Salt Lake City v. Kidd

• Decision Date: 23 January 2019
• Docket Number: No. 20150280,20150280
• Citation: Salt Lake City v. Kidd, 435 P.3d 248 (Utah 2019)
• Parties: SALT LAKE CITY, Appellee, v. Karlie KIDD, Appellant.
• Court: Utah Supreme Court

435 P.3d 248

SALT LAKE CITY, Appellee,

v.Karlie KIDD, Appellant.

No. 20150280

Supreme Court of Utah.

Filed January 23, 2019

Heather Lindsay, Salt Lake City, for appellee

W. Andrew McCullough, Midvale, for appellant

Justice Pearce authored the opinion of the Court in which Chief Justice Durrant, Associate Chief Justice Lee, Justice Himonas, and Justice Petersen joined.

Justice Pearce, opinion of the Court:

INTRODUCTION

¶1 Salt Lake City requires that any individual employed by an escort service agency, or any other sexually oriented business, obtain a license from the City before providing services. When Karlie Kidd met an undercover Salt Lake City police officer at the Grand America Hotel and asked him for a "show-up" fee, she did not possess such a license. She did, however, have an escort services license from Midvale City. Salt Lake City nevertheless cited Kidd for offering escort services without a valid license.

¶2 State law authorizes Salt Lake City and Midvale, as well as any other municipality, to impose licensing requirements on employees of sexually oriented businesses. This results in a regulatory scheme where escorts must obtain licenses in each jurisdiction in which they want to operate, if the jurisdiction requires a license.

¶3 To Kidd, the statute promotes regulatory overkill and burdens her constitutional rights because the license Midvale issued to her satisfies Salt Lake City’s requirements and any legitimate interest the City might have in regulating her profession. Kidd claims that the imposition of multiple licensing requirements violates her First Amendment and Equal Protection rights.

¶4 Because Kidd’s First Amendment argument is inadequately briefed and because her Equal Protection claim was not properly raised in the district court, we affirm her conviction.

BACKGROUND

¶5 Kidd and the escort service agency that employed her were licensed to provide sexually oriented business services in Midvale. Kidd was not, however, licensed by Salt Lake City to provide sexually oriented business services in that municipality. To obtain that license, Kidd would have been required to pay a fee and provide her social security number, fingerprints, and criminal history, as well as other personal information. See SALT LAKE CITY, UTAH, CODE § 5.61.110.¹

¶6 An undercover Salt Lake City police officer answered Kidd’s online advertisement and arranged to meet her at the Grand America Hotel. Upon arrival, Kidd requested a "show-up" fee or "donation." The officer provided the payment; additional officers then entered the room. They informed Kidd that they were police, ran a records check, and ascertained that Kidd did not have a Salt Lake City-issued sexually oriented business license. They cited Kidd for violating Salt Lake City Code section 5.61.100.

¶7 Section 5.61.100 provides that "[i]t is unlawful for any sexually oriented business to employ, or for any individual to be employed by a sexually oriented business in the capacity of a sexually oriented business employee, unless that employee first obtains a sexually oriented business employee license." The Salt Lake City Code, like the Utah Code, deems escorts to be employees of sexually oriented businesses.

¶8 The City defines "sexually oriented business" as "[n]ude entertainment businesses, sexually oriented outcall services, adult businesses, ‘seminude dancing bars’ and seminude dancing agencies." SALT LAKE CITY, UTAH, CODE § 5.61.040. While this definition does not expressly mention escorts, the City’s definition of "sexually oriented business employees" does, specifying that "[a]ll persons making outcall meetings under this chapter, including escorts, ... shall be considered sexually oriented business employees." Id. The Utah Code is also explicit that escort service agencies are "sexually oriented businesses." UTAH CODE § 10-8-41.5(1)(f)(i) (defining "[s]exually oriented business" as "a business at which any nude or partially denuded individual ... performs any service for compensation"); id. § 10-8-41.5(1)(f)(ii) (noting that the term " ‘[s]exually oriented business’ includes ... an escort service").²

¶9 Section 10-8-41.5 of the Utah Code expressly prohibits escorts from providing sexually oriented business services in a city, if the city requires that the employee be individually licensed and the employee has not obtained such a license.

UTAH CODE § 10-8-41.5(2) ("A person employed in a sexually oriented business may not work in a municipality: (a) if the municipality requires that a person employed in a sexually oriented business be licensed individually; and (b) if the person is not licensed by the municipality."). Section 10-8-41.5 therefore mandates that escorts obtain a license in each city in which they want to provide services, if that city requires a license.

¶10 Kidd challenged this regulatory framework before the justice court. Kidd asserted that section 10-8-41.5 unconstitutionally prohibited individuals from providing sexually oriented services if they did not satisfy the license requirement of each city in which they wanted to work. Kidd first raised these challenges in justice court, without success. In a trial de novo before the district court, Kidd reiterated her constitutional arguments. See generally UTAH CODE § 78A-7-118(1) (providing that, upon timely appeal following sentencing, criminal defendants are generally entitled to trial de novo in district court).

¶11 More precisely, Kidd moved to dismiss the charges against her, asserting that section 10-8-41.5 infringed her freedom of expression by authorizing a city to impose "repetitive licensing requirements" upon an escort already licensed in a "neighboring city." Kidd acknowledged she "did not have a Salt Lake City [e]scort license at the time of this incident," but asserted she "did have a license in the neighboring cit[y] of Midvale." She claimed her Midvale license was "sufficient to meet the requirements of" the Salt Lake City ordinance, and there was "no valid reason" for imposition of "duplicative and expensive licensing procedures."

¶12 In support of her argument, Kidd referenced several First Amendment cases, but she did not connect them to the facts of her case. Other than asserting that "[e]scorts are protected in their profession by the First Amendment," Kidd did not address what speech was allegedly infringed. And with even less specificity, Kidd asserted that section 10-8-41.5 violated her "rights to Equal Protection of the Law." She did not cite or apply equal protection authorities to the facts of her case.

¶13 The district court denied the motion and Kidd entered a conditional plea of no contest preserving her right to appeal the constitutional questions. And the court of appeals certified the case to this court.

STANDARD OF REVIEW

¶14 "The grant or denial of a motion to dismiss is a question of law [that] we review for correctness, giving no deference to the decision of the trial court." State v. Hamilton , 2003 UT 22, ¶ 17, 70 P.3d 111 (citation omitted) (cleaned up).

ANALYSIS

I. Jurisdiction

¶15 Before we turn to the merits of the case, we need to address a jurisdictional question. Utah Code section 78A-7-118 provides that when justice court proceedings are followed by a trial de novo in district court, as was the case here, "[t]he decision of the district court is final and may not be appealed unless the district court rules on the constitutionality of a statute or ordinance." UTAH CODE § 78A-7-118(8).

¶16 The only written ruling in the record with respect to Kidd’s motion to dismiss, and the constitutional arguments contained therein, is the district court’s notation that Kidd’s motion was "[d]enied." While this matter was pending in front of the court of appeals, but prior to transfer to our court, the court of appeals questioned whether the district court’s denial constituted a "rul[ing] on the constitutionality of a statute or ordinance" as section 78A-7-118 requires.

¶17 Kidd then supplemented the record with a transcript. The court of appeals subsequently certified the case, but did not address the jurisdictional question it had raised.

¶18 In her briefing to this court, Kidd responds to the court of appeals’ concern and argues that we have appellate jurisdiction because the district court ruled on the statute’s constitutionality. The City does not appear to disagree. Although this might seem to resolve the question, "acquiescence of the parties is insufficient to confer jurisdiction."

First Nat’l Bank of Layton v. Palmer , 2018 UT 43, ¶ 6, 427 P.3d 1169 (citation omitted). We must be "satisfied that we have jurisdiction before reaching the merits." Id.

¶19 With the transcript in the record, we are assured that we have jurisdiction because the district court "rule[d] on the constitutionality of a statute or ordinance" as required for purposes of section 78A-7-118.³ We are therefore satisfied that appellate jurisdiction exists.

II. First Amendment

¶20 Kidd first asserts that Utah Code section 10-8-41.5"violates [her] first amendment right to free speech, and particularly violates" her right to "commercial speech." We cannot reach the merits of this claim, however, because Kidd does not identify the speech at issue in this case, much less demonstrate that any such speech is protected by the First Amendment. Kidd’s argument is inadequately briefed and, as a result, she has failed to carry her burden of persuasion on appeal.

¶21 As an initial matter, "it is the obligation of the person desiring to engage in assertedly expressive conduct to demonstrate that the First Amendment even applies." Clark v. Cmty. for Creative Non-Violence , 468 U.S. 288, 293 n.5, 104 S.Ct. 3065, 82 L.Ed.2d 221 (1984). Here, Kidd needed to start by pointing this court to the speech she claims the statute burdens. Yet Kidd does nothing more than recite that, while employed as an escort, she arrived at a hotel room and demanded a "show-up" fee. Her argument assumes that the licensing requirement has...