City of Spokane Valley v. Brian Dirks, et ux.
This text of City of Spokane Valley v. Brian Dirks, et ux. (City of Spokane Valley v. Brian Dirks, et ux.) is published on Counsel Stack Legal Research, covering Court of Appeals of Washington primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinion
FILED OCTOBER 22, 2015 (n the Office of the Clerk of Court W A State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE
CITY OF SPOKANE VALLEY, ) No. 33140-7-111 a Washington non-charter city, ) ) Respondent, ) ) v. ) UNPUBLISHED OPINION ) BRIAN DIRKS and CHRISTINE DIRKS, )
husband and wife; and MARESSA )
DIRKS and JOHN DOE DIRKS, wife and )
husband; and CA-WA CORP, a California )
corporation, d/b/a HOLLYWOOD )
EROTIQUE BOUTIQUE, a/kIa )
HOLLYWOOD EROTIC BOUTIQUE, )
)
Appellants. )
LAWRENCE-BERREY, J. - This case requires us to examine the applicability of
certain licensing and zoning code provisions to Hollywood Erotic Boutique's adult video
viewing rooms, and the constitutionality of those provisions. We hold that the licensing
and zoning code provisions apply to Hollywood Erotic Boutique's viewing rooms, and
that the challenged provisions are constitutional. We, therefore, affirm the trial court's
summary judgment order and order of abatement. No. 33140-7-II1 City ofSpokane v. Hollywood Erotic Boutique
FACTS
CA-WA Corp. operates Hollywood Erotic Boutique (REB), a retail business at
9611 East Sprague Avenue in the City of Spokane Valley. CA-WA leases the premises
from members of the Dirks family, who own the property. REB was formerly operated
by World Wide Video of Washington, Inc. CA-WApurchased REB in 2006.
REB's retail portion of the store sells sexually explicit DVD's and magazines, as
well as adult novelties and lingerie. Since 2002, REB has also operated six enclosed
viewing rooms on the premises where patrons can watch sexually explicit movies for an
entrance fee. Five of the viewing rooms are on the second level of the building situated
along a continuous corridor. Each viewing room is separated from the corridor by a
closed door, is roughly 10 feet by 10 feet, contains multiple plastic chairs for seating
people, and a large screen television for viewing movies in the darkened room. Movies
play continually. Patrons pay $12 to enter the viewing room area, may remain in the
viewing room area for four hours, and are permitted to move from room to room. Patrons
cannot control the movies being shown. The screen in each room is connected by a cable
to a DVD player. The DVD players for each room are located behind the clerk's counter
downstairs and are controlled by a store employee.
In the spring of 2007, a citizen complaint led the City of Spokane Valley to
believe that CA-WA was operating an adult entertainment establishment at REB. The
City investigated in May 2007. Code enforcement officer Chris Berg and members of
No. 33140-7-III City ofSpokane v. Hollywood Erotic Boutique
other city agencies met with the manager ofHEB at the business. The manager granted
city officials permission to inspect the business. Detective James Wakefield inspected
the second floor area. In addition to observing the closed viewing rooms as described
above, he also observed persons in the rooms masturbating.
After the inspection, all agency personnel who were present agreed that an adult
entertainment arcade was being operated on the second floor of REB. We will later
provide Spokane Valley's definition of "adult entertainment arcade." Mr. Berg informed
the manager that REB was licensed for retail sales, and to continue to operate the viewing
rooms, REB needed to obtain an adult entertainment establishment license through the
City. The manager agreed to shut down the viewing rooms until a license could be
obtained. REB did not obtain an adult entertainment establishment license and
eventually reopened the viewing rooms.
More site visits occurred over the next several years. Detective Wakefield
continued to report on the activities at REB. His reports show that viewing rooms
generally contained one, two, or three men engaging in masturbation, although one report
reflects five men and one woman, with all but two men engaged in masturbation. The
City also documented Internet postings for sexual encounters at HEB.
Over the course of the mUlti-year investigation, the City exchanged
correspondence with CA-WA. Director of Operations Darryl Richardson denied that
REB's activities required it to be licensed as an "adult entertainment establishment" as
No. 33140· 7·III City ofSpokane v. Hollywood Erotic Boutique
defined by the Spokane Valley Municipal Code (SVMC). In May 2012, the City filed a
complaint against CA· WA and the Dirks for declaration of a public nuisance, code
violations, and a warrant of abatement. The complaint was aimed only at the viewing
rooms, not at HEB's fITst floor adult retail business.
Historical County and City Adult Entertainment Regulations. HEB began its adult
retail business in 1999 and the viewing rooms in 2002, prior to the City incorporating in
March 2003. We, therefore, examine the pertinent adult entertainment regulations in
effect prior to the City's incorporation.
In 1999, 9611 East Sprague was within unincorporated Spokane County and
subject to the Spokane County Code (SCC). Spokane County prohibited operation of an
adult entertainment establishment without a valid license.
The County also regulated zoning of adult entertainment establishments. Adult
bookstores and adult entertainment establishments were allowed in the B-3 zone under
chapter 14.628 SCC, but not if within 1,000 feet of property zoned UR-22, UR-7, and/or
UIR 3.5. 9611 East Sprague was rezoned to B-3 on January 11, 1999. The parcel was
within 1,000 feet of property zoned UR-22. Nevertheless, HEB established its retail sales
operation on this parcel later in 1999.
The County amended its zoning code in September 1999. The 1999 amendment
separated adult retail establishments from adult bookstores. The resolution also made the
definition of "adult entertainment establishment" the same as the definition found in
No. 33140-7-II1 City o/Spokane v. Hollywood Erotic Boutique
chapter 7.80 SCC in the County licensing code. Section 7.80.040 contains the following
definitions:
"Adult arcade device," sometimes also known as a "panoram," "preview," "picture arcade," "adult arcade," or "peep show," means any device which, for payment of a fee, membership fee, or other charge, is used to exhibit or display a graphic picture, view, film, videotape, or digital display of specified sexual activity, or live adult entertainment in a booth setting. All such devices are denominated under this chapter by the term "adult arcade device." The term "adult arcade device" as used in this chapter does not include other games which employ pictures, views, or video displays, or gambling devices which do not exhibit or display adult entertainment. "Adult arcade establishment" means a commercial premises to which a member of the public is invited or admitted and where adult arcade stations, booths, or devices are used to exhibit or display a graphic picture, view, film, videotape, or digital display of specified sexual activity, or live adult entertainment in a booth setting to a member of the public on a regular basis or as a substantial part of the premises activity. "Adult arcade station" or "booth" means an enclosure where a patron, member, or customer would ordinarily be positioned while using an adult arcade device or viewing a live adult entertainment performance, exhibition, or dance in a booth.
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FILED OCTOBER 22, 2015 (n the Office of the Clerk of Court W A State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE
CITY OF SPOKANE VALLEY, ) No. 33140-7-111 a Washington non-charter city, ) ) Respondent, ) ) v. ) UNPUBLISHED OPINION ) BRIAN DIRKS and CHRISTINE DIRKS, )
husband and wife; and MARESSA )
DIRKS and JOHN DOE DIRKS, wife and )
husband; and CA-WA CORP, a California )
corporation, d/b/a HOLLYWOOD )
EROTIQUE BOUTIQUE, a/kIa )
HOLLYWOOD EROTIC BOUTIQUE, )
)
Appellants. )
LAWRENCE-BERREY, J. - This case requires us to examine the applicability of
certain licensing and zoning code provisions to Hollywood Erotic Boutique's adult video
viewing rooms, and the constitutionality of those provisions. We hold that the licensing
and zoning code provisions apply to Hollywood Erotic Boutique's viewing rooms, and
that the challenged provisions are constitutional. We, therefore, affirm the trial court's
summary judgment order and order of abatement. No. 33140-7-II1 City ofSpokane v. Hollywood Erotic Boutique
FACTS
CA-WA Corp. operates Hollywood Erotic Boutique (REB), a retail business at
9611 East Sprague Avenue in the City of Spokane Valley. CA-WA leases the premises
from members of the Dirks family, who own the property. REB was formerly operated
by World Wide Video of Washington, Inc. CA-WApurchased REB in 2006.
REB's retail portion of the store sells sexually explicit DVD's and magazines, as
well as adult novelties and lingerie. Since 2002, REB has also operated six enclosed
viewing rooms on the premises where patrons can watch sexually explicit movies for an
entrance fee. Five of the viewing rooms are on the second level of the building situated
along a continuous corridor. Each viewing room is separated from the corridor by a
closed door, is roughly 10 feet by 10 feet, contains multiple plastic chairs for seating
people, and a large screen television for viewing movies in the darkened room. Movies
play continually. Patrons pay $12 to enter the viewing room area, may remain in the
viewing room area for four hours, and are permitted to move from room to room. Patrons
cannot control the movies being shown. The screen in each room is connected by a cable
to a DVD player. The DVD players for each room are located behind the clerk's counter
downstairs and are controlled by a store employee.
In the spring of 2007, a citizen complaint led the City of Spokane Valley to
believe that CA-WA was operating an adult entertainment establishment at REB. The
City investigated in May 2007. Code enforcement officer Chris Berg and members of
No. 33140-7-III City ofSpokane v. Hollywood Erotic Boutique
other city agencies met with the manager ofHEB at the business. The manager granted
city officials permission to inspect the business. Detective James Wakefield inspected
the second floor area. In addition to observing the closed viewing rooms as described
above, he also observed persons in the rooms masturbating.
After the inspection, all agency personnel who were present agreed that an adult
entertainment arcade was being operated on the second floor of REB. We will later
provide Spokane Valley's definition of "adult entertainment arcade." Mr. Berg informed
the manager that REB was licensed for retail sales, and to continue to operate the viewing
rooms, REB needed to obtain an adult entertainment establishment license through the
City. The manager agreed to shut down the viewing rooms until a license could be
obtained. REB did not obtain an adult entertainment establishment license and
eventually reopened the viewing rooms.
More site visits occurred over the next several years. Detective Wakefield
continued to report on the activities at REB. His reports show that viewing rooms
generally contained one, two, or three men engaging in masturbation, although one report
reflects five men and one woman, with all but two men engaged in masturbation. The
City also documented Internet postings for sexual encounters at HEB.
Over the course of the mUlti-year investigation, the City exchanged
correspondence with CA-WA. Director of Operations Darryl Richardson denied that
REB's activities required it to be licensed as an "adult entertainment establishment" as
No. 33140· 7·III City ofSpokane v. Hollywood Erotic Boutique
defined by the Spokane Valley Municipal Code (SVMC). In May 2012, the City filed a
complaint against CA· WA and the Dirks for declaration of a public nuisance, code
violations, and a warrant of abatement. The complaint was aimed only at the viewing
rooms, not at HEB's fITst floor adult retail business.
Historical County and City Adult Entertainment Regulations. HEB began its adult
retail business in 1999 and the viewing rooms in 2002, prior to the City incorporating in
March 2003. We, therefore, examine the pertinent adult entertainment regulations in
effect prior to the City's incorporation.
In 1999, 9611 East Sprague was within unincorporated Spokane County and
subject to the Spokane County Code (SCC). Spokane County prohibited operation of an
adult entertainment establishment without a valid license.
The County also regulated zoning of adult entertainment establishments. Adult
bookstores and adult entertainment establishments were allowed in the B-3 zone under
chapter 14.628 SCC, but not if within 1,000 feet of property zoned UR-22, UR-7, and/or
UIR 3.5. 9611 East Sprague was rezoned to B-3 on January 11, 1999. The parcel was
within 1,000 feet of property zoned UR-22. Nevertheless, HEB established its retail sales
operation on this parcel later in 1999.
The County amended its zoning code in September 1999. The 1999 amendment
separated adult retail establishments from adult bookstores. The resolution also made the
definition of "adult entertainment establishment" the same as the definition found in
No. 33140-7-II1 City o/Spokane v. Hollywood Erotic Boutique
chapter 7.80 SCC in the County licensing code. Section 7.80.040 contains the following
definitions:
"Adult arcade device," sometimes also known as a "panoram," "preview," "picture arcade," "adult arcade," or "peep show," means any device which, for payment of a fee, membership fee, or other charge, is used to exhibit or display a graphic picture, view, film, videotape, or digital display of specified sexual activity, or live adult entertainment in a booth setting. All such devices are denominated under this chapter by the term "adult arcade device." The term "adult arcade device" as used in this chapter does not include other games which employ pictures, views, or video displays, or gambling devices which do not exhibit or display adult entertainment. "Adult arcade establishment" means a commercial premises to which a member of the public is invited or admitted and where adult arcade stations, booths, or devices are used to exhibit or display a graphic picture, view, film, videotape, or digital display of specified sexual activity, or live adult entertainment in a booth setting to a member of the public on a regular basis or as a substantial part of the premises activity. "Adult arcade station" or "booth" means an enclosure where a patron, member, or customer would ordinarily be positioned while using an adult arcade device or viewing a live adult entertainment performance, exhibition, or dance in a booth. Adult arcade station or booth refers to the area in which an adult arcade device is located and from which the graphic picture, view, film, videotape, digital display of specified sexual activity, or live adult entertainment is to be viewed. These terms do not mean such an enclosure that is a private office used by an owner, manager, or person employed on the premises for attending to the tasks of his or her employment, if the enclosure is not held out to any member ofthe public for use, for hire, or for a fee for the purpose ofviewing the entertainment provided by the arcade device or live adult entertainment, and not open to any person other than employees. "Adult entertainment establishment" collectively refers to adult arcade establishments and live adult entertainment establishments, as defined herein.
CP at 241 (italics added to "booth" or "booth setting" for future references). These
definitions were in place in 2002, when REB began operating its viewing rooms.
Upon incorporation in March 2003, the City adopted the County zoning
regulations as the City's interim regulations. In 2007, the City adopted chapter 19.80
SVMC to replace the provisions of the adult entertainment zoning ordinance. According
to SVMC 19.80.010, the City's intent in adopting chapter 19.80 SVMC was to "protect
the general public health, safety and welfare of the citizenry of the City of Spokane
Valley through the regulation of operations and licensing of the adult entertainment
devices, premises and personnel of adult entertainment establishments."
SVMC 19.80.020 stated that the licensing requirements of adult uses were contained in
chapter 5.10 SVMC. SVMC 19.80.030(B) prohibits adult uses within 1,000 feet of
public libraries, public playgrounds and parks, public or private schools kindergarten to
twelfth grade, nursery schools, mini-day care centers, day care centers, places of religious
worship, and any other adult use. In addition, SVMC 19.80.030(C) prohibits adult uses
within 1,000 feet of areas zoned Single-Family Residential Estate districts (R-l), Single-
Family Residential Suburban districts (R-2), Single-Family Residential districts (R-3),
Single-Family Residential Urban districts (R-4), Multifamily Medium Density
Residential districts (MF-l), Multifamily High Density Residential districts (MF-2),
Mixed Use Center districts (MUC), Corridor Mixed Use districts (CMU), City Center
districts (CC), or Neighborhood Commercial districts (NC). Because 9611 East Sprague
No. 33140-7-111 City ofSpokane v. Hollywood Erotic Boutique
was zoned CMU, adult entertainment establishments were not allowed where HEB was
located, unless HEB qualified as a lawful nonconfonning use.
In 2010, the City changed its adult entertainment licensing code, repealing the
prior version of chapter 5.10 SVMC and replacing it with new regulations. The City
found the new regulations were necessary to protect the public. The City based this
detennination on studies and police reports demonstrating the adverse impacts generated
by adult entertainment businesses, including public sexual conduct, possible spread of
sexually transmitted disease, prostitution, and other criminal conduct.
Just as in prior versions, the 2010 version ofSVMC 5.10.020 required a license
for operation of an adult entertainment establishment. Additionally, the new ordinance
stated that an adult entertainment license would not be issued for operation of an adult
entertainment establishment in a location that does not meet the zoning requirements set
forth in chapter 19.80 unless otherwise exempt. SVMC 5.10.040(A)(9).
The new licensing ordinance contained definitions that were similar to the prior
defmitions in the code, except that references to "booth" and "booth setting" were
eliminated. The 2010 definitions still listed an adult arcade establishment as a type of
adult entertainment establishment. SVMC 5.10.010. For "adult arcade establishment,"
"adult arcade device," and "adult arcade station" the 2010 SVMC definitions state:
No. 33140-7-III City o/Spokane v. Hollywood Erotic Boutique
"Adult arcade device," sometimes also known as a "panoram," "preview," "picture arcade," "adult arcade," or "peep show," means any device which, for payment of a fee, membership fee or other charge, is used to exhibit or display a graphic picture, view, film, videotape, or digital display of specified sexual activities or sexual conduct. All such devices are denominated under this chapter by the term "adult arcade device." The term "adult arcade device" as used in this chapter does not include other games which employ pictures, views, or video displays, or gambling devices which do not exhibit or display adult entertainment. "Adult arcade establishment" means a commercial premises, or portion of any premises, to which a member ofthe public is invited or admitted and where adult arcade stations or adult arcade devices are used to exhibit or display a graphic picture, view, film, videotape, or digital display of a [sic] specified sexual activities or sexual conduct to a member of the public on a regular basis or as a substantial part o/the premises activity. "Adult arcade station" means any enclosure where a patron, member, or customer would ordinarily be positioned while using an adult arcade device. Adult arcade station refers to the area in which an adult arcade device is located and from which the graphic picture, view, film, videotape, digital display of specified sexual activities or sexual conduct is to be viewed. These terms do not mean such an enclosure that is a private office used by an owner, manager, or person employed on the premises for attending to the tasks ofhis or her employment, if the enclosure is not held out to any member of the public for use, for hire, or for a fee for the purpose of viewing the entertainment provided by the arcade device, and not open to any persons other than employees.
SVMC 5.10.010 (italics added for ease of future reference in analysis of these
provisions). SVMC Appendix A includes substantially similar definitions. Appendix A
directs that undefined terms be construed as defmed in Webster's New Collegiate
Dictionary.l HEB has never possessed a license to operate an adult entertainment
establishment, whether before or after the City incorporated in March 2003.
Proceedings in Trial Court. In 2012, the City filed a motion for summary
judgment for declaration of public nuisance, code violations, and warrant of abatement.
CA-WA responded to the City's motion and also filed its own cross motion for partial
summary judgment. CA-WA asked the court to fmd that HEB was a lawful
nonconforming use under the SVMC. Also, CA-WA argued, and the City agreed, that an
order of abatement would be premature until the constitutionality ofthe ordinances could
be analyzed.
On April 5, 2013, the trial court entered an order declaring HEB's viewing room
activities a public nuisance in violation ofSVMC 5.10.020(A) and SVMC 19.80.030(C).
The court denied CA-WA's cross motion for partial summary judgment.
In a written opinion, the court noted that HEB was in operation prior to City
incorporation, so chapter 7.80 SCC applied to HEB. The court determined that the
viewing rooms qualified as an adult entertainment establishment under the definitions in
SCC 7.80.040 because (l) HEB used a DVD player to display a graphic picture screen to
1 The County code did not contain a similar directive. We note that there is no such dictionary as "Webster's New Collegiate Dictionary," but there are numerous editions of Merriam- Webster's Collegiate Dictionary. We will use the 11th edition, published in 2003, since that was the newest edition at the time of the 2010 ordinance amendments.
six separate theaters of specified sexual activity for the cost of a fee by the invited public,
(2) DVD players are devices as contemplated by the code that were used to exhibit or
display, on a commercial premises, where the public was admitted for a fee and could
watch, and (3) REB ran these viewing rooms during its business hours, equating to a
regular or substantial basis. The trial court also determined that because REB was not
licensed under the County licensing requirements, nor could it be because it was within
1,000 feet ofa disqualifying zone, REB was not a lawful nonconforming use. The trial
court further determined that because REB could not obtain an adult entertainment
license at its present physical location, it did not have standing to challenge the licensing
requirements of chapter 5.10 SVMC.
The remaining issue for the trial court was whether chapter 19.80 SVMC denied
CA-WA a reasonable opportunity to open and operate an adult entertainment business.
After a period of discovery, the City filed a motion for summary judgment on the
constitutionality of the zoning code. One part of the issue was whether alternative
avenues of communication remained available under the challenged zoning regulation.
The City supported its summary judgment motion with a list of parcels lawfully zoned for
adult entertainment uses. The City's expert, Bruce Jolicoeur, determined that there were
54 available relocation parcels, none of which were in an industrial or manufacturing
zone and all of which were commercially zoned. Mr. Jolicoeur then excluded 9 of these
parcels as lacking road frontage, leaving 45 relocation sites.
No. 33140-7-II1 City ofSpokane v. Hollywood Erotic Boutique
The City also presented a declaration from land use planning consultant Reid
Shockey. Mr. Shockey concluded, among other things, that 5.0 percent of Spokane
Valley's acreage was available for adult entertainment establishments.
City planning manager Scott Kuhta stated in his declaration that there were four
adult businesses in the geographic area incorporated into Spokane Valley. All of these
businesses were lawful at the time of incorporation and had valid nonconforming use
rights. A fifth adult retail business closed sometime between 2003 and 2004. Mr. Kuhta
stated that the number of adult businesses has remained steady considering that no new
applications have been filed.
In response, CA-WA presented a declaration and report from land use planners
Lee Michaelis and Robert Thorpe. The report identified 39 properties within Spokane
Valley that could be used as adult businesses. The majority of these properties were
occupied by existing businesses. Five of the properties were occupied by the railroad and
one by the Spokane Transit Authority. Others were occupied with large retailers,
restaurants, or hotels. The report identified 1.2 percent of the City land available for
adult entertainment establishments.
Real Estate broker Rich Crisler also provided a declaration for CA-WA. Mr.
Crisler offered his opinion as to whether the owners of the various sites were likely to
make their land available to adult businesses. Mr. Crisler asserted that four of the
properties were vacant land and the majority of the remainder were occupied by existing
businesses. Additionally, Mr. Crisler contended that 15 of the parcels identified by Mr.
Iolicoeur were occupied by well-established businesses and were unlikely to become
available within the reasonably foreseeable future.
On December 20,2013, the trial court granted the City's motion and issued a
warrant of abatement. The court determined that no genuine issue of material fact existed
as to the adequacy of the alternative avenues of communication for CA-WA to open and
operate an adult entertainment establishment within the City. The court also determined
that the City was entitled to summary judgment as a matter of law on CA-WA's
counterclaims, including the constitutionality of chapter 5.10 SVMC and/or chapter 19.80
SVMC. The trial court concluded that the City was entitled to a warrant of abatement
pursuant to chapter 7.48 RCW for CA-WA's unlawful adult entertainment establishment
at HEB, as defmed by chapter 5.10 SVMC. 2
CA-WA appeals. CA-WA contends that (1) HEB's viewing rooms are a lawful
nonconforming use, (2) HEB's viewing rooms are not subject to the licensing
requirements of chapter 5.10 SVMC because the viewing rooms do not fall within the
defmition of "adult entertainment establishment," (3) HEB has standing to challenge
chapter 5.10 SVMC, and (4) SVMC's adult entertainment licensing and zoning
regulations are unconstitutional.
2 The court's order exempted HEB's adult retail activities.
12 No. 33140-7-III City ofSpokane v. Hollywood Erotic Boutique
ANALYSIS
On appeal, orders of summary judgment are reviewed de novo. Smith v. Safeco
Ins. Co., 150 Wn.2d 478,483, 78 P.3d 1274 (2003) (quoting Jones v. Allstate Ins. Co.,
146 Wn.2d 291,300,45 P.3d 1068 (2002)). This court reviews the material in the same
manner as the trial court and in the light most favorable to the nonmoving party. Morris
v. McNichol, 83 Wn.2d 491,494-95,519 P.2d 7 (1974).
A moving party is entitled to summary judgment if there are no material issues of
fact and judgment should be entered as a matter of law. CR 56(c). A material fact is one
on which the outcome ofthe litigation depends in whole or in part. Morris, 83 Wn.2d at
494. The burden of showing that there is no material issue of fact is on the moving party.
Hash v. Children's Orthopedic Hosp. & Med. Ctr., 110 Wn.2d 912,915, 757 P.2d 507
(1988). "Only after the moving party has met its burden of producing factual evidence
showing that it is entitled to judgment as a matter of law does the burden shift to the
nonmoving party to set forth facts showing that there is a genuine issue of material fact."
Id. Summary judgment should be granted only if reasonable persons can reach but one
conclusion. Id.
1. Whether HEB's viewing rooms are a lawful nonconforming use
CA-WA contends that HEB' s viewing rooms are a lawful nonconforming use and
therefore are not subject to the licensing and zoning requirements of SVMC. CA-WA
maintains that the Spokane County Code in place when HEB began operating its viewing
rooms did not apply to (and therefore did not prohibit) multi-occupancy viewing rooms.
Municipal ordinances are interpreted using the same rules as statutes. Sleasman v.
City ofLacey, 159 Wn.2d 639,643, 151 P.3d 990 (2007). Statutes are to be read in pari
materia, meaning that statutes relating to the same subject matter must be construed
together as constituting a unified whole. Hallauer v. Spectrum Prop. Inc., 143 Wn.2d
126, 146, 18 P.3d 540 (2001). Ifa statute is ambiguous, the courts must construe the
statute as to effectuate its legislative intent, while avoiding a literal reading if it would
result in unlikely, absurd, or strained consequences. Whatcom County v. City of
Bellingham, 128 Wn.2d 537,546,909 P.2d 1303 (1996). Zoning ordinances are in
derogation of common law and must be strictly construed in favor of property owners and
should not be extended by implication to cases not clearly within their scope and purpose.
Morin v. Johnson, 49 Wn.2d 275,279,300 P.2d 569 (1956).
A nonconforming use is defined in the City's code. SVMC 19.20.060(A) provides
in part that any use that does not conform to the present regulations of the zoning district
shall be deemed a nonconforming use if it was in existence and in continuous use and
lawful operation prior to the regulations. A nonconforming use is allowed
to continue indefinitely provided that the use is not discontinued or abandoned.
SVMC 19.20.060(B). But see SVMC 5.10.150 (requiring lawfully operating adult
entertainment establishments to conform to 2010 licensing revisions within 90 days).
No. 33140-7-111 City o/Spokane v. Hollywood Erotic Boutique
When REB began operating its viewing rooms, it was governed by Spokane
eounty's regulations on adult entertainment establishments. One type of adult
entertainment establishment under the see was an adult arcade establishment.
see 7.80.040. The see defined an "adult arcade establishment" as "a commercial
premises to which a member of the public is ... admitted and where adult arcade
stations, booths, or devices are used to exhibit or display a graphic ... videotape, or
digital display of specified sexual activity ... in a booth setting to a member of the public
on a regular basis or as a substantial part of the premises activity." see 7.80.040
(emphasis added).
The see defined "adult arcade station" as "an enclosure where a patron ...
would ordinarily be positioned while using an adult arcade device . .. in a booth."
see 7.80.040 (emphasis added). The defmition explicitly excepted from its coverage a
private office used by an owner, manager, or employee not held out for use by the public.
The see defined an "adult arcade device" as "any device which, for payment of a fee ...
is used to exhibit or display a graphic ... videotape, or digital display of specified sexual
activity ... in a booth setting." see 7.80.040.
eA-WA contends that REB's viewing rooms are not "booths" because the rooms
allow for multiple people. Webster's Third New International Dictionary defines
"booth" as
15 No. 33140-7-II1 City ofSpokane v. Hollywood Erotic Boutique
2a: a temporary structure ... b: a totally or partially enclosed structure often inside a building; esp: a small enclosure designed to hold one person at a time usu. to afford privacy or to separate its occupant from patrons or customers ... 3: an enclosure of varying size and construction designed to isolate an area and to prevent the functions carried on within it from being interfered with by the surrounding area.
WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 254 (1993). Webster's therefore
defines "booth" in a manner that may, but need not, refer to a single-occupancy space.
We therefore must interpret "booth" to effectuate the County's intent. We note
that the County sought to regulate a booth, not a theater. We surmise the County's intent
was to regulate lewd activities which are more likely to occur in a semi-private space
than a semi-public space. The record before us establishes that lewd activities are just as
likely to occur in rooms with two or three persons as rooms with only one person. For
this reason, we determine that "booth" is not limited to a one-person space. Although
CA-WA contends that HEB's viewing rooms allow up to 10 occupants, the record
establishes that the rooms typically had only one, two, or three persons in them, thus
encouraging lewd conduct because of the room's semi-privacy. We, therefore, determine
that HEB's multi-person viewing rooms come within SCC's definition of adult
entertainment establishments.
Because HEB did not have a license from Spokane County to operate such a
business, it is not a lawful nonconforming use. See First Pioneer Trading Co. v. Pierce
County, 146 Wn. App. 606, 617, 191 P.3d 928 (2008). In addition, HEB's operation of
an adult entertainment establishment in a B-3 zone was not lawful because it was located
within 1,000 feet of property zoned UR-22. Because HEB's viewing rooms were not a
lawful operation prior to the existence ofthe SVMC, HEB's viewing rooms are not a
lawful nonconforming use under SVMC 19.20.060(A).
2. Whether HEB's viewing rooms are subject to the licensing requirement ofchapter 5.JOSVMC.
CA-WA puts forth two arguments why chapter 5.10 SVMC should not apply to
HEB's viewing rooms. First, CA-WA contends that chapter 5.10 SVMC should be
construed to apply only to enclosures which accommodate a single patron. In support of
this argument, CA-WA cites SVMC 5.10.080(C)(6), which allows for only one person in
an adult arcade station. SVMC 5.10.080(C)(6) provides:
6. No adult arcade station may be occupied by more than one person at any time. Any chair or other seating surface within an adult arcade station shall not provide a seating surface of greater than 18 inches in either length or width. Only one such chair or other seating surface shall be placed in any adult arcade station.
The definitions for adult arcade establishment, adult arcade station, and adult
arcade device in chapter 5.10 SVMC are substantially similar to the definitions in
SCC 7.80.040. The primary difference is that the SVMC definitions omit references to
"booth" or "booth setting." As stated in the analysis ofSCC 7.80.040, the definitions did
not limit the occupancy in each booth to a single person. The removal of "booth" or
"booth setting" further clarifies that the City intended to regulate lewd conduct beyond
that which might occur in a single-occupant enclosure.
The interpretation of "adult entertainment establishment," which includes adult
arcade establishments, does not change when read in conjunction with the
requirement ofSVMC 5.10.080(C)(6) that adult arcade stations be limited to one person.
SVMC 5.10.080(C)(6) limits the number of occupants permitted in the enclosure,
but does not change the definition of adult entertainment establishment. Instead,
SVMC 5.10.080(C)(6) is merely a requirement that the adult arcade establishment must
meet to obtain and retain its license.
CA-WA's second argument is that the definition of "adult arcade station" refers to
"an area in which an adult arcade device is located," and REB's viewing rooms do not
contain the adult arcade device, i.e., the projector or DVD player. REB's argument is not
well taken. "Adult arcade device" includes a large television screen, one of which is in
each viewing room, because the large television screen is a device used to display graphic
videotapes or films.
Moreover, CA-WA's contention that REB's small, enclosed, multi-occupant
viewing rooms are outside the scope of the regulations leads to an absurd outcome.
Under this interpretation, an operator of adult arcade devices can simply add a second
chair to the small partitioned enclosure and evade regulation. This outcome misses the
City's intent to regulate the lewd conduct that occurs in a small semi-private room where
sexually explicit videos are shown. Thus, chapter 5.10 SVMC encompasses HEB's
multi-occupant viewing rooms.
3. Whether HEB has standing to challenge chapter 5.10 SVMC
CA-WA contends that the trial court erred in determining that HEB lacked
standing to challenge chapter 5.10 SVMC. The trial court determined that because
HEB's operations are not located on a parcel which it could lawfully operate in
accordance with City zoning requirements, that HEB lacked standing to challenge the
constitutionality of chapter 5.10 SVMC. CA-WA argues that special standing rules apply
to constitutional challenges based on claims of vagueness, over breadth, and
impermissible prior restraint, and it can raise these challenges even though it cannot
claim it has been affected by the features which it claims are unconstitutional. In support
of its argument, CA-WA cites Ramm v. City ofSeattle, 66 Wn. App. 15,830 P.2d 395
(1992), O-Day v. King County, 109 Wn.2d 796, 749 P.2d 142 (1988), City ofTacoma v.
Luvene, 118 Wn.2d 826,827 P.2d 1374 (1992), State v. Halstien, 122 Wn.2d 109,857
P.2d 270 (1993), JJR, Inc. v. City ofSeattle, 126 Wn.2d 1, 891 P.2d 720 (1995), and
Clark v. City ofLakewood, 259 F.3d 996g (9th Cir. 2001). The City does not directly
respond to CA-WA's argument. We therefore will assume for purposes of our analysis
that HEB has standing to make facial challenges to the City's licensing ordinance.
4. Whether the City's licensing and zoning ordinances are constitutional
CA-WA asserts various constitutional arguments. As it relates to the City's
licensing ordinance, CA -WA makes federal and state facial challenges pertaining to
vagueness, over breadth, and prior restraint. As it relates to the City's zoning ordinance,
CA-WA argues, under the Renton 3 test, that the zoning ordinance is not narrowly tailored
(or is over broad), and does not allow for a reasonable opportunity to operate an adult
business. In addition, CA-WA argues that the zoning ordinance amounts to a prior
restraint under the Washington Constitution.
The City responds by combining the licensing and zoning challenges together, by
providing an overview of federal and state constitutional free speech decisional law
applicable to sexually oriented businesses, and then addressing the specific issues raised
by CA-WA. Because the City does not argue that CA-WA lacks standing to challenge
the licensing ordinance, we address CA-WA's challenges to the City's licensing
ordinance.
a. The Renton test applied to the City's licensing and zoning ordinances
Filmed materials showing sexually explicit conduct are pure speech for the
purposes of the First Amendment. World Wide Video, Inc. v. City ofTukwila, 117 Wn.2d
382,388,816 P.2d 18 (1991). Federal law provides the basis for protection ofFirst
3 City ofRenton v. Playtime Theatres, Inc., 475 U.S. 41, 106 S. Ct. 925, 89 L. Ed. 2d 29 (1986).
Amendment speech rights, with necessary consideration given to the greater protections
of article I, section 5 of the Washington Constitution when appropriate. Id. at 387. City
ofRenton v. Playtime Theatres, Inc., 475 U.S. 41, 106 S. Ct. 925, 89 L. Ed. 2d 29 (1986)
is the seminal case which sets forth the analytical framework for determining whether a
court must apply strict or intermediate scrutiny to the ordinance.
First, the ordinance cannot be a complete ban on the protected expression. Second, the ordinance must be content-neutral or, if content-based with respect to sexual and pornographic speech, its predominate concern must be the secondary effects of such speech in the community. [And if the first two steps are met], [t]hird, the regulation must pass intermediate scrutiny. It must serve a substantial government interest, be narrowly tailored to serve that interest, and allow for reasonable alternative avenues of communication.
Fantasyland Video, Inc. v. County ofSan Diego, 505 F.3d 996, 1001 (9th Cir. 2007)
(citations omitted).
1. Not a complete ban: The first step is whether the City's adult
entertainment regulations are "a complete ban on the protected expression." Id. Here,
neither the zoning regulations nor the licensing regulations are a complete ban. Adult
entertainment establishments are allowed in the City, albeit with restrictions. CA-W A
does not argue that the restrictions ban adult entertainment establishments altogether.
The City's zoning and licensing regulations on adult entertainment pass the first prong
under Renton.
2. Content neutral: The second step requires that "the ordinance must
be content-neutral or, if content-based with respect to sexual and pornographic speech, its
predominate concern must be the secondary effects of such speech in the community."
Id. Regulations aimed at controlling the secondary effects of adult entertainment
establishments are content neutral. World Wide Video of Washington, Inc. v. City of
Spokane, 368 F.3d 1186, 1191 (9th Cir. 2004). Courts look to the primary motivation
behind the regulation to determine whether the purpose is to remedy the secondary
effects associated with sexually oriented businesses. See id. Regulations that are
designed to combat the undesirable secondary effects of adult entertainment businesses
are analyzed as time, place, and manner regulations. Renton, 475 U.S. at 46.
Here, the record shows that the City's concern for the secondary effects of the
adult entertainment establishments was the primary motivation for enacting both the
licensing and the zoning regulations. The record establishes that for the 2010 licensing
regulations and the 2007 zoning regulations, the City engaged in a careful review of a
variety of materials when considering the secondary effects of adult businesses. The
record also contains letters from citizens and police reports that document the unwanted
secondary effects from adult businesses specifically in the City of Spokane Valley.
These secondary effects include loitering in the area around the businesses, discarding
used and contaminated "toys," using private areas of neighboring businesses to have sex,
No. 33140-7-111 City 0/Spokane v. Hollywood Erotic Boutique
an increase in crime, mUltiple incidents of masturbation within the establishment, and
observations of prostitution.
The City regulations are explicitly intended to combat the secondary effects of
adult entertainment establishment's speech, not to suppress the speech itself. CA-WA
presents no evidence that would call this motivation into doubt. Because the regulations
are intended to combat the secondary effects of adult entertainment establishments, the
regulations are content neutral. Therefore, the City's licensing and zoning regulations of
adult entertainment pass the Renton test.
3. Intermediate scrutiny: The final step requires the regulation to pass
intermediate scrutiny. "An ordinance aimed at combating the secondary effects of a
particular type of speech survives intermediate scrutiny' if it is designed to serve a
substantial government interest, is narrowly tailored to serve that interest, and does not
unreasonably limit alternative avenues of communication.' " World Wide Video, 368
F.3d 1192 (quoting Ctr./or Fair Pub. Policy v. Maricopa County, 336 F.3d 1153, 1166
(9th Cir. 2003)).
A. Substantial government interest. A local government has a
substantial interest in attempting to preserve the quality of urban life. Renton, 475 U.S. at
50. Specifically, a city has a substantial interest in curbing the secondary effects
associated with adult entertainment establishments. Maripoca County, 336 F.3d at 1166.
For instance, reducing unlawful public sexual activity is a proper concern associated with
the regulation of sexually oriented businesses. Id. Additionally, courts have found a
substantial interest unrelated to expression in the presence of "[r]amp ant masturbation at
a commercial property open to the public" because this "may rationally trigger sanitation
concerns and impair the right of other patrons to view their materials or read the
accompanying articles in peace." Fantasyland Video, 505 F.3d at 1003. The
'" elimination of pornographic litter, by itself, represents a substantial governmental
interest, especially as concerns the protection ofminors.'" World Wide Video, 368 F.3d
at 1195 (quoting World Wide Video of Wash., Inc. v. City ofSpokane, 227 F. Supp. 2d
1143,1157-58 (E.D. Wash. 2002), affd, 368 F.3d 1186.
A city is not required to conduct its own study in order to justify a regulation
designed to combat the secondary effects of an adult business. World Wide Video, 368
F.3d at 1193. A city can rely on evidence produced by other cities if the evidence is
relevant to the problem that the city intends to address. Id. at 1192. However,
"The municipality's evidence must fairly support the municipality's rationale for its ordinance. If plaintiffs fail to cast direct doubt on this rationale, either by demonstrating that the municipality's evidence does not support its rationale or by furnishing evidence that disputes the municipality's factual findings, the municipality meets the standard set forth in Renton. Ifplaintiffs succeed in casting doubt on a municipality's rationale in either manner, the burden shifts back to the municipality to supplement the record with evidence renewing support for a theory that justifies its ordinance."
Id. at 1193 (quoting City ofLos Angeles v. Alameda Books, Inc., 535 U.S. 425, 438-39,
122 S. Ct. 1728, 152 L. Ed. 2d 670 (2002» (plurality opinion).
Here, the City had a substantial interest in controlling the secondary effects of the
adult entertainment establishments, including public sexual activity. The City produced
evidence that justified the need for such regulation. As previously discussed, the record
contains indications ofpornographic litter, sexual conduct in public places, and increased
criminal behavior. Neighboring business owners have observed sexual conduct in
vehicles parked adjacent to REB and used condoms have been found in the parking lots
around REB. CA-WA has not presented evidence to cast doubt on the City's rationale
for the regulations.
Additionally, the methods chosen by the City are designed to serve the
government interest. Requiring adult businesses to be located in a zone away from places
where children gather, such as parks, schools, and churches, serves the purpose of
protecting the City from public sexual activity and works to preserve the quality of urban
life. The secondary effects that occur both inside and outside of REB are a substantial
government interest for the City to regulate.
B. Narrowly tailored. The second prong of intermediate
scrutiny asks whether the regulation is "narrowly tailored" to serve the purported
government interest. Fantasyland Video, 505 F.3d at 1001. This test requires
demonstrating that the '" regulation promotes a substantial government interest that
would be achieved less effectively absent the regulation' and 'the means chosen are not
substantially broader than necessary.'" Id. at 1004 (internal quotation marks omitted)
(quoting Wardv. Rock Against Racism, 491 U.S. 781, 799-800, 109 S. Ct. 2746, 105 L.
Ed. 2d 661 (1989)).
"A zoning measure can be consistent with the First Amendment if it is likely to
cause a significant decrease in secondary effects and a trivial decrease in the quantity of
speech." Alameda Books, 535 U.S. at 445 (Kennedy, J., concurring). "The incidental
restriction on expression which results from the City's attempt to accomplish such a
purpose is considered justified as a reasonable regulation of the time, place, or manner of
expression if it is narrowly tailored to serve that interest." Members ofCity Council of
the City ofLos Angeles v. Taxpayers for Vincent, 466 U.S. 789, 808, 104 S. Ct. 2118, 80
L. Ed. 2d 772 (1984)).
The necessity for legislation need not be proved absolutely. Adult Entm 't Ctr.,
Inc. v. Pierce County, 57 Wn. App. 435, 439, 788 P.2d 1102 (1990). Governments are
given broad latitude in experimenting with possible solutions to problems of vital
concern. Id. Ordinances are not invalid'" simply because there is some imaginable
alternative that might be less burdensome on speech.' " Ward, 491 U.S. at 797 (quoting
United States v. Albertini, 472 U.S. 675, 689, 105 S. Ct. 2897, 86 L. Ed. 2d 536 (1985)).
The City's zoning regulations for adult entertainment uses are narrowly tailored to
serve the government interest. The regulation promotes a substantial government interest
that would be achieved less effectively absent the regulation. Without zoning restrictions
on where an adult entertainment establishment can be located, the government interest in
reducing the secondary effects of these adult businesses would not be met. By limiting
these businesses to areas away from areas where the public congregates, the City can
limit the secondary effects of unsanitary situations and pornographic litter, especially as it
concerns the protection of minors. The zoning regulations preserve the quality of urban
life.
In addition, the City's licensing regulations are narrowly tailored to serve the
government interest. The regulations prohibit more than one person in any arcade station
or enclosure, and generally set forth limitations where a store manager can assure that
patrons do not engage in lewd acts while viewing sexually explicit videos.
CA-WA does not contend that the zoning or licensing regulations will not have
this desired effect. Instead, CA-W A argues that the zoning regulations are not narrowly
tailored because the regulations encompass other businesses that do not produce adverse
secondary effects targeted by the City. For instance, CA-WA contends that the defmition
for adult arcade establishment applies to ordinary movie theaters where sexually explicit
activities or conduct are not the predominant theme ofthe movie, and to hotels and
motels that provide sexually oriented movies to guests on closed circuit televisions.
Thus, CA-WA maintains that the means chosen are substantially broader than necessary.
CA-WA's argument mixes questions of over breadth with narrowly tailored. The
difference between over breadth and narrowly tailored is whether the regulation is
challenged as it applies or on its face. See Taxpayers/or Vincent, 466 U.S. at 808-10.
"Narrowly tailored" is part of a constitutional challenge that looks at the regulation as
applied to the person subject to the ordinance. See id. at 803-09. The question is whether
the restriction on the person's expressive activity is substantially broader than necessary
to protect the City's interest in eliminating the secondary effect. Id. at 808.
Over breadth is a facial challenge that looks at whether a regulation is written so
broadly that it may inhibit the constitutionally protected speech of third parties. Id. at
800-01. The doctrine considers that some regulations may have such a deterrent effect on
free expression that they should be subject to challenge even by a party whose own
conduct may be unprotected. Id. '" Thus, a person whose activity could validly be
suppressed under a more narrowly drawn law is allowed to challenge an overbroad law
because of its application to others.'" Id. at 800 n.19 (quoting John Calvin Jeffries, Jr.,
Rethinking Prior Restraint, 92 YALELJ. 409, 425 (1983)). Thus, over breadth usually
involves standing issues, as "there must be a realistic danger that the statute itself will
significantly compromise recognized First Amendment protections of parties not before
the Court for it to be facially challenged on over breadth grounds." Id. at 801.
Here, CA-WA does not argue that any portion of the licensing or zoning
regulation is not narrowly tailored to its own activities. Rather, CA-WA presents a facial
challenge, arguing that parties not before this court-ordinary movie theaters, hotels, and
motels-are regulated by the ordinance, and that the ordinance is overly broad because
there is no evidence that such entities contribute to the secondary effects which the
ordinances seek to reduce.
Even if a facially over broad challenge was pertinent to the Renton test, and we do
not believe it is, the challenge would fail. We do not construe ordinary movie theaters,
hotels, and motels as being within the definition of "adult entertainment establishment."
As mentioned previously, "adult entertainment establishment" includes an "adult arcade
establishment." For a business to be an "adult arcade establishment," it must operate an
adult arcade station or adult arcade device which is used to display "specified sexual
activities" or "sexual conduct" on a "regular basis" or as a "substantial part ofthe
premises activity." SVMC Appendix A; SVMC 5.10.010 (emphasis added). "Specified
sexual activities" is defmed as (1) human genitals in a state of sexual stimulation or
arousal; (2) acts of human masturbation, sexual intercourse, sodomy, oral copulation, or
bestiality; or (3) foundling or other erotic touching of human genitals, pubic region,
buttocks or female breasts. SVMC 5.10.010. "Sexual conduce is defined as (1) sexual
intercourse within its ordinary meaning, occurring upon any penetrations, however slight;
or (2) a penetration of the vagina or anus, however slight, by an object; or (3) a contact
between persons involving the sex organs of one person and the mouth or anus of
another; or (4) masturbation, manual or instrumental, of oneself or of one person by
another; or (5) touching ofthe sex organs, anus, or female breasts, whether clothed or
unclothed, of oneself or of one person by another. SVMC 5.10.010.
29 No. 33140-7-111 City ofSpokane v. Hollywood Erotic Boutique
The above interplay of defmitions convinces us that an ordinary movie theater is
not an adult entertainment establishment. The record is devoid of any evidence
suggesting that ordinary movie theaters regularly feature films with that type of sexual
activity or sexual conduct described within the definition. Nor does this description
apply to hotels or motels. The record is similarly devoid of any evidence that televisions
within hotel or motel rooms which permit closed-circuit viewing of pornography are
actually used for such purposes on a regular basis. 4 Mere allegations are insufficient to
create a genuine issue of material fact.
C. Alternative avenues ofcommunication. The final prong of
intermediate scrutiny inquires whether alternative avenues of communication remain
available under the challenged regulation. Fantasyland Video, 505 F.3d at 1001. This
prong analyzes whether local zoning restrictions that affect sexually oriented businesses
nevertheless allow such businesses "a reasonable opportunity to open and operate."
Renton, 475 U.S. at 54.
A city has the initial burden ofproducing a list of potential relocation sites that
reflects the relevant zoning restrictions. Tollis, Inc. v. County ofSan Diego, 505 F.3d
935,941 (9th Cir. 2007). The burden then shifts to the affected party to demonstrate that
the city's list included unavailable sites or was compiled in the absence of reasonableness
4 "Regular" in this context, means "recurring ... at fixed, uniform, or normal intervals." MERRIAM-WEBSTER'S COLLEGIATE DICTIONARY 1048 (lIth ed. 2003).
and good faith. Id. After a list of potential sites is determined, the issue becomes
assessing whether the market contains a sufficient number of potential relocation sites for
the adult business. Id. at 942. The initial calculation of available relocation sites is a
factual issue and the sufficiency of the sites for allowing adult expression is a question of
law. David Vincent, Inc. v. Broward County, 200 F.3d 1325, 1333-35 (lIth Cir. 2000).
For a site to be a considered a sufficient location, "it 'must be considered part of
an actual business real estate market for commercial enterprises generally.'" Tollis, 505
F.3d at 941 (quoting Lim v. City ofLong Beach, 217 F.3d 1050, 1054 (9th Cir. 2000)).
"If in an industrial or manufacturing zone, the site must be 'reasonably accessible to the
general public,' 'have a proper infra-structure,' and be suitable for 'some generic
commercial enterprise.'" Id. (quoting Topanga Press, Inc. v. City ofLos Angeles, 989
F.2d 1524, 1531 (9th Cir. 1993)). "Finally, the list must account for other relevant
zoning restrictions, such as separation requirements, that might affect a site's
availability." Id. "[T]he economic feasibility of relocating to a site is not a First
Amendment concern." David Vincent, 200 F.3d at 1334.
A city is not required to make a certain number of sites available for relocation.
Diamond v. City ofTaft, 215 F.3d 1052, 1056 (9th Cir. 2000). To determine if there are a
sufficient number of available sites, courts usually look at either the percentage of land
within the city available to businesses, or the number of sites compared with the number
of adult businesses currently in existence or seeking to open. Id. at 1056-57.
No. 33l40-7-III City ofSpokane v. Hollywood Erotic Boutique
CA-WA contends that summary judgment was not appropriate on the alternative
avenues of communication prong because a genuine issue of material fact exists as to
whether the City presented a reasonable number ofpotential relocation sites for HEB.
CA-WA maintains that nearly one-half of the sites identified by the City were not likely
to become available for generic business use in the near future because the property was
in a rail yard or taken by a well-established business. Five of the properties were
occupied by the railroad and one by the Spokane Transit Authority. Additionally, CA
WA contends that nearly all ofthe sites the City listed as available were occupied.
The trial court did not err in granting summary judgment. The City presented 54
sites that it found to be available for relocation after making the appropriate deductions
for industriaVmanufacturing zones and lack of access. In comparison, CA-WA's number
of available sites was not much different. CA-WA's experts found 39 properties that met
zoning and set back requirements. Thus, for purposes of summary judgment, the parties
agreed that at least 39 potential relocation sites existed.
CA-WA's argument that the majority ofthe parcels were occupied does not
necessarily make the parcels unavailable. Parcels only have to be potentially available,
not actually available. McKibben v. Snohomish County, 72 F. Supp. 3d 1190, 1205,
(W.D. Wash. 2014). "[T]he mere fact that a site is currently occupied or not currently for
sale or lease does not render it unavailable." Id. However, evidence of a long term lease
may exclude a potential site from the available market if the plaintiff provides evidence
regarding the length of the lease. [d. To designate an occupied business as unavailable,
the affected party must offer "sufficient evidence to show that these sites would not
reasonably become available to any commercial enterprise." Diamond, 215 F.3d at 1056.
CA-WA's declaration from Mr. Crisler was not sufficient to establish that the
property would be unavailable to any commercial enterprise. Mr. Crisler detennined site
availability by obtaining the property profiles from a METROSCAN, talking to the
property owner, and visiting the property. Based on the infonnation he gathered, Mr.
Crisler rendered his opinion as to which ofthe sites was subject to a long-tenn lease and
which was unlikely to become available for lease or sale in the reasonable foreseeable
future. However, Mr. Crisler's opinion is insufficient to establish that these properties
are not part of the relevant commercial market. He did not present the length ofleases or
indicate how far into the future the owner's intentions not to sell extended. Current
occupancy alone is not grounds for unavailability. The 39 sites identified by CA-WA
and the City are part of the relevant market for commercial enterprises. The 39 available
sites allowed CA-WA a sufficient opportunity to relocate. We conclude that the City's
licensing and zoning ordinances satisfy First Amendment concerns under the Renton
analysis.
b. Whether the City's ordinances are a prior restraint
1. Examination oflicensing ordinances SVMC 5.10. 080 (C) (6) and SVMC 5. 10. 080(D) (3)
CA-WA contends that two of the City's licensing ordinances constitute a prior
restraint because one or both effectively puts adult theaters and its viewing rooms out of
business. SVMC 5.10.080(C)(6) requires adult arcade stations to be limited to one
occupant, and SVMC 5.10.080(D)(3) requires all adult arcade stations to be "open to the
public room so that the area inside is fully and completely visible to the manager." The
City responds that adult theaters are not within the scope of chapter 5.10 SVMC because
~~enclosure," within the defmition of "adult arcade station," should be construed broader
than single occupancy, but narrower than a semi-public area.
We reject the City's argument. A business is regulated under chapter 5.10 SVMC
ifit is an adult entertainment establishment, and a business qualifies as an "adult
entertainment establishment" if it operates an "adult arcade establishment." An adult
arcade establishment, in turn, is defined to include businesses which use either an adult
arcade station or an adult arcade device. Because the definition of "adult arcade device"
does not have an enclosure limitation, and because an adult theater uses a large movie
screen to display films of sexual activities or sexual conduct on a regular basis or as a
substantial part of its activity, an adult theater uses an adult arcade device, and therefore
is an adult arcade establishment and within the scope of chapter 5.10 SVMC.
We agree with CA-WA that SVMC 5.10.080(C)(6)'s limitation of one person per
theater prevents adult theaters from operating in Spokane Valley.5 But we disagree that
SVMC 5.10.080(D)(3) prevents viewing rooms from operating in Spokane Valley.
Rather, viewing rooms may operate provided that various reasonable safeguards are in
place to prevent lewd conduct from occurring within the viewing area.
The fact that semi-private viewing of erotic materials must occur in individual
viewing areas rather than in a theater setting does not render the licensing ordinance
unconstitutional. The determinative question is not whether the regulation prohibits an
adult theater. Rather, the determinative question is whether forbidding adult theaters
unconstitutionally interferes with the communication of the erotic message. Stated
another way, one does not have a constitutional right to view graphic films; rather, the
actors and the businesses which make and produce graphic films have a constitutional
right to communicate their erotic messages.
There is no evidence in the record that prohibiting adult theaters would interfere
with actors and businesses making and producing graphic films. Modem technology has
replaced adult theaters first with VHS, and now with DVD's, allowing actors and the
businesses which make and produce graphic films to market their protected messages in
5The City asserts that it never intended that chapter 5.10 SVMC apply to adult theaters. Nevertheless, until the definition of adult arcade establishment is narrowed, the specter ofthis application exists and warrants further discussion by this court.
35 No. 33140-7-III City o/Spokane v. Hollywood Erotic Boutique
ways not possible 25 years ago. During oral argument, counsel for CA-W A was
questioned why adult theaters and viewing rooms continue to exist, given the widespread
availability of graphic videos which can be viewed free over one's computer or
smartphone. Counsel responded that perhaps some people do not want to view graphic
content in the vicinity of family members. Under our construction of the City's licensing
ordinance, people still can view graphic content in a semi-private setting, away from
family members, but they may do so only under conditions which minimize lewd
conduct.
2. Examination ofthe zoning ordinance under Washington constitutional standards applicable to prior restraints
CA-WA contends that the time, place, and manner restrictions in chapter 19.80
SVMC amount to prior restraint through zoning. CA-WA argues that SVMC's zoning
regulations effectively ban all adult entertainment establishments in instances where the
approved zones have no properties readily available for lease or purchase. According to
CA-WA, this total ban is so restrictive that it is a prior restraint under the enhanced
protection of the Washington Constitution.
The text and history of article I, section 5 of the Washington Constitution dictate
enhanced protection under the Washington Constitution in the context of adult
entertainment regulations that impose prior restraints. Ino Ino, Inc. v. City 0/ Bellevue,
132 Wn.2d 103, 116-17,937 P.2d 154 (1997). The strict standard under the Washington
Constitution is that prior restraint of constitutionally protected expression is per se
unconstitutionaL 0 'Day, 109 Wn.2d at 803-04.
Prior restraints are defined as '" official restrictions imposed upon speech or other
forms of expression in advance of actual publication.'" City ofSeattle v. Bittner, 81
Wn.2d 747, 756, 505 P.2d 126 (1973) (quoting Thomas I. Emerson, 20 Law and
Contemporary Problems 648 (1955)). Before applying the highly protective rules against
prior restraint, courts must first determine whether the challenged rule affects expression.
"Regulations that sweep too broadly chill protected speech prior to publication and this
may rise to the level of a prior restraint." 0 'Day, 109 Wn.2d at 804.
However, time, place, and manner restrictions on adult entertainment are not prior
restraints and do not merit the more rigorous analysis afforded under the Washington
Constitution for pure speech in a traditional public forum. Ino Ino, 132 Wn.2d at 121.
The exact causal relationship between a regulation and a targeted adverse secondary
effect does not need to be proved under a prior restraint analysis. Id. at 127. It is enough
that a regulation is related to an overall problem a city seeks to correct. Id.
The requirement that CA-WA relocate HEB is not a prior restraint. The zoning
regulations here are content neutral and valid time, place, and manner restrictions. The
City has a legitimate concern about the secondary effects of adult entertainment
businesses. The regulations are narrowly tailored while still allowing speech in the
approved zones. Also, we decline to find that the zoning regulation operates as a prior
restraint simply because CA-W A's expert opined that there were no available sites for
immediate relocation. First, immediate availability is not required under the federal
constitution or the state constitution. More importantly, CA-WA has not established that
the property is not reasonably available. Instead, 39 properties have been identified as
potential relocation sites. The zoning regulations in chapter 19.80 SVMC do act as a
prior restraint on CA-WA's speech.
c. Whether the licensing ordinance is over broad under the Washington Constitution
CA-WA cites Renton, 475 U.S. at 46-47, to advance its argument that a regulation
is overbroad if it targets businesses which have not been shown to produce adverse
secondary effects. Specifically, CA-WA argues that the licensing ordinance
impermissibly targets theaters that show sexually oriented movies on a part-time basis,
theaters showing movies wherein the sexual conduct or specified sexual activities are not
the predominant theme of the movie, and hotels and motels that provide sexually oriented
movies to guests on closed circuit television.
"An overly broad statute that sweeps within its proscriptions protected expression
is unconstitutional under both the Washington and United States Constitutions." o 'Day, 109 Wn.2d at 803. "[W]here a statute regulates expressive conduct, the scope of the
statute does not render it unconstitutional unless its overbreadth is not only real, but
substantial as well, judged in relation to the statute's plainly legitimate sweep." World
Wide Video, 368 F.3d at 1198 (quoting Osborne v. Ohio, 495 U.S. 103, 112, 110 S. Ct.
1691, 109 L. Ed. 2d 98 (1990)).
We previously rejected CA-WA's over breadth challenge under the First
Amendment, concluding that the licensing ordinance did not apply to ordinary theaters or
hotels and motels showing adult movies over closed circuit televisions. Although the
licensing ordinance applies to adult theaters, CA-W A concedes that the City's legislative
record includes secondary effects attributable to adult theaters. Therefore, because the
licensing ordinance does not seek to regulate activities that have not been shown to have
adverse secondary effects, the licensing ordinance is not overbroad.
d. Whether the definition ofadult arcade establishment in chapter 5.10 SVMC is unconstitutionally vague
CA-WA contends that the definition for adult arcade establishment is void for
vagueness in violation of the due process clause. CA-WA maintains that definition is
unclear as to what constitutes showing movies on a "regular basis" or as a "substantial"
part of the premises activity, and that the section fails to specify what percentage of
sexual content in a particular movie would trigger applicability of the code.
For a regulation to be void for vagueness under the due process clause of the
Fourteenth Amendment, the regulation must be so unclear that a person of common
intelligence must necessarily guess as to its meaning and differ as to its application. City
ofSpokane v. Douglass, 115 Wn.2d 171, 179, 795 P.2d 693 (1990) (quoting Burien Bark
No. 33140-7-111 City ofSpoko.ne v. Hollywood Erotic Boutique
Supply v. King County, 106 Wn.2d 868, 871, 725 P.2d 994 (1986)). The test does not
demand impossible standards of specificity; and if persons of ordinary intelligence can
understand what the ordinance proscribes, notwithstanding possible areas of
disagreement, the ordinance is sufficiently defmite. Id.
The language used in the enactment is afforded a sensible, meaningful, and
practical interpretation. Id. at 180; see State v. Dixon, 78 Wn.2d 796, 805, 479 P.2d 931
(1971). "Vagueness doctrine cannot be understood in a manner that prohibits
governments from addressing problems that are difficult to defme in objective terms."
Gammoh v. City ofLa Habra, 395 F.3d 1114, 1121 (9th Cir. 2005). In determining
whether a challenged ordinance is sufficiently definite, the language of the ordinance is
not examined in a vacuum. Rather, the context of the entire enactment is considered.
City ofSeattle v. Huff, 111 Wn.2d 923, 929, 767 P.2d 572 (1989). "[O]therwise
imprecise terms may avoid vagueness problems when used in combination with terms
that provide sufficient clarity." Gammoh, 395 F.3d at 1120.
In Gammoh, the court held that subjective terms in a definition for cabaret dancer
did not void the entire regulation in which the definition applied. Id. The court examined
whether the subjective terms when used in combination with other terms gives notice of
what is being regulated and whether the prohibited conduct is defined objectively. Id.
Using these methods, the court determined that the defmition of "adult cabaret dancer"
was not vague even though it contained subjective terms such as "sexually oriented
dancer," "exotic dancer," "regular basis," and "focuses or emphasizes." Id. The Court
found that a combination of features defined an adult cabaret dancer and the defmition as
a whole gave performers ample guidance on who is and who is not subject to the
regulation. Id. The court also found despite the sUbjective terms, the targeted conduct
prohibiting cabaret dancers from performing two feet from a patron was objectively
defmed.ld.
The challenged definitions are not unconstitutionally vague. An adult arcade
establishment is defined by a combination of objective, defined, and subjective terms.
Below, we italicize the terms which are further defined in the City's definition of "adult
arcade station" to show the particularity that the City used to assist businesses in knowing
whether their activities were regulated. According to the defmition, an "adult arcade
establishment" is (1) a commercial premises (2) where a member of the public is
admitted (3) where adult arcade station or adult arcade devices are used to (4) exhibit or
display a graphic picture, view, film, videotape, or digital display of(5) a specified sexual
activity or sexual conduct to a member of the public, (5) on a regular basis or as a
substantial part of the premises activity. SVMC 5.10.010. When considered together, the
objective, defined, and subjective terms give sufficient notice of what constitutes an adult
arcade establishment. A person of ordinary intelligence can tell that a business that is
open to the public and regularly shows digital displays of explicit sexual activity is
subject to the licensing regulations. Precise specificity is not required.
41 No. 33140-7-111 City ofSpokane v. Hollywood Erotic Boutique
The inclusion of the subjective terms, "regular basis" and "substantial," does not
make the entire adult arcade establishment definition void for vagueness. Prior cases
have upheld the use ofthe terms "significant or substantial" in this context. World Wide
Video, 368 F.3d at 1198. Further, although Appendix A of the SVMC does not defme
"regular" or "substantial," the appendix directs courts to interpret undefined words using
Webster's New Collegiate Dictionary. Merriam-Webster's Collegiate Dictionary defines
"regular" to mean "recurring ... at fixed, uniform, or normal intervals," and defines
"substantial" to mean "being largely but not wholly that which is specified." MERRIAM
WEBSTER'S COLLEGIATE DICTIONARY 1048, 1245 (lith ed. 2003). The combination of
subjective with objective and defmed terms gives a sufficiently clear picture of an adult
arcade establishment and the business activity that is the subject of the licensing
requirement.
CONCLUSION
In summary, we conclude that REB's viewing rooms are not a lawful
nonconforming use, that the City's licensing and zoning regulations apply to REB, and
that those regulations are not unconstitutional.
Affirm.
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to
RCW 2.06.040.
Lawrence-Berrey, 1.
WE CONCUR:
Fearing, J. \l \
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