City of Spokane Valley v. Brian Dirks, et ux.

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v. ) UNPUBLISHED OPINION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

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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

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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

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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.

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City ofSpokane v. Hollywood Erotic Boutique

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

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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:

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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

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No. 33140-7-III
City ofSpokane v. Hollywood Erotic Boutique

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.

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City ofSpokane v. Hollywood Erotic Boutique

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.

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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

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City ofSpokane v. Hollywood Erotic Boutique

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.

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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

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City ofSpokane v. Hollywood Erotic Boutique

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).

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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

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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

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City ofSpokane v. Hollywood Erotic Boutique

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

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City o/Spokane v. Hollywood Erotic Boutique

"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

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City ofSpokane v. Hollywood Erotic Boutique

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.

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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).

20

No. 33140-7-111
City ofSpokane v. Hollywood Erotic Boutique

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.

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No. 33140-7-111
City ofSpokane v. Hollywood Erotic Boutique

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,

22

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

23

No. 33140-7-III
City ofSpokane v. Hollywood Erotic Boutique

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).

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No. 33140-7-III
City ofSpokane v. Hollywood Erotic Boutique

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)

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No. 33140-7-II1
City ofSpokane v. Hollywood Erotic Boutique

(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

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No. 33140-7-III
City o/Spokane v. Hollywood Erotic Boutique

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.

27

No. 33140-7-III
City ofSpokane v. Hollywood Erotic Boutique

"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

28

No. 33140-7-II1
City ofSpokane v. Hollywood Erotic Boutique

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.

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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).

30

No. 33140-7-III
City ofSpokane v. Hollywood Erotic Boutique

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.

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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

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No. 33140-7-III
City ofSpokane v. Hollywood Erotic Boutique

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.

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No. 33140-7-III
City ofSpokane v. Hollywood Erotic Boutique

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.

34

No. 33140-7-II1
City ofSpokane v. Hollywood Erotic Boutique

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

36

No. 33140-7-II1
City ofSpokane v. Hollywood Erotic Boutique

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

37

No. 33140-7-111
City ofSpokane v. Hollywood Erotic Boutique

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

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No. 33140-7-III
City ofSpokane v. Hollywood Erotic Boutique

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

39

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

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No. 33140-7-111
City ofSpokane v. Hollywood Erotic Boutique

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.

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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.

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No. 33140-7-III
City ofSpokane v. Hollywood Erotic Boutique

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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