FILED 

OCTOBER 22, 2015 

(n the Office of the Clerk of Court 

W A State Court of Appeals, Division III 

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 

DIVISION THREE 

CITY OF SPOKANE VALLEY, ) No. 33140-7-111 

a Washington non-charter city, ) 

) 

Respondent, ) 

) 

v. ) UNPUBLISHED OPINION 

) 

BRIAN DIRKS and CHRISTINE DIRKS, ) 


husband and wife; and MARESSA ) 


DIRKS and JOHN DOE DIRKS, wife and ) 


husband; and CA-WA CORP, a California ) 


corporation, d/b/a HOLLYWOOD ) 


EROTIQUE BOUTIQUE, a/kIa ) 


HOLL YWOOD EROTIC BOUTIQUE, ) 


) 


Appellants. ) 


LAWRENCE-BERREY, J. - This case requires us to examine the applicability of 

certain licensing and zoning code provisions to Hollywood Erotic Boutique's adult video 

viewing rooms, and the constitutionality ofthose provisions. We hold that the licensing 

and zoning code provisions apply to Hollywood Erotic Boutique's viewing rooms, and 

that the challenged provisions are constitutional. We, therefore, affirm the trial court's 

summary judgment order and order of abatement. 
No. 33140-7-II1 

City ofSpokane v. Hollywood Erotic Boutique 

FACTS 

CA-WA Corp. operates Hollywood Erotic Boutique (REB), a retail business at 

9611 East Sprague Avenue in the City of Spokane Valley. CA-W A leases the premises 

from members ofthe Dirks family, who own the property. REB was formerly operated 

by World Wide Video ofWashington, Inc. CA-WApurchased REB in 2006. 

REB's retail portion ofthe store sells sexually explicit DVD's and magazines, as 

well as adult novelties and lingerie. Since 2002, REB has also operated six enclosed 

viewing rooms on the premises where patrons can watch sexually explicit movies for an 

entrance fee. Five ofthe viewing rooms are on the second level ofthe building situated 

along a continuous corridor. Each viewing room is separated from the corridor by a 

closed door, is roughly 10 feet by 10 feet, contains multiple plastic chairs for seating 

people, and a large screen television for viewing movies in the darkened room. Movies 

play continually. Patrons pay $12 to enter the viewing room area, may remain in the 

viewing room area for four hours, and are permitted to move from room to room. Patrons 

cannot control the movies being shown. The screen in each room is connected by a cable 

to a DVD player. The DVD players for each room are located behind the clerk's counter 

downstairs and are controlled by a store employee. 

In the spring of2007, a citizen complaint led the City ofSpokane Valley to 

believe that CA-WA was operating an adult entertainment establishment at REB. The 

City investigated in May 2007. Code enforcement officer Chris Berg and members of 

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No. 33140-7-III 

City ofSpokane v. Hollywood Erotic Boutique 

other city agencies met with the manager ofHEB at the business. The manager granted 

city officials permission to inspect the business. Detective James Wakefield inspected 

the second floor area. In addition to observing the closed viewing rooms as described 

above, he also observed persons in the rooms masturbating. 

After the inspection, all agency personnel who were present agreed that an adult 

entertainment arcade was being operated on the second floor of REB. We will later 

provide Spokane Valley's definition of "adult entertainment arcade." Mr. Berg informed 

the manager that REB was licensed for retail sales, and to continue to operate the viewing 

rooms, REB needed to obtain an adult entertainment establishment license through the 

City. The manager agreed to shut down the viewing rooms until a license could be 

obtained. REB did not obtain an adult entertainment establishment license and 

eventually reopened the viewing rooms. 

More site visits occurred over the next several years. Detective Wakefield 

continued to report on the activities at REB. His reports show that viewing rooms 

generally contained one, two, or three men engaging in masturbation, although one report 

reflects five men and one woman, with all but two men engaged in masturbation. The 

City also documented Internet postings for sexual encounters at HEB. 

Over the course ofthe mUlti-year investigation, the City exchanged 

correspondence with CA-W A. Director of Operations Darryl Richardson denied that 

REB's activities required it to be licensed as an "adult entertainment establishment" as 

3 

No. 33140· 7·III 

City ofSpokane v. Hollywood Erotic Boutique 

defined by the Spokane Valley Municipal Code (SVMC). In May 2012, the City filed a 

complaint against CA· W A and the Dirks for declaration of a public nuisance, code 

violations, and a warrant of abatement. The complaint was aimed only at the viewing 

rooms, not at HEB's fITst floor adult retail business. 

Historical County and City Adult Entertainment Regulations. HEB began its adult 

retail business in 1999 and the viewing rooms in 2002, prior to the City incorporating in 

March 2003. We, therefore, examine the pertinent adult entertainment regulations in 

effect prior to the City's incorporation. 

In 1999, 9611 East Sprague was within unincorporated Spokane County and 

subject to the Spokane County Code (SCC). Spokane County prohibited operation of an 

adult entertainment establishment without a valid license. 

The County also regulated zoning of adult entertainment establishments. Adult 

bookstores and adult entertainment establishments were allowed in the B-3 zone under 

chapter 14.628 SCC, but not ifwithin 1,000 feet ofproperty zoned UR-22, UR-7, and/or 

UIR 3.5. 9611 East Sprague was rezoned to B-3 on January 11, 1999. The parcel was 

within 1,000 feet ofproperty zoned UR-22. Nevertheless, HEB established its retail sales 

operation on this parcel later in 1999. 

The County amended its zoning code in September 1999. The 1999 amendment 

separated adult retail establishments from adult bookstores. The resolution also made the 

definition of "adult entertainment establishment" the same as the definition found in 

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No. 33140-7-II1 

City o/Spokane v. Hollywood Erotic Boutique 

chapter 7.80 SCC in the County licensing code. Section 7.80.040 contains the following 

definitions: 

"Adult arcade device," sometimes also known as a "panoram," 

"preview," "picture arcade," "adult arcade," or "peep show," means any 

device which, for payment of a fee, membership fee, or other charge, is 

used to exhibit or display a graphic picture, view, film, videotape, or digital 

display ofspecified sexual activity, or live adult entertainment in a booth 

setting. All such devices are denominated under this chapter by the term 

"adult arcade device." The term "adult arcade device" as used in this 

chapter does not include other games which employ pictures, views, or 

video displays, or gambling devices which do not exhibit or display adult 

entertainment. 

"Adult arcade establishment" means a commercial premises to 

which a member ofthe public is invited or admitted and where adult arcade 

stations, booths, or devices are used to exhibit or display a graphic picture, 

view, film, videotape, or digital display of specified sexual activity, or live 

adult entertainment in a booth setting to a member ofthe public on a 

regular basis or as a substantial part ofthe premises activity. 

"Adult arcade station" or "booth" means an enclosure where a 

patron, member, or customer would ordinarily be positioned while using an 

adult arcade device or viewing a live adult entertainment performance, 

exhibition, or dance in a booth. Adult arcade station or booth refers to the 

area in which an adult arcade device is located and from which the graphic 

picture, view, film, videotape, digital display ofspecified sexual activity, or 

live adult entertainment is to be viewed. These terms do not mean such an 

enclosure that is a private office used by an owner, manager, or person 

employed on the premises for attending to the tasks ofhis or her 

employment, ifthe enclosure is not held out to any member ofthe public 

for use, for hire, or for a fee for the purpose ofviewing the entertainment 

provided by the arcade device or live adult entertainment, and not open to 

any person other than employees. 

"Adult entertainment establishment" collectively refers to adult 

arcade establishments and live adult entertainment establishments, as 

defined herein. 

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No. 33140-7-III 

City ofSpokane v. Hollywood Erotic Boutique 

CP at 241 (italics added to "booth" or "booth setting" for future references). These 

definitions were in place in 2002, when REB began operating its viewing rooms. 

Upon incorporation in March 2003, the City adopted the County zoning 

regulations as the City's interim regulations. In 2007, the City adopted chapter 19.80 

SVMC to replace the provisions ofthe adult entertainment zoning ordinance. According 

to SVMC 19.80.010, the City's intent in adopting chapter 19.80 SVMC was to "protect 

the general public health, safety and welfare ofthe citizenry ofthe City of Spokane 

Valley through the regulation ofoperations and licensing ofthe adult entertainment 

devices, premises and personnel of adult entertainment establishments." 

SVMC 19.80.020 stated that the licensing requirements of adult uses were contained in 

chapter 5.10 SVMC. SVMC 19.80.030(B) prohibits adult uses within 1,000 feet of 

public libraries, public playgrounds and parks, public or private schools kindergarten to 

twelfth grade, nursery schools, mini-day care centers, day care centers, places ofreligious 

worship, and any other adult use. In addition, SVMC 19.80.030(C) prohibits adult uses 

within 1,000 feet of areas zoned Single-Family Residential Estate districts (R-l), SingleFamily Residential Suburban districts (R-2), Single-Family Residential districts (R-3), 

Single-Family Residential Urban districts (R-4), Multifamily Medium Density 

Residential districts (MF-l), Multifamily High Density Residential districts (MF-2), 

Mixed Use Center districts (MUC), Corridor Mixed Use districts (CMU), City Center 

districts (CC), or Neighborhood Commercial districts (NC). Because 9611 East Sprague 

6 

No. 33140-7-111 

City ofSpokane v. Hollywood Erotic Boutique 

was zoned CMU, adult entertainment establishments were not allowed where HEB was 

located, unless HEB qualified as a lawful nonconfonning use. 

In 2010, the City changed its adult entertainment licensing code, repealing the 

prior version of chapter 5.10 SVMC and replacing it with new regulations. The City 

found the new regulations were necessary to protect the public. The City based this 

detennination on studies and police reports demonstrating the adverse impacts generated 

by adult entertainment businesses, including public sexual conduct, possible spread of 

sexually transmitted disease, prostitution, and other criminal conduct. 

Just as in prior versions, the 2010 version ofSVMC 5.10.020 required a license 

for operation of an adult entertainment establishment. Additionally, the new ordinance 

stated that an adult entertainment license would not be issued for operation of an adult 

entertainment establishment in a location that does not meet the zoning requirements set 

forth in chapter 19.80 unless otherwise exempt. SVMC 5.10.040(A)(9). 

The new licensing ordinance contained definitions that were similar to the prior 

defmitions in the code, except that references to "booth" and "booth setting" were 

eliminated. The 2010 definitions still listed an adult arcade establishment as a type of 

adult entertainment establishment. SVMC 5.10.010. For "adult arcade establishment," 

"adult arcade device," and "adult arcade station" the 2010 SVMC definitions state: 

7 

No. 33140-7-III 

City o/Spokane v. Hollywood Erotic Boutique 

"Adult arcade device," sometimes also known as a "panoram," 

"preview," "picture arcade," "adult arcade," or "peep show," means any 

device which, for payment of a fee, membership fee or other charge, is used 

to exhibit or display a graphic picture, view, film, videotape, or digital 

display ofspecified sexual activities or sexual conduct. All such devices 

are denominated under this chapter by the term "adult arcade device." The 

term "adult arcade device" as used in this chapter does not include other 

games which employ pictures, views, or video displays, or gambling 

devices which do not exhibit or display adult entertainment. 

"Adult arcade establishment" means a commercial premises, or 

portion of any premises, to which a member ofthe public is invited or 

admitted and where adult arcade stations or adult arcade devices are used 

to exhibit or display a graphic picture, view, film, videotape, or digital 

display of a [sic] specified sexual activities or sexual conduct to a member 

ofthe public on a regular basis or as a substantial part o/the premises 

activity. 

"Adult arcade station" means any enclosure where a patron, 

member, or customer would ordinarily be positioned while using an adult 

arcade device. Adult arcade station refers to the area in which an adult 

arcade device is located and from which the graphic picture, view, film, 

videotape, digital display ofspecified sexual activities or sexual conduct is 

to be viewed. These terms do not mean such an enclosure that is a private 

office used by an owner, manager, or person employed on the premises for 

attending to the tasks ofhis or her employment, ifthe enclosure is not held 

out to any member ofthe public for use, for hire, or for a fee for the 

purpose ofviewing the entertainment provided by the arcade device, and 

not open to any persons other than employees. 

SVMC 5.10.010 (italics added for ease of future reference in analysis of these 

provisions). SVMC Appendix A includes substantially similar definitions. Appendix A 

directs that undefined terms be construed as defmed in Webster's New Collegiate 

8 

No. 33140-7-III 

City ofSpokane v. Hollywood Erotic Boutique 

Dictionary.l HEB has never possessed a license to operate an adult entertainment 

establishment, whether before or after the City incorporated in March 2003. 

Proceedings in Trial Court. In 2012, the City filed a motion for summary 

judgment for declaration ofpublic nuisance, code violations, and warrant of abatement. 

CA-WA responded to the City's motion and also filed its own cross motion for partial 

summary judgment. CA-WA asked the court to fmd that HEB was a lawful 

nonconforming use under the SVMC. Also, CA-W A argued, and the City agreed, that an 

order of abatement would be premature until the constitutionality ofthe ordinances could 

be analyzed. 

On April 5, 2013, the trial court entered an order declaring HEB's viewing room 

activities a public nuisance in violation ofSVMC 5.10.020(A) and SVMC 19.80.030(C). 

The court denied CA-WA's cross motion for partial summary judgment. 

In a written opinion, the court noted that HEB was in operation prior to City 

incorporation, so chapter 7.80 SCC applied to HEB. The court determined that the 

viewing rooms qualified as an adult entertainment establishment under the definitions in 

SCC 7.80.040 because (l) HEB used a DVD player to display a graphic picture screen to 

1 The County code did not contain a similar directive. We note that there is no 

such dictionary as "Webster's New Collegiate Dictionary," but there are numerous 

editions ofMerriam-Webster's Collegiate Dictionary. We will use the 11th edition, 

published in 2003, since that was the newest edition at the time ofthe 2010 ordinance 

amendments. 

9 

No. 33140-7-111 

City ofSpokane v. Hollywood Erotic Boutique 

six separate theaters of specified sexual activity for the cost of a fee by the invited public, 

(2) DVD players are devices as contemplated by the code that were used to exhibit or 

display, on a commercial premises, where the public was admitted for a fee and could 

watch, and (3) REB ran these viewing rooms during its business hours, equating to a 

regular or substantial basis. The trial court also determined that because REB was not 

licensed under the County licensing requirements, nor could it be because it was within 

1,000 feet ofa disqualifying zone, REB was not a lawful nonconforming use. The trial 

court further determined that because REB could not obtain an adult entertainment 

license at its present physical location, it did not have standing to challenge the licensing 

requirements of chapter 5.10 SVMC. 

The remaining issue for the trial court was whether chapter 19.80 SVMC denied 

CA-W A a reasonable opportunity to open and operate an adult entertainment business. 

After a period of discovery, the City filed a motion for summary judgment on the 

constitutionality ofthe zoning code. One part ofthe issue was whether alternative 

avenues of communication remained available under the challenged zoning regulation. 

The City supported its summary judgment motion with a list ofparcels lawfully zoned for 

adult entertainment uses. The City's expert, Bruce Jolicoeur, determined that there were 

54 available relocation parcels, none ofwhich were in an industrial or manufacturing 

zone and all ofwhich were commercially zoned. Mr. Jolicoeur then excluded 9 ofthese 

parcels as lacking road frontage, leaving 45 relocation sites. 

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No. 33140-7-II1 

City ofSpokane v. Hollywood Erotic Boutique 

The City also presented a declaration from land use planning consultant Reid 

Shockey. Mr. Shockey concluded, among other things, that 5.0 percent ofSpokane 

Valley's acreage was available for adult entertainment establishments. 

City planning manager Scott Kuhta stated in his declaration that there were four 

adult businesses in the geographic area incorporated into Spokane Valley. All ofthese 

businesses were lawful at the time of incorporation and had valid nonconforming use 

rights. A fifth adult retail business closed sometime between 2003 and 2004. Mr. Kuhta 

stated that the number of adult businesses has remained steady considering that no new 

applications have been filed. 

In response, CA-WA presented a declaration and report from land use planners 

Lee Michaelis and Robert Thorpe. The report identified 39 properties within Spokane 

Valley that could be used as adult businesses. The majority ofthese properties were 

occupied by existing businesses. Five ofthe properties were occupied by the railroad and 

one by the Spokane Transit Authority. Others were occupied with large retailers, 

restaurants, or hotels. The report identified 1.2 percent ofthe City land available for 

adult entertainment establishments. 

Real Estate broker Rich Crisler also provided a declaration for CA-WA. Mr. 

Crisler offered his opinion as to whether the owners ofthe various sites were likely to 

make their land available to adult businesses. Mr. Crisler asserted that four ofthe 

properties were vacant land and the majority ofthe remainder were occupied by existing 

11 

No. 33140-7-II1 

City ofSpokane v. Hollywood Erotic Boutique 

businesses. Additionally, Mr. Crisler contended that 15 ofthe parcels identified by Mr. 

Iolicoeur were occupied by well-established businesses and were unlikely to become 

available within the reasonably foreseeable future. 

On December 20,2013, the trial court granted the City's motion and issued a 

warrant of abatement. The court determined that no genuine issue of material fact existed 

as to the adequacy of the alternative avenues of communication for CA-WA to open and 

operate an adult entertainment establishment within the City. The court also determined 

that the City was entitled to summary judgment as a matter of law on CA-WA's 

counterclaims, including the constitutionality of chapter 5.10 SVMC and/or chapter 19.80 

SVMC. The trial court concluded that the City was entitled to a warrant of abatement 

pursuant to chapter 7.48 RCW for CA-WA's unlawful adult entertainment establishment 

at HEB, as defmed by chapter 5.10 SVMC.2 

CA-WA appeals. CA-WA contends that (1) HEB's viewing rooms are a lawful 

nonconforming use, (2) HEB's viewing rooms are not subject to the licensing 

requirements of chapter 5.10 SVMC because the viewing rooms do not fall within the 

defmition of "adult entertainment establishment," (3) HEB has standing to challenge 

chapter 5.10 SVMC, and (4) SVMC's adult entertainment licensing and zoning 

regulations are unconstitutional. 

2 The court's order exempted HEB's adult retail activities. 

12 
No. 33140-7-III 

City ofSpokane v. Hollywood Erotic Boutique 

ANALYSIS 

On appeal, orders ofsummary judgment are reviewed de novo. Smith v. Safeco 

Ins. Co., 150 Wn.2d 478,483, 78 P.3d 1274 (2003) (quoting Jones v. Allstate Ins. Co., 

146 Wn.2d 291,300,45 P.3d 1068 (2002)). This court reviews the material in the same 

manner as the trial court and in the light most favorable to the nonmoving party. Morris 

v. McNichol, 83 Wn.2d 491,494-95,519 P.2d 7 (1974). 

A moving party is entitled to summary judgment ifthere are no material issues of 

fact and judgment should be entered as a matter of law. CR 56(c). A material fact is one 

on which the outcome ofthe litigation depends in whole or in part. Morris, 83 Wn.2d at 

494. The burden ofshowing that there is no material issue of fact is on the moving party. 

Hash v. Children's Orthopedic Hosp. & Med. Ctr., 110 Wn.2d 912,915, 757 P.2d 507 

(1988). "Only after the moving party has met its burden ofproducing factual evidence 

showing that it is entitled to judgment as a matter of law does the burden shift to the 

nonmoving party to set forth facts showing that there is a genuine issue of material fact." 

Id. Summary judgment should be granted only ifreasonable persons can reach but one 

conclusion. Id. 

1. Whether HEB's viewing rooms are a lawful nonconforming use 

CA-W A contends that HEB's viewing rooms are a lawful nonconforming use and 

therefore are not subject to the licensing and zoning requirements of SVMC. CA-W A 

13 

No. 33140-7-111 

City ofSpokane v. Hollywood Erotic Boutique 

maintains that the Spokane County Code in place when HEB began operating its viewing 

rooms did not apply to (and therefore did not prohibit) multi-occupancy viewing rooms. 

Municipal ordinances are interpreted using the same rules as statutes. Sleasman v. 

City ofLacey, 159 Wn.2d 639,643, 151 P.3d 990 (2007). Statutes are to be read in pari 

materia, meaning that statutes relating to the same subject matter must be construed 

together as constituting a unified whole. Hallauer v. Spectrum Prop. Inc., 143 Wn.2d 

126, 146, 18 P.3d 540 (2001). Ifa statute is ambiguous, the courts must construe the 

statute as to effectuate its legislative intent, while avoiding a literal reading ifit would 

result in unlikely, absurd, or strained consequences. Whatcom County v. City of 

Bellingham, 128 Wn.2d 537,546,909 P.2d 1303 (1996). Zoning ordinances are in 

derogation of common law and must be strictly construed in favor ofproperty owners and 

should not be extended by implication to cases not clearly within their scope and purpose. 

Morin v. Johnson, 49 Wn.2d 275,279,300 P.2d 569 (1956). 

A nonconforming use is defined in the City's code. SVMC 19.20.060(A) provides 

in part that any use that does not conform to the present regulations ofthe zoning district 

shall be deemed a nonconforming use ifit was in existence and in continuous use and 

lawful operation prior to the regulations. A nonconforming use is allowed 

to continue indefinitely provided that the use is not discontinued or abandoned. 

SVMC 19.20.060(B). But see SVMC 5.10.150 (requiring lawfully operating adult 

entertainment establishments to conform to 2010 licensing revisions within 90 days). 

14 

No. 33140-7-111 

City o/Spokane v. Hollywood Erotic Boutique 

When REB began operating its viewing rooms, it was governed by Spokane 

eounty's regulations on adult entertainment establishments. One type of adult 

entertainment establishment under the see was an adult arcade establishment. 

see 7.80.040. The see defined an "adult arcade establishment" as "a commercial 

premises to which a member ofthe public is ... admitted and where adult arcade 

stations, booths, or devices are used to exhibit or display a graphic ... videotape, or 

digital display of specified sexual activity ... in a booth setting to a member ofthe public 

on a regular basis or as a substantial part ofthe premises activity." see 7.80.040 

(emphasis added). 

The see defined "adult arcade station" as "an enclosure where a patron ... 

would ordinarily be positioned while using an adult arcade device . .. in a booth." 

see 7.80.040 (emphasis added). The defmition explicitly excepted from its coverage a 

private office used by an owner, manager, or employee not held out for use by the public. 

The see defined an "adult arcade device" as "any device which, for payment of a fee ... 

is used to exhibit or display a graphic ... videotape, or digital display ofspecified sexual 

activity ... in a booth setting." see 7.80.040. 

eA-WA contends that REB's viewing rooms are not "booths" because the rooms 

allow for multiple people. Webster's Third New International Dictionary defines 

"booth" as 

15 
No. 33140-7-II1 

City ofSpokane v. Hollywood Erotic Boutique 

2a: a temporary structure ... b: a totally or partially enclosed structure 

often inside a building; esp: a small enclosure designed to hold one person 

at a time usu. to afford privacy or to separate its occupant from patrons or 

customers ... 3: an enclosure ofvarying size and construction designed to 

isolate an area and to prevent the functions carried on within it from being 

interfered with by the surrounding area. 

WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 254 (1993). Webster's therefore 

defines "booth" in a manner that may, but need not, refer to a single-occupancy space. 

We therefore must interpret "booth" to effectuate the County's intent. We note 

that the County sought to regulate a booth, not a theater. We surmise the County's intent 

was to regulate lewd activities which are more likely to occur in a semi-private space 

than a semi-public space. The record before us establishes that lewd activities are just as 

likely to occur in rooms with two or three persons as rooms with only one person. For 

this reason, we determine that "booth" is not limited to a one-person space. Although 

CA-WA contends that HEB's viewing rooms allow up to 10 occupants, the record 

establishes that the rooms typically had only one, two, or three persons in them, thus 

encouraging lewd conduct because ofthe room's semi-privacy. We, therefore, determine 

that HEB's multi-person viewing rooms come within SCC's definition of adult 

entertainment establishments. 

Because HEB did not have a license from Spokane County to operate such a 

business, it is not a lawful nonconforming use. See First Pioneer Trading Co. v. Pierce 

County, 146 Wn. App. 606, 617, 191 P.3d 928 (2008). In addition, HEB's operation of 

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No. 33140-7-II1 

City ofSpokane v. Hollywood Erotic Boutique 

an adult entertainment establishment in a B-3 zone was not lawful because it was located 

within 1,000 feet ofproperty zoned UR-22. Because HEB's viewing rooms were not a 

lawful operation prior to the existence ofthe SVMC, HEB's viewing rooms are not a 

lawful nonconforming use under SVMC 19.20.060(A). 

2. 	 Whether HEB's viewing rooms are subject to the licensing requirement ofchapter 

5.JOSVMC. 

CA-WA puts forth two arguments why chapter 5.10 SVMC should not apply to 

HEB's viewing rooms. First, CA-WA contends that chapter 5.10 SVMC should be 

construed to apply only to enclosures which accommodate a single patron. In support of 

this argument, CA-WA cites SVMC 5.10.080(C)(6), which allows for only one person in 

an adult arcade station. SVMC 5.10.080(C)(6) provides: 

6. No adult arcade station may be occupied by more than one person 

at any time. Any chair or other seating surface within an adult arcade 

station shall not provide a seating surface of greater than 18 inches in either 

length or width. Only one such chair or other seating surface shall be 

placed in any adult arcade station. 

The definitions for adult arcade establishment, adult arcade station, and adult 

arcade device in chapter 5.10 SVMC are substantially similar to the definitions in 

SCC 7.80.040. The primary difference is that the SVMC definitions omit references to 

"booth" or "booth setting." As stated in the analysis ofSCC 7.80.040, the definitions did 

not limit the occupancy in each booth to a single person. The removal of "booth" or 

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No. 33140-7-111 

City o/Spokane v. Hollywood Erotic Boutique 

"booth setting" further clarifies that the City intended to regulate lewd conduct beyond 

that which might occur in a single-occupant enclosure. 

The interpretation of "adult entertainment establishment," which includes adult 

arcade establishments, does not change when read in conjunction with the 

requirement ofSVMC 5.10.080(C)(6) that adult arcade stations be limited to one person. 

SVMC 5.10.080(C)(6) limits the number of occupants permitted in the enclosure, 

but does not change the definition of adult entertainment establishment. Instead, 

SVMC 5.10.080(C)(6) is merely a requirement that the adult arcade establishment must 

meet to obtain and retain its license. 

CA-WA's second argument is that the definition of "adult arcade station" refers to 

"an area in which an adult arcade device is located," and REB's viewing rooms do not 

contain the adult arcade device, i.e., the projector or DVD player. REB's argument is not 

well taken. "Adult arcade device" includes a large television screen, one ofwhich is in 

each viewing room, because the large television screen is a device used to display graphic 

videotapes or films. 

Moreover, CA-WA's contention that REB's small, enclosed, multi-occupant 

viewing rooms are outside the scope ofthe regulations leads to an absurd outcome. 

Under this interpretation, an operator of adult arcade devices can simply add a second 

chair to the small partitioned enclosure and evade regulation. This outcome misses the 

City's intent to regulate the lewd conduct that occurs in a small semi-private room where 

18 

No. 33140-7-III 

City ofSpokane v. Hollywood Erotic Boutique 

sexually explicit videos are shown. Thus, chapter 5.10 SVMC encompasses HEB's 

multi-occupant viewing rooms. 

3. Whether HEB has standing to challenge chapter 5.10 SVMC 

CA-W A contends that the trial court erred in determining that HEB lacked 

standing to challenge chapter 5.10 SVMC. The trial court determined that because 

HEB's operations are not located on a parcel which it could lawfully operate in 

accordance with City zoning requirements, that HEB lacked standing to challenge the 

constitutionality of chapter 5.10 SVMC. CA-W A argues that special standing rules apply 

to constitutional challenges based on claims ofvagueness, over breadth, and 

impermissible prior restraint, and it can raise these challenges even though it cannot 

claim it has been affected by the features which it claims are unconstitutional. In support 

of its argument, CA-WA cites Ramm v. City ofSeattle, 66 Wn. App. 15,830 P.2d 395 

(1992), O-Day v. King County, 109 Wn.2d 796, 749 P.2d 142 (1988), City ofTacoma v. 

Luvene, 118 Wn.2d 826,827 P.2d 1374 (1992), State v. Halstien, 122 Wn.2d 109,857 

P.2d 270 (1993), JJR, Inc. v. City ofSeattle, 126 Wn.2d 1, 891 P.2d 720 (1995), and 

Clark v. City ofLakewood, 259 F.3d 996g (9th Cir. 2001). The City does not directly 

respond to CA-W A's argument. We therefore will assume for purposes of our analysis 

that HEB has standing to make facial challenges to the City's licensing ordinance. 

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No. 33140-7-II1 

City ofSpokane v. Hollywood Erotic Boutique 

4. Whether the City's licensing and zoning ordinances are constitutional 

CA-WA asserts various constitutional arguments. As it relates to the City's 

licensing ordinance, CA -W A makes federal and state facial challenges pertaining to 

vagueness, over breadth, and prior restraint. As it relates to the City's zoning ordinance, 

CA-WA argues, under the Renton3 test, that the zoning ordinance is not narrowly tailored 

(or is over broad), and does not allow for a reasonable opportunity to operate an adult 

business. In addition, CA-W A argues that the zoning ordinance amounts to a prior 

restraint under the Washington Constitution. 

The City responds by combining the licensing and zoning challenges together, by 

providing an overview offederal and state constitutional free speech decisional law 

applicable to sexually oriented businesses, and then addressing the specific issues raised 

by CA-WA. Because the City does not argue that CA-W A lacks standing to challenge 

the licensing ordinance, we address CA-WA's challenges to the City's licensing 

ordinance. 

a. The Renton test applied to the City's licensing and zoning ordinances 

Filmed materials showing sexually explicit conduct are pure speech for the 

purposes ofthe First Amendment. World Wide Video, Inc. v. City ofTukwila, 117 Wn.2d 

382,388,816 P.2d 18 (1991). Federal law provides the basis for protection ofFirst 

3 City ofRenton v. Playtime Theatres, Inc., 475 U.S. 41, 106 S. Ct. 925, 89 L. Ed. 

2d 29 (1986). 

20 

No. 33140-7-111 

City ofSpokane v. Hollywood Erotic Boutique 

Amendment speech rights, with necessary consideration given to the greater protections 

of article I, section 5 ofthe Washington Constitution when appropriate. Id. at 387. City 

ofRenton v. Playtime Theatres, Inc., 475 U.S. 41, 106 S. Ct. 925, 89 L. Ed. 2d 29 (1986) 

is the seminal case which sets forth the analytical framework for determining whether a 

court must apply strict or intermediate scrutiny to the ordinance. 

First, the ordinance cannot be a complete ban on the protected expression. 

Second, the ordinance must be content-neutral or, ifcontent-based with 

respect to sexual and pornographic speech, its predominate concern must be 

the secondary effects ofsuch speech in the community. [And ifthe first 

two steps are met], [t]hird, the regulation must pass intermediate scrutiny. 

It must serve a substantial government interest, be narrowly tailored to 

serve that interest, and allow for reasonable alternative avenues of 

communication. 

Fantasyland Video, Inc. v. County ofSan Diego, 505 F.3d 996, 1001 (9th Cir. 2007) 

(citations omitted). 

1. Not a complete ban: The first step is whether the City's adult 

entertainment regulations are "a complete ban on the protected expression." Id. Here, 

neither the zoning regulations nor the licensing regulations are a complete ban. Adult 

entertainment establishments are allowed in the City, albeit with restrictions. CA-W A 

does not argue that the restrictions ban adult entertainment establishments altogether. 

The City's zoning and licensing regulations on adult entertainment pass the first prong 

under Renton. 

21 

No. 33140-7-111 

City ofSpokane v. Hollywood Erotic Boutique 

2. Content neutral: The second step requires that "the ordinance must 

be content-neutral or, if content-based with respect to sexual and pornographic speech, its 

predominate concern must be the secondary effects ofsuch speech in the community." 

Id. Regulations aimed at controlling the secondary effects of adult entertainment 

establishments are content neutral. World Wide Video ofWashington, Inc. v. City of 

Spokane, 368 F.3d 1186, 1191 (9th Cir. 2004). Courts look to the primary motivation 

behind the regulation to determine whether the purpose is to remedy the secondary 

effects associated with sexually oriented businesses. See id. Regulations that are 

designed to combat the undesirable secondary effects of adult entertainment businesses 

are analyzed as time, place, and manner regulations. Renton, 475 U.S. at 46. 

Here, the record shows that the City's concern for the secondary effects ofthe 

adult entertainment establishments was the primary motivation for enacting both the 

licensing and the zoning regulations. The record establishes that for the 2010 licensing 

regulations and the 2007 zoning regulations, the City engaged in a careful review of a 

variety ofmaterials when considering the secondary effects of adult businesses. The 

record also contains letters from citizens and police reports that document the unwanted 

secondary effects from adult businesses specifically in the City of Spokane Valley. 

These secondary effects include loitering in the area around the businesses, discarding 

used and contaminated "toys," using private areas ofneighboring businesses to have sex, 

22 

No. 33140-7-111 

City 0/Spokane v. Hollywood Erotic Boutique 

an increase in crime, mUltiple incidents ofmasturbation within the establishment, and 

observations ofprostitution. 

The City regulations are explicitly intended to combat the secondary effects of 

adult entertainment establishment's speech, not to suppress the speech itself. CA-WA 

presents no evidence that would call this motivation into doubt. Because the regulations 

are intended to combat the secondary effects of adult entertainment establishments, the 

regulations are content neutral. Therefore, the City's licensing and zoning regulations of 

adult entertainment pass the Renton test. 

3. Intermediate scrutiny: The final step requires the regulation to pass 

intermediate scrutiny. "An ordinance aimed at combating the secondary effects of a 

particular type ofspeech survives intermediate scrutiny' if it is designed to serve a 

substantial government interest, is narrowly tailored to serve that interest, and does not 

unreasonably limit alternative avenues of communication.' " World Wide Video, 368 

F.3d 1192 (quoting Ctr./or Fair Pub. Policy v. Maricopa County, 336 F.3d 1153, 1166 

(9th Cir. 2003)). 

A. Substantial government interest. A local government has a 

substantial interest in attempting to preserve the quality of urban life. Renton, 475 U.S. at 

50. Specifically, a city has a substantial interest in curbing the secondary effects 

associated with adult entertainment establishments. Maripoca County, 336 F.3d at 1166. 

For instance, reducing unlawful public sexual activity is a proper concern associated with 

23 

No. 33140-7-III 

City ofSpokane v. Hollywood Erotic Boutique 

the regulation ofsexually oriented businesses. Id. Additionally, courts have found a 

substantial interest unrelated to expression in the presence of "[r ] amp ant masturbation at 

a commercial property open to the public" because this "may rationally trigger sanitation 

concerns and impair the right ofother patrons to view their materials or read the 

accompanying articles in peace." Fantasyland Video, 505 F.3d at 1003. The 

'" elimination ofpornographic litter, by itself, represents a substantial governmental 

interest, especially as concerns the protection ofminors.'" World Wide Video, 368 F.3d 

at 1195 (quoting World Wide Video ofWash., Inc. v. City ofSpokane, 227 F. Supp. 2d 

1143,1157-58 (E.D. Wash. 2002), affd, 368 F.3d 1186. 

A city is not required to conduct its own study in order to justify a regulation 

designed to combat the secondary effects ofan adult business. World Wide Video, 368 

F.3d at 1193. A city can rely on evidence produced by other cities ifthe evidence is 

relevant to the problem that the city intends to address. Id. at 1192. However, 

"The municipality's evidence must fairly support the municipality's 

rationale for its ordinance. Ifplaintiffs fail to cast direct doubt on this 

rationale, either by demonstrating that the municipality's evidence does not 

support its rationale or by furnishing evidence that disputes the 

municipality's factual findings, the municipality meets the standard set 

forth in Renton. Ifplaintiffs succeed in casting doubt on a municipality's 

rationale in either manner, the burden shifts back to the municipality to 

supplement the record with evidence renewing support for a theory that 

justifies its ordinance." 

Id. at 1193 (quoting City ofLos Angeles v. Alameda Books, Inc., 535 U.S. 425, 438-39, 

122 S. Ct. 1728, 152 L. Ed. 2d 670 (2002» (plurality opinion). 

24 

No. 33140-7-III 

City ofSpokane v. Hollywood Erotic Boutique 

Here, the City had a substantial interest in controlling the secondary effects ofthe 

adult entertainment establishments, including public sexual activity. The City produced 

evidence that justified the need for such regulation. As previously discussed, the record 

contains indications ofpornographic litter, sexual conduct in public places, and increased 

criminal behavior. Neighboring business owners have observed sexual conduct in 

vehicles parked adjacent to REB and used condoms have been found in the parking lots 

around REB. CA-WA has not presented evidence to cast doubt on the City's rationale 

for the regulations. 

Additionally, the methods chosen by the City are designed to serve the 

government interest. Requiring adult businesses to be located in a zone away from places 

where children gather, such as parks, schools, and churches, serves the purpose of 

protecting the City from public sexual activity and works to preserve the quality ofurban 

life. The secondary effects that occur both inside and outside ofREB are a substantial 

government interest for the City to regulate. 

B. Narrowly tailored. The second prong of intermediate 

scrutiny asks whether the regulation is "narrowly tailored" to serve the purported 

government interest. Fantasyland Video, 505 F.3d at 1001. This test requires 

demonstrating that the '" regulation promotes a substantial government interest that 

would be achieved less effectively absent the regulation' and 'the means chosen are not 

substantially broader than necessary.'" Id. at 1004 (internal quotation marks omitted) 

25 

No. 33140-7-II1 

City ofSpokane v. Hollywood Erotic Boutique 

(quoting Wardv. Rock Against Racism, 491 U.S. 781, 799-800, 109 S. Ct. 2746, 105 L. 

Ed. 2d 661 (1989)). 

"A zoning measure can be consistent with the First Amendment if it is likely to 

cause a significant decrease in secondary effects and a trivial decrease in the quantity of 

speech." Alameda Books, 535 U.S. at 445 (Kennedy, J., concurring). "The incidental 

restriction on expression which results from the City's attempt to accomplish such a 

purpose is considered justified as a reasonable regulation ofthe time, place, or manner of 

expression if it is narrowly tailored to serve that interest." Members ofCity Council of 

the City ofLos Angeles v. Taxpayers for Vincent, 466 U.S. 789, 808, 104 S. Ct. 2118, 80 

L. Ed. 2d 772 (1984)). 

The necessity for legislation need not be proved absolutely. Adult Entm 't Ctr., 

Inc. v. Pierce County, 57 Wn. App. 435, 439, 788 P.2d 1102 (1990). Governments are 

given broad latitude in experimenting with possible solutions to problems ofvital 

concern. Id. Ordinances are not invalid'" simply because there is some imaginable 

alternative that might be less burdensome on speech.' " Ward, 491 U.S. at 797 (quoting 

United States v. Albertini, 472 U.S. 675, 689, 105 S. Ct. 2897, 86 L. Ed. 2d 536 (1985)). 

The City's zoning regulations for adult entertainment uses are narrowly tailored to 

serve the government interest. The regulation promotes a substantial government interest 

that would be achieved less effectively absent the regulation. Without zoning restrictions 

on where an adult entertainment establishment can be located, the government interest in 

26 

No. 33140-7-III 

City o/Spokane v. Hollywood Erotic Boutique 

reducing the secondary effects ofthese adult businesses would not be met. By limiting 

these businesses to areas away from areas where the public congregates, the City can 

limit the secondary effects ofunsanitary situations and pornographic litter, especially as it 

concerns the protection ofminors. The zoning regulations preserve the quality ofurban 

life. 

In addition, the City's licensing regulations are narrowly tailored to serve the 

government interest. The regulations prohibit more than one person in any arcade station 

or enclosure, and generally set forth limitations where a store manager can assure that 

patrons do not engage in lewd acts while viewing sexually explicit videos. 

CA-W A does not contend that the zoning or licensing regulations will not have 

this desired effect. Instead, CA-W A argues that the zoning regulations are not narrowly 

tailored because the regulations encompass other businesses that do not produce adverse 

secondary effects targeted by the City. For instance, CA-WA contends that the defmition 

for adult arcade establishment applies to ordinary movie theaters where sexually explicit 

activities or conduct are not the predominant theme ofthe movie, and to hotels and 

motels that provide sexually oriented movies to guests on closed circuit televisions. 

Thus, CA-WA maintains that the means chosen are substantially broader than necessary. 

CA-WA's argument mixes questions ofover breadth with narrowly tailored. The 

difference between over breadth and narrowly tailored is whether the regulation is 

challenged as it applies or on its face. See Taxpayers/or Vincent, 466 U.S. at 808-10. 

27 

No. 33140-7-III 

City ofSpokane v. Hollywood Erotic Boutique 

"Narrowly tailored" is part of a constitutional challenge that looks at the regulation as 

applied to the person subject to the ordinance. See id. at 803-09. The question is whether 

the restriction on the person's expressive activity is substantially broader than necessary 

to protect the City's interest in eliminating the secondary effect. Id. at 808. 

Over breadth is a facial challenge that looks at whether a regulation is written so 

broadly that it may inhibit the constitutionally protected speech ofthird parties. Id. at 

800-01. The doctrine considers that some regulations may have such a deterrent effect on 

free expression that they should be subject to challenge even by a party whose own 

conduct may be unprotected. Id. '" Thus, a person whose activity could validly be 

suppressed under a more narrowly drawn law is allowed to challenge an overbroad law 

because ofits application to others.'" Id. at 800 n.19 (quoting John Calvin Jeffries, Jr., 

Rethinking Prior Restraint, 92 YALELJ. 409, 425 (1983)). Thus, over breadth usually 

involves standing issues, as "there must be a realistic danger that the statute itself will 

significantly compromise recognized First Amendment protections ofparties not before 

the Court for it to be facially challenged on over breadth grounds." Id. at 801. 

Here, CA-W A does not argue that any portion ofthe licensing or zoning 

regulation is not narrowly tailored to its own activities. Rather, CA-WA presents a facial 

challenge, arguing that parties not before this court-ordinary movie theaters, hotels, and 

motels-are regulated by the ordinance, and that the ordinance is overly broad because 

28 

No. 33140-7-II1 

City ofSpokane v. Hollywood Erotic Boutique 

there is no evidence that such entities contribute to the secondary effects which the 

ordinances seek to reduce. 

Even if a facially over broad challenge was pertinent to the Renton test, and we do 

not believe it is, the challenge would fail. We do not construe ordinary movie theaters, 

hotels, and motels as being within the definition of "adult entertainment establishment." 

As mentioned previously, "adult entertainment establishment" includes an "adult arcade 

establishment." For a business to be an "adult arcade establishment," it must operate an 

adult arcade station or adult arcade device which is used to display "specified sexual 

activities" or "sexual conduct" on a "regular basis" or as a "substantial part ofthe 

premises activity." SVMC Appendix A; SVMC 5.10.010 (emphasis added). "Specified 

sexual activities" is defmed as (1) human genitals in a state of sexual stimulation or 

arousal; (2) acts ofhuman masturbation, sexual intercourse, sodomy, oral copulation, or 

bestiality; or (3) foundling or other erotic touching of human genitals, pubic region, 

buttocks or female breasts. SVMC 5.10.010. "Sexual conduce is defined as (1) sexual 

intercourse within its ordinary meaning, occurring upon any penetrations, however slight; 

or (2) a penetration ofthe vagina or anus, however slight, by an object; or (3) a contact 

between persons involving the sex organs ofone person and the mouth or anus of 

another; or (4) masturbation, manual or instrumental, of oneself or of one person by 

another; or (5) touching ofthe sex organs, anus, or female breasts, whether clothed or 

unclothed, ofoneself or ofone person by another. SVMC 5.10.010. 

29 
No. 33140-7-111 

City ofSpokane v. Hollywood Erotic Boutique 

The above interplay ofdefmitions convinces us that an ordinary movie theater is 

not an adult entertainment establishment. The record is devoid of any evidence 

suggesting that ordinary movie theaters regularly feature films with that type of sexual 

activity or sexual conduct described within the definition. Nor does this description 

apply to hotels or motels. The record is similarly devoid of any evidence that televisions 

within hotel or motel rooms which permit closed-circuit viewing ofpornography are 

actually used for such purposes on a regular basis.4 Mere allegations are insufficient to 

create a genuine issue ofmaterial fact. 

C. Alternative avenues ofcommunication. The final prong of 

intermediate scrutiny inquires whether alternative avenues of communication remain 

available under the challenged regulation. Fantasyland Video, 505 F.3d at 1001. This 

prong analyzes whether local zoning restrictions that affect sexually oriented businesses 

nevertheless allow such businesses "a reasonable opportunity to open and operate." 

Renton, 475 U.S. at 54. 

A city has the initial burden ofproducing a list ofpotential relocation sites that 

reflects the relevant zoning restrictions. Tollis, Inc. v. County ofSan Diego, 505 F.3d 

935,941 (9th Cir. 2007). The burden then shifts to the affected party to demonstrate that 

the city's list included unavailable sites or was compiled in the absence ofreasonableness 

4 "Regular" in this context, means "recurring ... at fixed, uniform, or normal 

intervals." MERRIAM-WEBSTER'S COLLEGIATE DICTIONARY 1048 (lIth ed. 2003). 

30 

No. 33140-7-III 

City ofSpokane v. Hollywood Erotic Boutique 

and good faith. Id. After a list ofpotential sites is determined, the issue becomes 

assessing whether the market contains a sufficient number ofpotential relocation sites for 

the adult business. Id. at 942. The initial calculation of available relocation sites is a 

factual issue and the sufficiency ofthe sites for allowing adult expression is a question of 

law. David Vincent, Inc. v. Broward County, 200 F.3d 1325, 1333-35 (lIth Cir. 2000). 

For a site to be a considered a sufficient location, "it 'must be considered part of 

an actual business real estate market for commercial enterprises generally.'" Tollis, 505 

F.3d at 941 (quoting Lim v. City ofLong Beach, 217 F.3d 1050, 1054 (9th Cir. 2000)). 

"Ifin an industrial or manufacturing zone, the site must be 'reasonably accessible to the 

general public,' 'have a proper infra-structure,' and be suitable for 'some generic 

commercial enterprise.'" Id. (quoting Topanga Press, Inc. v. City ofLos Angeles, 989 

F.2d 1524, 1531 (9th Cir. 1993)). "Finally, the list must account for other relevant 

zoning restrictions, such as separation requirements, that might affect a site's 

availability." Id. "[T]he economic feasibility of relocating to a site is not a First 

Amendment concern." David Vincent, 200 F.3d at 1334. 

A city is not required to make a certain number of sites available for relocation. 

Diamond v. City ofTaft, 215 F.3d 1052, 1056 (9th Cir. 2000). To determine ifthere are a 

sufficient number of available sites, courts usually look at either the percentage of land 

within the city available to businesses, or the number of sites compared with the number 

of adult businesses currently in existence or seeking to open. Id. at 1056-57. 

31 

No. 33l40-7-III 

City ofSpokane v. Hollywood Erotic Boutique 

CA-WA contends that summary judgment was not appropriate on the alternative 

avenues of communication prong because a genuine issue ofmaterial fact exists as to 

whether the City presented a reasonable number ofpotential relocation sites for HEB. 

CA-W A maintains that nearly one-half ofthe sites identified by the City were not likely 

to become available for generic business use in the near future because the property was 

in a rail yard or taken by a well-established business. Five ofthe properties were 

occupied by the railroad and one by the Spokane Transit Authority. Additionally, CAWA contends that nearly all ofthe sites the City listed as available were occupied. 

The trial court did not err in granting summary judgment. The City presented 54 

sites that it found to be available for relocation after making the appropriate deductions 

for industriaVmanufacturing zones and lack of access. In comparison, CA-WA's number 

of available sites was not much different. CA-WA's experts found 39 properties that met 

zoning and set back requirements. Thus, for purposes ofsummary judgment, the parties 

agreed that at least 39 potential relocation sites existed. 

CA-WA's argument that the majority ofthe parcels were occupied does not 

necessarily make the parcels unavailable. Parcels only have to be potentially available, 

not actually available. McKibben v. Snohomish County, 72 F. Supp. 3d 1190, 1205, 

(W.D. Wash. 2014). "[T]he mere fact that a site is currently occupied or not currently for 

sale or lease does not render it unavailable." Id. However, evidence ofa long term lease 

may exclude a potential site from the available market ifthe plaintiff provides evidence 

32 

No. 33140-7-III 

City ofSpokane v. Hollywood Erotic Boutique 

regarding the length ofthe lease. [d. To designate an occupied business as unavailable, 

the affected party must offer "sufficient evidence to show that these sites would not 

reasonably become available to any commercial enterprise." Diamond, 215 F.3d at 1056. 

CA-WA's declaration from Mr. Crisler was not sufficient to establish that the 

property would be unavailable to any commercial enterprise. Mr. Crisler detennined site 

availability by obtaining the property profiles from a METROSCAN, talking to the 

property owner, and visiting the property. Based on the infonnation he gathered, Mr. 

Crisler rendered his opinion as to which ofthe sites was subject to a long-tenn lease and 

which was unlikely to become available for lease or sale in the reasonable foreseeable 

future. However, Mr. Crisler's opinion is insufficient to establish that these properties 

are not part ofthe relevant commercial market. He did not present the length ofleases or 

indicate how far into the future the owner's intentions not to sell extended. Current 

occupancy alone is not grounds for unavailability. The 39 sites identified by CA-WA 

and the City are part ofthe relevant market for commercial enterprises. The 39 available 

sites allowed CA-WA a sufficient opportunity to relocate. We conclude that the City's 

licensing and zoning ordinances satisfy First Amendment concerns under the Renton 

analysis. 

33 

No. 33140-7-III 

City ofSpokane v. Hollywood Erotic Boutique 

b. 	 Whether the City's ordinances are a prior restraint 

1. 	 Examination oflicensing ordinances SVMC 5.10. 080(C) (6) and 

SVMC 5. 10. 080(D) (3) 

CA-W A contends that two ofthe City's licensing ordinances constitute a prior 

restraint because one or both effectively puts adult theaters and its viewing rooms out of 

business. SVMC 5.10.080(C)(6) requires adult arcade stations to be limited to one 

occupant, and SVMC 5.10.080(D)(3) requires all adult arcade stations to be "open to the 

public room so that the area inside is fully and completely visible to the manager." The 

City responds that adult theaters are not within the scope of chapter 5.10 SVMC because 

~~enclosure," within the defmition of "adult arcade station," should be construed broader 

than single occupancy, but narrower than a semi-public area. 

We reject the City's argument. A business is regulated under chapter 5.10 SVMC 

ifit is an adult entertainment establishment, and a business qualifies as an "adult 

entertainment establishment" ifit operates an "adult arcade establishment." An adult 

arcade establishment, in turn, is defined to include businesses which use either an adult 

arcade station or an adult arcade device. Because the definition of "adult arcade device" 

does not have an enclosure limitation, and because an adult theater uses a large movie 

screen to display films ofsexual activities or sexual conduct on a regular basis or as a 

substantial part ofits activity, an adult theater uses an adult arcade device, and therefore 

is an adult arcade establishment and within the scope of chapter 5.10 SVMC. 

34 

No. 33140-7-II1 

City ofSpokane v. Hollywood Erotic Boutique 

We agree with CA-WA that SVMC 5.10.080(C)(6)'s limitation of one person per 

theater prevents adult theaters from operating in Spokane Valley.5 But we disagree that 

SVMC 5.10.080(D)(3) prevents viewing rooms from operating in Spokane Valley. 

Rather, viewing rooms may operate provided that various reasonable safeguards are in 

place to prevent lewd conduct from occurring within the viewing area. 

The fact that semi-private viewing of erotic materials must occur in individual 

viewing areas rather than in a theater setting does not render the licensing ordinance 

unconstitutional. The determinative question is not whether the regulation prohibits an 

adult theater. Rather, the determinative question is whether forbidding adult theaters 

unconstitutionally interferes with the communication ofthe erotic message. Stated 

another way, one does not have a constitutional right to view graphic films; rather, the 

actors and the businesses which make and produce graphic films have a constitutional 

right to communicate their erotic messages. 

There is no evidence in the record that prohibiting adult theaters would interfere 

with actors and businesses making and producing graphic films. Modem technology has 

replaced adult theaters first with VHS, and now with DVD's, allowing actors and the 

businesses which make and produce graphic films to market their protected messages in 

5 The City asserts that it never intended that chapter 5.10 SVMC apply to adult 

theaters. Nevertheless, until the definition of adult arcade establishment is narrowed, the 

specter ofthis application exists and warrants further discussion by this court. 

35 
No. 33140-7-III 

City o/Spokane v. Hollywood Erotic Boutique 

ways not possible 25 years ago. During oral argument, counsel for CA-W A was 

questioned why adult theaters and viewing rooms continue to exist, given the widespread 

availability of graphic videos which can be viewed free over one's computer or 

smartphone. Counsel responded that perhaps some people do not want to view graphic 

content in the vicinity of family members. Under our construction ofthe City's licensing 

ordinance, people still can view graphic content in a semi-private setting, away from 

family members, but they may do so only under conditions which minimize lewd 

conduct. 

2. 	 Examination ofthe zoning ordinance under Washington 

constitutional standards applicable to prior restraints 

CA-W A contends that the time, place, and manner restrictions in chapter 19.80 

SVMC amount to prior restraint through zoning. CA-W A argues that SVMC's zoning 

regulations effectively ban all adult entertainment establishments in instances where the 

approved zones have no properties readily available for lease or purchase. According to 

CA-WA, this total ban is so restrictive that it is a prior restraint under the enhanced 

protection ofthe Washington Constitution. 

The text and history of article I, section 5 ofthe Washington Constitution dictate 

enhanced protection under the Washington Constitution in the context of adult 

entertainment regulations that impose prior restraints. Ino Ino, Inc. v. City 0/Bellevue, 

132 Wn.2d 103, 116-17,937 P.2d 154 (1997). The strict standard under the Washington 

36 

No. 33140-7-II1 

City ofSpokane v. Hollywood Erotic Boutique 

Constitution is that prior restraint of constitutionally protected expression is per se 

unconstitutionaL 0 'Day, 109 Wn.2d at 803-04. 

Prior restraints are defined as '" official restrictions imposed upon speech or other 

forms ofexpression in advance of actual publication.'" City ofSeattle v. Bittner, 81 

Wn.2d 747, 756, 505 P.2d 126 (1973) (quoting Thomas I. Emerson, 20 Law and 

Contemporary Problems 648 (1955)). Before applying the highly protective rules against 

prior restraint, courts must first determine whether the challenged rule affects expression. 

"Regulations that sweep too broadly chill protected speech prior to publication and this 

may rise to the level of a prior restraint." 0 'Day, 109 Wn.2d at 804. 

However, time, place, and manner restrictions on adult entertainment are not prior 

restraints and do not merit the more rigorous analysis afforded under the Washington 

Constitution for pure speech in a traditional public forum. Ino Ino, 132 Wn.2d at 121. 

The exact causal relationship between a regulation and a targeted adverse secondary 

effect does not need to be proved under a prior restraint analysis. Id. at 127. It is enough 

that a regulation is related to an overall problem a city seeks to correct. Id. 

The requirement that CA-W A relocate HEB is not a prior restraint. The zoning 

regulations here are content neutral and valid time, place, and manner restrictions. The 

City has a legitimate concern about the secondary effects of adult entertainment 

businesses. The regulations are narrowly tailored while still allowing speech in the 

approved zones. Also, we decline to find that the zoning regulation operates as a prior 

37 

No. 33140-7-111 

City ofSpokane v. Hollywood Erotic Boutique 

restraint simply because CA-W A's expert opined that there were no available sites for 

immediate relocation. First, immediate availability is not required under the federal 

constitution or the state constitution. More importantly, CA-WA has not established that 

the property is not reasonably available. Instead, 39 properties have been identified as 

potential relocation sites. The zoning regulations in chapter 19.80 SVMC do act as a 

prior restraint on CA-WA's speech. 

c. 	 Whether the licensing ordinance is over broad under the Washington 

Constitution 

CA-WA cites Renton, 475 U.S. at 46-47, to advance its argument that a regulation 

is overbroad ifit targets businesses which have not been shown to produce adverse 

secondary effects. Specifically, CA-WA argues that the licensing ordinance 

impermissibly targets theaters that show sexually oriented movies on a part-time basis, 

theaters showing movies wherein the sexual conduct or specified sexual activities are not 

the predominant theme ofthe movie, and hotels and motels that provide sexually oriented 

movies to guests on closed circuit television. 

"An overly broad statute that sweeps within its proscriptions protected expression 

is unconstitutional under both the Washington and United States Constitutions." o'Day, 

109 Wn.2d at 803. "[W]here a statute regulates expressive conduct, the scope ofthe 

statute does not render it unconstitutional unless its overbreadth is not only real, but 

substantial as well, judged in relation to the statute's plainly legitimate sweep." World 

38 

No. 33140-7-III 

City ofSpokane v. Hollywood Erotic Boutique 

Wide Video, 368 F.3d at 1198 (quoting Osborne v. Ohio, 495 U.S. 103, 112, 110 S. Ct. 

1691, 109 L. Ed. 2d 98 (1990)). 

We previously rejected CA-WA's over breadth challenge under the First 

Amendment, concluding that the licensing ordinance did not apply to ordinary theaters or 

hotels and motels showing adult movies over closed circuit televisions. Although the 

licensing ordinance applies to adult theaters, CA-W A concedes that the City's legislative 

record includes secondary effects attributable to adult theaters. Therefore, because the 

licensing ordinance does not seek to regulate activities that have not been shown to have 

adverse secondary effects, the licensing ordinance is not overbroad. 

d. 	 Whether the definition ofadult arcade establishment in chapter 5.10 SVMC 

is unconstitutionally vague 

CA-W A contends that the definition for adult arcade establishment is void for 

vagueness in violation ofthe due process clause. CA-WA maintains that definition is 

unclear as to what constitutes showing movies on a "regular basis" or as a "substantial" 

part ofthe premises activity, and that the section fails to specify what percentage of 

sexual content in a particular movie would trigger applicability ofthe code. 

For a regulation to be void for vagueness under the due process clause ofthe 

Fourteenth Amendment, the regulation must be so unclear that a person of common 

intelligence must necessarily guess as to its meaning and differ as to its application. City 

ofSpokane v. Douglass, 115 Wn.2d 171, 179, 795 P.2d 693 (1990) (quoting Burien Bark 

39 

No. 33140-7-111 

City ofSpoko.ne v. Hollywood Erotic Boutique 

Supply v. King County, 106 Wn.2d 868, 871, 725 P.2d 994 (1986)). The test does not 

demand impossible standards ofspecificity; and ifpersons of ordinary intelligence can 

understand what the ordinance proscribes, notwithstanding possible areas of 

disagreement, the ordinance is sufficiently defmite. Id. 

The language used in the enactment is afforded a sensible, meaningful, and 

practical interpretation. Id. at 180; see State v. Dixon, 78 Wn.2d 796, 805, 479 P.2d 931 

(1971). "Vagueness doctrine cannot be understood in a manner that prohibits 

governments from addressing problems that are difficult to defme in objective terms." 

Gammoh v. City ofLa Habra, 395 F.3d 1114, 1121 (9th Cir. 2005). In determining 

whether a challenged ordinance is sufficiently definite, the language ofthe ordinance is 

not examined in a vacuum. Rather, the context ofthe entire enactment is considered. 

City ofSeattle v. Huff, 111 Wn.2d 923, 929, 767 P.2d 572 (1989). "[O]therwise 

imprecise terms may avoid vagueness problems when used in combination with terms 

that provide sufficient clarity." Gammoh, 395 F.3d at 1120. 

In Gammoh, the court held that subjective terms in a definition for cabaret dancer 

did not void the entire regulation in which the definition applied. Id. The court examined 

whether the subjective terms when used in combination with other terms gives notice of 

what is being regulated and whether the prohibited conduct is defined objectively. Id. 

Using these methods, the court determined that the defmition of "adult cabaret dancer" 

was not vague even though it contained subjective terms such as "sexually oriented 

40 

No. 33140-7-111 

City ofSpokane v. Hollywood Erotic Boutique 

dancer," "exotic dancer," "regular basis," and "focuses or emphasizes." Id. The Court 

found that a combination of features defined an adult cabaret dancer and the defmition as 

a whole gave performers ample guidance on who is and who is not subject to the 

regulation. Id. The court also found despite the sUbjective terms, the targeted conduct 

prohibiting cabaret dancers from performing two feet from a patron was objectively 

defmed.ld. 

The challenged definitions are not unconstitutionally vague. An adult arcade 

establishment is defined by a combination of objective, defined, and subjective terms. 

Below, we italicize the terms which are further defined in the City's definition of "adult 

arcade station" to show the particularity that the City used to assist businesses in knowing 

whether their activities were regulated. According to the defmition, an "adult arcade 

establishment" is (1) a commercial premises (2) where a member ofthe public is 

admitted (3) where adult arcade station or adult arcade devices are used to (4) exhibit or 

display a graphic picture, view, film, videotape, or digital display of(5) a specified sexual 

activity or sexual conduct to a member of the public, (5) on a regular basis or as a 

substantial part ofthe premises activity. SVMC 5.10.010. When considered together, the 

objective, defined, and subjective terms give sufficient notice ofwhat constitutes an adult 

arcade establishment. A person of ordinary intelligence can tell that a business that is 

open to the public and regularly shows digital displays of explicit sexual activity is 

subject to the licensing regulations. Precise specificity is not required. 

41 
No. 33140-7-111 

City ofSpokane v. Hollywood Erotic Boutique 

The inclusion ofthe subjective terms, "regular basis" and "substantial," does not 

make the entire adult arcade establishment definition void for vagueness. Prior cases 

have upheld the use ofthe terms "significant or substantial" in this context. World Wide 

Video, 368 F.3d at 1198. Further, although Appendix A ofthe SVMC does not defme 

"regular" or "substantial," the appendix directs courts to interpret undefined words using 

Webster's New Collegiate Dictionary. Merriam-Webster's Collegiate Dictionary defines 

"regular" to mean "recurring ... at fixed, uniform, or normal intervals," and defines 

"substantial" to mean "being largely but not wholly that which is specified." MERRIAMWEBSTER'S COLLEGIATE DICTIONARY 1048, 1245 (lith ed. 2003). The combination of 

subjective with objective and defmed terms gives a sufficiently clear picture of an adult 

arcade establishment and the business activity that is the subject ofthe licensing 

requirement. 

CONCLUSION 

In summary, we conclude that REB's viewing rooms are not a lawful 

nonconforming use, that the City's licensing and zoning regulations apply to REB, and 

that those regulations are not unconstitutional. 

Affirm. 

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No. 33140-7-III 

City ofSpokane v. Hollywood Erotic Boutique 

A majority ofthe panel has determined this opinion will not be printed in the 

Washington Appellate Reports, but it will be filed for public record pursuant to 

RCW 2.06.040. 

WE CONCUR: 

Lawrence-Berrey, 1. 

Fearing, J. \l \

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