Posted by: Patricia Salkin | July 23, 2019

Ninth Circuit Court of Appeals Vacates Preliminary Injunction Enjoining the Enforcement of Ordinances Relating to “Bikini Baristas”

This post was authored by Matthew Loeser, Esq.

Plaintiff Jovanna Edge owned Hillbilly Hotties, a bikini barista stand in Everett. In 2009, the Everett Police Department (“EPD”) began to receive several citizen complaints related to such bikini barista stands. As a result, the EPD launched an undercover investigation and found that some baristas at this type of stand were openly violating the existing criminal code prohibiting various forms of lewd conduct. Thus, the City enacted EMC §§ 5.132.010–060, a Dress Code Ordinance applicable only to “Quick-Service Facilities” like drive-throughs and coffee stands, and amended its criminal code to broaden the definition of “lewd act” and created the crime of Facilitating Lewd Conduct. Plaintiffs’ motion for a preliminary injunction alleged that the new measures were impermissibly vague because they used ambiguous language to define parts of the body that must be covered by employees, owners, and operators of barista stands, and that a person of ordinary intelligence was denied a reasonable opportunity to know what conduct the City prohibited. The district court granted the preliminary injunction and the City appealed.

The court first analyzed the Lewd Conduct Amendments, which expanded the definition of “lewd act” and created the misdemeanor offense of Facilitating Lewd Conduct. The district court held that the amended definition of “lewd act” failed to give a person of ordinary intelligence a reasonable opportunity to conform his or her conduct to the City’s law. On appeal, the court found that the public would not be left to guess at the meaning of the term “anal cleft,” specifically because the meanings of both “anal” and “cleft” were easily discerned through recourse to a common dictionary. as the definition of lewd conduct was clear. The court therefore held that the activity the Lewd Conduct Amendments prohibited was reasonably ascertainable to a person of ordinary intelligence.

The court next reviewed the district court’s order enjoining enforcement of the Dress Code Ordinance, which mandated that employees, operators, and owners of “Quick-Service Facilities” comply with the City’s dress requirement. The terms of the Dress Code Ordinance were sufficiently clear to preclude enforcement on “an ad hoc and subjective basis” since the dress requirement clearly defined areas of the body that owners and employees were required to cover while operating Quick-Service Facilities, using commonly understood names for those body areas. Furthermore, even assuming plaintiffs could prove that their intent was to convey a particularized message, and satisfy the first requirement for classification as expressive conduct, plaintiffs’ First Amendment claim would still fail due to their failure to show a great likelihood that their intended message would be understood by individuals receiving it. Moreover, as the court held wearing pasties and g-strings while working at Quick-Service Facilities was not “expressive conduct” within the meaning of the First Amendment, the Dress Code Ordinance did not burden protected expression. Accordingly, the court vacated its preliminary injunction and remanded the case for further proceedings.

Edge v. City of Everett, 2019 WL 2864410 (9th Cir CA 7/3/2019)

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