Plaintiff Jamie Muffett applied to the City of Yakima, Washington, for approval of an adult entertainment business he sought to open in a general commercial zone. Muffett’s application was denied by a Yakima hearing examiner, following a public hearing on the proposal, because the proposed adult establishment was deemed incompatible with the surrounding “family and tourist-oriented” uses and would not comply with Yakima’s Urban Area Zoning Ordinances because, among other things, it would cause a loss of businesses, negatively impact property values, and create blight in the neighborhood. Muffett appealed to the City Council, which unanimously upheld the hearing officer’s determination. This appeal was then filed in Washington State Superior Court, then removed to federal District Court.
On appeal, Muffett challenged the constitutionality of the City’s adult business review process, which he claimed imposed an unconstitutional prior restraint on speech. Under the City’s review process, an adult entertainment business is subjected to either a Type 2 or more rigorous Type 3 review, which involves a public hearing in front of a hearing examiner, and allows members of the public to submit written evidence to the hearing examiner before a determination is made. An administrator with the City may choose to require Type 3 review for such a project if “in the opinion of the administrative official, formal public review and comment on a proposal will assist in determining necessary and proper mitigation of impacts.” Once the hearing is concluded, the hearing officer bases his or her determination on the business’s “compatibility” with surrounding uses. Compatible uses are defined in City code as those which are “in harmony with the character of the district.”
In Muffett’s case, a Type 3 review was held. Following the hearing, the hearing officer held that the adult business would not be compatible with surrounding uses, and Muffett’s application was denied.
The District Court held that Muffett had sufficiently pleaded facts supporting an argument that the compatibility requirement was unconstitutional prior restraint on free speech. The Court acknowledged that nude dancing has been treated by the courts as a form of free speech protected by the First Amendment against unreasonable prior restraint. Because every adult business was required to undergo a compatibility review of some form, the court held that the compatibility review was the functional equivalent of a licensing scheme and therefore was a prior restraint on speech. Further, in the compatibility review, hearing officers were asked to make decisions about whether the business would be “in harmony with the character of the district” – a determination which the court felt was too subjective and not sufficiently narrow to pass constitutional scrutiny. Therefore, since issuance of a license to operate an adult business was contingent upon compatibility with the Zoning Code, and since the hearing officers were given no narrow, objective, or definite standards to determine compatibility, the court held that the compatibility requirement could not withstand constitutional scrutiny.
A permanent injunction barring the City from enforcing the compatibility requirement was issued with respect to conduct protected by the First Amendment.
Muffett v. City of Yakima ex rel. Members of its City Council, 2012 WL 2915472 (E.D. Wash. 7.17.12)