World Wide Video, Inc. v. City of Tukwila

816 P.2d 18, 117 Wash. 2d 382, 1991 Wash. LEXIS 365

• Court: Washington Supreme Court
• Decided: September 19, 1991
• Docket: 56619-4
• Status: Published

Opinions

Dolliver, J.

An adult bookstore sued the City of Tukwila, alleging the City's new adult entertainment zoning ordinance unduly restricted free speech. At trial, the zoning ordinance was declared unconstitutional, while the City's peep show licensing ordinance was upheld against the same challenge. Both parties appealed and direct review was granted. We affirm the trial court on both issues.

I

Since late 1987, World Wide Video, Inc. (WWV) has operated an adult entertainment establishment in the City of Tukwila (Tukwila). In addition to selling and renting sexually explicit magazines, novelties, and videotapes, WWV has eight panoram, or peep show, booths on the premises. WWV is located in a commercial zone and directly abuts a residential zone.

A few months after WWV began operations in Tukwila, the City began a review of its existing adult entertainment legislation. Various materials were considered in the course of the review, including but not limited to Tukwila's existing adult motion picture ordinance, adult use studies prepared by the Cities of Des Moines and Kent, materials prepared by an antipomography group, certain applicable United States Supreme Court and Washington Supreme Court cases, and information provided by an assistant police chief of the City of Renton. The results of the review led to the consideration and adoption, in June 1988, of Tukwila Ordinance 1465 (amending Tukwila Municipal Code (TMC) 18.06.825).

Ordinance 1465 regulates adult motion picture theaters, adult bookstores, adult video stores, adult retail stores, and other adult uses. Such adult uses are permitted in Tukwila only within the M-2 heavy industrial zone. Within the M-2 zone, adult entertainment establishments must meet various dispersion requirements. The trial court found similar combination concentration/dispersion zoning plans have been utilized in other communities in Washington.

Tukwila Ordinance 1475 (TMC 5.52), passed later in 1988, regulates panorams, or peep shows. It includes provisions requiring an applicant to acquire a panoram premises license ($100 annual license fee), panoram device licenses for each peep show on the premises ($50 annual license fee), and a panoram operator's license for each operator ($725 annual license fee). Applicants for such licenses must provide certain information, including "[t]he name, address and telephone number of each person holding an ownership, leasehold or [some sections include the word "other"] interest in the panoram [premises or device]". See TMC 5.52.060(b)(1)(B), (2)(B), (3)(B). The city clerk is required to issue the licenses, or the reasons for nonissuance, within 30 days after the date of filing any application. The 30-day period is intended to provide time for various necessary investigations by the police department, health department, etc.

In addition to the foregoing, ordinance 1475 includes various requirements regarding the configuration of peep show booths: Doors must be cut at least 42 inches from the floor; there may be no openings in the partitions between booths except close to the floor and the ceiling; the booths must not be locked; lighting must be equal throughout the premises; and booths must not have any seating surface if they have a door or curtain. WWV does not comply with any of these requirements.

Tukwila does not deny the speech engaged in by WWV is protected under the first amendment to the United States Constitution and under article 1, section 5 of the Washington Constitution. Both the zoning ordinance and the panoram ordinance thus affect protected speech. WWV brought suit in superior court challenging the constitutionality of the new adult entertainment zoning ordinance, and seeking injunctive and declaratory relief. WWV alleged free speech, due process and equal protection violations under the United States Constitution and article 1, section 5 of the Washington Constitution. Tukwila answered and counterclaimed, seeking injunctive relief based on WWV's noncompliance with Tukwila's panoram licensing ordinance. WWV answered the counterclaim by alleging that the panoram ordinance was also constitutionally defective. The hearing on the motions was consolidated with trial on the merits, and the case was tried to the court. The trial court found in favor of WWV on the constitutionality of the zoning ordinance and in favor of Tukwila on the panoram licensing ordinance. Both parties appealed.

II

Each party assigns error to several of the trial court's findings of fact.

In Washington, findings of fact supported by substantial evidence will not be disturbed on appeal. Substantial evidence exists if the record contains evidence of sufficient quantity to persuade a fair-minded, rational person of the truth of the declared premise.

(Citations omitted.) Bering v. Share, 106 Wn.2d 212, 220, 721 P.2d 918 (1986), cert. dismissed, 479 U.S. 1050 (1987). We believe the trial court did an excellent job of making specific, well-supported findings of fact. The only finding of fact we find not to be supported by substantial evidence is finding of fact 45:

The City Police Department would require approximately two full days to investigate each . . . additional operator's license.

Because most of the information required in connection with the operator's license is based on the business rather than on the individual operator, investigations of additional operator's licenses would likely take far less than 2 days each. We agree with plaintiff there is neither testimony nor reasonable inference from the testimony to support finding of fact 45. Our rejection of this finding of fact, however, has no impact on the outcome of the case.

Ill

Although article 1, section 5 provides greater protection for speech rights than does the United States Constitution, O'Day v. King Cy., 109 Wn.2d 796, 802, 749 P.2d 142 (1988), federal law operates as a floor for speech protection, above which article 1, section 5 operates only when appropriate. When we believe a statute to be clearly in violation of the United States Constitution, as we do here with regard to ordinance 1465, the zoning statute, it is unnecessary to enunciate a state rule and we do not do so. We look, therefore, to federal law to determine the minimum limits of protection in this area, while emphasizing that our application of the federal standard does not constitute its adoption as the Washington standard.

In 1986, the United States Supreme Court ruled on a Renton ordinance that regulated the location of adult motion picture theaters. Renton v. Playtime Theatres, Inc., 475 U.S. 41, 89 L. Ed. 2d 29, 106 S. Ct. 925 (1986). Renton's status as the leading federal case regarding zoning of adult businesses was not altered by the recent Supreme Court decision in Barnes v. Glen Theatre, Inc., _ U.S. _, 115 L. Ed. 2d 504, 111 S. Ct. 2456 (1991) upholding a statute prohibiting public nudity against an attack by entities wishing to provide live nude dancing. The Barnes plurality stated that nude dancing is expressive conduct or "symbolic speech" which, under United States v. O'Brien, 391 U.S. 367, 20 L. Ed. 2d 672, 88 S. Ct. 1673 (1968), is not entitled to full First Amendment protection. See Barnes, 115 L. Ed. 2d at 512. In contrast, the written or filmed materials distributed by WWV are "pure" speech for the purposes of the First Amendment. By its own terms, the Barnes decision does not apply to "pure" speech; thus Renton remains the appropriate starting point for cases of this type.

At the outset, the Renton Court stated:

This Court has long held that regulations enacted for the purpose of restraining speech on the basis of its content presumptively violate the First Amendment. On the other hand, so-called "content-neutral" time, place, and manner regulations are acceptable so long as they are designed to serve a substantial governmental interest and do not unreasonably limit alternative avenues of communication.

(Citations omitted.) Renton, 475 U.S. at 46-47. The "substantial governmental interest" shown in Renton was that of combating the undesirable secondary effects of adult theaters. In a statement crucial to this case, the Renton Court noted:

[T]he Renton ordinance is "narrowly tailored" to affect only that category of theaters shown to produce the unwanted secondary effects, thus avoiding the flaw that proved fatal to the regulations in Schad v. Mount Ephraim, 452 U. S. 61[, 68 L. Ed. 2d 671, 101 S. Ct. 2176] (1981), and Erznoznik v. City of Jacksonville, 422 U. S. 205[, 45 L. Ed. 2d 125, 95 S. Ct. 2268] (1975).

Renton, 475 U.S. at 52. In contrast, Tukwila has not shown that adult businesses with predominantly "take-home" merchandise (which clearly are covered by the ordinance) have the same harmful secondary effects traditionally associated with adult movie theaters and peep shows; thus the "substantial governmental interest" portion of the test has not been met. Moreover, ordinance 1465 includes in its definition of adult bookstore, retail store, or video store any establishment in which:

(A.) Ten percent or more of the "stock-in-trade" consists of [merchandise] distinguished or characterized by an emphasis on . . . "specified sexual activities" or "specified anatomical areas"; and/or

(B.) Any person is excluded by virtue of age from all or part of the premises generally held open to the public where such [merchandise] is displayed or sold.

TMC 18.06.825(a)(2)(A), (B); see TMC 18.06.825(a)(6), (8). This definition would even include "mainstream" video stores that have restricted adult sections. Yet the trial court, in an unchallenged finding of fact, specifically found:

None of the sources considered by Mr. Pace in conducting his study indicate that businesses which have their stock in trade limited to ten and a half percent sexually explicit material caused the same type of adverse secondary effect as businesses which have one hundred percent sexually explicit material.

Finding of fact 27. Again, no substantial governmental interest has been demonstrated. Therefore, the Tukwila ordinance is not sufficiently "narrowly tailored" to meet the federal standard.

Tukwila argues it should be permitted "to rely on the experiences of Seattle and other cities ... in enacting its adult theater zoning ordinance", as the Supreme Court held the City of Renton was entitled to do. Renton, 475 U.S. at 51. However, that entitlement was qualified. The Supreme Court held a city could rely on evidence generated by others, "so long as whatever evidence the city relies upon is reasonably believed to be relevant to the problem that the city addresses." Renton, 475 U.S. at 51-52. The Tukwila ordinance does not pass this test; it strives to regulate forms of expressive activity different from those studied in the materials upon which it relies. Because Tukwila has shown no substantial governmental interest that is served by regulating the numerous types of businesses covered by ordinance 1465, the ordinance is unconstitutional under the United States Constitution. We need not, and therefore do not, reach the question whether the ordinance "unreasonably limit[s] alternative avenues of communication".

We note also that the Ninth Circuit stated, subsequent to Renton, that

five . . . justices in Young [v. American Mini Theatres, Inc., 427 U.S. 50, 49 L. Ed. 2d 310, 96 S. Ct. 2440 (1976)] concluded that the degree of protection the first amendment affords speech does not vary with the social value ascribed to that speech by the courts. This view continues to govern.

(Citations omitted.) Kev, Inc. v. Kitsap Cy., 793 F.2d 1053, 1058 (9th Cir. 1986). Thus a decision that pornography, though protected, should receive less protection than other types of speech would be constitutionally questionable at best, even under federal standards.

IV

WWV argues the panoram licensing ordinance is unconstitutional under Acorn Invs., Inc. v. Seattle, 887 F.2d 219 (9th Cir. 1989) and FW/PBS, Inc. v. Dallas, 493 U.S. 215, 107 L. Ed. 2d 603, 110 S. Ct. 596 (1990). Although we reach a different conclusion than the one urged by WWV, these cases are indeed helpful in analyzing the Tukwila ordinance. As no argument was made pursuant to State v. Gunwall, 106 Wn.2d 54, 720 P.2d 808, 76 A.L.R.4th 517 (1986) for an application of Washington law to this issue, our analysis is only under federal law. We make no statement regarding whether the Washington constitution might support a different standard for licensing of this type.

License Fees

WWV challenges the trial court's determination that the license fee provisions of TMC 5.52.050(a) are constitutional. Tukwila argues the fees are valid because they are based on the estimated time and cost involved in investigating license applications. Our rejection of finding of fact 45 is not fatal to this argument because there are likely to be other costs associated with the license system which were not made evident at trial. The inspections by entities other than the police department, for example, will not be without cost to the City. Thus, because the exact costs to Tukwila of the licensing procedure are unclear from the evidence presented and it is not always possible to estimate with precision the costs of a new licensing system, we are not prepared at this time to hold that the fees are excessive. If at a later date WWV could show the fees to be unreasonable in light of the actual costs to the City of administering the licensing program, as was done in Acorn, a successful challenge might then be brought.

Disclosure Provisions

Next, WWV challenges the trial court's determination that the ownership disclosure provisions of TMC 5.52-.060(b) are constitutional. Relying primarily on Acorn, WWV argues the "or other interest" language in the ordinance is chilling because it arguably requires disclosure of too much information. The Seattle ordinance at issue in Acorn called for disclosure of the names of all shareholders. The Ninth Circuit held:

Because officers and directors, not shareholders, are legally responsible for the management of a corporation's business, . . . there is no logical connection between the City's legitimate interest in compliance with the panoram ordinance and the rule requiring disclosure of the names of shareholders.

Acorn, 887 F.2d at 226.

Tukwila's "other interest" requirement could be construed to include persons with a relatively minor interest in the business, such as shareholders, and if so construed the ordinance would be unconstitutional. However, "[w]herever possible, it is the duty of this court to construe a statute so as to uphold its constitutionality." State v. Browet, Inc., 103 Wn.2d 215, 219, 691 P.2d 571 (1984). "The same rules of statutory construction apply to municipal ordinances as to state statutes." Spokane v. Fischer, 110 Wn.2d 541, 542, 754 P.2d 1241 (1988). Therefore, we construe the ownership disclosure provisions of TMC 5.52.060(b) as requiring disclosure of all persons who hold an interest similar to that of an owner or leaseholder — an "other significant interest", with significance being based on responsibility for management of the business, as indicated in Acorn. This construction also satisfies WWVs vagueness concerns by eliminating any inappropriate discretion that might have been vested in the licensing official. As so construed, the ordinance meets federal constitutional standards.

Configuration Requirements

WWV further challenges the trial court's determination that the illumination requirement in TMC 5.52.110(4) (referred to as 5.52.110(D) in ordinance 1475) is constitutional. In Acorn, the court approved of the portion of the Seattle ordinance requiring that peep show booths "be sufficiently illuminated so that someone outside can determine the number of persons inside". Acorn, 887 F.2d at 223. WWV argues the Tukwila ordinance goes too far in requiring equal lighting throughout the premises rather than merely "sufficient" lighting. The trial court disagreed. We affirm. The minor difference from the ordinance noted in Acorn is within the community's discretion and is not unconstitutional.

Time Period for Issuance

Finally, WWV challenges the trial court's determination that the 30-day maximum approval period in TMC 5.52.080(a) is constitutional. Contrary to WWV's argument, 30 days is not necessarily too long a period, given the various inspections and investigations which must take place before licensing. In FW/PBS, the United States Supreme Court struck down a Dallas ordinance relating to regulation of "sexually oriented businesses" (including panoram-type businesses) because it "[did] not provide for an effective limitation on the time within which the licensor's decision must be made." FW/PBS, 110 S. Ct. at 606. The Court stated the following requirements:

[1 T]he licensor must make the decision whether to issue the license within a specified and reasonable time period during which the status quo is maintained and [2] there must be the possibility of prompt judicial review in the event that the license is erroneously denied.

FW/PBS, 110 S. Ct. at 606.

The Dallas ordinance, like the Tukwila ordinance, called for approval of license applications "within 30 days after receipt of an application", FW/PBS, 110 S. Ct. at 605; see TMC 5.52.080. In Dallas, as in Tukwila, certain health and safety inspections were required before a license might be approved. FW/PBS, 110 S. Ct. at 605; see TMC 5.52.060(a), .080(b)(1). The Court found the Dallas ordinance unacceptable, not because of the 30-day time period, but rather because it "provide[d] no means by which an applicant [might] ensure that the business [be] inspected within the 30-day time period within which the license [was] purportedly to be issued if approved." FW/PBS, 110 S. Ct. at 605. The Supreme Court did not find the 30-day period inherently problematic. Its disapproval of the Dallas ordinance was instead based on the absence of any remedy if the City failed to issue a license within those 30 days.

There is thus one crucial difference between the Dallas and Tukwila ordinances: The Tukwila ordinance contains provisions for appeal if a license is denied. The Supreme Court noted that the procedures described in the Dallas ordinance

[do] not place any limits on the time within which the city will inspect the business and thereby make the business eligible for the sexually oriented business license. Thus, the city's regulatory scheme allows indefinite postponement of the issuance of a license.

FW/PBS, 110 S. Ct. at 606. In contrast, TMC 5.52.100(a) provides for review by "the city board of adjustment, or . . . such other hearing body as may hereafter be established by the city council for the hearing of such appeals". The hearing must take place within 20 days after notice of appeal is timely filed, and "[t]he filing of such appeal shall stay the action of the clerk, pending the decision of the hearing body." TMC 5.52.100(b). The Tukwila ordinance further provides that the decision of the hearing body may be appealed to the superior court. TMC 5.52.100(e). As long as these procedures for appeal are not used as a means of unreasonably delaying issuance of licenses, they are sufficient to satisfy the FW/PBS test.

V

The decision of the trial court is affirmed.

Utter, Brachtenbach, Andersen, Smith, Guy, and Johnson, JJ., concur.