Eric Forbes v. Pierce County , 427 P.3d 675 ( 2018 )

Filed
Washington State
Court of Appeals
Division Two
September 18, 2018
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
ERIC FORBES, ALEX HELGESON, SABINA No. 51548-2-II
ZEMBAS, DREAMGIRLS OF TACOMA
LIMITED LIABILITY COMPANY, a
Washington Limited Liability Corporation,
ASHLEY RICHARDSON, and HEATHER
BLAKEWAY,
Appellants,
vs. PUBLISHED OPINION
PIERCE COUNTY, a Washington Municipal
Corporation, JULIE ANDERSON, Pierce
County Auditor, and STEPHEN K.
CAUSSEAUX, Pierce County Hearing
Examiner,
Respondents.
MAXA, C.J. – Eric Forbes, Ashley Richardson, and Heather Blakeway (collectively,
appellants) challenge the constitutionality of certain sanction provisions in the Pierce County
Code (PCC) chapter regulating erotic dance studios. PCC 5.14.230 allows the County to
suspend or revoke the licenses issued to erotic dance studio operators, managers, and dancers if
they violate or permit the violation of erotic dance studio regulations. PCC 5.14.250 provides
criminal penalties for violating erotic dance studio regulations and states that managers on duty
and erotic dance studio operators are strictly liable for violations of substantive regulations in
chapter 5.14 PCC. The appellants do not challenge those substantive regulations, which
primarily are contained in PCC 5.14.180 and .190.
The appellants argue that the sanction provisions constitute an unconstitutional prior
restraint of erotic dance, which is protected expression, because the provisions impose strict
No. 51548-2-II
liability for violations. They also argue that the sanction provisions violate due process for the
same reason. Pierce County argues that Forbes and Richardson do not have standing to
challenge PCC 5.14.230 and that none of the appellants have standing to challenge PCC
5.14.250.
We hold that (1) the appellants have standing to challenge PCC 5.14.230, but they do not
have standing to challenge PCC 5.14.250 because no criminal penalties were imposed or
threatened; (2) PCC 5.14.230 operates as a prior restraint of protected erotic dance but is not
unconstitutional under article I, section 5 of the Washington Constitution because it does not
allow the imposition of sanctions based on strict liability; (3) PCC 5.14.230 is not
unconstitutional under a First Amendment analysis for time, place, or manner restrictions; and
(4) PCC 5.14.230 does not violate due process because it does not allow the imposition of
sanctions based on strict liability. Accordingly, we affirm the trial court’s summary judgment
order dismissing the appellants’ complaints.
FACTS
At the relevant times, each of the appellants held licenses issued under chapter 5.14 PCC.
Forbes, doing business as Dreamgirls of Tacoma, LLC, is the licensee and operator of an erotic
dance studio known as Dreamgirls at Fox’s (Fox’s). Ashley Richardson is a licensed manager at
Fox’s and Heather Blakeway is a licensed dancer at Fox’s.
Violations and Hearing Examiner Rulings
Between April and August 2014, the County conducted several licensing inspections and
compliance checks at Fox’s. The inspections revealed multiple violations of regulations in
chapter 5.14 PCC. In August 2014, the auditor’s office sent Forbes a notice and order to correct,
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which identified violations of PCC 5.14.110, .180, and .190 and explained how to correct them.
The notice stated,
Failure of the establishment to comply with this order may result in further
enforcement action being taken. Examples of enforcement may include:
suspension of establishment license, revocation of establishment license, fines.
Failure to comply with the compliance instructions contained in this order will
constitute sufficient grounds for suspension or revocation of the license.
Clerk’s Papers (CP) at 318. The notice did not at that time suspend Forbes’s license to operate
an erotic dance studio, impose any civil sanction for the violations, or impose or threaten a
criminal penalty.
Forbes appealed the notice and order to a county hearing examiner, who conducted a
formal hearing and entered findings of fact and conclusions of law. After reviewing the
allegations in detail, the hearing examiner found that the County proved the alleged violations by
a preponderance of the evidence and denied Forbes’s appeal.
Subsequently, the auditor’s office conducted additional site visits at Fox’s and observed
violations of chapter 5.14 PCC. In response to these alleged violations, the auditor’s office sent
both Richardson and Blakeway a notice and order of suspension. The notices stated that
Blakeway was dancing off the platform, that a patron was seated too close to Blakeway while
she was dancing on the platform, and that Richardson was present while those violations
occurred. Richardson, as the manager at the time, was required to ensure compliance. The
notices stated that both of their licenses would be suspended for 30 days, with the suspension
effective immediately unless it was appealed. Neither notice imposed a criminal penalty.
Both Richardson and Blakeway appealed to the hearing examiner, who conducted formal
hearings and entered findings and conclusions on both appeals. The hearing examiner found that
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the County proved the alleged violations by a preponderance of the evidence, but modified the
period of suspension to 15 days for Richardson and 10 days for Blakeway.
Petition for Writ of Review and Complaint
Forbes, Richardson, and Blakeway all filed petitions for writs of review and complaints
for injunction and declaratory relief against the County in superior court. Each petition alleged
that substantial evidence did not support the hearing examiner’s decision, that the hearing
examiner made a legal error regarding application of strict liability, and that PCC 5.14.180, .190,
.230, and .250 violated the Washington Constitution. The cases subsequently were consolidated.
The parties filed cross-motions for summary judgment. The superior court entered an
order granting the County’s motion and denying the appellants’ motion. The court first
considered the appellants’ constitutional arguments and ruled, “None of the challenged sections
of Chapter 5.14 PCC, nor Chapter 5.14 PCC as a whole, violate the free speech or due process
clauses of the Washington State Constitution.” CP at 827. Regarding the appellants’ petition for
a writ of review, the court ruled that substantial evidence supported the hearing examiner’s
decisions. On that basis, the court affirmed the hearing examiner’s decisions regarding Forbes,
Richardson, and Blakeway.
The appellants sought direct review in the Supreme Court of the summary judgment
order. The Supreme Court ordered that the case be transferred to this court.
ANALYSIS
A. LEGAL PRINCIPLES
1. Standard of Review
We review the superior court’s summary judgment order de novo. Keck v. Collins, 184
Wash. 2d 358, 370, 357 P.3d 1080 (2015). On summary judgment, we construe all evidence and
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reasonable inferences in favor of the nonmoving party. Id. Summary judgment is appropriate
when the record shows “no genuine issue as to any material fact” and “the moving party is
entitled to a judgment as a matter of law.” CR 56(c); see Keck, 184 Wash. 2d at 370.
Here, the superior court issued a summary judgment order with numbered paragraphs
setting forth its detailed analysis of the appellant’s constitutional claim. Because our review is
de novo, we do not rely on or give deference to the superior court’s reasoning.
2. Chapter 5.14 PCC
The appellants each held licenses issued pursuant to chapter 5.14 PCC, which relates to
the licensing and regulation of the adult entertainment industry in Pierce County. Chapter 5.14
PCC applies a licensing scheme to “erotic dance studios” and imposes substantive requirements
on erotic dance studio operator, studio manager, and dancer licensees. The chapter outlines the
process for persons to apply for and receive an erotic dance studio license, PCC 5.14.030-.090,
and requires all managers and dancers to obtain licenses. PCC 5.14.100, .110.
PCC 5.14.180 imposes requirements on managers, and states that “[t]he manager shall be
responsible for ensuring” that both the studio and the dancers comply with restrictions in PCC
5.14.190. PCC 5.14.180(D), (E). PCC 5.14.190 designates a number of unlawful acts, including
any dancing other than on an 18-inch platform that is 10 feet from the nearest patron, PCC
5.14.190(H), touching between patrons and dancers, PCC 5.14.190(I), (J), and dancers exposing
themselves except on the platform. PCC 5.14.190(H), (I), (J), (M).
PCC 5.14.230(A) allows the county auditor to revoke or suspend the license of an erotic
dance studio operator if the licensee has “violated or permitted violation” of any of the chapter’s
provisions. PCC 5.14.230(B) applies the same provision to managers and dancers. In addition,
PCC 5.14.250 states that a person, firm, or corporation that violates any of the chapter’s
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provisions is guilty of a misdemeanor, punishable by up to a $1,000 fine or 90 days
imprisonment. PCC 5.14.250 states that the manager on duty or erotic dance studio operator
“shall be held strictly liable for any violation of the requirements set forth in PCC 5.14.180
and/or 5.14.190.”
The process for appealing a decision by the auditor is set out in PCC 5.02.120. A
licensee has the right to appeal a decision by submitting a written notice of appeal and paying a
fee within 10 days of the decision. PCC 5.02.120(A). The appeal must be heard within 90 days
by a hearing examiner. PCC 5.02.120(B). On appeal, the County bears the burden of proof to
show by a preponderance of the evidence that the standards for suspending or revoking a license
have been met. PCC 5.02.120(E). Filing a timely notice of appeal stays the auditor’s decision
until a final decision by the hearing examiner. PCC 5.02.120(C). The hearing examiner’s
decision is final unless a writ of review is filed in the superior court within 20 days from the
decision. PCC 5.02.120(J).
This court upheld several challenged portions of chapter 5.14 PCC in DCR, Inc. v. Pierce
County, 92 Wash. App. 660, 964 P.2d 380 (1998). The primary focus of the court’s opinion was
the 10-foot distance restriction, which this court held was a valid regulation of the time, place,
and manner of protected expression. Id. at 683. The court also upheld the chapter 5.14 PCC
provisions on issuing licenses and appealing adverse licensing decisions. Id. at 686-89.
B. APPELLANTS’ STANDING
As an initial matter, the County challenges the appellants’ standing.1 First, the County
argues that Forbes and Richardson lack standing to challenge PCC 5.14.230 because, unlike
1
The County did not argue in the superior court that the appellants did not have standing to
challenge the constitutionality of PCC 5.14.230 or .250. As a result, Forbes argues that the
County cannot raise this issue on appeal. However, because a party’s standing goes to this
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Blakeway, they were not personally engaged in protected expression. Second, the County
suggests that the appellants lack standing to challenge PCC 5.14.250 because no criminal penalty
was assessed against them under that provision. We hold that Forbes and Richardson have
standing to challenge PCC 5.14.230, but that the appellants lack standing to challenge PCC
5.14.250.
1. Legal Background
Standing refers to a party’s right to make a legal claim or seek judicial enforcement of a
right. Friends of N. Spokane County Parks v. Spokane County, 184 Wash. App. 105, 115, 336 P.3d
632 (2014). A litigant cannot assert the legal rights of another person and must have a real
interest before bringing a cause of action. Dean v. Lehman, 143 Wash. 2d 12, 18-19, 18 P.3d 523
(2001). The rule is that a person who is not adversely affected by a statute may not challenge the
statute’s validity. Id. at 18. For that reason, to challenge a statute’s constitutionality, a party
must demonstrate that the statute has operated to the party’s prejudice. Postema v. Snohomish
County, 83 Wash. App. 574, 579, 922 P.2d 176 (1996).
2. Standing to Challenge PCC 5.14.230
Here, Richardson has standing to challenge PCC 5.14.230(B) because her license was
suspended under that provision. The statute has adversely affected her and she has a real interest
in challenging its validity. Dean, 143 Wash. 2d at 18-19.
Similarly, the suspension of Richardson’s and Blakeway’s licenses under PCC
5.14.230(B) adversely affected Forbes because his employees were not available to manage and
dance at his erotic dance studio. The Ninth Circuit addressed the same issue in Clark v. City of
court’s jurisdiction, it can be raised either for the first time on appeal or by this court sua
sponte. Jevne v. The Pass, LLC, 3 Wash. App. 2d 561, 565, 416 P.3d 1257 (2018); see RAP 2.5(a).
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Lakewood, and held that the owner of an adult cabaret suffered an injury in fact regarding a
regulation placing limitations on issuing licenses for his employees. 259 F.3d 996, 1010-11
(2001). The court stated that the owner could not operate his business without licensed
employees, and therefore he would be unable to engage in expressive activity if the City did not
license his employees. Id. at 1011.2 For the same reason, Forbes has standing to challenge the
suspensions of his employees’ licenses under PCC 5.14.230(B).
A different analysis applies for Forbes’s challenge to PCC 5.14.230(A), which allows
sanctions to be imposed against him as the licensee of the erotic dance studio. Unlike
Richardson, Forbes’s license has not been revoked or suspended under PCC 5.14.230(A). The
County’s notice and order to correct listed only a series of violations identified at Fox’s, but did
not impose any sanction. The record does not show that a sanction was imposed at a later time.
However, the County’s notice and order describes observed violations of PCC 5.14.180
and .190 and directs that Forbes correct those violations. The order further states that Forbes’s
failure to comply with the order may result in further enforcement action being taken, including
suspension or revocation of his license. And the order states that failure to comply will
constitute sufficient grounds for license suspension or revocation. Although the order does not
reference PCC 5.14.230(A), that provision provides the only authority for the County to impose
those sanctions. As a result, under the specific facts of this case PCC 5.14.230(A) adversely
affected Forbes.
2
Federal standing doctrine, although distinct, can be instructive. See Int’l Ass’n of Firefighters,
Local 1789 v. Spokane Airports, 146 Wash. 2d 207, 212-17, 45 P.3d 186 (2002).
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We hold that both Forbes and Richardson have standing to challenge the constitutionality
of PCC 5.14.230(B) and that Forbes has standing to challenge the constitutionality of PCC
5.14.230(A).
3. Standing to Challenge PCC 5.14.250
The County suggests that the appellants do not have standing to challenge PCC
5.14.250.3 We agree.
Here, no criminal penalties were assessed under PCC 5.14.250 against any of the
appellants. Therefore, PCC 5.14.250 has not adversely affected them.. The appellants do not
argue otherwise.
Instead, the appellants argue that they have standing to challenge PCC 5.14.250 because
they intend to engage in constitutionally protected conduct in the future and there is a credible
threat of prosecution. They cite two Supreme Court cases: Susan B. Anthony List v. Driehaus,
___ U.S. ___, 134 S. Ct. 2334, 189 L. Ed. 2d 246 (2014), and Babbitt v. United Farm Workers
Nat’l Union, 442 U.S. 289, 99 S. Ct. 2301, 60 L. Ed. 2d 895 (1979). These cases recognize that
“[w]hen an individual is subject to such a threat [of enforcement of a law], an actual arrest,
prosecution, or other enforcement action is not a prerequisite to challenging the law.” Susan B.
Anthony List, 132 S. Ct. at 2342. The Court explained that a plaintiff may bring a pre-
enforcement challenge if he or she alleges “‘an intention to engage in a course of conduct’”
arguably protected by the Constitution, but proscribed by statute, when there has been a credible
threat of prosecution. Id. (quoting United Farm Workers, 442 U.S. at 298).
3
The County only vaguely makes this argument, and it did not raise the issue in the trial court.
However, as noted above, we can raise standing sua sponte even if the parties do not argue
standing. Jevne, 3 Wash. App. 2d at 565. And the appellants do discuss standing to challenge
PCC 5.14.250 in their reply brief. Therefore, we address standing regarding PCC 5.14.250.
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The appellants’ situation does not fit these requirements because they have not
adequately demonstrated a threat of enforcement. First, the appellants have not demonstrated a
current threat to impose a criminal penalty. Forbes’s notice and order to correct states that
failure to comply may result in further enforcement action, but concludes only that “[f]ailure to
comply with the compliance instructions . . . will constitute sufficient grounds for the suspension
or revocation of the license.” CP at 318 (emphasis added). The letter references a fine as an
example of enforcement, but does not indicate any intent to impose criminal penalties. The
notice and order of suspension sent to Richardson and Blakeway do not threaten a future
criminal penalty in any form.
Second, the appellants have not shown a risk of future, potential criminal enforcement
based on their anticipated conduct. The United States Supreme Court has granted standing to
parties that allege an intent to engage in conduct they assert is protected. Susan B. Anthony List,
134 S. Ct. at 2343-44; United Farm Workers, 442 U.S. at 301-03 (recognizing standing to
challenge substantive restriction and penalty provision). By showing that they intended to
engage in future conduct, the plaintiffs demonstrated that “fear of criminal prosecution . . . is not
imaginary or wholly speculative.” United Farm Workers, 442 U.S. at 302.
Because there is not a current threat of criminal penalty, the appellants’ standing to
challenge PCC 5.14.250 must be based on future violations. But they have not made any
allegation that they intend to engage in conduct prohibited by chapter 5.14 PCC in the future.
Therefore, whether any violation of chapter 5.14 PCC will occur and whether the appellants will
be subject to criminal sanction at that point is speculative. If any of the appellants violates
chapter 5.14 PCC in the future and is subject to a criminal penalty under PCC 5.14.250, he or she
can challenge the statute’s constitutionality at that time.
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Accordingly, we hold that the appellants lack standing to challenge PCC 5.14.250.
C. CONSTITUTIONALITY OF PCC 5.14.230 UNDER ARTICLE I, SECTION 5
The appellants argue that PCC 5.14.230’s license suspension provisions are
unconstitutional prior restraints that violate article I, section 5 of the Washington Constitution.
Specifically, the appellants argue that (1) article I, section 5 provides greater protection for erotic
dancing than the First Amendment, and (2) PCC 5.14.230 allows for the suspension of erotic
dance licenses based on strict liability, in violation of those article I, section 5 protections.
We agree that under settled law the suspension of erotic dance licenses constitutes a prior
restraint and article I, section 5 provides greater protection for erotic dancing than the First
Amendment. But we disagree that PCC 5.14.230 allows the suspension of erotic dance licenses
based on strict liability, and therefore we reject the appellants’ article I, section 5 challenge.
1. Legal Background
a. Constitutional Protection of Sexually Explicit Dancing
Nude or sexually explicit dancing has expressive value that is protected under both the
First Amendment and article I, section 5. JJR Inc. v. City of Seattle, 126 Wash. 2d 1, 6, 8-9, 891
P.2d 720 (1995). However, sexually explicit dancing “remains far from the core of protected
expression” and “clings to the edge of protected expression.” Id. at 9. As a result, sexually
explicit dancing does not receive the full protection of article I, section 5. Ino Ino, Inc. v. City of
Bellevue, 132 Wash. 2d 103, 116, 937 P.2d 154 (1997); see DCR, 92 Wash. App. at 671. And other
types of conduct that may be associated with sexually explicit dance are entirely unprotected.
O’Day v. King County 109 Wash. 2d 796, 803, 749 P.2d 142 (1988); DCR, 92 Wash. App. at 672.
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b. License Suspension/Revocation as a Prior Restraint of Speech
The appellants argue that license suspension and revocation provisions of PCC 5.14.230
constitute a prior restraint on sexually explicit dancing. We agree.
A prior restraint attempts to prohibit future speech or other expression rather than punish
past expression. Bradburn v. N. Cent. Reg’l Library Dist., 168 Wash. 2d 789, 802, 231 P.3d 166
(2010). A prior restraint acts as an official restriction on expression before the expression
occurs. Id. at 802. More specifically, a prior restraint is any government action that tends to
suppress or interfere with protected expression before it is ultimately punished through civil or
criminal sanctions in a court of law. State v. J-R Distribs., Inc., 111 Wash. 2d 764, 776, 765 P.2d
281 (1988).
The government imposes a prior restraint when it suspends or revokes a sexually explicit
dance license because rescinding a license prevents individuals from “performing protected nude
expression, and establishments from showcasing nude dance.” JJR, 126 Wash. 2d at 8. For
example, in JJR the Supreme Court addressed an ordinance similar to PCC 5.14.230 that allowed
for the suspension or revocation of establishment and dancer licenses for violation of adult
entertainment regulations. Id. at 4. The court held that such a license suspension or revocation
would prevent a person from performing nude dance in the future, and the future suppression of
constitutionally protected speech constitutes a prior restraint. Id. at 5-8.
The court in JJR expressly rejected the argument that license revocation and suspension
merely represented post-publication sanctions. Id. The court emphasized that “a licensee may
not engage in future performances of nude dance . . . with a revoked or suspended license.” Id.
at 8. The court concluded, “Under [article 1, section 5], when a municipality prevents
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individuals from performing protected nude expression, and establishments from showcasing
nude dance, this amounts to a prior restraint of protected expression.” Id.
The court in JJR did not distinguish between the suspension or revocation of an
operator’s license and a dancer’s license in its analysis of prior restraint. Id. at 5; see also Ino
Ino, 132 Wash. 2d at 119. Similarly, the court in Ino Ino held that a delay in issuing a manager’s
license constituted a prior restraint. Id. at 123.
Accordingly, the suspension or revocation of an operator’s, a manager’s, and a dancer’s
license under PCC 5.14.230 constitutes a prior restraint of sexually explicit dancing, a form of
constitutionally protected expression.
c. Protection Against Prior Restraints Under Article I, Section 5
The appellants argue that article I, section 5 provides greater protection for prior restraint
of sexually explicit dancing than the First Amendment. We agree.
The First Amendment states that “Congress shall make no law . . . abridging the freedom
of speech.” This provision applies to the states under the Fourteenth Amendment. Rentz v.
Werner, 156 Wash. App. 423, 433 n.5, 232 P.3d 1169 (2010). In addition, article I, section 5
states, “Every person may freely speak, write and publish on all subjects, being responsible for
the abuse of that right.”
In general, the Washington Constitution provides greater protection against prior
restraints on speech than the United States Constitution. O’Day, 109 Wash. 2d at 802, 804. Under
the First Amendment, not all prior restraints are prohibited. State v. Coe, 101 Wash. 2d 364, 372-
73, 679 P.2d 353 (1984). Unlike the First Amendment, the Washington Constitution
“categorically rules out prior restraints on constitutionally protected speech.” O’Day, 109 Wash. 2d
at 804. The text of article I, section 5 “seems to rule out prior restraints under any
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circumstances, leaving the State with only post-publication sanctions to punish abuse of free
speech rights.” Coe, 101 Wash. 2d at 374.
The Supreme Court in JJR recognized the general rule that the prior restraint of protected
expression is unconstitutional. 126 Wash. 2d at 8. However, because sexually explicit dancing
“remains far from the core of protected expression,” the court declined to “categorically
invalidate an administrative scheme that revokes or suspends an adult entertainment license.” Id.
at 9. The court in Ino Ino subsequently stated that in JJR it had “declined to extend the full
protection of art. I, §5 to licensure of nude dancing.” 132 Wash. 2d at 116.
Because sexually explicit dancing receives only limited protection under article I, section
5, the court in Ino Ino applied a Gunwall4 analysis to determine whether sexually explicit
dancing is afforded greater protection under the Washington Constitution than under the United
States Constitution.5 Ino Ino, 132 Wash. 2d at 116-22. The court concluded that article I, section 5
does not provide more protection in the context of restrictions on the time, place, or manner of
sexually explicit dance. Id. at 122. However, the court held that there is enhanced protection
under article I, section 5 “in the context of adult entertainment regulations that impose prior
restraints.” Id.
4
State v. Gunwall, 106 Wash. 2d 54, 720 P.2d 808 (1986). Gunwall requires an analysis of six
factors: “(1) the textual language; (2) differences in the texts; (3) constitutional history; (4)
preexisting state law; (5) structural differences; and (6) matters of particular state or local
concern.” Ino Ino, 132 Wash. 2d at 115.
5
Forbes argues that this court must conduct a new Gunwall analysis because the court in Ino Ino
did not address what Forbes argues is the specific question at issue here. But the court’s analysis
in Ino Ino is directly applicable. The rights at issue here are the same – “whether nude or
sexually explicit dancing is to be afforded greater protection under the state constitution than
under its federal counterpart,” specifically in the area of prior restraints. Ino Ino, 132 Wash. 2d at
116. This court need not undertake the same analysis again.
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Accordingly, article I, section 5 provides greater protection than the First Amendment for
prior restraints imposed by the suspension of an operator’s, a manager’s, and a dancer’s licenses
under PCC 5.14.230.
d. Extent of Protection Under Article I, Section 5
The Supreme Court has established that protection for sexually explicit dancing under
article I, section 5 is less than the categorical prohibition of prior restraints applicable to most
protected speech, but greater than the protection provided by the First Amendment. Ino Ino, 132
Wash. 2d at 116, 122; JJR, 126 Wash. 2d at 9. But the court has not identified the precise extent of
the protection for sexually explicit dancing under article I, section 5.
JJR and Ino Ino provide some guidance regarding the extent of protection under article I,
section 5 in the context of suspension of erotic dance licenses. First, in applying article I, section
5, the court in JJR stated that laws regarding the licensing of adult entertainment must contain
“sufficient procedural safeguards” because they allow the possibility of unwarranted censorship.
126 Wash. 2d at 9. Specifically, the court stated,
Because we must be exacting in safeguarding protected expression, we find that a
stay of adult entertainment license revocation and suspension pending judicial
review is the minimum constitutionally permissible safeguard.
Id. The court further clarified that such a stay must be mandatory. Id. at 9-10. Because the
licensing law in that case did not require a mandatory stay of a license suspension or revocation
pending judicial review, the court held that the law was unconstitutional. Id. at 10-11.
JJR establishes that a stay of a license suspension or revocation pending judicial review is
the “minimum” requirement under article I, section 5. Id. at 9. But the court did not state that a
stay provision was the only constitutional protection required. Ino Ino addressed one area where
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a stay would be insufficient, holding that a law providing a 14-day waiting period for issuing
licenses would be unconstitutional even with a stay provision. 132 Wash. 2d at 123.
Here, the Pierce County Code provides for a stay of a license suspension under PCC
5.14.230 pending judicial review as required in JJR. Filing a timely notice of appeal stays the
auditor’s decision until a final decision by the hearing examiner. PCC 5.02.120(C). And the
hearing examiner’s decision is not final if a licensee files a timely writ of review in the superior
court. See PCC 5.02.120(J). The appellants do not challenge PCC 5.14.230 based on the stay
procedure.
Second, Ino Ino identifies a narrow area in which article I, section 5 provides greater
protection than the First Amendment. The court noted that under federal law, laws affecting an
operator’s license rather than a dancer’s license may not constitute prior restraint under article I,
section 5. Ino Ino, 132 Wash. 2d at 118-19. But laws affecting an operator’s license do constitute
prior restraint under article I, section 5. Id. at 121-22. In addition, laws affecting a manager’s
license constitute prior restraints under article I, section 5. Id. at 123.
Here, the County suggests that article I, section 5 does not protect erotic dance studio
operators and managers because they do not engage in the expressive conduct themselves.
However, Ino Ino makes it clear that the suspension of operator and manager licenses implicates
article I, section 5.
Beyond these specific requirements, the extent of protection under article I, section 5 of
erotic dance in the context of suspension of erotic dance licenses must be developed on a case-
by-case basis. We need not address the parameters of this protection here because the appellants
argue only that the suspension of licenses based on strict liability violates article I, section 5.
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2. No Strict Liability Under PCC 5.14.230
The appellants argue that (1) PCC 5.14.230 allows the County to suspend the licenses of
erotic dance studio operators and managers based on strict liability, and (2) article I, section 5
prohibits suspending erotic dance licenses on the basis of strict liability. We hold that PCC
5.14.230 does not allow the County to suspend the licenses of erotic dance studio operators,
managers, and dancers based on strict liability. Therefore, PCC 5.14.230 does not violate article
I, section 5 on that basis.
a. Principles of Interpretation
Interpretation of PCC 5.14.230 is a question of law that we review de novo. Jametsky v.
Olsen, 179 Wash. 2d 756, 761, 317 P.3d 1003 (2014). Our primary goal is to give effect to
legislative intent. Id. at 762. In determining legislative intent, we first look to a statute or
ordinance’s plain language. Id. When evaluating an ordinance’s language, we consider the
language of the provision in question, the context of the ordinance in which the provision is
found, and related ordinances. Columbia Riverkeeper v. Port of Vancouver USA, 189 Wash. App.
800, 810, 357 P.3d 710 (2015). To determine the plain meaning of undefined language, we give
words their usual and ordinary meaning and interpret them in the context of the ordinance in
which they appear. AllianceOne Receivables Mgmt., Inc. v. Lewis, 180 Wash. 2d 389, 395-96, 325
P.3d 904 (2014). In the context of a constitutional challenge, we have an obligation to construe
an ordinance in a manner that upholds its constitutionality. DCR, 92 Wash. App. at 686.
b. Strict Liability Analysis
PCC 5.14.230(A) applies to erotic dance studio operators and provides:
The Auditor shall revoke or suspend, for a specified period of not more than one
year, any erotic dance studio license if he/she determines that the licensee or
applicant has: made a materially false statement in the application for a license
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No. 51548-2-II
which the applicant knows to be false; or violated or permitted violation of any
provisions of this Chapter.
(Emphasis added). PCC 5.14.230(B) provides the same revocation or suspension sanction to
managers and dancers:
The Auditor shall revoke or suspend, for a specified period of not more than one
year, any dancer/manager license if he/she determines that the licensee or applicant
has: made a materially false statement in the application for a license which the
applicant knows to be false; or violated or permitted violation of any provisions of
this Chapter.
(Emphasis added).
The appellants argue that these provisions allow for suspension of an erotic dance studio
operator’s or manager’s license arising from a dancer’s violation of PCC 5.14.190 based on strict
liability, even in the absence of some fault by the operator or manager. The appellants claim that
in the absence of a requirement that the operator or manager knew or should have known of the
violation, PCC 5.14.230 constitutes an unconstitutional prior restraint.
A manager can violate PCC 5.14.180(D) and (E) and be subject to sanctions under PCC
5.14.230 by not “ensuring” that the studio or the dancers comply with the restrictions in PCC
5.14.190. This provision does not involve strict liability. A failure to ensure compliance
necessarily involves some fault by the manager.
We also interpret PCC 5.14.230 as requiring some fault before an erotic dance studio
operator or manager can be sanctioned. Under PCC 5.14.230, an operator or a manager can be
subject to sanctions by “permitting” a violation of one of the erotic dance studio regulations. But
“permitting” does not involve strict liability. One dictionary definition of “permit” is to “consent
to expressly or formally.” WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY 1683 (2002).
Under this definition, an operator or manager can permit – consent to – an activity when he or
she knows that the activity is occurring and fails to take steps to stop that activity.
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Another dictionary definition of “permit” is to “make possible” or to “give an
opportunity.” WEBSTER’S at 1683. Under this definition, an operator or manager can permit –
make possible – an activity by not taking steps before the activity occurs to prevent that activity.
Under either definition, operators and managers can be subject to sanctions under PCC
5.14.230 only if their conduct involves some fault. As a result, we hold that PCC 5.14.230 does
not allow the imposition of sanctions in the absence of a finding of fault.
The same analysis applies with respect to dancers’ liability for patrons’ actions. PCC
5.14.190 specifically prohibits certain unlawful actions by patrons. For example, a patron cannot
pay or give any gratuity directly to any dancer. PCC 5.14.190(K). A dancer’s license could be
revoked or suspended based on this provision only if the dancer permitted the violation to occur,
requiring the dancer to have some fault regarding the actions of patrons. Therefore, as with
operators and managers, dancers are not strictly liable for the prohibited actions of patrons.
Because PCC 5.14.230 does not allow for the suspension of a license based on strict
liability, we hold that PCC 5.14.230 does not violate article I, section 5 on that basis. Because
the appellants’ prior restraint claim is based only on its argument that PCC 5.14.230 imposes
strict liability, we reject the appellants’ challenge to PCC 5.14.230 based on article I, section 5.
D. INAPPLICABILITY OF TIME, PLACE, AND MANNER RESTRICTIONS ANALYSIS
The appellants argue that PCC 5.14.230 is unconstitutional under the First Amendment
analysis used to determine the constitutionality of time, place, and manner restrictions on
protected expression. Appellants apparently concede that PCC 5.14.230 is not a time, place, and
manner restriction, but suggest that we apply the time, place, and manner analysis to the prior
restraint imposed under PCC 5.14.230. We decline to apply this analysis to PCC 5.14.230.
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A time, place, or manner restriction on speech or expression is one that does not prohibit
expression but imposes temporal or geographic limitations. Ino Ino, 132 Wash. 2d at 126.
Restrictions on the time, place, and manner of sexually explicit dance receive no greater
protection under article I, section 5 than the First Amendment. Id. at 122. Therefore, we analyze
challenges to time, place, and manner restrictions under the First Amendment. Id.
Here, PCC 5.14.230 is not a restriction on the time, place, or manner of expression. The
provision does not place any substantive limits on how a license holder may engage in any form
of expression. Instead, PCC 5.14.230 provides for the sanctions the County may impose if an
operator, manager, or dancer violates requirements contained in other sections.6
The appellants provide no compelling reason to apply the time, place, or manner analysis
in a prior restraint context. And neither JJR, Ino Ino, nor any other case has applied this analysis
to evaluate a prior restraint. Accordingly, we hold that the analysis for time, place, and manner
restrictions under the First Amendment is inapplicable to PCC 5.14.230.
E. CONSTITUTIONALITY OF PCC 5.14.230 – DUE PROCESS
Forbes argues that PCC 5.14.230 violates article I, section 3, the due process provision of
the Washington Constitution, because it imposes strict liability on erotic dance studio operators,
managers, and dancers for violations of erotic dance studio regulations. As discussed above,
PCC 5.14.230 does not allow the imposition of sanctions based on strict liability. Therefore, we
reject the appellants’ due process challenge on this basis.
6
PCC 5.14.190 does impose time, place, and manner restrictions on sexually explicit dance, and
violation of that section subjects a license holder to sanctions under PCC 5.14.230. However,
the appellants emphasize that they are not challenging the constitutionality of PCC 5.14.190.
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CONCLUSION
We affirm the trial court’s summary judgment order dismissing the appellants’
complaints.
MAXA, C.J.
We concur:
SUTTON, J.
PRICE, J. PRO TEM
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