World Wide Video, Inc. v. City of Tukwila

Dore, C.J.

(concurring in part, dissenting in part) — I concur with the majority's decision upholding the peep show licensing ordinance, but I dissent from its holding that the adult bookstore zoning ordinance is unconstitutional. Tukwila or any other municipality should be free to manage commercial development by zoning procedures. That means the city may determine where adult bookstores should be located, so long as this determination (1) only affects protected speech slightly or neutrally and (2) furthers the city's "great interest" in neighborhood quality. Northend Cinema, Inc. v. Seattle, 90 Wn.2d 709, 718, 585 P.2d 1153, 1 A.L.R.4th 1284 (1978), cert. denied, 441 U.S. 946 (1979).

*395World Wide Video, the challenger to the zoning ordinance in question, operates an adult bookstore and peep shows in a commercial zone bordering a residential area of Tukwila. World Wide Video argues that the zoning is an unconstitutional restriction on expression. Tukwila's ordinance segregates adult bookstores and peep shows to one area, the M-2 heavy industrial zone, but does not prohibit their operation. This ordinance resulted from a planning study that considered other cities' experiences in zoning adult businesses. Tukwila's method concentrated these businesses in an area comprising about one-fifth of the city.

The majority concludes that Tukwila does not show the substantial governmental interest that Renton v. Playtime Theatres, Inc., 475 U.S. 41, 89 L. Ed. 2d 29, 106 S. Ct. 925 (1986) required. In Renton, the Court upheld as constitutional the City's effort to establish 1,000-foot buffers between adult movie theaters and residential areas, churches, parks and schools. Renton established the City's substantial governmental interest to be in furthering neighborhood quality by traditional zoning powers, which amounts to time, place or manner restrictions on expression where the effect on speech content is neutral. 475 U.S. at 47.

In sum, we find that the Renton ordinance represents a valid governmental response to the "admittedly serious problems" created by adult theaters. . . . Renton has not used "the power to zone as a pretext for suppressing expression," . . . but rather has sought to make some areas available for adult theaters and their patrons, while at the same time preserving the quality of fife in the community at large by preventing those theaters from locating in other areas. This, after all, is the essence of zoning.

475 U.S. at 54.

Here, the majority reasons that Tukwila improperly founded its adult bookstore and peep show ordinance on the experiences of other cities regulating adult theaters because Tukwila's zoning regulates a predominantly take-home business, different in nature from adult movie theaters. Majority, at 389-90. Moreover, the majority calls *396Tukwila's definition of adult bookstores so broad1 that it arguably includes "mainstream" video stores, thus compounding the City's failure to show a "narrowly tailored" substantial governmental interest. Majority, at 389.

Renton and its predecessor, Young v. American Mini Theatres, Inc., 427 U.S. 50, 49 L. Ed. 2d 310, 96 S. Ct. 2440 (1976), unmistakably address the need for cities to protect neighborhoods against the insidious effects of adult entertainment — just as cities traditionally control other commercial development. We recognized the same value in Northend Cinema.

Tukwila's need to control development and its effects is the substantial governmental interest that Renton requires. Therefore, the City is restricted in exercising that need only by assuring "reasonable alternative avenues of communication." Renton, 475 U.S. at 50. The City's " 'interest in attempting to preserve the quality of urban life is one that must be accorded high respect.'" Renton, at 50 (quoting Young, 427 U.S. at 71). Likewise, our focus in Northend Cinema, as now, narrowed on the City's determination to control unwanted secondary effects of adult businesses in otherwise serene neighborhoods.

The majority catches one phrase of the proper analysis. But it misses the point by finding Tukwila's ordinance is not so narrowly tailored to meet Renton s substantial governmental interest test. In Renton plaintiffs objected to zoning that established certain buffers between adult movie houses and residential areas, churches and schools. *397The Court rejected the argument that Renton improperly enacted its zoning regulation because it did not conduct studies specifically related to Renton's problems. 475 U.S. at 50. Then the Court stated:

The First Amendment does not require a city, before enacting such an ordinance, to conduct new studies or produce evidence independent of that already generated by other cities, so long as whatever evidence the city relies upon is reasonably believed to be relevant to the problem that the city addresses.

(Italics mine.) 475 U.S. at 51-52. The protected interest is neighborhood quality, so the relevance the majority finds lacking is the riddance of the same obnoxious effects associated with an adult business clientele, whether at movie theaters or peep shows. See, e.g., Clerk's Papers, at 376 (deposition of World Wide Video manager, discussing evidence of masturbation in peep show stalls).

The majority also overlooks one critical distinction in reaching its conclusions. Ordinances at issue in Renton and Young each were broad enough to cover the type of adult business World Wide Video operates in Tukwila. For example, Renton's zoning ordinance defined an adult theater as a

"[a]n enclosed building used for presenting motion picture films, video cassettes, cable television, or any other such visual media, distinguished or characteri[zed] by an emphasis on matter depicting, describing or relating to 'specified sexual activities' or 'specified anatomical areas'. . . for observation by patrons therein."

Renton, 475 U.S. at 44. Thus, by its terms, the Renton ordinance arguably includes peep shows. In Young the plaintiffs challenged the constitutionality of a zoning ordinance regulating adult bookstores as well as adult movie theaters. Young, 427 U.S. at 53 n.5.

Recognizing that Renton built on Young2 gives substance to broad language in those decisions emphasizing that the issue is zoning regulation and not speech restric*398tion. The nuisance is blight, not unpopular expression. Regulation of blight, of the unwanted secondary effects associated with businesses that purvey explicit sexual books, tapes, gags and peep shows, is proper commercial zoning. The narrow tailoring that the majority complains is missing in Tukwila's ordinance I find easily discerned in the City's categorization of adult businesses that sell and show explicit materials, so designated to protect the quality of city neighborhoods. Cf. Renton, 475 U.S. at 52 ("the Renton ordinance is 'narrowly tailored' to affect only that category of theaters shown to produce the unwanted secondary effects").

In addition, the Court in Renton appeared to disregard the subtle difference between adult movie theaters, on one hand, and other adult businesses. Rejecting an argument that the Renton ordinance was underinclusive, because it affected only adult theaters, the Court stated:

That Renton chose first to address the potential problems created by one particular kind of adult business in no way suggests that the city has "singled out" adult theaters for discriminatory treatment. We simply have no basis on this record for assuming that Renton will not, in the future, amend its ordinance to include other kinds of adult businesses that have been shown to produce the same kinds of secondary effects as adult theaters.

(Italics mine. Citation omitted.) 475 U.S. at 52-53. My added emphasis is noteworthy because the Court did not say "other kinds of adult businesses that can be shown. . . ." This emphasis bolsters my conclusion that Tukwila reasonably believed other cities' studies on the secondary effects of adult businesses were relevant to its zoning consideration. Many courts that have considered adult business zoning restrictions have adapted Renton's reasoning easily to uses broader than adult movies. See, e.g., Walker v. Kansas City, 911 F.2d 80 (8th Cir. 1990) (go-go dancing), cert. denied, _ U.S. _, 114 L. Ed. 2d 476, 111 S. Ct. 2234 (1991); Thames Enters., Inc. v. St. *399Louis, 851 F.2d 199 (8th Cir. 1988) (adult bookstores, theaters, peep shows, massage parlors); 7250 Corp. v. County Comm'rs, 799 P.2d 917 (Colo. 1990) (time restrictions on nude dancing); County of Cook v. Renaissance Arcade & Bookstore, 122 Ill. 2d 123, 522 N.E.2d 73 (1988) (bookstores, mini-theatres), dismissed, 488 U.S. 882 (1988); Montague v. Cedar Rapids, 449 N.W.2d 91 (Iowa Ct. App. 1989) (bookstores); Islip v. Caviglia, 73 N.Y.2d 544, 540 N.E.2d 215, 542 N.Y.S.2d 139 (1989) ("adult uses", including bookstores, cabarets).

Tukwila's ordinance is, in the end, reasonable zoning, as the Court found the ordinance to be in Renton. 475 U.S. at 54; cf. Barnes v. Glen Theatre, Inc., _ U.S. _, 115 L. Ed. 2d 504, 111 S. Ct. 2456 (1991) (Souter, J., concurring) (ban on nude public dancing furthers substantial state interest in combating secondary effects of adult entertainment establishments).

The majority misses the singular reasoning in Renton, Young, and Northend Cinema: A city can determine where adult bookstores or peep shows or full-screen adult movie theaters can be located on the basis of its substantial interest in neighborhood quality, so long as it does not prohibit these businesses altogether. Here, Tukwila has not employed "'the power to zone as a pretext for suppressing expression" and seeks principally to preserve the "quality of life in the community at large". 475 U.S. at 54.

I would hold that the City properly zoned adult bookstores to one area and that the ordinance is not unconstitutional. I would affirm the decision of the City of Tukwila and reverse the trial court.

Durham, J., concurs with Dore, C.J.

Reconsideration denied November 25, 1991.

Tukwila Ordinance 1465 defines "adult entertainment establishments" as including:

2. "Adult bookstore" is a retail establishment in which:

a. Ten percent or more of the "stock in trade" consists of books, magazines, posters, pictures, periodicals or other printed materials distinguished or characterized by an emphasis on matter depicting, describing or relating to "specified sexual activities" 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 material is displayed or sold.

Former TMC 18.06.825(A)(2)(a), (b).

"In our view, the resolution of this case is largely dictated by our decision in Young v. American Mini Theatres, Inc. []". 475 U.S. at 46.