Local governments often need to regulate a variety of adult sexually oriented businesses and services, including movie theaters, bookstores, video stores, adult-only hotels/motels, massage parlors, peep shows, and erotic dancing establishments. Regulations must be carefully considered in light of federal and state constitutional guarantees regarding freedom of expression. Even though adult entertainment regulations may seem complicated to implement, local governments are well-advised to have them in place before adult entertainment uses seek to locate in their communities, rather than scrambling to play catch-up once they are already established.
Regulations imposed on sexually oriented businesses have been challenged in the courts over many years. The result of these challenges is a body of court decisions that conclude that local governments may impose reasonable time, place, and manner regulations on adult businesses as long as a substantial public interest in regulating the use (in a way that does not suppress speech) is demonstrated, and as long as reasonable alternative locations are provided for the use. While it is unlikely that local governments may totally ban sexually oriented businesses, location and licensing restrictions may be imposed since the courts recognize that communities are entitled to protect themselves against the "secondary effects" of such businesses.
Washington cities and counties have enacted a variety of regulatory approaches for adult entertainment businesses. The primary focus has been on zoning and licensing regulations. These regulations help facilitate enforcement of legitimate location and distance requirements and help law enforcement monitor potential criminal activity. The issuance of adult business licenses is generally contingent on compliance with regulations regarding interior illumination, floor plan, distance between performers and patrons, physical contact between employees and patrons, stage height, door height, sight lines, and so forth. According to the courts, licensing requirements must establish clear guidelines and standards which limit the discretion of the licensing official, and must expressly limit the time a locality has to act on a license application.
Legislative Record and Supporting Studies
While many of the documents listed below may appear to be outdated, they are still relevant to local governments wishing to establish new regulations. In Renton v. Playtime Theatres, Inc., 475 U.S. 41 (1986), the court held that the City of Renton was entitled to rely on the experiences of Seattle and other cities and in particular on the "detailed findings" summarized in Northend Cinema, Inc. v. Seattle, 90 Wn.2d 709 (1978). The court noted that: "The First Amendment does not require a city, before enacting such an ordinance, to conduct new studies or produce evidence independent of that already generated by other cities, so long as whatever evidence the city relies upon is reasonably believed to be relevant to the problem that the city addresses."
Sample Ordinances and Code Provisions
Regulations must always be evaluated in light of federal and state constitutional guarantees regarding freedom of expression. Based on decisions in cases challenging adult entertainment regulations, it is certain that cities may impose reasonable time, place and manner regulations on adult businesses as long as a substantial public interest in regulating the use (in a way which does not suppress speech) is demonstrated, and as long as reasonable alternative locations are provided for the use. Local governments cannot impose regulations which prohibit adult uses outright, prohibit sexually explicit messages, require excessive locational requirements, or allow excessive administrative discretion in the business license or special use permit process.
The following samples of zoning and business licensing ordinances have to date withstood challenges to their validity. MRSC recommends close consultation with your city, town, or county prosecuting attorney before incorporating any of these provisions into your own regulations.
- Bellevue City Code Ch. 5.08 - Cabarets and Adult Entertainment
- Everett Municipal Code Ch. 5.120 - Public Places of Adult Entertainment
- Gig Harbor Municipal Code Ch. 5.10 - Licensing and Operation of Adult Entertainment Facilities
- Kent Municipal Code Ch. 5.10 - Adult Entertainment
- King County Ordinance No. 13548 - Regulation of Adult Businesses, 1999
- Mukilteo Municipal Code Ch. 5.06 - Licensing and Operation of Adult Entertainment Facilities
- Oak Harbor Municipal Code Ch. 5.20 - Adult Entertainment, 2010
- Snohomish County Code Ch. 6.30 - Adult Businesses and Employees
- Thurston County Code Ch. 6.42 - Erotic Dancehalls
- Vancouver Ordinance M-3382 - Licensing and Operation of Sexually Oriented Businesses, 1998
- Everett Municipal Code Title 19 - Zoning, Ch. 39.025, Adult Use Business Zoning Regulations, 2005
- Federal Way Ordinance No. 99-347, 1999
- Kelso Municipal Code Sec. 17.30.040 - Sexually Oriented Business Overlay Zone, 2009
- Kennewick Municipal Code
- King County Ordinance No. 13546 - Zoning Provisions Governing Adult Entertainment Businesses, 1999
- Mukilteo Municipal Code Sec. 17.16.040(B)(19) - Reference Note for Permitted Use Matrix - Adult Entertainment Uses, 2010
- Oak Harbor Municipal Code Ch. 19.52 - Adult Entertainment Facilities Overlay Zone, 2011
- Thurston County Code Ch. 21.67 - Adult Entertainment Facilities, 1997
- Vancouver Municipal Code Ch. 20.820 - Adult Entertainment, 2004
Sample Interlocal Agreement
(Note to reader: The cases listed below are "settled law" for purposes of municipal regulation of adult entertainment in Washington State. There have been no major challenges to local government ordinances in the past several years.)
In this decision the 9th Circuit Court of Appeals struck down as unconstitutional a Seattle city ordinance that required applicants for businesses with adult video viewing booths to also provide the identities of all owners. The court ruled that officers, directors, or managers of adult businesses, not shareholders, are legally responsible for the management of a corporation's business.
This case is important because it requires that a license to engage in adult business be issued or denied within a period that is reasonable brief under the circumstances. It also held that open booth requirements for businesses displaying sexually explicit videotapes are valid.
Complete ban on topless dancing directly suppresses free expression and is unconstitutional because the county failed to show topless clubs present more of a law enforcement problem than other establishments.
Ordinance forbidding entertainers from touching, fondling, or caressing patrons, sitting on a patron's lap, or separating a patron's legs is constitutional because it regulates speech.
The U.S. Supreme Court upheld the city's ordinance which prohibited the establishment or maintenance of more than one adult entertainment business in the same building. The court held that the city could reasonably rely on a study it conducted some years before enacting the present version of the ordinance to demonstrate that its ban on multiple-use adult establishments served its interest in reducing crime.
Ordinance requiring nude dancers to maintain 10 foot distance from patrons is permissible under the First Amendment because it is justified without reference to the content of the regulated speech, prevents public sexual contact, and leaves open alternative channels for the protected speech.
County auditor has no discretion to deny an adult entertainment license; issuance of license is mandatory when grounds for denial are not present. A county may deny a license only if ordinance violations are so pervasive that denying a license is the only practical remedy. For example, although the county's interest in preventing the employment of minors as nude dancers is compelling, the county cannot deny an adult entertainment license to an establishment employing minors unless it is the only way to ensure minors will not be hired in the future.
In this case, the court upheld Pierce County's ordinance regulating erotic dance studios. The county's requirement of a 10-foot separation between the dancer and patron was found to be constitutional, with the court holding that proximity is not an expressive component of erotic dance entitled to protection under either the First Amendment or the State Constitution. The court also determined that the County's licensing scheme was constitutional because it provides a reasonable and definite time limit on the County's discretion to issue a license to an erotic dance studio.
The collateral estoppel effect of the Supreme Court's decision in Ino Ino (132 Wn.2d. 103, May 1997), completely bars Deja Vu, a plaintiff in that action, from relitigating the constitutionality of a four-foot limitation for erotic dancers. Note also that the court granted attorney fees to the City of Federal Way for having to defend a frivolous claim.
- Ino Ino, Inc. v. Bellevue, 132 Wn.2d 103 (1997) - Background checks, distance rules, illumination, hours of dancing, secondary impacts
Upheld city's right to (1) require an applicant for a nude dancer's license to disclose recent criminal convictions and employment history; (2) require nude or semi-nude erotic dancers to stay four feet away from their patrons; (3) require specific level of illumination where nude or semi-nude erotic dancing may be performed; (4) restrict times when erotic dancing may be performed (not during early morning hours); (5) prohibit outdoor performances or depictions of performances of nude or semi-nude erotic dancing; and (6) rely on the experiences of other jurisdictions to establish that legislation restricting expressive conduct furthers substantial interest in curbing secondary unlawful behavior.
Administrative licensing scheme must provide a stay of adult entertainment license revocation or suspension pending judicial review. Revocation or suspension without a stay constitutes prior restraint in violation of the state constitution, article 1, section 5.
- KEV, Inc. v. Kitsap County, 793 F.2d 1053 (9th Cir. 1986) - Right to license both owners/operators and dancers; no touching rule okay; unreasonable delay in granting license not okay
Upheld an ordinance regulating "erotic dance" facilities which required licenses for both operators and dancers. Upheld provisions which prohibited touching and require dancers to perform on a two-foot high stage 10 feet away from patrons. A provision requiring a five-day delay period between a dancer's filing an application and the granting of the license was found to be unreasonable.
- O' Day v. King County, 109 Wn.2d 796, 749 P.2d 142 (1988) - Exposure regulations; "soda pop" establishments distinguised from taverns and over-21 establishments
Requirement that dancers not expose certain body parts except on a stage 18 inches high and at least six feet from patrons regulates only conduct, not free expression, and does not violate the First Amendment. Subjecting employees of adult "soda pop" entertainment establishments to criminal penalties for conduct violations while not subjecting employees of taverns and premises holding liquor licenses to the same penalties is not a violation of equal protection, and is not unconstitutional.
Zoning restrictions on adult motion picture theatres based on secondary effects of such businesses in other cities. No new studies required if previous studies are relevant. Allowed zoning restrictions in certain areas.