City of Seattle v. Hinkley

517 P.2d 592, 83 Wash. 2d 205, 1973 Wash. LEXIS 618

• Court: Washington Supreme Court
• Decided: December 27, 1973
• Docket: 42444
• Status: Published

Opinions

Weight, J.

On November 18, 1971, respondent was the manager of the Lucky Lady Tavern in Seattle. On said date, this tavern operated under authority of a license issued by the Washington State Liquor Control Board, as well as under a cabaret license issued by the City of Seattle.

On the night of November 18, 1971, respondent was arrested and charged by criminal complaint with allowing a female employee to expose her breasts during performance of a dance in the tavern in violation of a Seattle ordinance, being section 16A of ordinance No. 16046, as amended by ordinance No. 94554 (Seattle City Code § 12.11.175).

On December 29, 1971, respondent was convicted of the above charge in Seattle Municipal Court, and appealed to superior court. A trial de novo without a jury commencing April 3, 1972, resulted in an order of dismissal. The City of Seattle has taken this appeal.

The first issue raised on appeal is whether the judgment is appealable. We hold it is appealable.

Appellant has correctly relied upon ROA 1-14(1) (c) since the validity of an ordinance was drawn into question on the grounds of repugnancy to the constitutions of the United States and the State of Washington.

The second issue raised on appeal is whether the ordinance in question is constitutionally valid.

Essentially, ordinance No. 94554 (Seattle City Code § 12.11.175) prohibits bar and tavern owners and managers from permitting “any female employee to appear therein with one or both breasts and/or the lower portion of the torso, wholly or substantially exposed to public view.” The recent case of California v. LaRue, 409 U.S. 109, 34 L. Ed. 2d 342, 93 S. Ct. 390 (1972), holds that in the licensing of bars and nightclubs to sell liquor by the drink, the states have broad latitude to control the manner and the circumstances under which liquor may be dispensed. The court further states that, in this context, the conclusion that the sale of liquor by the drink and certain forms of entertainment should not take place simultaneously in licensed establishments is not an unreasonable or unconstitutional act on the part of a state.

An even more pertinent case is Crownover v. Musick, 9 Cal. 3d 405, 509 P.2d 497, 107 Cal. Rptr. 681 (1973), which relates to the validity of several local ordinances enacted under proper authority of the state and which are penal in nature. The ordinances in the California counties and city involved in that case are similar to the ordinance herein, in many respects.

The California Supreme Court held that freedom of speech is not an absolute right, and at page 419 stated that “general regulatory statutes, not intended to control the content of speech but incidentally limiting its unfettered exercise” may be valid. (Italics by the California court.) The ordinances in question were held valid.

Another recent case is Hoffman v. Carson, 250 So. 2d 891 (Fla. 1971) in which the Florida Supreme Court held a statute valid which prohibited exposure of the body or the going naked in certain public places. The basis of that holding was that such exhibitions are conduct and not speech. The court said in part at page 893:

Appellant loses sight of the distinction between speech and conduct. The statute is not directed at First Amendment rights of free expression, nor does it concern itself with obscenity . . . Rather, it is directed at the exposure of sexual organs and nudity, a matter of conduct thought to be a crime under the common law [cases omitted] and generally considered as having a reasonable relationship to the public welfare, and, therefore, within the police power of the Legislature.

That case involved a performance in a cocktail lounge wherein intoxicating liquors were sold.

The neighboring State of Oregon has reached a similar result in Portland v. Derrington, 253 Ore. 289, 292-93, 451 P.2d 111 (1969) wherein it was said:

When nudity is employed as sales promotion in bars and restaurants, nudity is conduct. As conduct, the nudity of employes is as fit a subject for governmental regulation as is the licensing of the liquor dispensaries and the fixing of their closing hours.

The valid power of the state to promulgate liquor regulations has been extended to cities and municipalities to the extent specified by RCW 66.08.120 and RCW 66.28.080.

RCW 66.08.120 provides as follows:

Preemption of field by state — Exception. No municipality or county shall have power to license the sale of, or impose an excise tax upon, liquor as defined in this title, or to license the sale or distribution thereof in any manner; and any power now conferred by law on any municipality or county to license premises which may be licensed under this section, or to impose an excise tax upon liquor, or to license the sale and distribution thereof, as defined in this title, shall be suspended and shall be of no further effect: Provided, That municipalities and counties shall have power to adopt police ordinances and regulations not in conflict with this title or with the regulations made by the board.

(Italics ours.) Prior to the enactment of this statute in 1933, the exception was provided by case law. Seattle v. Hewetson, 95 Wash. 612, 164 P. 234 (1917).

RCW 66.28.080 provides as follows:

Permit for music and dancing upon licensed premises. It shall be unlawful for any person, firm or corporation holding any retailer’s license to permit or allow upon the premises licensed any music, dancing, or entertainment whatsoever, unless and until permission thereto is specifically granted by appropriate license or permit of the proper authorities of the city or town in which such licensed premises are situated, or the board of county commissioners, if the same be situated outside an incorporated city or town: Provided, That the words “music and entertainment,” as herein used, shall not apply to radios or mechanical musical devices.

(Italics ours.) Therefore, the City of Seattle has been authorized by statute to enact the challenged ordinance.

The third issue raised on appeal is whether the ordinance in question violates RCW 49.60.180 and RCW 49.12.200, dealing with employment discrimination based upon sex. The statutes relied on by appellant relate to employment and are not applicable.

From the foregoing, it is concluded that the Seattle ordinance is a valid and enforceable ordinance. Judgment of the superior court is accordingly reversed.

Hale, C.J., and Hunter, Hamilton, and Stafford, JJ., concur.