Posted by: Patricia Salkin | January 13, 2015

Fed Dist. Court in WA Upholds County Zoning Restriction Prohibiting Adult Cabaret

In August 2011, Mr. McKibben filed an application for a license to operate an adult cabaret in Snohomish County. The County denied Mr. McKibben’s application because the proposed cabaret was located within 660 feet of two restaurants that served alcohol by the drink. Mr. McKibben argued that Defendant Snohomish County’s (“County”) zoning restrictions on adult entertainment violated the First Amendment, since erotic dancing is protected expression.

Here, because the County’s ordinance did not ban adult entertainment altogether, but rather permits such venues as long as they are distanced from certain sensitive locations, the ordinance was considered to be a time, place, and manner restriction. Next, since the purpose of the County’s ordinance was to minimize the negative secondary community effects—such as increased crime rates, declining property values, neighborhood blight, and the exposure of minors to adult entertainment—associated with live adult entertainment businesses, the County’s ordinance was found to be content-neutral and subject to intermediate scrutiny. As the court discussed, an ordinance satisfies intermediate scrutiny if it is designed to serve a substantial government interest, is narrowly tailored to serve that interest, and reasonable alternative avenues of communication remain available.

Since the County relied on testimony of police officers and business owners as to these harmful secondary effects when establishing this zoning restriction, the court found that it was designed to serve a substantial government interest and was narrowly tailored to serve that interest. The number of plots available for adult businesses created reasonable alternative avenues of communication. Accordingly, the court upheld the County’s zoning restriction and granted its motion for summary judgment.

McKibben v Snohomish County, 2014 WL 6908517 (W.D. WA 12/5/2014)

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