Plaintiff ATL Corporation (hereinafter ATL), an applicant for an adult entertainment premises license, challenged the constitutionality of the City of Seattle’s (hereinafter the City) municipal code provisions that regulated adult entertainment businesses, asserting that the licensing and dispersion ordinances were facially unconstitutional in violation of ATL’s free speech rights. The federal district court for the Western District of Washington found that the licensing ordinance facially violated free speech while the dispersion ordinance did not. The licensing ordinance required compliance with standards of applicable zoning, health, building, fire, and safety laws of the city and state, no fraudulent misrepresentation of material facts on the application and that all parties involved be over the age of 18. The dispersion ordinance required that the proposed location be no less than 800 ft from a school, community center or other similar operation, and that it be no less than 600 ft from another adult entertainment facility.
When ATL submitted an application for an adult entertainment license, it was told to show compliance with zoning, building, fire, safety and health laws by obtaining all applicable permits. ATL then contacted the Department of Planning and Development (hereinafter DPD), DPD informed ATL that the proposed location was permitted if the requirements of Seattle’s dispersion ordinance were met (23.47A.044H), but refused to perform an exhaustive search or determine whether the location met the requirements because ATL did not have a pending zoning or building permit application. ATL repeated this process a second time, and was informed of the same information. After ATL’s attorney pointed out to the City Attorney’s Office that failure to grant or deny a license within a timely manner is unconstitutional, the City agreed to issue the license while specifically noting ATL could not operate the business without meeting the dispersion requirements. The City later adopted a policy that required a decision on adult entertainment licenses within thirty days of receiving all materials for an application regardless of the status of applicants’ other permits.
Between late December 2008 and early February 2009 ATL submitted two sets of layout and building plans, business, the first denied because the plans failed to address the dispersion requirements and the second because the DPD believed the location violated dispersion requirements, although ATL believed the location did not. ATL’s plans were finally accepted in August 2009 but the application was denied because a facility with a day care permit was located 742 ft from the property and a facility with an adult entertainment license was located 342 ft from the property, however, neither of those uses were currently operating. The City argues that they have a thirty day policy on license applications, but because that policy is not on the face of the ordinance, they had the burden of showing that the limits were explicit (1) in an incorporated writing, (2) by administrative construction, or (3) by a well-established practice. The court viewed this as a mere promise to adhere to some time limit in the future, upon which no person’s First Amendment rights should be predicated. They found no evidence of any writing, construction or uniform understanding of the practice to make the policy binding, thus making the licensing ordinance unconstitutional.
The court, however, found the dispersion ordinance to be constitutional after conducting an analysis of “reasonable alternative avenues.” The court reviewed evidence of the number of potential sites, the demand for adult businesses, the chilling effect of existing permitting schemes, the amount of property available for development, the specifics of the City and its population, regulation in other communities, among other things. The City had looked at two very different zoning schemes and had decided on the current one whose basis rested in dispersion requirements because of the constitutional issues involved, and concluded that the number of adult entertainment facilities could potentially double what it was currently. The court found that to be a reasonable interpretation of possible locations for these facilities, as there are a large number of both developed and undeveloped sites meeting the dispersion requirements that are within the City’s boundaries. As a result, the court granted in part and denied in part the parties’ cross motions for summary judgment, finding the dispersion ordinance facially constitutional and the licensing ordinance facially unconstitutional.
ATL Corp. v. City of Seattle, 2010 WL 2836164 (W.D.Wash 7/19/10)
