### FILED OCTOBER 22, 2015 (n the Office ofthe Clerk ofCourt W A State Court ofAppeals, 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### v. ) UNPUBLISHED OPINION ) BRIAN DIRKS and CHRISTINE DIRKS, ) husband and wife; and MARESSA ) DIRKS and JOHN DOE DIRKS, wife and ) husband; and CA-WA CORP, a California )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 ) HOLLYWOOD 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 adultvideo viewingrooms, 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 challengedprovisions are constitutional. We, therefore, affirm the trial court's summaryjudgment order and order ofabatement.No. 33140-7-II1 City of Spokane 

### v. HollywoodEroticBoutique
FACTS CA-WA Corp. operates Hollywood Erotic Boutique (REB), a retail business at 9611 East Sprague Avenue inthe City ofSpokane Valley. CA-W A leases the premises from members ofthe Dirks family, who ownthe 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 sixenclosed viewingrooms on the premises where patrons can watch sexually explicit movies for an entrance fee. Five ofthe viewing rooms are onthe second level ofthe building situated along a continuous corridor. Eachviewingroom is separated from the corridor by a closed door, is roughly 10 feet by 10 feet, contains multipleplastic chairs for seating people, and a large screentelevision for viewing movies in the darkened room. Movies play continually. Patrons pay $12 to enterthe viewing room area, may remain in the viewing room area for four hours, and are permittedto move from room to room. Patrons cannot control the movies being shown. The screen in each room is connected by a cable to a DVDplayer. The DVD players for eachroom are located behind the clerk's counter downstairs and are controlled by a store employee. Inthe spring of2007, a citizen complaint ledthe City ofSpokane Valley to believethat CA-WA was operating an adult entertainment establishment atREB. The City investigated inMay 2007. Code enforcement officer Chris Berg and members of 2No. 33140-7-III City of Spokane 

### v. HollywoodErotic 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 inthe rooms masturbating. After the inspection, all agency personnel who were present agreed that an adult entertainment arcade was being operated on the second floor ofREB. 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 neededto obtain an adult entertainment establishment license through the City. The manager agreedto 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 overthe next several years. Detective Wakefield continuedto report onthe activities at REB. His reports show thatviewing rooms generally contained one, two, orthree men engaging in masturbation, although one report reflects five men and one woman, with all but two men engaged inmasturbation. The City also documented Internetpostings for sexual encounters at HEB. Overthe course ofthe mUlti-year investigation, the City exchanged correspondence with CA-WA. Director ofOperations Darryl Richardson denied that REB's activities required it to be licensed as an "adultentertainment establishment" as 

### 3No. 33140·7·III City of Spokane 

### v. HollywoodErotic 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 ofa public nuisance, code violations, and a warrant ofabatement. The complaint was aimed only at the viewing rooms, not at HEB's fITst floor adultretail business. Historical County and City AdultEntertainmentRegulations. HEB began its adult retail business in 1999 and the viewing rooms in 2002, priorto the City incorporating in March 2003. We, therefore, examine the pertinent adult entertainmentregulations in effectpriorto the City's incorporation. In 1999, 9611 East Sprague was within unincorporated Spokane County and subject to the Spokane County Code (SCC). Spokane Countyprohibited operation ofan adult entertainment establishment without a valid license. The County also regulated zoning ofadult 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 4No. 33140-7-II1 City o/Spokane v. HollywoodEroticBoutique 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 ofa 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 inthis 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 ofspecified sexual activity, or live adult entertainment in a booth settingto a member ofthe public on a regularbasis or as a substantial part ofthe premises activity. "Adult arcade station" or "booth" means an enclosure where a patron, member, or customerwould ordinarily be positioned while using an adult arcade device or viewing a live adult entertainmentperformance, exhibition, or dance in a booth. Adult arcade station orboothrefers tothe area inwhich 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 beviewed. These terms do not mean such an enclosure that is a private office used by an owner, manager, orperson employed on the premises for attending to the tasks ofhis or her employment, ifthe enclosure is not held outto any member ofthe public for use, for hire, or for a fee for the purpose ofviewingthe entertainment provided by the arcade device or live adult entertainment, and not open to any person otherthan employees. "Adult entertainment establishment" collectively refers to adult arcade establishments and live adult entertainment establishments, as defined herein.



### 5No. 33140-7-III City of Spokane 

### v. HollywoodEroticBoutique
CP at 241 (italics addedto "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 entertainmentzoning 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 ofSpokane Valleythrough the regulation ofoperations and licensing ofthe adult entertainment devices, premises and personnel ofadult entertainment establishments." SVMC 19.80.020 stated that the licensing requirements ofadult 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 andparks, public orprivate 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 ofareas 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 

### 6No. 33140-7-111 City of Spokane 

### v. HollywoodEroticBoutique

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 ofchapter 5.10 SVMC andreplacing it with new regulations. The City found the newregulations 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 ofan adult entertainment establishment. Additionally, the new ordinance stated that an adult entertainment license wouldnotbe issued for operation ofan adult entertainment establishment in a location that does not meetthe 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 similarto the prior defmitions 

### in the code, exceptthat 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:



### 7No. 33140-7-III City o/Spokane v. HollywoodEroticBoutique
"Adult arcade device," sometimes also known as a "panoram," "preview," "picture arcade," "adult arcade," or "peep show," means any device which, for payment ofa 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 underthis chapter bythe term "adult arcade device." The term "adult arcade device" as used in this chapter does not include other games which employ pictures, views, orvideo displays, or gambling devices which do not exhibit or display adult entertainment. "Adult arcade establishment" means a commercial premises, or portion ofany premises, to which a member ofthe public is invited or admitted andwhere adultarcade stations or adultarcade devices are used to exhibit or display a graphic picture, view, film, videotape, or digital display ofa [sic] specifiedsexual activities or sexualconductto a member ofthe public on a regular basis oras a substantialparto/thepremises activity. "Adult arcade station" means any enclosure where a patron, member, or customer would ordinarily bepositionedwhile using an adult arcade device. Adult arcade station refers tothe area in which an adult arcade device is located and from whichthe graphic picture, view, film, videotape, digital display ofspecified sexual activities or sexual conduct is tobe viewed. These terms do not mean such an enclosure that is a private office used by an owner, manager, orperson employed onthe premises for attending tothe tasks ofhis or her employment, ifthe enclosure is notheld outto any member ofthe public for use, for hire, or for a fee for the purpose ofviewing the entertainmentprovided by the arcade device, and not opento any persons other than employees. SVMC 5.10.010 (italics added for ease offuture reference in analysis ofthese provisions). SVMC Appendix A includes substantially similar definitions. Appendix A directs that undefined terms be construed as defmed in Webster's New Collegiate



### 8No. 33140-7-III City of Spokane v. HollywoodEroticBoutique Dictionary.l HEB has neverpossessed 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 ofabatement. CA-WA responded to the City's motion and also filed its own cross motion for partial summaryjudgment. 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 ofabatement would be premature until the constitutionality ofthe ordinances could be analyzed. OnApril 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 summaryjudgment. 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 underthe definitions in SCC 7.80.040 because (l) HEB used a DVDplayer to display a graphic picture screen to

1The 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 atthe time ofthe 2010 ordinance amendments. 

### 9No. 33140-7-111 City of Spokane v. HollywoodErotic Boutique
six separate theaters ofspecified sexual activity for the cost ofa 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 bebecause itwas 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 presentphysical location, it did nothave standing to challenge the licensing requirements ofchapter 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 entertainmentbusiness. After a period ofdiscovery, the City filed a motion for summaryjudgment onthe constitutionality ofthe zoning code. One part ofthe issue was whether alternative
avenues ofcommunication remained available under the challenged zoning regulation. The City supported its summaryjudgment motion with a list ofparcels lawfully zoned for adult entertainment uses. The City's expert, Bruce Jolicoeur, determined thatthere 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. 10No. 33140-7-II1 City of Spokane 

### v. HollywoodErotic Boutique
The City also presented a declaration from land use planning consultant Reid Shockey. Mr. Shockey concluded, among otherthings, 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 inthe geographic area incorporated into Spokane Valley. All ofthese businesses were lawful atthe time ofincorporation andhad valid nonconforming use rights. A fifth adult retail business closed sometimebetween 2003 and 2004. Mr. Kuhta statedthatthe number ofadult businesses has remained steady considering that no new applications have been filed. 

### In response, CA-WApresented a declaration andreport from land use planners Lee Michaelis and Robert Thorpe. The report identified 39 properties within Spokane Valley that could beused as adultbusinesses. The majority ofthese properties were occupied by existing businesses. Five ofthe properties were occupiedby the railroad and
oneby the Spokane Transit Authority. Others were occupied with large retailers, restaurants, orhotels. Thereport identified 1.2 percent ofthe City land available for adult entertainment establishments. Real Estate brokerRich Crisler also provided a declaration for CA-WA. Mr. Crisler offered his opinion as to whetherthe owners ofthe various sites were likely to make their land available to adult businesses. Mr. Crisler asserted that four ofthe properties were vacant land andthe majority ofthe remainderwere occupiedby existing 

### 11

### No. 33140-7-II1 City of Spokane 

### v. HollywoodErotic 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 ofabatement. The court determined that no genuine issue ofmaterial fact existed
as to the adequacy ofthe alternative avenues ofcommunication for CA-WA to open and operate an adult entertainment establishment within the City. The court also determined thatthe City was entitled to summaryjudgment as a matter oflaw on CA-W A's counterclaims, including the constitutionality ofchapter 5.10 

### SVMC and/or chapter 19.80 

### SVMC. The trial court concluded that the City was entitled to a warrant ofabatement pursuantto 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 subjectto the licensing requirements ofchapter 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 adultretail activities. 12No. 33140-7-III 

### City of Spokane v. 

### HollywoodErotic Boutique
ANALYSIS On appeal, orders ofsummaryjudgment are reviewed de novo. 

### Smith v. 

### Safeco Ins. Co., 150 Wn.2d 478,483, 78 P.3d 1274 (2003) (quoting

### Jones v. 

### AllstateIns. 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 summaryjudgment ifthere are no material issues of fact andjudgment should be entered as a matter oflaw. CR 56(c). A material fact is one
onwhich 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 offact is on the moving party. 

### Hash v. 

### Children's OrthopedicHosp. & 

### Med. Ctr., 110 Wn.2d 912,915, 757 P.2d 507 (1988). "Only after the movingpartyhas met its burden ofproducing factual evidence showing that it is entitled tojudgment as a matter oflaw does the burden shiftto the nonmoving party to set forth facts showing that there is a genuine issue ofmaterial fact." 

### Id. Summaryjudgment should be granted only ifreasonable persons can reach but one conclusion. 

### Id. 1. WhetherHEB'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 subjectto the licensing and zoning requirements ofSVMC. CA-W A

13No. 33140-7-111 City of Spokane 

### v. HollywoodErotic Boutique
maintains thatthe Spokane County Code inplace whenHEB began operating its viewing
rooms did not apply to (and therefore did notprohibit) multi-occupancy viewing rooms. Municipal ordinances are interpreted using the same rules as statutes. Sleasman 

### v. City of Lacey, 159 Wn.2d 639,643, 151 P.3d 990 (2007). Statutes are to be read inpari 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 ofcommon 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 partthat any use that does not conform to the present regulations ofthe zoning district shall be deemed a nonconforming use ifitwas in existence and in continuous use and lawful operationpriorto the regulations. A nonconforming use is allowed to continue indefinitely providedthatthe use is not discontinued or abandoned. SVMC 19.20.060(B). Butsee SVMC 5.10.150 (requiring lawfully operating adult entertainment establishments to conform to 2010 licensing revisions within 90 days). 14No. 33140-7-111 City o/Spokane 

### v. HollywoodEroticBoutique
When REB began operating its viewing rooms, itwas governed by Spokane eounty's regulations on adult entertainment establishments. One type ofadult 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 ofthepublic is
... admitted and where adult arcade stations, booths, or devices are used to exhibit or display a graphic
... videotape, or digital display ofspecified sexual activity
... in a booth settingto a member ofthepublic
on a regular basis or as a substantialpart ofthe premises activity." see 7.80.040 (emphasis added). The see defined "adult arcade station" as "an enclosure where a patron ... would ordinarily bepositioned while using an adultarcade 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 notheld out for use by the public. The see defined an "adult arcade device" as "any device which, for payment ofa 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 ThirdNew InternationalDictionary defines "booth" as

15No. 33140-7-II1 City of Spokane 

### v. HollywoodEroticBoutique
2a: a temporary structure ... b: a totally orpartially enclosed structure often inside a building; esp: a small enclosure designedto hold oneperson at a time usu. to afford privacy orto separate its occupant from patrons or customers ... 3: an enclosure ofvarying size and construction designedto isolate an area and to prevent the functions carried on within it from being interfered with bythe surrounding area. WEBSTER'S THIRD NEWINTERNATIONAL DICTIONARY 254 (1993). Webster's therefore defines "booth" in a mannerthat may, but neednot, referto a single-occupancy space. We therefore must interpret "booth"to effectuate the County's intent. We note thatthe County sought toregulate 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. Therecord before us establishes that lewd activities arejust as likely to occur in rooms with two orthree persons as rooms with only oneperson. 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 thatthe rooms typically had only one, two, orthree persons in them, thus encouraging lewd conductbecause ofthe room's semi-privacy. We, therefore, determine thatHEB's multi-person viewing rooms come within SCC's definition ofadult entertainment establishments. Because HEB did nothave a license from Spokane County to operate such a business, it is not a lawful nonconforming use. See FirstPioneer Trading Co. v. Pierce County, 146 Wn. App. 606, 617, 191 P.3d 928 (2008). In addition, HEB's operation of
16No. 33140-7-II1 

### City of Spokane 

### v. HollywoodErotic 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 operationpriortothe 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 of chapter 

### 5.JOSVMC. CA-WAputs 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 ofgreater than 18 inches in either length or width. Only one such chair orother 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 similarto the definitions in SCC 7.80.040. Theprimary difference is that the SVMC definitions omitreferences 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

17No. 33140-7-111 City o/Spokane v. HollywoodErotic 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 ofoccupants permitted in the enclosure, but does not change the definition ofadult entertainment establishment. Instead, SVMC 5.10.080(C)(6) is merely a requirement that the adult arcade establishment must meetto 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 ofadult arcade devices can simply add a second chair to the small partitioned enclosure and evade regulation. This outcome misses the City's intentto regulate the lewd conduct that occurs in a small semi-private room where 18No. 33140-7-III City of Spokane 

### v. HollywoodEroticBoutique 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 5.10SVMC 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 ofchapter 5.10 SVMC. CA-W A argues that special standing rules apply to constitutional challenges based on claims ofvagueness, over breadth, and impermissible priorrestraint, and it can raise these challenges even though it cannot claim ithas been affected by the features which it claims are unconstitutional. In support ofits argument, CA-WA cites Ramm v. City of Seattle, 66 Wn. App. 15,830 P.2d 395 (1992), O-Day 

### v. King County, 109 Wn.2d 796, 749 P.2d 142 (1988), City of Tacoma 

### v. Luvene, 118 Wn.2d 826,827P.2d 1374 (1992), State 

### v. Halstien, 122 Wn.2d 109,857 P.2d 270 (1993), JJR, Inc. 

### v. City of Seattle, 126 Wn.2d 1, 891 P.2d 720 (1995), and Clark

### v. City of Lakewood, 259 F.3d 996g (9th Cir. 2001). The City does not directly respond to CA-WA's argument. We therefore will assume for purposes ofour analysis that HEB has standing to make facial challenges to the City's licensing ordinance.

19No. 33140-7-II1 

### City of Spokane v. 

### HollywoodErotic Boutique
4. Whether the City's licensing andzoning 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 pertainingto vagueness, over breadth, and prior restraint. As it relates to the City's zoning ordinance, CA-WA argues, underthe

### Renton3 test, thatthe zoning ordinance is notnarrowly tailored (or is over broad), and does not allow for a reasonable opportunity to operate an adult business. Inaddition, CA-W A argues that the zoning ordinance amounts to a prior restraint underthe 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. Becausethe 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 appliedto the City's licensing andzoning ordinances Filmed materials showing sexually explicit conduct are pure speech for the purposes ofthe First Amendment. 

### World Wide Video, Inc. 

### v. City of Tukwila, 117 Wn.2d 382,388,816 P.2d 18 (1991). Federal law provides the basis for protection ofFirst

3 

### City of Renton v. 

### Playtime Theatres, Inc., 475 U.S. 41, 106 S. Ct. 925, 89 L. Ed. 2d 29 (1986). 20No. 33140-7-111 

### City of Spokane 

### v. HollywoodErotic Boutique
Amendment speech rights, with necessary consideration given to the greaterprotections ofarticle I, section 5 ofthe Washington Constitution when appropriate. 

### Id. at 387. 

### City of Renton 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 cannotbe a complete ban onthe protected expression. Second, the ordinance mustbe content-neutral or, ifcontent-based with respect to sexual andpornographic speech, its predominate concern mustbe the secondary effects ofsuch speech in the community. [And ifthe first two steps are met], [t]hird, the regulation mustpass intermediate scrutiny. Itmust 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 of San 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 entertainmentregulations are "acomplete ban on theprotected expression." 

### Id. Here, neitherthe zoning regulations nor the licensing regulations are a complete ban. Adult entertainment establishments are allowed in the City, albeit withrestrictions. CA-W A does not argue that the restrictions ban adult entertainment establishments altogether. The City's zoning and licensing regulations on adult entertainmentpass the first prong under

### Renton.

21No. 33140-7-111 

### City of Spokane v. 

### HollywoodErotic Boutique
2. Content neutral: The second step requires that "the ordinance must be content-neutral or, ifcontent-based with respectto sexual and pornographic speech, its predominate concern must bethe secondary effects ofsuch speech in the community." 

### Id. Regulations aimed at controlling the secondary effects ofadult 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 theprimary motivation behindthe regulation to determine whetherthepurpose is to remedy the secondary effects associated with sexually orientedbusinesses. 

### See id. Regulations that are designed to combat the undesirable secondary effects ofadult entertainment businesses
are analyzed as time, place, and manner regulations. 

### Renton, 475 U.S. at46. Here, the record shows thatthe City's concern for the secondary effects ofthe adult entertainment establishments was theprimary motivation for enacting boththe licensing and the zoning regulations. The record establishes that for the 2010 licensing regulations andthe 2007 zoning regulations, the City engaged in a careful review ofa variety ofmaterials when considering the secondary effects ofadult businesses. The record also contains letters from citizens andpolice reports that documentthe unwanted secondary effects from adult businesses specifically inthe City ofSpokane Valley. These secondary effects include loitering in the area around thebusinesses, discarding used and contaminated "toys," usingprivate areas ofneighboring businesses tohave sex,

22No. 33140-7-111 

### City

## 0/ Spokane v. HollywoodErotic 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, notto suppress the speech itself. CA-WA presents no evidence thatwould call this motivation into doubt. Becausethe regulations
are intended to combatthe secondary effects ofadult entertainment establishments, the regulations are content neutral. Therefore, the City's licensing and zoning regulations of adult entertainmentpass the

### Renton test. 

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

### "An ordinance aimed at combating the secondary effects ofa particular type ofspeech survives intermediate scrutiny'ifit is designed to serve a substantial government interest, is narrowly tailored to serve that interest, and does not unreasonably limit alternative avenues ofcommunication.'" 

### World Wide Video, 368 F.3d 1192 (quoting 

### Ctr./orFair Pub. Policy v. Maricopa County, 336 F.3d 1153, 1166 (9th Cir. 2003)). A. 

### Substantialgovernment interest. A local government has a substantial interest in attempting to preserve the quality ofurban 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 23No. 33140-7-III City of Spokane 

### v. HollywoodErotic Boutique
the regulation ofsexually oriented businesses. Id. Additionally, courts have found a substantial interest unrelatedto expression in the presence of"[r ]ampant masturbation at
a commercial property open to the public" because this "may rationally trigger sanitation
concerns and impairthe right ofotherpatrons to view their materials or read the accompanying articles inpeace." 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 of Spokane, 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 ordertojustify 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 producedby other cities ifthe evidence is relevant to the problem thatthe city intends to address. Id. at 1192. However, "The municipality's evidence must fairly supportthe municipality's rationale for its ordinance. Ifplaintiffs fail to cast direct doubt on this rationale, eitherby demonstrating thatthe 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 inRenton. Ifplaintiffs succeed in casting doubt on a municipality's rationale in either manner, the burden shifts backto the municipality to supplementtherecord with evidence renewing support for a theory that justifies its ordinance." Id. at 1193 (quoting City of LosAngeles v. AlamedaBooks, Inc., 535 U.S. 425, 438-39, 122 S. Ct. 1728, 152 L. Ed. 2d 670 (2002» (plurality opinion). 24No. 33140-7-III City of Spokane 

### v. HollywoodEroticBoutique Here, the City had a substantial interest in controlling the secondary effects ofthe adult entertainment establishments, including public sexual activity. The City produced evidence thatjustified the need for suchregulation. Aspreviously discussed, the record contains indications ofpornographic litter, sexual conduct in publicplaces, and increased criminal behavior. Neighboring business owners have observed sexual conduct in vehiclesparked adjacentto REB and used condoms have been found inthe parking lots around REB. CA-WA has notpresented evidence to cast doubt on the City'srationale for theregulations. Additionally, the methods chosen bythe 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 thepurpose of protecting the City from public sexual activity and works topreservethe quality ofurban life. The secondary effects that occurboth inside and outside ofREB are a substantial government interest for the City to regulate. B. Narrowly tailored. The secondprong ofintermediate scrutiny asks whetherthe regulation is "narrowly tailored" to serve the purported government interest. Fantasyland Video, 505 F.3d at 1001. This test requires demonstrating that the '" regulationpromotes a substantial government interestthat would be achieved less effectively absent theregulation' and 'the means chosen are not substantially broader than necessary.'" 

### Id. at 1004 (internal quotation marks omitted) 25No. 33140-7-II1 City of Spokane v. HollywoodEroticBoutique (quoting Wardv. RockAgainstRacism, 491 U.S. 781, 799-800, 109 S. Ct. 2746, 105 L. Ed. 2d 661 (1989)). "A zoning measure can be consistent with the FirstAmendment ifit is likely to
cause a significant decrease in secondary effects and a trivial decrease inthe quantity of speech." AlamedaBooks, 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 consideredjustified as a reasonable regulation ofthe time, place, or manner of expression ifit is narrowlytailored to serve that interest." Members of City Council of the City of LosAngeles v. Taxpayersfor Vincent, 466 U.S. 789, 808, 104 S. Ct. 2118, 80 L. Ed. 2d 772 (1984)). Thenecessity for legislation need not beproved absolutely. AdultEntm '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 toproblems 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 UnitedStates v. Albertini, 472 U.S. 675, 689, 105 S. Ct. 2897, 86 L. Ed. 2d 536 (1985)). The City's zoning regulations for adult entertainmentuses are narrowly tailored to
serve the government interest. The regulation promotes a substantial government interest that would be achieved less effectively absentthe regulation. Without zoningrestrictions
onwhere an adult entertainment establishment can be located, the government interest in 26No. 33140-7-III 

### City o/Spokane v. 

### HollywoodEroticBoutique reducing the secondary effects ofthese adult businesses would notbe met. By limiting these businesses to areas away from areas where the public congregates, the City can limitthe secondary effects ofunsanitary situations and pornographic litter, especially as it
concerns theprotection ofminors. The zoning regulations preserve the quality ofurban life. Inaddition, the City's licensingregulations are narrowly tailored to serve the government interest. The regulations prohibit more than oneperson 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 whileviewing sexually explicit videos. CA-W A does not contend thatthe zoning orlicensing regulations will nothave this desired effect. Instead, CA-W A argues that the zoning regulations are not narrowly tailored because the regulations encompass other businesses that do notproduce adverse secondary effects targeted by the City. Forinstance, CA-WA contends thatthe defmition for adult arcade establishment applies to ordinary movie theaters where sexually explicit activities or conduct are not the predominanttheme ofthe movie, and to hotels and motels thatprovide sexually oriented movies to guests on closed circuit televisions. Thus, CA-WA maintains that the means chosen are substantially broaderthan necessary. CA-WA's argument mixes questions ofoverbreadth with narrowly tailored. The difference between over breadth and narrowly tailored is whether the regulation is challenged as it applies oron its face. 

### See Taxpayers/or Vincent, 466 U.S. at 808-10. 27No. 33140-7-III City of Spokane 

### v. HollywoodErotic Boutique "Narrowly tailored" is part ofa constitutional challenge that looks at the regulation as applied to theperson subjectto the ordinance. See id. at 803-09. The question is whether the restriction on theperson's expressive activity is substantially broader than necessary toprotect the City's interest in eliminating the secondary effect. 

### Id. at 808. Overbreadth is a facial challenge that looks at whether a regulation is written so broadly that itmay inhibit the constitutionally protected speech ofthirdparties. 

### 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., RethinkingPriorRestraint, 92 YALELJ. 409, 425 (1983)). Thus, over breadth usually involves standing issues, as "there mustbe a realistic danger that the statute itselfwill significantly compromise recognized FirstAmendmentprotections 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 orzoning 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-areregulated by the ordinance, and that the ordinance is overly broad because

28No. 33140-7-II1 City of Spokane v. HollywoodEroticBoutique
there is no evidence that such entities contribute to the secondary effects whichthe ordinances seek to reduce. Even ifa facially over broad challenge was pertinentto 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 mentionedpreviously, "adult entertainment establishment" includes an "adult arcade establishment." For a business to be an "adultarcade establishment," it must operate an adult arcade station or adult arcade device which is used to display "specifiedsexual activities" or "sexual conduct" on a "regular basis" oras a "substantialpartof the premises activity." SVMC AppendixA; SVMC 5.10.010 (emphasis added). "Specified sexual activities" is defmed as (1) human genitals in a state ofsexual stimulation or arousal; (2) acts ofhuman masturbation, sexual intercourse, sodomy, oral copulation, or bestiality; or (3) foundling or other erotic touching ofhuman 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 orinstrumental, ofoneselfor ofone person by another; or (5) touching ofthe sex organs, anus, or female breasts, whether clothed or unclothed, ofoneselfor ofoneperson by another. SVMC 5.10.010. 

### 29No. 33140-7-111 City of Spokane 

### v. HollywoodEroticBoutique
The above interplay ofdefmitions convinces us that an ordinary movie theater is not an adult entertainment establishment. The record is devoid ofany evidence suggesting that ordinary movietheaters regularly feature films with thattype ofsexual activity or sexual conduct described within the definition. Nor does this description apply to hotels ormotels. The record is similarly devoid ofany evidence that televisions within hotel ormotel rooms which permit closed-circuitviewing ofpornography are actually used for such purposes on a regular basis. 4 Mere allegations are insufficientto create a genuine issue ofmaterial fact. C. Alternative avenues of communication. The final prong of intermediate scrutiny inquires whether alternative avenues ofcommunication 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 "areasonable 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 of San Diego, 505 F.3d 935,941 (9th Cir. 2007). The burdenthen shifts to the affected party to demonstratethat the city's list included unavailable sites or was compiled in the absence ofreasonableness

4 "Regular" inthis context, means "recurring
... at fixed, uniform, ornormal intervals." MERRIAM-WEBSTER'S COLLEGIATEDICTIONARY 1048 (lIth ed. 2003). 30No. 33140-7-III City of Spokane v. HollywoodErotic Boutique
and good faith. Id. After a list ofpotential sites is determined, the issue becomes assessing whether the market contains a sufficient number ofpotentialrelocation sites for the adult business. Id. at 942. The initial calculation ofavailable 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 tobe a considered a sufficient location, "it 'mustbe considered part of
an actual business real estate market for commercial enterprises generally.'" Tollis, 505 F.3d at 941 (quotingLim v. City of LongBeach, 217 F.3d 1050, 1054 (9th Cir. 2000)). "Ifin an industrial or manufacturing zone, the site must be 'reasonably accessible tothe general public,' 'have a proper infra-structure,' and be suitable for 'some generic commercial enterprise.'" Id. (quoting Topanga Press, Inc. v. City of LosAngeles, 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 ofrelocating to a site is not a First Amendment concern." David Vincent, 200 F.3d at 1334. A city is notrequired to make a certain number ofsites available for relocation. Diamondv. City of Taft, 215 F.3d 1052, 1056 (9th Cir. 2000). To determine ifthere are a sufficient number ofavailable sites, courts usually look at either the percentage ofland within the city available to businesses, or the number ofsites compared withthe number ofadult businesses currently in existence or seeking to open. Id. at 1056-57. 31No. 33l40-7-III City of Spokane v. HollywoodErotic Boutique
CA-WA contends that summaryjudgmentwas not appropriate onthe alternative
avenues ofcommunicationprong 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-halfofthe sites identified bythe City were not likely 

### to become available for generic business use inthe near future because theproperty was in a rail yard ortaken by a well-established business. Five oftheproperties were occupied bytherailroad and oneby the Spokane Transit Authority. Additionally, CAWA contends that nearly all ofthe sites the City listed as available were occupied. Thetrial 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 ofaccess. In comparison, CA-WA's number ofavailable sites was not much different. CA-WA's experts found 39 properties that met zoning and setback requirements. Thus, for purposes ofsummaryjudgment,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 haveto bepotentially 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 ornot currently for sale or lease does notrender itunavailable." 

### Id. However, evidence ofa long term lease may exclude a potential site from the available market ifthe plaintiffprovides evidence 32No. 33140-7-III City of Spokane v. HollywoodErotic Boutique regardingthe length ofthe lease. 

### [d. To designate an occupied business as unavailable, the affected party must offer "sufficientevidence to show thatthese 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 sufficientto establish thatthe property would be unavailable to any commercial enterprise. 

### Mr. Crisler detennined site availability by obtainingthe property profiles from a METROSCAN, talking to the property owner, and visiting the property. Based onthe infonnationhe gathered, 

### Mr. Crislerrendered his opinion as to which ofthe sites was subjectto 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 notpart ofthe relevant commercial market. He did notpresentthe 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 andthe City are part oftherelevant market for commercial enterprises. The 39 available sites allowed CA-WA a sufficient opportunity to relocate. We conclude thatthe City's licensing and zoning ordinances satisfy FirstAmendment concerns undertheRenton analysis.

33No. 33140-7-III 

### City of Spokane v. 

### HollywoodErotic Boutique
b. 

### Whether the City's ordinances are aprior restraint 1. Examination oflicensingordinances 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 orboth effectively puts adulttheaters and its viewingrooms outof 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 thatthe area inside is fully and completely visible to the manager." The Cityresponds that adulttheaters are not within the scope ofchapter 5.10 SVMC because**~~enclosure,"** within the defmition of"adult arcade station," should be construed broader than single occupancy, but narrowerthan a semi-public area. We reject the City's argument. A business is regulated under chapter 5.10 SVMC ifitis an adult entertainment establishment, and a business qualifies as an "adult entertainment establishment" ifit operates an "adultarcade 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 nothave an enclosure limitation, and because an adulttheater uses a large movie
screento display films ofsexual activities or sexual conduct on a regular basis or as a substantial part ofits activity, an adulttheater uses an adult arcade device, and therefore is an adult arcade establishment and within the scope ofchapter 5.10 SVMC.
34No. 33140-7-II1 City of Spokane 

### v. HollywoodErotic Boutique
We agree with CA-WAthat SVMC 5.10.080(C)(6)'s limitation ofonepersonper theater prevents adult theaters from operating in Spokane Valley.5 Butwe disagree that SVMC 5.10.080(D)(3) prevents viewing rooms from operating in Spokane Valley. Rather, viewing rooms may operate provided thatvarious reasonable safeguards are in place to prevent lewd conduct from occurring withinthe viewing area. The fact that semi-private viewing oferotic materials must occur in individual viewing areas ratherthan in a theater setting does notrenderthe licensing ordinance unconstitutional. The determinative question is not whether the regulationprohibits 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 inthe record thatprohibiting adulttheaters would interfere with actors and businesses making and producing graphic films. Modemtechnology 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 theirprotected messages in

5The City asserts that it never intended that chapter 5.10 SVMC apply to adult theaters. Nevertheless, until the definition ofadult arcade establishment is narrowed, the specter ofthis application exists and warrants further discussion by this court. 35No. 33140-7-III 

### City o/Spokane 

### v. HollywoodEroticBoutique
ways notpossible 25 years ago. During oral argument, counsel for CA-W A was questioned why adulttheaters and viewing rooms continue to exist, given the widespread availability ofgraphic videos which can be viewed free over one's computer or smartphone. Counsel responded thatperhaps some people do not wantto view graphic content inthe vicinity offamily members. Under our construction ofthe City's licensing ordinance, people still can view graphic content in a semi-private setting, away from family members, butthey may do so only under conditions which minimize lewd conduct. 

### 2. Examination of the 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 orpurchase. According to CA-WA, this total ban is so restrictive that it is a priorrestraint under the enhanced protection ofthe Washington Constitution. The text and history ofarticle I, section 5 ofthe Washington Constitution dictate enhanced protection under the Washington Constitution in the context ofadult entertainment regulations that impose priorrestraints. 

### Ino Ino, Inc. 

### v. City

## 0/ Bellevue, 132 Wn.2d 103, 116-17,937 P.2d 154 (1997). The strict standard underthe Washington
36No. 33140-7-II1 City of Spokane 

### v. HollywoodEroticBoutique
Constitution is thatpriorrestraint ofconstitutionally 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 ofactual publication.'" City of Seattle v. Bittner, 81 Wn.2d 747, 756, 505 P.2d 126 (1973) (quoting Thomas I. Emerson, 20Law and ContemporaryProblems 648 (1955)). Before applying the highly protective rules against prior restraint, courts must first determine whetherthe challenged rule affects expression. "Regulations that sweep too broadly chill protected speechpriorto publication and this may risetothe level ofa prior restraint." 0 'Day, 109 Wn.2d at 804. However, time, place, and manner restrictions on adult entertainment are notprior 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 tobeproved under a priorrestraint analysis. Id. at 127. Itis 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 priorrestraint. The zoning regulations here are content neutral and valid time, place, and manner restrictions. The City has a legitimate concern about the secondary effects ofadult 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 37No. 33140-7-111 City of Spokane 

### v. HollywoodEroticBoutique
restraint simply because CA-WA's expert opined that there were no available sites for immediate relocation. First, immediate availability is notrequired under the federal constitution or the state constitution. More importantly, CA-WA has not established that the property is notreasonably 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 broadunder the Washington Constitution CA-WA cites Renton, 475 U.S. at 46-47, to advance its argumentthat a regulation is overbroad ifittargets businesses which have notbeen shownto 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
38No. 33140-7-III City of Spokane 

### v. HollywoodEroticBoutique
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)). Wepreviously rejected CA-WA's overbreadth challenge underthe First Amendment, concluding thatthe licensing ordinance did not apply to ordinary theaters or hotels and motels showing adult movies over closed circuittelevisions. 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 toregulate activities thathave not been shown tohave adverse secondary effects, the licensing ordinance is not overbroad. 

### d. Whether the definition of adult 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 inviolation 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 thatthe section fails to specify what percentage of sexual content in a particular movie would trigger applicability ofthe code. For a regulationto be void for vagueness underthe due process clause ofthe Fourteenth Amendment, theregulation mustbe so unclearthat a person ofcommon intelligence must necessarily guess as to its meaning and differ as to its application. City of Spokane v. Douglass, 115 Wn.2d 171, 179, 795 P.2d 693 (1990) (quotingBurienBark
39No. 33140-7-111 City ofSpoko.ne 

### v. HollywoodErotic 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 ofordinary intelligence can understand whatthe ordinanceproscribes, 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 thatprohibits governments from addressing problems that are difficult to defme in objective terms." Gammoh 

### v. City of LaHabra, 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 of Seattle 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 thatprovide 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 inwhich the definition applied. 

### Id. The court examined whether the subjective terms when used in combination with otherterms gives notice of what is beingregulated and whether the prohibited conduct is defined objectively. 

### Id. Using these methods, the court determined thatthe defmition of"adult cabaret dancer"
was not vague even though it contained subjective terms such as "sexually oriented 40No. 33140-7-111 City of Spokane 

### v. Hollywood EroticBoutique dancer," "exotic dancer," "regularbasis," and "focuses or emphasizes." 

### Id. The Court found that a combination offeatures defined an adult cabaret dancer and the defmition as
a whole gaveperformers ample guidance on who is and who is not subjectto 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 ofobjective, 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 thatthe City used to assist businesses in knowing whethertheir activities were regulated. According to the defmition, an "adult arcade establishment" is (1) a commercial premises (2) where a member ofthepublic is admitted (3) where adultarcade station oradultarcade devices are usedto (4) exhibit or display a graphic picture, view, film, videotape, or digital display of(5) a specifiedsexual activity orsexual conductto a member ofthe 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 ofordinary intelligence cantell that a business that is open to the public and regularly shows digital displays ofexplicit sexual activity is subjecttothe licensing regulations. Precise specificity is notrequired. 41No. 33140-7-111 City of Spokane v. HollywoodErotic 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 oftheterms "significant or substantial" in this context. World Wide Video, 368 F.3d at 1198. Further, although AppendixA 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, ornormal intervals," and defines "substantial"to mean "being largely butnot wholly that which is specified." MERRIAMWEBSTER'S COLLEGIATEDICTIONARY 1048, 1245 (lith ed. 2003). The combination of subjective with objective and defmed terms gives a sufficiently clearpicture ofan adult arcade establishment and the business activity that is the subject ofthe licensing requirement. CONCLUSION 

### In summary, we conclude thatREB's viewing rooms are not a lawful nonconforming use, thatthe City's licensing and zoning regulations apply to REB, and that those regulations are not unconstitutional. Affirm.

42No. 33140-7-III City of Spokane 

### v. HollywoodErotic Boutique
A majority ofthe panel has determined this opinion will notbeprinted in the Washington Appellate Reports, but it will be filed for public recordpursuant to RCW 2.06.040.

WE CONCUR: Lawrence-Berrey, 1.


# \l\ Fearing, 

### J.

43