Constitutionality of espresso stand lewd conduct ordinance questioned

BIV

I'm Biv Dick Black, the Over Poster.
Apr 22, 2002
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PORT ORCHARD — County legal staff has determined a lewd conduct ordinance that would regulate the clothing worn by workers at espresso stands previously recommended by the Planning Commission might be unconstitutional.
Shelley Kneip, deputy prosecuting attorney for the county, told Commissioners Robert Gelder and a.inline_topic:hover { background-color: #EAEAEA;}Josh Brown on Monday that the coffee stand owners planned to sue if the county enacted the proposed ordinance. Commissioner a.inline_topic:hover { background-color: #EAEAEA;}Charlotte Garrido was absent.
The ordinance was proposed as a way to regulate clothing worn at the stands, which employ women that wear pasties and lingerie while selling coffee.
Under the First Amendment, the county cannot legislate morality or suppress a person's expression of speech, no matter how many people don't agree with it, Kneip said.
"It boils down to a moral argument and you can't regulate morality," said Jerry Wilson, owner of Espresso Gone Crazy and Espresso Gone Crazy II. "We opened our businesses based on the laws and we've been operating legally."
If the stands produced an increase in crime, decrease in retail trade and property values, a general decline of the quality of the surrounding neighborhood or if illegal activity was conducted at the businesses, then the ordinance would be applicable, Kneip said. None of these secondary effects has been documented at Kitsap's espresso stands, two of which are located by car dealerships and a topless bar in Gorst and the other next to a wrecking yard along Highway 303 in East Bremerton.
Testimony from the Planning Commission's public hearings on the proposed ordinance centered around moral and parental concerns about impacts to children as they pass by or unsuspecting drivers pulling in to get a cup of coffee that don't know what they're about to see.
When creating the proposed ordinance, county legal staff reviewed similar ordinances in other jurisdictions including the city of Bremerton. No one has challenged Bremerton's ordinance, which is why the question of constitutionality hasn't been tested, Kneip said.
"A lot of jurisdictions have regulations in place — either lewd conduct or adult entertainment — that don't necessarily prohibit, but can regulate it," she said. "They haven't all been court challenged."
Without case law to analyze how the ordinance might stand up to a constitutional challenge, it was clear to commissioners that enacting the lewd conduct ordinance would not be in the county's best interest. The proposed ordinance also would be hard to enforce because it would apply to more than just coffee stands, said Larry Keeton, director of the Department of Community Development.
A violation of the ordinance would be a violation of civil code, leaving the county's two code enforcement officers to investigate the allegations and not the Kitsap County Sheriff's Office, Keeton said.
"The sheriff doesn't want to enforce this code," he said.
In light of the legal review, Gelder and Brown requested the planning department require more screening of the stands and signs about what's being offered.
"It's about consumer awareness, for lack of a better term," Gelder said. "It boils down to signage and screening. Is there a way to adequately sign so that a consumer beware before they actually get stuck in the line?"
The stand owners at the meeting told the commissioners they were willing to increase screening and work with the county.
"We're willing to work and play ball," Wilson said. "We've done stuff before out of good faith. This isn't something where we want kids coming through, it's not something we designed for that."