Plaintiffs brought this action to obtain a declaration that two Portland City Code (PCC) ordinances prohibiting nudity in taverns and restaurants, PCC 14.36.010 and PCC 14.36.020, could not validly be enforced against them. In their complaint, plaintiffs alleged that the ordinances have been preempted by the Oregon Liquor Control Act, see ORS 471.045, and that they violate Article I, section 39, of the Oregon Constitution and the right to free expression guaranteed by Article I, section 8, of the Oregon Constitution and the First Amendment. The parties stipulated to the relevant facts, and the court entered judgment for plaintiffs. Defendant appeals, and we affirm as to one ordinance and reverse as to the other.
PCC 14.36:010 states:
“Places of Entertainment.
“a. In any place licensed to sell alcoholic liquor and permitted by State law to allow dancing or have other forms of entertainment, it is unlawful for stage or floor show entertainer:
“(1) To come into physical contact with any patron or to circulate among tables, chairs or similar furniture used or intended for use by patrons.
“(2) To expose his or her genitalia or engage in or simulate any act of sexual intercourse, sodomy, masturbation or other sexual stimulation by the massage of the genital area of the body in the course of the show.
“(3) To appear in the course of the show without covering his or her genitalia with an opaque material which does not simulate the organ covered.
“b. It is unlawful for the owner, operator, or person in charge of a place licensed to sell alcoholic liquor and permitted by State law to allow dancing or have other forms of entertainment knowingly to permit any violation of Subsection (a) of this Section.”
PCC 14.36.020 states:
“Places Serving Liquor.
“a. In any place where food or alcoholic beverage is offered for sale for consumption on the premises, it is unlawful:
*633 “(1) For any female person to be so costumed or dressed that one or both breasts are wholly or substantially exposed to public view.
“ (2) For any person to appear without covering his or her genitalia with an opaque material that does not simulate the organ covered.
“b. It is unlawful for the owner, operator or person in charge of any place where food or alcoholic beverage is offered for sale or consumption on the premises knowingly to permit any violation of Subsection (a) of this Section.”
The facts are stipulated by the parties:
“1. Plaintiff Sekne is the owner and operator of Graffic Tavern.
“2. Plaintiff Margaret Trachsel is a dancer who performs at the Graffic Tavern.
“3. Plaintiff Sekne’s tavern serves alcoholic beverages and is licensed by the Oregon Liquor Control Commission
“4. Plaintiff Sekne serves food for consumption at his tavern.
“5. Plaintiff Sekne permits live entertainment at the tavern consisting of dancing by female performers.
“6. Dancing by female performers is performed on a separate stage.
“7. Dancers do not have any physical contact with any of the patrons of the tavern.
“8. Dancers do not circulate among tables, chairs or similar furniture used or intended for use by patrons.
“9. Dancers to not touch or offer to touch sexual parts of another for the purpose of arousing or gratifying the sexual desires of either party.
“10. Dancers to not simulate any act of sexual intercourse, sodomy, masturbation or sexual stimulation by massage of the genital area of the body in the course of the performance.
“11. Dancers dance to the accompaniment of music.
“12. Dancers, during a portion of their performance, appear with their breasts wholly or substantially uncovered.
“13. Dancers, during a portion of their performance, *634 appear without covering their genitalia with an opaque material.
“14. Defendant City of Portland Inspectors have threatened to enforce City of Portland ordinances against plaintiffs, and in particular §14.36.010 and §14.36.020, prohibiting nude dancing as described in paragraphs (12) and (13) above.
“15. Defendant City of Portland intends to enforce its ordinances as to plaintiff Sekne and his dancers.
“16. Plaintiff Sekne has permitted nude dancing as described in the paragraphs above since September, 1983 until April 22, 1985. Plaintiff Sekne desires to continue to permit dancing as described above. Plaintiff Trachsel desires to continue to perform routines as described above.”
After the parties presented arguments below, the trial court asked them to submit additional memoranda on the question of whether the ordinances violate the equal protection guarantees of Article I, section 20, and the Fourteenth Amendment. The parties submitted the memoranda, and the court invalidated the ordinances on equal protection grounds. In its opinion it stated:
“The City does not quarrel with the concept that within the confines of the City of Portland nudity is permitted on television, in the movies, in magazines and on the stage at the Civic Theater. Why may nude bodies be viewed in many places within the City but not taverns?
“While it may be a desirable policy to deter exploitation of women, assuming that nudity in a tavern is exploitation, such legislation should not be discriminatory in its application.
“Ordinances 14.36.010 and 14.36.020 are unconstitutional.” 1
In defendant’s only assignment, it asserts that “[t]he court erred in holding that PCC 14.36.010 and 14.36.020 violated the equal protection provisions of the Fourteenth Amendment * * * and Article I, section 20 of the Oregon Constitution.” In response, plaintiffs argue that the court correctly invalidated the ordinances on equal protection grounds and, in the alternative, that the ordinances violate plaintiffs’ rights to free expression under the state and federal constitutions.
*635 Plaintiffs also argue that “the ordinances conflict with the Oregon Liquor Control Act and the OLCC regulations and therefore are superceded [sic] and repealed.” They explain that “nude dancing as performed on plaintiffs premises is permitted by OLCC regulations and state liquor statutes. To the extent that the city ordinances prohibit nude dancing which is allowed by OLCC regulations, these ordinances are inconsistent with the Oregon Liquor Act.” We turn briefly to this argument, although defendant does not address it.
ORS 471.045 provides that the Liquor Control Act
“shall fully replace and supersede any and all municipal charter enactments or local ordinances inconsistent with it. Such charters and ordinances hereby are repealed.”
The legislative policy underlying ORS 471.045 is to prempt an ordinance only if it is inconsistent with the act.
City of Portland v. Sunseri,
PCC 14.36.010 prohibits nude dancing in “any place licensed to sell alcoholic liquor.” Article I, section 8, provides:
“No law shall be passed restraining the free expression of opinion, or restricting the right to speak, write, or print freely on any subject whatever; but every person shall be responsible for the abuse of this right.”
Plaintiffs argue that the ordinance is overbroad and, therefore, invalid.
2
Plaintiffs do not challenge the portions of the ordinance which make it unlawful for an entertainer to come into physical contact with any patron or to circulate among tables, chairs or similar furniture used or intended for use by patrons, or to engage in or simulate any act of sexual intercourse, sodomy, masturbation or other sexual stimulation by the massage of the genital area of the body in the course of the show. They assert, however, that by prohibiting all nude dancing in taverns, the ordinance reaches expression that Article I, section 8, protects. If the ordinance does proscribe protected behavior, it is invalid, unless we can give it a narrowing construction.
State v. Robertson, supra
n 2,
In
Derrington,
the court upheld an ordinance analagous to PCC 14.36.020(a)(1) which prohibited women from appearing topless in bars and restaurants. It stated that “[w]hen nudity is employed as sales promotion in bars and
*637
restaurants, nudity is conduct” and is, therefore, a fit subject for governmental regulation.
In
City of Portland v. Gatewood,
“We recognize that the prohibited conduct at issue here, i.e., appearing nude or exposing one’s genitals in public, can constitute symbolic conduct and be a form of expression protected under Article I, section 8.”76 Or App at 79 .
We upheld the ordinance, however, after construing it to reach nudity that was not expressive.
The lesson of
Gatewood
is that nude conduct can be “expression” within the meaning of Article I, section 8.
See also State v. House,
Cases from other jurisdictions support the conclusion that nude dancing is “expression” entitled to constitutional protection. Although the United States Supreme Court has, in the face of First Amendment challenges, upheld
state liquor regulations
controlling nude dancing, it has recognized that speech is implicated.
New York State Liquor Authority v. Bellanca,
“Nor may an entertainment program be prohibited solely because it displays the nude human figure. ‘[NJudity alone’ does not place otherwise protected material outside the mantle of the First Amendment. Jenkins v. Georgia, [418 US 153 , 161,94 S Ct 2750 ,41 L Ed 2d 642 (1974)].”452 US at 66 . (Citations omitted.)
See also Duran v. Salem Inn, Inc.,
In
Morris v. Municipal Court for San Jose-Milpitas,
32 Cal 3d 553, 186 Cal Rptr 494,
“[Nude dancing at taverns is] undoubtedly more offensive to the residents of Santa Clara than other entertainments which may be performed in the nude - ballet, for example. But the First Amendment does not generally permit courts or legislatures to distinguish between these activities. ‘[I]t is largely because governmental officials cannot make principled distinctions in this area that the Constitution leaves matters of taste and style so largely to the individual.’ (Cohen v. California (1971)403 U.S. 15 , 25, [29 L.Ed.2d 284 , 294,91 S.Ct. 1780 , 1788].) ‘[WJhile the entertainment afforded by a nude ballet at Lincoln Center to those who can pay the price may differ vastly in content (as viewed by judges) or in quality (as viewed by critics), it may not differ in substance from the dance viewed by the person who, having worked overtime for the necessary wherewithal, wants some “entertainment” with his beer or shot of rye.’ (Salem Inn, Inc. v. Frank (2d Cir. 1974) *639501 F.2d 18 , 21, fn. 3; on remand,522 F.2d 1045 , 1048.)” 32 Cal 3d at 558.
Moreover, it found that the state’s concern for the exploitation of female nudity was not a sufficient state interest to uphold the ordinance:
“The female body has been the inspiration of artists from time immemorial. Their motivations have ranged from the highest and purest to the vilest and most degrading. * * * Surely it cannot be contended that the law - as distinguished from other societal controls, such as family, church, peer groups, media, critics - should assume the role of the arbiter who segregates nudity which insults and degrades, from that which exalts the beauty of the human form, male and female.” 32 Cal 3d at 568. (Citation omitted.)
Other state courts have invalidated prohibitions against nude entertainment in taverns under the free speech provisions of their state constitutions.
Mickens v. City of Kodiak,
Because we have decided that PCC 14.36.010 is overbroad under Article I, section 8, the next steps in our analysis are to decide whether it can be given a narrowing construction to bring it within constitutional bounds,
State v.
*640
Robertson, supra,
The portions of the ordinance that we find invalid, however, can be severed from the remainder of the ordinance, which is not inseparably connected to or dependent on the prohibitions on nude dancing and standing alone is complete. See State v. Cantwell, supra; see also State v. Robertson, supra. The stipulation of the parties also states that the dancers do not engage in the activities covered by the remainder of the ordinance, and plaintiffs do not challenge it. We do not pass on the remainder of the ordinance.
Plaintiffs also challenge the constitutionality of PCC 14.36.020, which is a prohibition against nudity in “any place where food or alcoholic beverage is offered for sale.” If we construed the ordinance to prohibit nude dancing, it would be unconstitutional for the reasons stated above. We construe it, however, not to reach nude dancing.
See City of Portland v. Gatewood, supra,
Affirmed in part; reversed in part; and remanded for proceedings not inconsistent with this opinion.
Notes
The court noted at trial:
“What difference does it make whether you are watching nude dancing while you are eating a hamburger or having a beer.”
The threshold question in an analysis of a law under Article I, section 8, is whether the legislative enactment is directed against speech itself or against some effect of speech.
State v. Robertson,
The cases cited from other jurisdictions, which uniformly reject the speech/conduct dichotomy, raise serious questions as to the continued validity of Derrington’s reasoning under the First Amendment.
In
State v. House, supra,
we struck down an ordinance which prohibited any live public show which included “any touching of genitals, pubic areas or buttocks * * * or the breasts of the female * * * in an act of apparent sexual stimulation or gratification,” because it “[was] overbroad and prohibited] expression protected by Article I, section 8.”
Amendment XXI, section 2, provides:
“The transportation or importation into any State, Territory, or possession of the United States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited.”
We note that, even were we considering the validity of the ordinances here under the First Amendment, Oregon does not appear to have delegated its liquor regulatory authority under the Twenty-First Amendment to the city so as to augment its power to regulate establishments serving liquor.
See Leverett v. City of Pinellas Park,
775 F2d 1536 (11th Cir 1985);
see also Krueger v. City of Pensacola,
759 F2d 851 (11th Cir 1985);
Grand Faloon Tavern, Inc. v. Wicker,
670 F2d 943 (11th Cir 1982),
cert den
In
City of Portland v. Gatewood, supra,
we “saved” an ordinance by construing it to apply only to nudity that was not expressive.