Sekne v. City of Portland

• Decision Date: 15 October 1986
• Citation: 81 Or.App. 630,726 P.2d 959
• Parties: Rick Frank SEKNE, dba Graffic Tavern, and Margaret Trachsel, Respondents, v. CITY OF PORTLAND, a municipal corporation, Appellant. A8504-02530; CA A36443.
• Court: Oregon Court of Appeals

Page 959

726 P.2d 959

81 Or.App. 630

Rick Frank SEKNE, dba Graffic Tavern, and Margaret Trachsel, Respondents, v. CITY OF PORTLAND, a municipal corporation, Appellant.

A8504-02530; CA A36443.

Court of Appeals of Oregon.

Argued and Submitted April 16, 1986.

Decided Oct. 15, 1986.

Paul C. Elsner, Portland, argued the cause and filed the brief for appellant.

Donald P. Roach, Portland, argued the cause and filed the brief for respondents.

Before RICHARDSON, P.J., and JOSPEH, C.J., and NEWMAN, J.

NEWMAN, Judge.

Plaintiffs brought this action to obtain a declaration that two Portland City Code (PCC) ordinances prohibiting nudity in taverns and restaurants, PCC 14.36.010 and PCC 14.36.020, could not validly be enforced against them. In their complaint, plaintiffs alleged that the ordinances have been preempted by the Oregon Liquor Control Act, see ORS 471.045, and that they violate Article I, section 39, of the Oregon Constitution and the right to free expression guaranteed by Article I, section 8, of the Oregon Constitution and the First Amendment. The parties stipulated to the relevant facts, and the court entered judgment for plaintiffs. Defendant appeals, and we affirm as to one ordinance and reverse as to the other.

PCC 14.36.010 states:

"Places of Entertainment.

"a. In any place licensed to sell alcoholic liquor and permitted by State law to allow dancing or have other forms of entertainment, it is unlawful for stage or floor show entertainer:

"(1) To come into physical contact with any patron or to circulate among tables, chairs or similar furniture used or intended for use by patrons.

"(2) To expose his or her genitalia or engage in or simulate any act of sexual intercourse, sodomy, masturbation or other sexual stimulation by the massage of the genital area of the body in the course of the show.

"(3) To appear in the course of the show without covering his or her genitalia with an opaque material which does not simulate the organ covered.

"b. It is unlawful for the owner, operator, or person in charge of a place licensed to sell alcoholic liquor and permitted by State law to allow dancing or have other forms of entertainment knowingly to permit any violation of Subsection (a) of this Section."

PCC 14.36.020 states:

"Places Serving Liquor.

"a. In any place where food or alcoholic beverage is offered for sale for consumption on the premises, it is unlawful:

"(1) For any female person to be so costumed or dressed that one or both breasts are wholly or substantially exposed to public view.

"(2) For any person to appear without covering his or her genitalia with an opaque material that does not simulate the organ covered.

"b. It is unlawful for the owner, operator or person in charge of any place where food or alcoholic beverage is offered for sale or consumption on the premises knowingly to permit any violation of Subsection (a) of this Section."

The facts are stipulated by the parties:

"1. Plaintiff Sekne is the owner and operator of Graffic Tavern.

"2. Plaintiff Margaret Trachsel is a dancer who performs at the Graffic Tavern.

"3. Plaintiff Sekne's tavern serves alcoholic beverages and is licensed by the Oregon Liquor Control Commission * * *.

"4. Plaintiff Sekne serves food for consumption at his tavern.

"5. Plaintiff Sekne permits live entertainment at the tavern consisting of dancing by female performers.

"6. Dancing by female performers is performed on a separate stage.

"7. Dancers do not have any physical contact with any of the patrons of the tavern.

"8. Dancers do not circulate among tables, chairs or similar furniture used or intended for use by patrons.

"9. Dancers to not touch or offer to touch sexual parts of another for the purpose of arousing or gratifying the sexual desires of either party.

"10. Dancers to not simulate any act of sexual intercourse, sodomy, masturbation or sexual stimulation by massage of the genital area of the body in the course of the performance.

"11. Dancers dance to the accompaniment of music.

"12. Dancers, during a portion of their performance, appear with their breasts wholly or substantially uncovered.

"13. Dancers, during a portion of their performance, appear without covering their genitalia with an opaque material.

"14. Defendant City of Portland Inspectors have threatened to enforce City of Portland ordinances against plaintiffs, and in particular § 14.36.010 and § 14.36.020, prohibiting nude dancing as described in paragraphs (12) and (13) above.

"15. Defendant City of Portland intends to enforce its ordinances as to plaintiff Sekne and his dancers.

"16. Plaintiff Sekne has permitted nude dancing as described in the paragraphs above since September, 1983 until April 22, 1985. Plaintiff Sekne desires to continue to permit dancing as described above. Plaintiff Trachsel desires to continue to perform routines as described above."

After the parties presented arguments below, the trial court asked them to submit additional memoranda on the question of whether the ordinances violate the equal protection guarantees of Article I, section 20, and the Fourteenth Amendment. The parties submitted the memoranda, and the court invalidated the ordinances on equal protection grounds. In its opinion it stated:

"The City does not quarrel with the concept that within the confinesof the City of Portland nudity is permitted on television, in the movies, in magazines and on the stage at the Civic Theater. Why may nude bodies be viewed in many places within the City but not taverns?

"While it may be a desirable policy to deter exploitation of women, assuming that nudity in a tavern is exploitation, such legislation should not be discriminatory in its application.

"Ordinances 14.36.010 and 14.36.020 are unconstitutional." ¹

In defendant's only assignment, it asserts that "[t]he court erred in holding that PCC 14.36.010 and 14.36.020 violated the equal protection provisions of the Fourteenth Amendment * * * and Article I, section 20 of the Oregon Constitution." In response, plaintiffs argue that the court correctly invalidated the ordinances on equal protection grounds and, in the alternative, that the ordinances violate plaintiffs' rights to free expression under the state and federal constitutions.

Plaintiffs also argue that "the ordinances conflict with the Oregon Liquor Control Act and the OLCC regulations and therefore are superceded [sic] and repealed." They explain that "nude dancing as performed on plaintiff's premises is permitted by OLCC regulations and state liquor statutes. To the extent that the city ordinances prohibit nude dancing which is allowed by OLCC regulations, these ordinances are inconsistent with the Oregon Liquor Act." We turn briefly to this argument, although defendant does not address it.

ORS 471.045 provides that the Liquor Control Act

"shall fully replace and supersede any and all municipal charter enactments or local ordinances inconsistent with it. Such charters and ordinances hereby are repealed."

The legislative policy underlying ORS 471.045 is to preempt an ordinance only if it is inconsistent with the act. City of Portland v. Sunseri, 66 Or.App. 261, 265, 673 P.2d 1369 (1983); see also City of Portland v. Dollarhide, 300 Or. 490, 501, 714 P.2d 220 (1986). Here, there is no inconsistency between the act and the ordinances. ORS 472.180(5) provides that the Liquor Control Commission may cancel or suspend any license, or impose a monetary penalty in lieu of or in addition to suspension, if it finds that the licensee maintains a "lewd" establishment. Neither that section, see Korgan v. OLCC, 72 Or.App. 31, 695 P.2d 81, rev. den. 299 Or. 443, 702 P.2d 1112 (1985), nor any other provision of the act, either forbids or allows nude dancing or nudity in establishments that serve liquor or addresses whether those activities are criminal. Neither is there any necessary inconsistency between the regulations and the ordinances. OAR 845-06-045(2) forbids permitting "lewd conduct;" OAR 845-06-045(3) forbids permitting "any criminal activity on the licensed permises." They do not forbid or allow nude dancing or nudity or address whether those activities are lewd or criminal. Both the act and the regulations, insofar as they are pertinent, only establish standards governing the licensee's license privilege. By virtue of the act and regulations, the ordinances are not superseded or repealed. Moreover, in the absence of any state criminal law prohibiting either nude dancing or nudity in establishments serving liquor, we do not find any reason, under the principles discussed in City of Portland v. Dollarhide, supra, to conclude that the city may not enact the ordinances, if they are otherwise valid. See also Or.Const., Art. XI, § 2. Accordingly, we must consider the validity of the ordinances. We address first their validity under Article I, section 8.

PCC 14.36.010 prohibits nude dancing in "any place licensed to sell alcoholic liquor." Article I, section 8, provides:

"No law shall be passed restraining the free expression of opinion, or restricting the right to speak, write, or print freely on any subject whatever; but every person shall be responsible for the abuse of this right."

Plaintiffs argue that the ordinance is overbroad and, therefore, invalid. ² Plaintiffs do not challenge the portions of the ordinance which make it unlawful for an entertainer to come into physical contact with any patron or to circulate among tables, chairs or similar furniture used or intended for use by patrons, or to engage in or simulate any act of sexual intercourse, sodomy, masturbation or other sexual stimulation by the massage of the genital area of the body in the course of the show. They assert, however, that by prohibiting all nude dancing in taverns, the ordinance reaches expression that Article I, section 8, protects. If the ordinance does proscribe protected behavior, it is invalid, unless we can give it a narrowing construction....