World Wide Video, Inc. v. City of Tukwila
816 P.2d 18
Wash.
1991
Check Treatment

*1 denied validly demands for new counsel were sequent coun- The to waive right the same reason as before trial. from the conse- to be immune sel does not include a right De- of Mr. The removal quences self-representation. court's the trial within courtroom was Weese from the orderly proceedings. and fair maintaining discretion for obnoxious courtroom There is no place obstructionist behavior.

Affirmed.

Dore, C.J., Utter, Brachtenbach, Dolliver, Ander- sen, Durham, Smith, Johnson, JJ., concur. 19, 1991.] September

[No. En 56619-4. Banc. Appellant, v. Video, Inc., World Wide Respondent. Tukwila, *2 Levy, appellant. H. Gilbert *3 Kenyon, Patten, P.S., for and Michael R. & LeSourd respondent. City An adult bookstore sued J. Dolliver, City's alleging new adult entertainment zon-

Tukwila, unduly speech. ing trial, restricted free At zoning unconstitutional, declared while the ordinance was licensing against City's peep upheld show ordinance was challenge. parties appealed the same Both and direct granted. affirm the trial review was We court on both issues.

I (WWV) Video, Since late World Wide Inc. has operated an adult entertainment establishment (Tukwila). selling City and rent- addition of Tukwila videotapes, sexually explicit magazines, ing novelties, and peep eight panoram, show, booths on or has WWV and is located in a commercial zone WWV premises. a zone. directly abuts residential Tukwila, WWV began operations A months after few adult existing a of its entertain- City began review considered in the Various materials were legislation. ment review, including but limited course motion ordinance, Tukwila's adult adult existing picture of Des and use studies Cities Moines prepared Kent, materials an prepared antipomography group, Supreme United States Court and applicable certain cases, Court and Washington Supreme information an police assistant chief of of Renton. provided The results of the review led to the consideration and in June adoption, Tukwila Ordinance (TMC) 18.06.825). (amending Tukwila Code Municipal theaters, Ordinance 1465 adult motion regulates picture bookstores, stores, adult adult video adult stores, retail Such other uses. adult uses are permitted and only Tukwila within M-2 heavy industrial zone. Within zone, the M-2 adult entertainment establishments must meet various dispersion requirements. trial court found similar combination concentration/dispersion plans have been utilized other communities in Washing- ton. (TMC 5.52), Ordinance passed later

1988, regulates or panorams, shows. It includes pro- visions an requiring applicant acquire a panoram ($100 premises fee), license annual license panoram ($50 device licenses for each peep show on premises fee), license annual for panoram operator's license ($725 fee). operator each annual license Applicants such licenses must provide information, certain including name, address "[t]he number of each telephone per- son an holding [some leasehold sections ownership, *4 the word "other"] include the panoram (2)(B), 5.52.060(b)(1)(B), or See [premises device]". TMC (3)(B). licenses, The city clerk is to the or required issue within nonissuance, the reasons for after the date days 30-day is intended any application. period of filing the necessary investigations time various provide health etc. department, police department, ordinance 1475 includes foregoing, addition the the regarding configuration requirements various from must be cut at least inches show booths: Doors floor; openings partitions there be no may ceiling; and the close to the floor booths except between must be locked; equal be lighting must not the booths any must not have and booths throughout premises; does have a door curtain. WWV they surface if seating with of these any requirements. not comply deny does in WWV speech engaged the first amendment United under protected and under article section 5 of the States Constitution Both the ordinance and zoning Constitution. Washington ordinance thus affect panoram protected speech. court the con- superior challenging brought WWV suit zoning new entertainment of the stitutionality relief. declaratory and ordinance, injunctive and seeking equal protec- and process free due alleged speech, WWV and Constitution the United States under tion violations Tuk- Constitution. Washington of the article section 5 counterclaimed, seeking injunctive answered wila on with Tukwila's noncompliance relief based WWV's answered the coun- ordinance. WWV licensing panoram ordinance also was by alleging panoram terclaim on the motions hearing defective. The constitutionally merits, and the case trial on with was consolidated court found in favor to the court. The trial tried was constitutionality WWV on licensing on ordinance. panoram of Tukwila favor appealed.

Both parties

II trial error several assigns Each party fact. findings court's

387 Washington, findings of fact supported substantial evi- appeal. dence will not be disturbed on Substantial evidence if the quantity exists record contains evidence of sufficient fair-minded, persuade a rational of the truth of the person declared premise. (Citations omitted.) Share, Bering v. 212, 220, 106 Wn.2d (1987). dismissed, cert. (1986), 721 P.2d 918 479 U.S. 1050 We believe the trial court did an excellent job making of fact. The specific, well-supported findings only finding of fact we find not to be evidence supported by finding is of fact 45: Department Police require approximately would days investigate

two full license. operator's each . . . additional Because most of connection the information required with the license is based rather operator's on the business than on the individual operator, of addi- investigations tional licenses would operator's take far less than 2 likely each. days agree We with plaintiff there is neither tes- timony nor reasonable inference from the testimony finding of fact 45. Our support rejection of this finding fact, however, has no impact on the outcome of the case.

Ill 1, article Although section 5 provides greater pro tection for than speech rights does the United States Con v. stitution, O'Day King Cy., 109 796, 802, Wn.2d 749 P.2d (1988), 142 federal law operates as a floor for speech pro tection, 1, above which article section 5 operates only when appropriate. When we believe a statute to be clearly Constitution, violation of the United States as we do 1465, here to ordinance regard statute, with it is to enunciate a state rule unnecessary and we do not do look, therefore, so. We to federal law to determine minimum area, limits of this protection while empha that our of the federal sizing application standard does not constitute its as the adoption Washington standard. 1986, the United States Supreme Court ruled on regulated Renton ordinance that the location of adult

388 Theatres, Inc., Playtime theaters. Renton v. picture motion (1986). Ct. 41, 29, U.S. 89 L. Ed. 2d 106 S. Renton's status as leading regarding federal case zon the recent of adult businesses was not altered ing Theatre, Inc., v. Barnes Glen Court decision Supreme (1991) _ U.S. _, Ct. 2456 504, 115 L. Ed. 2d S. an nudity against a statute prohibiting public upholding nude wishing provide dancing. attack entities live The Barnes nude dancing expres stated that plurality under United which, sive conduct "symbolic speech" O'Brien, v. States L. 88 S. Ct. 391 U.S. Ed. 2d *6 (1968), is entitled to full First Amendment pro 1673 not contrast, Barnes, 115 L. Ed. 2d at 512. In tection. See the by WWV are written or filmed materials distributed for the First Amendment. "pure" speech purposes Barnes terms, apply decision does not By its own start thus Renton remains speech; appropriate "pure" type. for cases of this point ing Renton outset, At Court stated: enacted long regulations This has held that Court pre- basis of its content restraining speech on the purpose of sumptively violate the First hand, Amendment. On other time, regula- and manner place, so-called "content-neutral" designed a they are to serve acceptable long tions are so unreasonably and do not governmental communication. limit alternative avenues of (Citations omitted.) Renton, 475 U.S. at 46-47. The "sub- in Renton was that shown governmental stantial interest" effects of adult secondary the undesirable combating the Renton case, this crucial theaters. statement Court noted: "narrowly only tailored" affect is [T]he Renton ordinance produce the unwanted of theaters shown category effects, avoiding proved flaw that fatal to thus secondary 61[, 452 S. 68 regulations Ephraim, Mount U. Schad v. (1981), 2176] and Erznoznik v. Ed. 101 S. Ct. L. 2d Jacksonville, 205[, S. U. L. Ed. 2d Ct. S. of 2268] (1975). has not contrast,

Renton, 475 U.S. at 52. predominantly "take- that adult with shown businesses (which by clearly home" merchandise are covered ordinance) secondary effects tradi- have the same harmful tionally theaters and associated with adult movie por- governmental interest" shows; thus the "substantial Moreover, ordinance met. tion of the test has been bookstore, retail 1465 includes its definition any in which: store, or video store establishment (A.) consists of percent Ten or more of the "stock-in-trade" emphasis characterized an distinguished [merchandise] anatomical "specified "specified on . . . sexual activities" or areas"; and/or (B.) Any person age is excluded virtue of from all or premises where part generally open public held to the displayed [merchandise] such or sold. (8). 18.06.825(a)(2)(A), (B); 18.06.825(a)(6), TMC see TMC This definition would even include "mainstream" video stores that have restricted adult sections. Yet the trial unchallenged finding specifically court, fact, an found: conducting None of the sources Pace in considered Mr. study his their stock in indicate that businesses which have percent sexually explicit

trade limited to ten and a half secondary effect as type material caused the same of adverse sexually explicit businesses which one hundred percent have material. *7 Finding Again, governmental of fact 27. no substantial Therefore, the Tukwila interest has been demonstrated. sufficiently "narrowly is not tailored" to meet ordinance the federal standard. argues permitted rely it be on

Tukwila should "to enacting experiences of Seattle and other cities ... Supreme ordinance", adult theater Court its Renton, 475 held the of Renton was entitled to do. qualified. However, U.S. at 51. that entitlement was rely city gener Supreme Court held a could on evidence city long others, "so as whatever evidence the ated 390 to be relevant to

relies is believed upon reasonably Renton, addresses." 475 city that U.S. problem it test; this The Tukwila ordinance does pass 51-52. different expressive activity forms of regulate strives which it relies. upon those studied the materials from governmental no Because has shown Tukwila regulating types that is served numerous 1465, is the ordinance covered ordinance businesses States under the United Constitution. unconstitutional not, not, question need do reach the We therefore limit[s] alternative "unreasonably whether the ordinance avenues of communication". stated, subsequent

We note also that the Ninth Circuit Renton, that Theatres, Inc., Mini five . . . American justices Young [v. (1976)] 310, con 50, 427 U.S. 96 S. Ct. 49 L. Ed. 2d first amendment degree protection cluded affords ascribed vary with the social value speech does not govern. This continues to speech by the courts. view omitted.) (Citations 1053, 793 F.2d Kev, Cy., v. Kitsap Inc. (9th 1986). pornography, Thus a decision Cir. than less protection should receive though protected, question- be types constitutionally other would speech best, standards. able at even under federal

IV is licensing argues WWV panoram Invs., Seattle, 887 Inc. v. unconstitutional under Acorn (9th 1989) FW/PBS, Dallas, 493 Inc. v. F.2d 219 Cir. (1990). 603, 215, L. Ed. 2d 110 S. Ct. 596 U.S. the one we reach different conclusion than Although analyz WWV, helpful these cases are indeed urged by was made argument ordinance. As no ing Gunwall, 106 720 P.2d State v. Wn.2d pursuant (1986) of Washington A.L.R.4th 517 for an application law. under federal issue, only our analysis law to this the Washington whether make no statement regarding We standard licens a different might support constitution of this ing type. *8 Fees

License trial court's determination challenges WWV 5.52.050(a) are TMC license fee provisions the fees are valid because argues constitutional. Tukwila involved in time and cost on the estimated are based they of finding Our rejection license applications. investigating there are this because argument of fact 45 is not fatal the license system associated with to be other costs likely trial. The inspections by made evident at which were not for example, than the police department, entities other Thus, City. cost to the because will not be without of the are licensing procedure costs to Tukwila exact and it is not always the evidence presented unclear from new the costs of a precision to estimate with possible at this time to hold we are licensing system, prepared If at a later date could the fees are excessive. WWV unreasonable in of the actual light show the fees be to the administering licensing program, costs Acorn, then challenge might as was done a successful be brought.

Disclosure Provisions Next, challenges WWV the trial court's determination disclosure of TMC 5.52- ownership provisions .060(b) Acorn, are constitutional. on Relying primarily the "or interest" WWV other argues language it dis- arguably because chilling requires information. The Seattle ordinance at closure of too much all called for disclosure names of issue Acorn held: Circuit shareholders. The Ninth shareholders, directors, not are Because officers management corporation's of a for the legally responsible business, City's connection between the logical there is no . . . panoram ordi- compliance with legitimate interest the names of disclosure of requiring the rule nance and shareholders. Acorn, at 226. 887 F.2d could be requirement "other interest"

Tukwila's minor relatively include with persons construed shareholders, and if so business, such as How- the ordinance would be unconstitutional. construed is the this court ever, it possible, duty "[w]herever *9 uphold constitutionality." a statute so as to its construe Browet, 215, 219, 691 P.2d 571 Inc., v. 103 Wn.2d State (1984). statutory apply "The same construction rules of Spokane ordinances as to state statutes." v. municipal (1988). Fischer, 110 Wn.2d 754 P.2d 1241 There- fore, ownership provisions we construe the disclosure of 5.52.060(b) all persons TMC disclosure of requiring to that of hold an interest similar an owner lease- who — interest", significance an "other with significant holder of the responsibility management based on busi- being This construction also ness, as indicated Acorn. satis- vagueness eliminating any concerns fies WWVs that vested in might discretion have been inappropriate construed, so the ordinance official. As licensing standards. federal constitutional meets Requirements Configuration the trial determination further court's challenges WWV 5.52.110(4) in TMC the illumination requirement that 1475) (referred 5.52.110(D) in is constitu- to as ordinance Acorn, approved portion the court tional. booths ordinance show "be requiring Seattle illuminated so that someone outside can sufficiently Acorn, 887 inside". F.2d persons determine number too far Tukwila ordinance argues goes 223. WWV rather throughout equal lighting premises requiring The trial court dis- lighting. than "sufficient" merely The minor difference from ordi- We affirm. agreed. the community's discretion nance noted Acorn is within and is not unconstitutional. for Issuance Period

Time the trial court's deter Finally, challenges WWV period maximum approval the 30-day mination 5.52.080(a) to WWV's Contrary is constitutional. TMC too long period, necessarily is not days argument, which and investigations inspections the various given FW/PBS, the United licensing. must take before place down a Dallas Court struck Supreme States businesses" oriented "sexually regulation relating businesses) it "[did] because (including panoram-type within on the time limitation for an effective provide FW/PBS, made." must be licensor's decision which following require- The Court stated 110 S. Ct. at 606. ments:

license within a which the status possibility license is [1 T]he licensor must erroneously denied. prompt specified and reasonable quo is maintained make the decision whether judicial review in the event [2] time there must be period to issue during the the FW/PBS, 110 S. Ct. at 606. ordinance, ordinance, like the Tukwila

The Dallas *10 days "within 30 license applications for of approval called 110 S. Ct. at FW/PBS, an application", after receipt Tukwila, certain Dallas, as in 605; see TMC 5.52.080. before required were safety inspections health and 605; see FW/PBS, 110 S. Ct. at be might approved. license .080(b)(1). Dallas The Court found the 5.52.060(a), TMC the time 30-day not because of unacceptable, ordinance no means it "provide[d] rather because but period, [be] the business ensure [might] an applicant which the which time within 30-day period within inspected if approved." issued to be license purportedly [was] not Court did The FW/PBS, Supreme 110 S. Ct. at 605. Its disap- inherently problematic. 30-day find the period on the instead based ordinance was of the Dallas proval a license to issue if the failed remedy of any absence days. those 30 within Dallas difference between one crucial

There is thus contains ordinance The Tukwila ordinances: and Tukwila The Supreme is denied. if a license for appeal provisions in the Dallas described Court noted that procedures ordinance city limits any on the time within which place [do] not eli- thereby make the business the business and inspect

will gible Thus, license. sexually for the oriented business postponement allows indefinite city's regulatory scheme issuance of a license. 5.52.100(a) FW/PBS, 110 S. Ct. at 606. contrast, TMC adjustment, "the board of city for review provides estab- hereafter be hearing body may . . . such other of such hearing appeals". council for the city lished after notice days must take within hearing place filed, of such filing appeal "[t]he appeal timely the decision clerk, pending shall the action stay 5.52.100(b). The TMC body." of the hearing the decision of the hear- further provides ordinance TMC to the court. superior be ing body may appealed 5.52.100(e). are procedures appeal As as these long issuance of unreasonably delaying used as a means test. licenses, they satisfy are sufficient FW/PBS V court is affirmed. The decision of the trial Andersen, Smith, Guy, and John- Utter, Brachtenbach, son, JJ., concur. — I dissenting part) C.J. (concurring part,

Dore, upholding decision majority's concur with ordinance, holding I dissent from its but licensing show is unconstitu the adult bookstore free should be other any municipality tional. Tukwila or *11 by zoning procedures. development commercial manage adult book determine where city may That means (1) this determination located, so long stores should be (2) neutrally and slightly speech affects only protected in neighborhood qual interest" "great furthers the city's Cinema, Seattle, Inc. v. 90 Wn.2d ity. Northend denied, (1978), cert. 1153, 1 A.L.R.4th 1284 585 P.2d (1979). U.S. 946 ordi- zoning to the Video, challenger

World Wide peep and an adult bookstore in question, operates nance area a residential bordering zone in a commercial shows is an zoning argues Wide Video of Tukwila. World ordi- Tukwila's on expression. restriction unconstitutional shows to one and peep adult bookstores nance segregates zone, prohibit does not industrial but area, heavy M-2 a planning resulted from This ordinance operation. their cities' experiences considered other study these concentrated method Tukwila's adult businesses. one-fifth about comprising in an area businesses city. does not show that Tukwila concludes majority v. Playtime that Renton interest governmental

substantial Theatres, 29, 106 S. Ct. 925 Inc., 475 U.S. 41, 89 L. Ed. 2d Renton, (1986) as constitu- the Court upheld required. 1,000-foot buffers effort to establish tional the City's areas, residential theaters adult movie between and schools. Renton City's established the churches, parks in furthering to be governmental which zoning powers, traditional neighborhood quality on expres- or manner restrictions time, amounts place is neutral. 475 on content speech sion where the effect U.S. at 47. represents sum, the Renton ordinance we find "admittedly serious to the response governmental

valid Renton has not used by adult theaters. . . . problems" created expression," suppressing for pretext zone as a power "the make some areas available sought has . . . but rather at the same time while patrons, and their adult theaters community large by quality of fife preserving the preventing those This, locating in other areas. theaters from all, zoning. after is the essence 475 U.S. at 54. improperly that Tukwila reasons

Here, majority ordinance on show founded its adult bookstore theaters regulating other cities experiences take- a predominantly zoning regulates Tukwila's because adult movie in nature from business, different home calls Moreover, majority at 389-90. Majority, theaters. *12 396 it of so broad1 that definition adult bookstores

Tukwila's stores, com video thus includes "mainstream" arguably tailored" "narrowly failure to show a City's the pounding at Majority, substantial interest. 389. governmental Mini v. American predecessor, Young Renton its Theatres, Inc., 427 49 L. Ed. 2d 96 S. Ct. U.S. need cities to (1976), 2440 address the unmistakably insidious effects of against protect neighborhoods — as control traditionally adult entertainment cities just same We development. recognized other commercial Northend Cinema. in value is to and its effects development

Tukwila's need control that Renton interest governmental Therefore, exercising is restricted requires. "reasonable alternative only by assuring need The Renton, U.S. 50. of communication." avenues " City's attempting preserve quality 'interest high respect.'" life one that must be accorded urban is 71). Likewise, Renton, (quoting Young, U.S. at at 50 Cinema, our focus in Northend now, as on the narrowed secondary to control unwanted City's determination serene neighbor- effects of adult businesses otherwise hoods. analysis.

The one of the phrase proper catches majority is finding it Tukwila's But misses point Renton s substantial so tailored to meet narrowly not Renton plaintiffs objected test. governmental certain buffers between that established and schools. areas, churches movie houses residential "adult entertainment establishments" 1Tukwila Ordinance defines including: is a establishment in which: 2. "Adult bookstore" retail books, maga- percent Ten or more the "stock trade" consists a. distinguished zines, periodicals posters, pictures, printed materials or other relating describing emphasis depicting, or an on matter or characterized "specified or sexual activities" age part premises Any person all or is excluded virtue from b. displayed or sold. generally open public where such material held (b). 18.06.825(A)(2)(a), Former TMC improperly Renton argument Court rejected The it did not conduct because zoning regulation its enacted 475 U.S. problems. to Renton's related specifically studies stated: the Court at 50. Then enacting city, before require does First Amendment evi- produce ordinance, new studies to conduct an such dence so cities, by other already generated of that independent upon is reason- city relies evidence long as whatever city problem to the to be relevant ably believed

addresses. (Italics mine.) is The protected 475 U.S. at 51-52. finds majority so the relevance neighborhood quality, effects obnoxious riddance of the same is the lacking at clientele, whether business an adult associated with at See, Papers, Clerk's e.g., or shows. peep theaters movie discussing manager, of Wide Video World 376 (deposition stalls). show masturbation peep evidence of critical distinction one also overlooks majority in Renton issue Ordinances its conclusions. reaching of type to cover enough each were broad Young For in Tukwila. operates World Wide Video adult business an adult ordinance defined zoning Renton's example, theater as a picture motion building presenting used for enclosed "[a]n television, any other such cassettes, cable films, video by empha- an characteri[zed] media, distinguished or

visual relating 'specified describing or depicting, sis on matter sexual areas'. . . for obser- anatomical 'specified activities' or therein." by patrons vation terms, Renton Thus, its 44. Renton, 475 U.S. at Young shows. includes peep arguably ordinance constitutionality of challenged plaintiffs adult as well as adult bookstores regulating 53 n.5. 427 U.S. at Young, movie theaters. sub Young2 gives built on that Renton

Recognizing emphasizing decisions in those language to broad stance restric- and not speech zoning regulation issue is that largely view, our decision case is dictated resolution of this "In our Theatres, []". U.S. at 46. Inc. Young Mini v. American blight, unpopular expression. tion. The nuisance is the unwanted effects secondary of Regulation blight, that sexual purvey explicit associated with businesses shows, books, is commercial proper tapes, gags tailoring majority complains The narrow zoning. I discerned easily in Tukwila's ordinance find missing of adult businesses that sell in the City's categorization materials, designated protect and show so explicit Renton, 475 U.S. at neighborhoods. quality city Cf. ("the tailored' to affect 'narrowly only Renton ordinance is the unwanted produce of theaters shown to category effects"). secondary addition, disregard the Court in Renton appeared theaters, on adult movie

the subtle difference between an Rejecting argu- businesses. hand, one and other adult underinclusive, the Renton ordinance was ment theaters, the Court stated: only because it affected problems potential first to address the That Renton chose way kind adult business no particular one created theaters for city "singled has out" adult suggests that no on this discriminatory simply We have basis treatment. not, future, assuming that Renton will record for kinds adult busi- to include other amend its ordinance *14 the same kinds sec- produce have been shown to nesses that theaters. ondary as adult effects omitted.) (Italics My 475 U.S. at 52-53. mine. Citation did because the Court noteworthy emphasis added that can be kinds of adult businesses not "other say bolsters conclusion my . . ." This emphasis shown. on the other cities' studies believed reasonably Tukwila relevant to its adult businesses were effects of secondary courts that have considered Many consideration. zoning have Renton's adapted restrictions adult business See, than adult movies. to uses broader easily reasoning (8th 1990) Cir. 911 F.2d 80 City, v. Kansas e.g., Walker 114 L. Ed. 2d denied, _ U.S. _, cert. (go-go dancing), Enters., Inc. v. St. (1991); Thames 111 Ct. 2234 476, S.

399 1988) (adult (8th Louis, 851 F.2d 199 bookstores, Cir. v. 7250 Corp. theaters, shows, massage peep parlors); (Colo. 1990) (time Comm'rs, County P.2d 917 restric 799 v. County Cook Renaissance tions on nude dancing); Bookstore, Arcade & 123, 73 122 Ill. 2d 522 N.E.2d (1988) dismissed, 488 U.S. (bookstores, mini-theatres), (1988); Montague Rapids, v. Cedar 449 N.W.2d 91 (Iowa 1989) (bookstores); v. Islip Caviglia, Ct. App. (1989) 544, 215, 542 N.Y.2d 540 N.E.2d N.Y.S.2d ("adult cabarets). bookstores, uses", including end, is, zoning, reasonable

Tukwila's to be in Renton. the Court found the ordinance Theatre, Barnes v. Glen 54; Inc., _ U.S. _, U.S. at cf. (1991) (Souter, J., 115 L. Ed. 2d 111 S. Ct. 2456 con (ban on nude dancing furthers curring) public secondary state interest effects of combating establishments). entertainment Renton, misses the majority singular reasoning

Young, Cinema: A can determine where Northend city adult bookstores or shows or full-screen adult movie theaters can be located on the basis of its substantial so it not neighborhood long as does quality, Here, these Tukwila has prohibit altogether. businesses "'the to zone as a employed power pretext sup- and seeks pressing expression" principally preserve of life in the 475 U.S. at 54. "quality community large". I City would hold that zoned adult book- properly one area the ordinance is not uncon- stores to I stitutional. would affirm the decision of the and reverse the trial court. Dore, Durham, J., concurs with C.J.

Reconsideration denied November 1991.