibit motion pictures to anyone who was not of "good moral character" or who had been convicted of a crime of moral turpitude. The court found that exhibition of motion pictures was well established as a protected activity, that the ordinance was not restricted to the non-protected activity of distributing obscene motion pictures, and that the license requirements were invalid since "the constitution does not permit a licensing agency to deny to any citizen the right to exercise one of his fundamental freedoms on the ground that he has abused that freedom in the past." Bittner, at 756, 505 P.2d 126.

                argues that, in general, it is prior restraint to require a license when protected activity is involved, and, specifically, that it is objectionable when the license is conditioned on "good moral character," section 6.08.020, 9 or is automatically[658 P.2d 1260]  denied for past conduct, section 6.08.027(F).   See Near v. Minnesota ex rel. Olson, 283 U.S. 697, 51 S.Ct. 625, 75 L.Ed. 1357 (1931)
                

Even if we were to assume, arguendo, that topless dancing is entitled to the same level of protection as motion picture distribution, we do not agree that Bittner is dispositive. Adams' license was not denied solely because of his prior conviction under section 6.08.027(F). He was also in violation of section 6.08.027(A), a reasonable time, place and manner regulation, by permitting "table dancing." He was further in violation of section 6.08.027(D) by allowing those under 21 into the Booby Trap. This section, too, is a reasonable regulation, not a prohibition of a protected activity. Both sections specifically provide that "no license Bittner does not stand for the proposition that there can be no licensing...