Adult Entertainment Regulation
This page provides an overview of city and county adult entertainment regulations in Washington State, including relevant court decisions and examples of ordinances and supporting studies.
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.
As a condition of receiving or renewing an adult entertainer license from a local government, RCW 49.17.470 requires entertainers to provide proof that they took training on multiple topics. See the Department of Labor and Industries page on Adult Entertainer Safety. That law also requires adult entertainment establishments to take further actions such as installing panic buttons and keeping a record of any acts of violence or harassment against entertainers.
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 examples of zoning and business licensing codes have to date withstood challenges to their validity. MRSC recommends close consultation with your jurisdiction's legal counsel before incorporating any of these provisions into your own regulations.
Examples of Licensing Codes
- Bellevue Municipal 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 Code Ch. 6.09 – Adult Entertainment
- Mukilteo Municipal Code Ch. 5.06 – Licensing and Operation of Adult Entertainment Facilities
- Oak Harbor Municipal Code Ch. 5.10 – Adult Entertainment Endorsement
- Snohomish County Code Ch. 6.30 – Adult Businesses and Employees
- Thurston County Code Ch. 6.42 – Erotic Dancehalls
- Vancouver Municipal Code Ch. 5.32 – Adult Entertainment
Examples of Zoning Codes
- Federal Way Municipal Code Sec. 19.240.120 – Adult Entertainment, Activity, Retail, or Use (Adult Uses)
- King County Code Title 21A – Zoning
- Mukilteo Municipal Code Sec. 17.16.040(B)(19) – Reference Note for Permitted Use Matrix - Adult Entertainment Uses
- Oak Harbor Municipal Code Ch. 19.52 – Adult Entertainment Facilities Overlay Zone
- Thurston County Code Ch. 21.67 – Adult Entertainment Facilities
- Vancouver Municipal Code Ch. 20.820 – Adult Entertainment
Challenges to adult entertainment regulation were frequent in the 80s and 90s, and much of the case law was developed then. So, the documents listed below, in spite of their date, continue to be relevant to local governments wishing to establish new regulations. In Renton v. Playtime Theatres, Inc. (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 (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.
Examples of Supporting Studies
- Bellevue Location of Adult Uses - Background Material (1988) – Includes a study on the need to regulate the location of adult entertainment uses
- Des Moines Adult Use Study (1984) – Report summarizes the impact of the Des Moines Theater on nearby businesses and residential areas and on the city as a whole
- Kelso Zoning for Sexually Oriented Businesses - Final Recommendations (1993) – Describes zone location analysis process
- Kent Adult Use Zoning Study (1982) – Includes an in-depth examination of the land use impacts of adult businesses, adult use law and legal guidelines, and zoning alternatives for mitigating adverse effects of adult businesses.
- Olympia Zoning Regulations of Adult Oriented Businesses (1997) – Includes Planning Commission and staff recommendations, and studies from Minnesota Attorney General's office and the City of Austin, Texas.
Examples of Legislative Record
Examples of Reports
- Seattle Proposed Land Use Code Text Amendment, Adult Cabarets (1989)
- Seattle Dept of Planning & Development Director's Report: Adult Cabarets (2006)
The following list of case summaries highlights key court decisions on adult entertainment regulation of special interest to local governments. This is not intended to be a comprehensive list.
Regulations that permit license suspension or revocation of erotic dancing standards do not provide for strict liability and do not constitute prior restraint of speech in violation of the constitution.
Forbes v. Pierce County, 5 Wn. App. 2d 423 (2018) – Pierce County developed regulations for the operation of erotic dancing businesses, requiring that, among other things, performers must perform on an elevated platform and be a stated number of feet away from the closest customer. Inspection of the appellant’s business indicated that there were violations of the county’s regulations. The county provided notice that future violations could result in suspension or revocation of the business’s license. After more violations were observed, the county suspended the business license. The suspension was appealed to a hearing examiner and, ultimately, to the superior court where the court upheld the county’s actions. On appeal, the court of appeals affirmed.
The court first considered standing. One section of the county’s code provided for criminal sanctions for violations. The county did not proceed under that section though, instead suspended the appellant’s business license subject to an appeal. The court denied appellant’s standing to challenge the criminal section of the code, since criminal sanctions were not sought. There was standing for the appellants to challenge the business’s license suspension.
As to the issue of unconstitutionality, suspension of exotic dance licenses is a prior restraint; however, since the county regulation did not provide for license suspension based on strict liability, it was not unconstitutional. Providing a stay of license suspension or revocation if an appeal is requested, as is provided by the Pierce County regulation, is a safeguard against a finding of unconstitutionality. Knowing or permitting violations of the regulations involves some fault and, thus, the county’s regulation does not allow the imposition of sanctions in the absence of a finding of fault; there is no strict liability. And without the suspension being based on strict liability, the regulation does not violate the constitution. The county’s regulation considered by the court was not a time, place, or manner of expression; it did not place any substantive limits on how a license holder could engage in any form of expression. There was no First Amendment issue.
Non-conforming adult entertainment uses
World Wide Video of Washington, Inc. v. City of Spokane, 368 F.3d 1186 (2004) – Amortization (phasing-out) of non-conforming adult entertainment uses upheld.
No multiple adult businesses in one building
City of Los Angeles v. Alameda Books, Inc., 535 U.S. 425 (2002) – 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.
Cannot relitigate four-foot rule
Deja Vu-Everett-Federal Way, Inc. v. City of Federal Way, 96 Wn.App. 255 (1999) – The collateral estoppel effect of the Washington Supreme Court's decision in Ino Ino, Inc. v. City of Bellevue (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.
Ten-foot rule for nude dancers okay
Colacurcio v. City of Kent, 163 F.3d 545 (1998, 9th Cir.) – 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.
Erotic dance studios - distance separation okay
D.C.R, Inc. v. Pierce County, 92 Wn.App. 660 (1998) – 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.
Background checks, distance rules, illumination, hours of dancing, secondary impacts
Ino Ino, Inc. v. Bellevue, 132 Wn.2d 103 (1997) – 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.
JJR Inc. v. City of Seattle, 126 Wn.2d 1 (1995) – 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.
Touching patrons not allowed
City of Everett v. Heim, 71 Wn. App. 392, 859 P.2d 55 (1993) – Ordinance forbidding entertainers from touching, fondling, or caressing patrons, sitting on a patron's lap, or separating a patron's legs is constitutional. The court said, “that the ordinance regulates pure conduct, [but] we would uphold it even if it were interpreted to apply to protected speech.”
Licenses must be processed quickly; open booths okay
Adult Entertainment Center v. Pierce County, 57 Wn. App. 435 (1990) – 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.
Cannot require identities of owners of adult video booths
Acorn Investments v. City of Seattle, 887 F.2d 219 (1989) – 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.
Must issue AE license within reasonable time
D.C.R. Entertainment v. Pierce County, 55 Wn. App. 505, 778 P.2d 1060 (1989) – 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.
Exposure regulations; "soda pop" establishments distinguished from taverns and over-21 establishments
O' Day v. King County, 109 Wn.2d 796, 749 P.2d 142 (1988) – 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.
Topless dancing okay as free expression
BSA, Inc. v. King County, 804 F.2d 1104 (1986) – 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.
Right to license both owners/operators and dancers; no touching rule okay; unreasonable delay in granting license not okay
KEV, Inc. v. Kitsap County, 793 F.2d 1053 (1986, 9th Cir.) – 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.
Adult motion pictures; secondary effects; zoning restrictions
Renton v. Playtime Theatres, Inc., 475 U.S. 41 (1986) – 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.