Court: Washington Supreme Court; September 19, 1991; Washington; State Supreme Court
An adult bookstore, World Wide Video, Inc. (WWV), filed a lawsuit against the City of Tukwila, claiming that the city's new zoning ordinance for adult entertainment unconstitutionally restricted free speech. The trial court deemed the zoning ordinance unconstitutional but upheld the city's licensing regulations for peep shows. Both parties appealed, and the Supreme Court of Washington affirmed the trial court's decisions on both counts.
Since late 1987, WWV has operated in Tukwila, offering sexually explicit materials and featuring peep show booths. Following WWV's establishment, the City reviewed its adult entertainment regulations, leading to the adoption of Ordinance 1465 in June 1988. This ordinance limited adult uses to the M-2 heavy industrial zone and imposed specific dispersion requirements. The trial court recognized that similar zoning strategies had been employed in other Washington communities.
Later in 1988, Ordinance 1475 was enacted to regulate peep shows, requiring various licenses with associated fees and stringent operational standards for booth configurations. WWV did not comply with these requirements. The City acknowledged that the speech involved was protected under both the First Amendment and Washington's Constitution, but the ordinances nonetheless impacted that protected expression. WWV sought injunctive and declaratory relief, challenging the constitutionality of the new zoning ordinance.
WWV claimed violations of free speech, due process, and equal protection under the U.S. Constitution and the Washington Constitution, while Tukwila counterclaimed for injunctive relief due to WWV's noncompliance with its panoram licensing ordinance. WWV responded by asserting the ordinance was constitutionally defective. The motions were consolidated with a trial, where the court ruled in favor of WWV regarding the zoning ordinance's constitutionality but sided with Tukwila on the panoram licensing ordinance. Both parties appealed, contesting several findings of fact. In Washington, findings supported by substantial evidence are upheld on appeal, with substantial evidence defined as that which persuades a rational person of a premise's truth. The trial court's findings were largely supported, except for finding 45, which claimed the City Police Department would need about two days to investigate each additional operator's license; this was found unsupported by evidence. However, this finding did not alter the case's outcome.
Article 1, Section 5 of the Washington Constitution provides broader speech protections than the U.S. Constitution, which serves as a minimum standard. When a statute clearly violates the U.S. Constitution, as the trial court found with Tukwila's zoning ordinance, reliance is placed on federal law without needing to establish a state standard. The Renton case, which regulated adult theaters, remains a leading federal precedent despite subsequent rulings. The Barnes decision recognized nude dancing as expressive conduct not fully protected under the First Amendment, thereby distinguishing it from WWV's distribution of written or filmed materials, deemed 'pure' speech. As such, Renton is the fundamental case for zoning regulations on adult businesses, emphasizing that content-based speech restrictions are presumptively unconstitutional, while content-neutral regulations are permissible if they serve a substantial governmental interest without unreasonably limiting communication alternatives.
The Renton case established the principle that a substantial governmental interest must be demonstrated to regulate adult businesses, specifically to combat undesirable secondary effects associated with adult theaters. The Renton ordinance was deemed "narrowly tailored" as it targeted only those theaters proven to generate such effects, contrasting with the Tukwila ordinance, which failed to similarly demonstrate that adult businesses selling predominantly "take-home" merchandise exhibit the same harmful effects. The definition of adult bookstores in Tukwila's Ordinance 1465 is overly broad, encompassing businesses with as little as ten percent sexually explicit material, which the trial court found does not correlate with adverse secondary effects. Furthermore, Tukwila's reliance on experiences from other cities was deemed inappropriate as it did not pertain to the specific types of businesses regulated under its ordinance. Consequently, without a demonstrated substantial governmental interest, the Tukwila ordinance was ruled unconstitutional. The court did not address whether the ordinance unreasonably limited alternative avenues of communication. Additionally, the Ninth Circuit's stance on First Amendment protections was reaffirmed, indicating that the protection afforded to speech does not diminish based on its perceived social value. Lastly, while the court analyzed the constitutionality of the panoram licensing ordinance in light of relevant case law, it reached a different conclusion than that suggested by WWV.
No argument was presented for applying Washington law to the case, so the analysis is limited to federal law. The trial court's ruling on the constitutionality of the license fee provisions in TMC 5.52.050 (a) is under scrutiny by WWV, which contests the validity of the fees. Tukwila defends the fees as reflective of the costs associated with processing license applications. Despite rejecting one finding of fact, the court notes that other costs may exist that were not clearly demonstrated at trial. Therefore, without precise evidence of excessive fees, a ruling against their validity cannot be made at this time. A future challenge may succeed if WWV can demonstrate the fees are unreasonable compared to actual costs.
WWV also contests the constitutionality of the ownership disclosure requirements in TMC 5.52.060 (b). Citing Acorn, WWV argues that the language requiring disclosure of "other interests" may compel excessive information disclosure. The court recognizes that such a requirement could be interpreted to include minor stakeholders, which would be unconstitutional. However, the court aims to uphold the statute's constitutionality by interpreting it to require disclosure only from those with significant management responsibilities, thus addressing WWV's vagueness concerns.
Additionally, WWV challenges the illumination requirement in TMC 5.52.110(4), asserting that it demands excessive lighting compared to the "sufficient" standard upheld in Acorn. The trial court's affirmation of the Tukwila ordinance is maintained, as the slight difference falls within community discretion.
Lastly, WWV disputes the constitutionality of the 30-day maximum licensing approval period set in TMC 5.52.080 (a). The court finds that 30 days is reasonable given the necessary inspections and investigations involved in the licensing process.
The Supreme Court struck down a Dallas ordinance regulating sexually oriented businesses due to its failure to impose a reasonable time limit on the licensor's decision-making process and the absence of prompt judicial review for erroneous license denials. The ordinance allowed for a 30-day decision period but did not guarantee that health and safety inspections would occur within this timeframe, leaving applicants without a remedy if the city failed to act. In contrast, the Tukwila ordinance includes provisions for appeal if a license is denied, with a review process requiring the hearing body to convene within 20 days of the appeal. This structure meets the FW/PBS requirements as long as it is not used to delay license issuance unreasonably. The trial court's decision is affirmed. A concurrence and partial dissent by Chief Justice Dore supports the validity of the peep show licensing ordinance while dissenting on the unconstitutionality of the adult bookstore zoning ordinance, emphasizing that municipalities should have the authority to manage commercial zoning as long as it minimally impacts protected speech and promotes neighborhood quality. The Tukwila ordinance, which confines adult bookstores and peep shows to a designated industrial zone, arose from a planning study and does not outright prohibit their operation, but the majority opinion finds it does not demonstrate the substantial governmental interest required by precedent.
The Court upheld Renton's ordinance mandating 1,000-foot buffers between adult movie theaters and sensitive areas such as residential neighborhoods, churches, parks, and schools, citing a substantial governmental interest in enhancing neighborhood quality through traditional zoning. This zoning serves as neutral time, place, and manner restrictions on expression, aiming to mitigate the adverse effects of adult theaters without suppressing expression itself. The Court differentiated Tukwila's adult bookstore and peep show ordinance, criticizing its broad definitions that could encompass mainstream video stores and its reliance on the experiences of other cities without establishing a narrowly tailored substantial governmental interest. The Court emphasized that cities possess the right to regulate adult entertainment to protect neighborhood quality, as seen in precedents like Renton and Young v. American Mini Theatres. It was determined that a city is not required to conduct new studies before implementing such regulations, as long as the evidence used is relevant to the issues at hand. The majority failed to recognize that the Renton ordinance also encompassed types of adult businesses similar to those in Tukwila.
Plaintiffs in Young challenged the constitutionality of a zoning ordinance that regulated adult bookstores and movie theaters, asserting that the focus was on zoning rather than restricting speech. The underlying nuisance identified was blight, resulting from the secondary effects associated with businesses offering explicit materials. The ordinance was deemed proper commercial zoning, as it was narrowly tailored to address only those businesses known to produce such unwanted effects. The court in Renton similarly upheld the regulation of adult theaters, clarifying that targeting one type of adult business did not indicate discriminatory treatment. The court noted that Renton could amend its ordinance in the future to include other adult businesses that may also produce secondary effects. This reasoning was applied by Tukwila, which reasonably relied on studies from other cities regarding the impact of adult businesses on neighborhood quality. Courts have extended this logic beyond just adult movie theaters. Tukwila's ordinance was found to be reasonable zoning, aimed at maintaining community quality of life without outright banning adult businesses. The author supports affirming Tukwila’s zoning decision and reversing the trial court's ruling. The Tukwila Ordinance 1465 defines 'adult entertainment establishments' and specifies conditions under which a bookstore qualifies as adult-oriented based on the percentage of explicit material. The resolution of this case aligns with the precedent set in Young v. American Mini Theatres, Inc.
