1 CITY COUNCIL
MAYOR
MARIO TRUJILLO
MAYOR PRO TEM
HECTOR SOSA
COUNCIL MEMBERS
CLAUDIA M. FROMETA
HORACIO ORTIZ
DOROTHY PEMBERTON
Notice regarding Public Comment: In order to ensure that limited English proficiency speakers receive the same opportunity to directly address the City Council, the City of Downey will continue to follow Government Code Section 54954.3(b)(2) and provide limited English proficiency speakers double the allotted time to make their public comments utilizing a translator during public meetings of the City Council. All other speakers will be given the allotted 3-minute speaking time for public hearing and closed session items, and one 3-minute speaking time for agenda, consent calendar and non-agenda items established by the Downey Municipal Code. To request oral language interpretation at a City Council meeting contact the City Clerk's Office at (562) 904 -7280, 48-hours in advance of the meeting.
CALL TO ORDER THE REGULAR CITY COUNCIL MEETING – CLOSED SESSION - 5:30 P.M.
ROLL CALL: Council Members Frometa, Ortiz, Pemberton, Mayor Pro Tem Sosa, Mayor Trujillo
PUBLIC COMMENT ON CLOSED SESSION AGENDA ITEMS
(Persons wishing to address the City Council on any item on the Closed Session Agenda items may do so at this time. Please limit your comments to no more than three (3) minutes).
RECESS TO A CLOSED SESSION OF THE CITY COUNCIL UNDER THE FOLLOWING AUTHORITIES:
1.Government Code Section 54957.6 - Conference with Labor Negotiator James McQueen, Director of Human Resources Re: direction for labor negotiations with Downey City Employees’ Association- Maintenance Unit.
2.Government Code Section 54956.95 – Liability Claim – Worker’s Compensation Claim – Claimant:
Shawn Youngblood – Claim No.: 23-169860; Agency claimed against: City of Downey
3.Conference with Legal Counsel - Anticipated Litigation - Significant exposure to litigation pursuant to Government Code sections 54956.9(d)(2) and (e)(3). Attached letters from Dawn Diaz, General Counsel for Ojos Locos Sports Cantina dated December 21, 2023, and February 5, 2024, also available for public inspection at the City Clerk’s Office at 11111 Brookshire Avenue during normal City business hours.
4.Conference with Legal Counsel - Anticipated Litigation - Initiation of litigation pursuant to Government Code section 54956.9(d)(4) (one potential case).
5.Government Code Section 54957(b) – Public Employee Appointment – Title: Economic Development Director.
MARCH 12, 2024
CITY COUNCIL MEETING
Regular Meeting
5:30 p.m. – Closed Session
6:30 p.m. – Open Session
Council Chambers
11111 Brookshire Avenue
Downey, CA 90241
2 6. Government Code Section 54957(b)(1) – Public Employee Performance Evaluation – Title: City Attorney.
RECONVENE AND ANNOUNCE CLOSED SESSION ACTION
CALL TO ORDER THE REGULAR CITY COUNCIL MEETING – OPEN SESSION - 6:30 P.M.
ROLL CALL: Council Members Frometa, Ortiz, Pemberton, Mayor Pro Tem Sosa, Mayor Trujillo
INVOCATION: Pastor Glenn Kravig, Calvary Chapel Downey
FLAG SALUTE: Boy Scout Troop 441
CITY COUNCIL MEMBER ANNOUNCEMENTS; REQUESTS FOR FUTURE AGENDA ITEMS;
CONFERENCE/MEETING REPORTS
CITY MANAGER/STAFF MEMBER COMMENTS
PRESENTATIONS
1. Mayor’s Excellence Award to David Devis, Downey Resident and Small Business Owner.
PUBLIC HEARINGS: None.
PUBLIC COMMENT ON AGENDA, CONSENT CALENDAR AND NON-AGENDA ITEMS This portion provides an opportunity for the public to address the City Council on agenda, consent calendar and items not listed on the agenda within the jurisdiction of the City Council. It is requested, but not required, that you state your name, addre ss and subject matter upon which you wish to speak. Please limit your comments to no more than three (3) minutes. The total public comment period is limited to 30 minutes. Pursuant to the Brown Act, no discussion or action, other than a brief response, ref erral to the City Manager/staff or schedule for a subsequent agenda, shall be taken by the City Council/Agen cy on any issue brought forth under this section.
CONSENT CALENDAR
All matters listed on the Consent Calendar are to be approved with one motion unless a City Council Member requests an item be removed. Removed items will be considered following approval of the Consent Calendar.
1. WARRANTS ISSUED: Warrant Nos. 375863 – 376220; Payroll Wire Nos. 30004403, 30004406, 30004411, 30004438 – 30004439 & 30004441; EFT Nos. 13323 – 13357; Manual Wire Nos. 2482 – 2486; and, Cashier’s Check No. 180 in the total amount of $4,198,271.65: Finance.
2. AUTHORIZATION TO PURCHASE 21 REPLACEMENT POLICE VEHICLES: Police.
THAT THE CITY COUNCIL:
1) APPROVE THE PURCHASE OF 11 DODGE DURANGO POLICE VEHICLES FROM THE ELK GROVE AUTO GROUP AT AN AMOUNT OF $597,974;
2) APPROVE A TRANSFER OF UP TO $1,441,090 FROM FUND 17 MEASURE S OPERATING TO FUND 33 MEASURE S CAPITAL; AND,
3 3) APPROVE THE APPROPRIATION OF $1,441,090 IN ACCOUNT NO. 33-4-2120-0920 FUND 33 MEASURE S CAPITAL FOR THE PURCHASE OF 21 POLICE VEHICLES.
3. APPROVAL OF AGREEMENT WITH THE SAUCE CREATIVE SERVICES FOR PRINTING AND DESIGN SERVICES FOR THE RECREATIONAL MAGAZINE THE DOWNEY ORBIT: Parks and Recreation.
THAT THE CITY COUNCIL:
APPROVE THE PROFESSIONAL SERVICES AGREEMENT WITH THE SAUCE CREATIVE SERVICES CORP. TO PROVIDE PRINTING AND DESIGN SERVICES FOR THE DOWNEY ORBIT RECREATIONAL MAGAZINE FOR A TERM OF 3 YEARS BEGINNING ON JULY 1, 2024 FOR A TOTAL CONTRACT AMOUNT OF $283,118.
4. FIRST READING OF ORDINANCE REPEALING THE CITY’S HEALTHCARE WORKERS MINIMUM WAGE ORDINANCE: City Clerk/City Attorney.
THAT THE CITY COUNCIL:
INTRODUCE AN ORDINANCE REPEALING CHAPTER 13 (HEALTHCARE WORKERS
MINIMUM WAGE ORDINANCE) OF ARTICLE VI OF THE DOWNEY MUNICIPAL CODE (BUSINESS, TRADES, AND PROFESSIONS).
5. RESOLUTION WITHDRAWING THE CITY’S HEALTHCARE WORKERS MINIMUM WAGE ORDINANCE FROM THE NOVEMBER 5, 2024 GENERAL MUNICIPAL ELECTION AND CANCELLING ALL FURTHER ELECTION PROCEEDINGS RELATED TO THE ORDINANCE: City Clerk/City Attorney.
THAT THE CITY COUNCIL:
ADOPT RESOLUTION NO. 24-8232, WITHDRAWING THE CITY’S HEALTHCARE WORKERS MINIMUM WAGE ORDINANCE FROM THE NOVEMBER 5, 2024 GENERAL MUNICIPAL
ELECTION AND CANCELLING ALL FURTHER ELECTION PROCEEDINGS RELATED TO THE ORDINANCE.
6. APPOINTMENT TO INDEPENDENT CITIZENS’ OVERSIGHT COMMITTEE FOR COUNCI L DISTRICT 1: Council Member Ortiz.
THAT THE CITY COUNCIL:
ADOPT RESOLUTION NO. 24-8233, APPROVING THE APPOINTMENT OF CESAR ORTIZ TO THE INDEPENDENT CITIZENS’ OVERSIGHT COMMITTEE FOR COUNCIL DISTRICT 1.
7. APPOINTMENT TO BOARD OF BUILDING APPEALS FOR COUNCIL DISTRICT 1: Council Member Ortiz.
THAT THE CITY COUNCIL:
ADOPT RESOLUTION NO. 24-8234, APPROVING THE APPOINTMENT OF CESAR ORTIZ TO THE BOARD OF BUILDING APPEALS FOR COUNCIL DISTRICT 1.
8. APPOINTMENT TO PUBLIC WORKS COMMITTEE FOR COUNCIL DISTRICT 4: Council Member Frometa.
4 THAT THE CITY COUNCIL:
ADOPT RESOLUTION NO. 24-8235, APPROVING THE APPOINTMENT OF JOHN WILHITE TO THE PUBLIC WORKS COMMITTEE FOR COUNCIL DISTRICT 4.
9. APPOINTMENT TO THE PUBLIC WORKS COMMITTEE FOR COUNCIL DISTRICT 3: Council Member Pemberton.
ADOPT RESOLUTION NO. 24-8236, APPROVING THE APPOINTMENT OF MIA VASQUEZ TO THE PUBLIC WORKS COMMITTEE FOR COUNCIL DISTRICT 3.
ADMINISTRATIVE REPORTS
10. REPORT REGARDING THE POTENTIAL INSTALLATION OF A SECOND DOG PARK: Parks and Recreation.
THAT THE CITY COUNCIL:
DISCUSS AND PROVIDE STAFF WITH DIRECTION REGARDING A POTENTIAL DOG PARK WITHIN THE CITY AND ADEQUACY OF THE PROPOSED LOCATIONS.
11. OPTIONS FOR REGULATING EATING ESTABLISHMENTS SERVING ALCOHOL AND
PROVIDING LIVE ENTERTAINMENT LOCATED WITHIN THE DOWNTOWN DOWNEY SPECIFIC PLAN AREA: Community Development.
THAT THE CITY COUNCIL:
DISCUSS OPTIONS TO REGULATE EATING ESTABLISHMENTS SERVING ALCOHOL AND
PROVIDING LIVE ENTERTAINMENT IN THE DOWNTOWN DOWNEY SPECIFIC PLAN AREA
AND PROVIDE DIRECTION TO STAFF ON WHICH OPTION(S) TO RESEARCH FURTHER AND BRING BACK FOR CONSIDERATION.
12. OPTIONS FOR REGULATION OF THE RETAIL SALE OF TOBACCO AND TOBACCO PRODUCTS: Community Development.
THAT THE CITY COUNCIL:
DISCUSS OPTIONS TO REGULATE THE RETAIL SALE OF TOBACCO AND TOBACCO
PRODUCTS IN THE CITY AND PROVIDE DIRECTION TO STAFF ON WHICH OPTION(S) TO RESEARCH FURTHER AND BRING BACK FOR CONSIDERATION.
13. UPDATE REGARDING CODE ENFORCEMENT EFFORTS AND APPROVAL OF A
PROFESSIONAL SERVICES AGREEMENT FOR AUGMENTED CODE ENFORCEMENT CONTRACT STAFF SERVICES WITH WILLDAN ENGINEERING, INC.: Community Development.
THAT THE CITY COUNCIL:
1) APPROVE A PROFESSIONAL SERVICE AGREEMENT, WITH WILLDAN ENGINEERING, INC. FOR TWO FULL-TIME, CONTRACT CODE ENFORCEMENT OFFICERS BEGINNING ON MARCH 27, 2024 WITH A CONTRACT TOTALING $150,000;
2) AUTHORIZE THE CITY MANAGER, OR HIS DESIGNEES, TO EXECUTE THE
PROFESSIONAL SERVICES AGREEMENTS AND AMENDMENTS IN A FORM ACCEPTABLE TO THE CITY ATTORNEY, AS NEEDED; AND
5 3) APPROVE AN APPROPRIATION INCREASE IN THE GENERAL FUND, COMMUNITY
DEVELOPMENT DEPARTMENT TO FUND FOR THE PURCHASE OF FIELD MOBILE
CITATION DEVICES AND THE DEVELOPMENT OF A PUBLIC FACING GIS MAP FOR REPORTED CODE ENFORCEMENT CASES IN THE AMOUNT OF $40,000.
ADJOURNMENT: In memory of Officer Cody Allen of the Missouri Independence Police Department, who was fatally shot while responding to the shooting of Civil Process Server Drexel Mack; Trooper Christopher M. Gadd of the Washington State Patrol, who was struck and killed by vehicle while conducting DUI enforcement patrols; and, Kathy Orndorff, longtime Downey resident and volunteer.
Supporting documents are available at: City Hall-City Clerk’s Department, 11111 Brookshire Avenue, Monday – Friday, 7:30 a.m. – 5:30 p.m. Video streaming of the meeting is available on the City’s website. In compliance with the Americans with Disabilities Act (ADA), if special assistance is needed to participate in this meeting, complete the City’s Title II ADA Reasonable Accommodation Form located on the City’s website and at City Hall - City Clerk’s Department, 11111 Brookshire Avenue, Monday – Friday, 7:30 a.m. – 5:30 p.m., and submit to the City Clerk’s Department or contact (562) 904-7280 or TTY 7-1-1, 48 business hours prior to the City Council meeting.
The City of Downey prohibits discrimination on the basis of disability in any of its program and services. For questions, concerns, complaints, or for additional information regarding the ADA, contact the City’s ADA/Section 504 Coordinator at [email protected]: Phone: (562) 299-6619; or TTY at 7-1-1.
In compliance with Title VI of the Civil Rights Act, the City of Downey prohibits discrimination of any person in any of its program and services. If written language translation of City agendas or minutes, or for oral language interpretation at a City meeting is needed, contact the City Clerk's Office at (562) 904-7280, or (562) 299-6619, 48 business hours prior to the meeting.
En cumplimiento con el Título VI de la Ley de Derechos Civiles, la Ciudad de Downey prohíbe la discriminación de cualquier persona en todos sus programas y servicios. En caso de necesitar una traducción escrita de las órdenes del día o las actas de las reuniones de la ciudad, o p ara solicitar un intérprete oral para una reunión de la ciudad, comuníquese a la oficina de la secretaria de la Ciudad al (562) 904-7280, o al (562) 299-6619, en el horario de atención comercial, 48 horas antes de la reunión.
I, Maria Alicia Duarte, CMC, City Clerk, City of Downey, do hereby certify, under penalty of perjury under the laws of the State of California that the foregoing notice was posted pursuant to Government Code Section 54950 Et.
Seq., at the following locations: Downey City Hall, Downey City Library, and Barbara J. Riley Community and Senior Center.
Dated this 7th day of March, 2024. Maria Alicia Duarte, CMC, City Clerk
Scan QR Code to view the City of Downey City Accomplishments 2022-2023
To view the livestream of the Regular Meetings at 5:30 p.m. and 6:30 p.m.:
Zoom Teleconference: (888) 788-0099 or (877) 853-5247
Meeting ID: 842 8892 3601
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YouTube: https://www.youtube.com/c/DowneyCityCouncilMeetings
6 Members of the public wishing to submit written public comment can do so by sending an email to [email protected] or by submitting their written comments to the City Clerk’s Office in person no later than 2:00 p.m. on the day of the meeting.
December 21, 2023
Sent via Email: [email protected]
Sent via UPS: IZV615V90233206520
Mr. Rudy Monroy
City of Downey - Code Enforcement Division
lst Floor Downey City Hall
11111 Brookshire Avenue
Downey, CA 90241
Ft E a Administrative Citations #CEl1759 and #CEl160 – Ojos Locos Sports Cantina Dear Mr. Monroy:
Pursuant to our conversation on December 14th, I am General Counsel for Ojos Locos Sports Cantina. Going forward, please direct any and all future correspondence concerning our establishment to my attention at the address listed below. Refrain from contacting any of our local staff, management, or business owners.
Our office is in receipt of the two recent administrative citations issued to the Ojos Locos located at 8350 Firestone Blvd, Downey, CA 90241. It should be noted that these citations are for the same violation but resulted in double billing because there are two company officers. We request that going forward any violation only be sent to one officer, Michael Morales. This double billing resulted in FOUR THOUSAND DOLLARS being paid to the City through the required appeal process.
If you are not already aware, the City of Downey’s Municipal Code D.M.C. 4996(a)(1) is both unenforceable and unlawful. The legal precedent (“ Edge v. City of Everetf’ \ relied upon when D.M.C.4996(a)(1) was implemented has since been declared unconstitutional. The United States District Court Western District of Washington at Seattle held that the Dress Code Ordinance violates the Equal Protection Clause of the U.S. Constitution. The City of Everett later paid $500,000 to settle this claim. We are requesting that the city not target and discriminate against the female gender that we hire as Chicas, immediately refund all fees paid, and revoke said ordinance.
A copy of the Court of Appeals Opinion is attached for convenient reference. Hopefully your office is able to reasonably address the irrational and unlawful actions taken by Code Enforcement.
Thank you,
D r\
w-.\h “yA
Dawn Diaz
General Counsel
Ojos Locos Sports Cantina
6010 W. SPRING CREEK PARKWAY, SUITE 321, PLANO, TEXAS 75024 1 504-577-9764 1 [email protected]
CC:Roger Bradley,
Downey City Manager
John Funk,
City Attorney
Lisa Kolieb
Akerman LLP
Rich Hicks
Michael Morales
Via UPS
Via UPS
Via E-Mail
Via E-Mail
Via E-Mail
\
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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE
JOVANNA EDGE. et al.,
Plaintiffs.
V.
CITY OF EVERETT. a Washington
Municipal Corporation.
Defendant.
Case No. C 17- 1361 RSM
ORDER RE: MOTIONS FOR SUMMARY
JUDGMENT
I. INTRODUCTION
This case comes before the Court on the parties’ Motions for Summary Judgment, E)kts. #74 and #76. The Court has determined that it can rule without oral argument. For the following reasons. the Coult GRANTS IN PART and DENIES IN PART these Motions as stated below.
ll. BACKGROUND
The general background facts of this case have been set forth previously by this Court when granting Plaintiffs Motion for Preliminary Injunction. Dkt. #55. and by the Ninth Circuit when that Order was appealed, Dkt. #65. These facts are generally sufficient for the Court's ORDER RE: MOTIONS FOR SUMMARY JUDGMENT - 1
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analysis below.1 The Court adopts the factual and procedural background set forth in the Ninth Circuit's Opinion. See Dkt. #65.
Plaintiffs Jovanna Edge and others are or were employed by "bikini barista stands.
Plaintiffs challenge the constitutionality of two ordinances enacted by the City of Everett.
Ordinance No. 3559-17 (the "Le\\'d Conduct Ordinance") and Ordinance No. 3560-17 (the Dress Code Ordinance--). The Lewd Conduct Ordinance expanded the definition of a lewd act to include an exposure of "more than one-half of the pall of the female breast located below the top of the areola,'- -the genitals. anus. bottom one-half of the anal cleft. or any portion of the areola or nipple of the female breast" and created the new crime of Facilitating Lewd Conduct.
Dkt. #65 at 7–8. The Dress Code Ordinance requires all employees. owners, and operators of Quick-Service Facilities'- to wear clothing that covers "the upper and lower body (breast/pectorals. stomach. back below the shoulder blades. buttocks. top three inches of the legs below the buttocks. pubic area and genitals)." Id. at 8. The Ordinance defines Quick- Service Facilities as -coffee stands, fast food restaurants. delis, food trucks. and coffee shops in addition to all other drive-through restaurants. Id . Violations are deemed civil infractions.
Id. To ensure that stand owners are motivated to enforce the dress code, the City instituted a $250 fine for first time offenders. Id . Repeat offenders face increased fines and risk losing their business licenses.
Although the Dress Code Ordinance defines -Quick-Service Facilities’' broadly, it is clear from the title ("an Ordinance concerning the regulation of Quick Service Facilities including Barista Stands-) and the preamble (e.g. . "The City has seen a proliferation of crimes 1 The pallies have stipulated to "rely solely on the factual record already presented to the Coun during the preliminary injunction proceedings, with the exception of expert witness testimony and supporting materials” in filing and defending the instant Motions. Dkt. #73.
ORDER RE: MOTIONS FOR SUMMARY JUDGMENT - 2
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of a sexual nature occurring at bikini barista stands...") that this Ordinance was enacted to respond to the perceived problems associated with bikini barista stands. See Dkt. #1-2 at 2.
In their Complaint, Plaintiffs allege both Ordinances violated the First Amendment. the Fifth and Fourteenth Amendments (equal protection. vagueness and substantive due process). and corollary provisions in the Washington Constitution (art. 1. sec. 5 (free speech) and art. I. sec. 12 (equal protection)). Dkt. #1.
This Court granted Plaintiffs' Motion for a Preliminary Injunction on December 4, 2017.
Dkt. #55. In that Order. the Court found a likelihood of success on the merits with regard to Ptaintiffs' Fourteenth and First Amendment claims. Specifically. the Court found that the Lewd Conduct Ordinance was likely void for vagueness and that both ordinances create dangers of arbitrary enforcement. The Court found that Piaintiffs' choice of clothing was communicative. the dress code ordinance was content neutral. that it was subject to intermediate scrutiny. and that it did not satisfy that test. Everett filed an appeal. which was granted. The Ninth Circuit found that the Lewd Conduct Ordinance was not void for vagueness and did not -create a constitutional problem by inviting discretionary enforcement.-' Dkt. #65 at 14–17. The Ninth Circuit ruled that -the vagueness doctrine does not warrant an injunction prohibiting enforcement of the Dress Code Ordinance.-' Id . at 19. Plaintiffs- First Amendment claims failed to "show a likelihood that their intended message will be understood by those who receive it.- Id . at 22; see also id. at 23 ("The baristas- act of wearing pasties and g-strings in close proximity to paying customers creates a high likelihood that the message sent by the baristas' nearly nonexistent outfits vastly diverges from those described in plaintiffs declarations.-). The Ninth Circuit then provided a framework for this Court in thinking about the First Amendment claims:
ORDER RE: MOTIONS FOR SUMMARY JUDGMENT - 3
Case 2:17-cv-01361-RSM Document 91 Filed 10/19/22 Page 4 of 19 1 We stress that plaintiffs deny that they engage in nude dancing and erotic performances, thereby disavc)wing the First Amendment protections available for that conduct. See Barnes. 501 U.S. at 566.
The outcome of this case turns on the plaintiffs' contention that the act of wearing almost no clothing while serving coffee in a retail establishment constitutes speech. Because wearing pasties and g- strings while working at Quick-Service Facilities is not -expressive conduct" within the meaning of the First Amendment. the Dress Code Ordinance does not burden protected expression.
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The district court-s application of intermediate scrutiny under the secondary effects- line of authority was inapposite because that doctrine applies to regulations that burden speech within the ambit of the First Amendment's sphere of protection. See ll’orlcl It’ide \'’idet) of It-cIS ll. . Inc. y. CitY c)f Sl)okclne . 368 F.3d 1 1 86. 1 1 92 (9th Cir. 2004). Here. because the Dress Code Ordinance does not burden expressive conduct protected by the First Amendment. the City need only demonstrate that it "promotes a substantial government interest that would be achieved less effectively absent the regulation .- Rtmlsfeld v. Forum R)r Acad. & Institutional Rights. inc.. 547 U.S. 47. 67 (2006) (quoting United St tIles I’.
Albert ini. 472 U.S. 675. 689 ( 1985)). The district court did not anajyze the ordinance under this framework. so we vacate its preliminary injunction and remand for further proceedings. 10 11
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16 Id . at 23. The Court now considers these claims on sunrnrary judgment. 17 18
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Ill. DISCUSSION
A. Legal Standard for Summary Judgment
Summary judgment is appropriate where "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.
R. Civ. P. 56(a): Anderson I’. Liber tv Lobby. Inc. . 477 U.S. 2'42. 2+7 ( 1986). Material facts are 23 24
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those which might affect the outcome of the suit under governing labv. .4 nclcl'sorl. 477 U.S. at 248. In ruling on summary judgment. a court does not weigh evidence to determine the truth of the matter. but -only determine[s] whether there is a genuine issue for trial.-' C'rclne v. Conoco.
Inc.. 41 F.3d 547, 549 (9th Cir. 1994) (citing Federal Deposit Ins . C’c)rp. v. O ' Nlelvenv (e NIe\’ers. 969 F.2d 744. 747 (9th Cir. 1992)).
ORDER RE: MOTIONS FOR SUMMARY JUDGMENT - 4
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On a motion for summary judgment, the court views the evidence and draws inferences in the light most favorable to the non-moving party. Anderson . 477 U.S. at 255: Sullivan l’. US.
Dep’t of the NcI\’v . 365 F.3d 827. 832 (9th Cir. 2004). The Court must draw all reasonable inferences in favor of the non-moving party. See O ' NIe I venT & N'fevers . 969 F.2d at 747. rev ' d on other grounds . 5 12 U.S. 79 ( 1994). However, the nonmoving party must make a -sufficient showing on an essential element of her case with respect to which she has the burden of proof to survive summary judgment. Ce lot ex Corp. I’. Cat reI t , 477 U.S. 3 1 7, 323 ( 1 986).
B. No Genuine Disputes of Material Fact
As an initial matter. the parties appear to agree that there are no genuine disputes as to any material facts such that entry of judgment as a matter of law would be precluded. See Dkt. #74 at 8. The parties have stipulated to the facts. although they disagree with the admissibility of certain expert testimony. They have apparently agreed to submit the rem,lining issues in this case to the Court on these cross motions.
C. First Anrendment Claims
Plaintiffs allege in the Complaint that they use their clothing (or lack of it) to convey messages including -female empowerment. positive body image. freedom of choice. and personal and political viewpoints." and claim that the Dress Code and Lewd Conduct Ordinances infringe on their First Amendment right to convey such messages at work and on their free time in public areas of the City. Dkt. #1 at 1 1-13. Plaintiffs affirmatively -deny that they engage in nude dancing and erotic performances." Edge . 929 F.3d at 669: Dkt. #32- 1 at 4.
I1 6. 208-09.
ORDER RE: MOTIONS FOR SUMMARY JUDGMENT - 5
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Plaintiffs do not contest dismissal of their First Amendment challenge to the Lewd Conduct Ordinance. The Coun agrees that this claim should be dismissed for the reasons stated by the City of Everett. See Dkt. #74 at 1 1–12.
Turning to the Dress Code Ordinance. the Ninth Circuit has already ruled that it does not burden expressive conduct protected by the First Amendment and that the City of Everett need only demonstrate that it --promotes a substantial government interest that would be achieved less effectively absent the regulation." See Dkt. #65 at 23 (citing Rllln sfc Id . SIll)rtl) .
The City of Everett points to the record before the Everett City Council and this Court as sufficient to explain why this Ordinance "promotes a substantial govenrment interest in reducing crime and other negative impacts stemming from the Quick Service business model and why the ability to do so would be less effective absent the regulation.-- Dkt. #74 at 10–1 1 (citing Dkt. #9- 1 at 71 : Dkt. #9-2: Dkt. #9-4 at 82-96: Dkt. #9-5 at 67-90: Dkt. #29 at 2-18: Dkt. #9-6 at 54-57). The City passed this Ordinance after seven police investigations of bikini barista stands uncovered criminal conduct. These investigations revealed that "baristas routinely appeared in the windows of coffee stands nude or partially nude. posed in various states of nudity. allowed customers to photograph and/or touch them for a fee. performed sexual shows,- openly advertised prostitution activities, and allowed customers to masturbate while watching them perform. all within public view.- Id. at 5. The City Council considered the alternative of sticking with "existing enforcement tools." but the City argues that -prosecution of the baristas has proven ineffective and prosecuting stand owners required extensive. expensive undercover operations. which resulted in the creation of pornographic videos and photographs that engendered numerous public records requests and lawsuits over those images.
Id . at 6 (citing Dkt. #9-5 at 71-75. 84: Dkt. #9-4 at 92-93. 96). The City notes that the ORDER RE: MOTIONS FOR SUMMARY JUDGMENT - 6
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Ordinance "puts the burden on stand owners to regulate the conduct at their establishments at risk of losing their business license.-- Id . at 1 1.
The Coun agrees that the undisputed existing record is sufficient to reach a ruling here.
The Court need not consider the City's expert testimony. Reducing the crime associated with the bikini barista stands would alone be a substantial government interest. and Pldintiffs do not contend otherwise. The attempts by Plaintiffs to cloud the issue with expert testimony are unpersuasive and ultimately insufficient to overcome the test set forth by the Ninth Circuit. See . e.g. . Dkt. #82 at 26 ("[Plaintiffs- expen] concluded that the Ordinances have no positive impact on preventing crime.... Instead. commercial establishments. such as Starbucks or McDonald's actually experience higher incidents of crimes. specifically violent crimes. than the bikini- barista stands in Everett.... This evidence shows that crime prevention will be achieved more effectively absent the regulation because the bikini-barista stands are not the primary cause of serious crime.-). The crimes at the bikini barista stands include sexual assault. but also prostitution. See Dkt. #65 at 6. The reduction of any of these crimes constitutes a substantial government interest, even if the ordinance cannot eliminate such crime. Plaintiffs speculate that a reduction in crime in one area comes at the expense of fighting crime in another. Although police resources are finite. the Dress Code Ordinance is designed to be enforced by the owners of the establishments. not with constant police patrols. The City of Everett need not show that this Ordinance is perfectly effective, or that it is better than an ordinance crafted by Plaintiffs expert. The City need only show that a substantial government interest would be achieved less effectively without it. The City has clearly met this reduced standdrd. There is no genuine dispute of material fact. and this claim can be dismissed on summary judgment; : The Coun declines to speculate as to the adoption of the Eleventh Circuit’s reasonable-person test by the Ninth Circuit or Supreme Court, as sought by Plaintiffs. See Dkt. #76 at 27–28.
ORDER RE: MOTIONS FOR SUMMARY JUDGMENT - 7
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Under the above reasoning. Plaintiffs' claims under Article 1, Section 5 of the Washington State Constitution are also dismissed.
D. Equal Protection Clause Claim
Plaintiffs claim the Ordinances violate the Equal Protection Clause by discriminating against women and women-only businesses because ( 1 ) the Lewd Conduct Ordinance criminalizes the partial exposure or touching of female breasts but not male breasts and (2) the Dress Code Ordinance targets bikini-barista stands at which -only women work.-' Dkt. #1 at 13-14. The Complaint also indicates that the Ordinances discriminate against women by targeting "bikini wearing.- Id. at 14.
The Equal Protection Clause requires that all similarly situated persons be treated alike.
C itv of- CIe hurtre . Tex. y. Cleburne Living C'/r., 473 U.S. 432. 439 ( 1985). Gender-based classifications require a heightened standard of review–intermediate scrutiny. United St (IIes 1'.
Virgin ict. 518 U.S. 515, 531 ( 1 996). Classifications based on sex must have an -exceedingly persuasive" justification. serve -important governmental objectives'- and the means must be substantially related to the achievement of those objectives.'- Id . at 533. Unlike race. sex is not a proscribed classification. Id. The Supreme Court has noted that "[p]hysical differences between men and women . . . are enduring- and -[t]he two sexes are not fungible[.]" Id .
Therefore. there are "'[i Inherent differences' between men and woluen" that -we have come to appreciate [and I remain cause for celebration. but not for denigration of the members of either sex or for artificial constraints on an individual’s opportunity.-' Id .
If the Ordinances do not impose gender-based classifications. the Court exercises a rational-basis review. That would require. at minimum. the Ordinances to -bear a rational ORDER RE: MOTIONS FOR SUMMARY JUDGMENT - 8
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relationship to an independent and legitimate legislative end." Ronrer v. Evans. 517 U.S. 620. 633 ( 1996).
I. LeIvd Conduct Ordinance
The City of Everett argues that this Ordinance does not discriminate on the basis of gender because it "prohibits both men and women from engaging in lewd conduct in public places. and it defines what constitutes lewd conduct by reference to both genders- most intimate body pans.- Dkt. #74 at 14. To the City. the Ordinance's definition of lewd conduct to include exposure of the female but not male breast simply reflects the fact that -men and women are not fungible with respect to the traditional understanding of what constitutes nudity.- Id. (citing State l’. Lilley , 204 A.3d 198, 208 (N.H. 20 1 9)).
Plaintiffs point out that Lit lev . a New Hampshire state c,lse. hardly summarizes the state of federal law on this issue:
Every federal appellate decision to confront the issue after 1’irginia has either assumed or directly held that laws like the Lewd Conduct Ordinance trigger intermediate scrutiny. Where on "its face. the ordinance plainly does impose different rules for women and men." intermediate scrutiny must apply. Tagclnl i I'. C itv o/ Ch icclgo , 875 F.3d 375. 380 (7th Cir. 2017). cm ant ended (Dec. 1 1. 2017) (emphasis in original) (rejecting the same position advanced by the City here); see IT’cox I’. C itv of Lincoln. 331 F.3d 596. 600 (8th Cir. 2003) (assuming without deciding); see a/so Bu==ett i y, C-/(v of Ne\r York. 140 F.3d 134, 141 (2d Cir. 1998) (considering issue in context of challenge to adult-entertainment zoning law rather than lewd conduct ordinance).
Dkt. #82 at 15–16. The Court agrees with Plaintiffs' analysis of the law and concludes that the Lewd Conduct Ordinance on its face imposes different rules for women and men, triggering intermediate scrutiny.
The City of Everett nevertheless argues that the "'overwhelming majority' of courts have held that laws or ordinances prohibiting public exposure of female (but not male) breasts ORDER RE: MOTIONS FOR SUMMARY JUDGMENT - 9
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do not violate equal protection." Dkt. #74 at 15 (citing State v. Fog 1 . 775 A.2d 551. 558 (N.J.
Super. Ct. 2001 ): Dkt. #74 at 15 n. 13 (citing It’cl vx v. City of- Lincoln . 331 F.3d 596. 600 (8th Cir. 2003); BIt::ct Ii l’. CitY c)f Ne\t York. 140 F.3d 134. 1 42-43 (2d Cir. 1998); United States 1,.
Bit>cic. 928 F.2d 1 12. 115-16 (4th Cir. 1991 ); SD.I. Inc . y. C itv of Houston. 837 F.2d 1268. 1279-80 (5th Cir. 1988): ./ c& B Social Club No. /, 1nc. 1'. Cit\' of Nlt)bile. 966 F. Supp. 1131. 1139-40 (S.D. Ala. 1996); C'l'(at y. HI)del . 683 F. Supp. 289. 299-301 (D. Mass. 1988); Tolbel't . 568 F. Supp. at 1290; C it)- o.f Tllcsic)n y. U’t ) jtD , 917 P.2d 706, 707-09 ( Ariz. Ct. App. 1995):
Locker y. Kirby . 31 Cal. App. 3d 520. 526 (Cal. Ct. App. 1973): State r\ Turner , 382 N. W.2d 252. 255-56 (Minn. Ct. App. 1986): C ity of' . Jackson r. Lakeland Lt)tInge of .Jclckst)n. Inc. . 688 So.2d 742. 751-52 (Miss. 1996)). The City maintains that its objectives in "preventing the secondary adverse effects of public nudity and protecting the order. morality, health. safety. and well-being of the community are ilnpollant or substantial interests" and that the Lewd Conduct Ordinance's '-distinction between male and female breasts is substantially related to the City-s ohjectives in protecting unwilling audiences from exposure to nudity (which. consistent with community standards. includes the public exposure of female breasts) and in sinrplil’ying enforcement activities with respect to lewd conduct violations.- Id. at 16. In support of its contention that the treatment of public exposure of female breasts is consistent with community standards. the City of Everett notes:
Numerous jurisdictions across Washington have adopted similar lewd conduct prohibitions applicable to conduct in streets. sidewalks. parks. and other public places. See. e.g. . Pierce Cty.
Code 9.16.080 (criminalizing exposure of "any portion of the female breast lower than the upper edge of the areola"):
Snohomish Cty. Code IC).04.010, .025 (criminalizing exposure of -[a]ny pall of the areola or nipple of the female breast- and "[m]ore than one-half of the part of the female breast located below the top of the areola--): Kent Mun. Code 9.02.800 (similar):
Olympia Mun. Code 9.24.010, . 110 (criminalizing exposure of ORDER RE: MOTIONS FOR SUMMARY JUDGMENT - 10
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7 -female breasts-): Bellevue Mun. Code 10.04.010- .020 (criminalizing exposure of "the female breast lower than the upper edge of the areola"); Tacoma Mun. Code 8.32.010-.020
(criminalizing exposure or display of -female breasts-' in public places); Yakima Mun. Code 6.55.020 (criminalizing exposure of the "areola. the nipple and/or the area of the breast below' the bottom of the areola of’the female breasts- in a public place).
Id . at 1 6 n. 16.
Plaintiffs- briefing relies on Free the Nil)pIe - Fort Collins r. City t)f Fort C ollin.s. 237 F. 8 9
10 11
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Supp. 3d 1126 (D. Colo. 2017), aff'd . 916 F.3d 792 ( 10th Cir. 2019). \\,here the Tenth Circuit ruled in favor of challengers claiming equal protection violations arising from a lewd conduct ordinance prohibiting exposure of female breasts. As the City of Everett points out. the Tenth Circuit recognized its position was the minority viewpoint nationwide and that most other courts had upheld similar laws. Subsequent federal cases in other districts have declined to 14 follow the Tenth Circuit's holding. See C iI\' t)f SpringfIeld. 923 F.3d 508. 5 10 (8th Cir. 2019):
15 Eli ne r. To\r n df OceLltl C itv. 452 F. Supp. 3d 270. 281 (D. Md. 2020) cII-f-' d . 7 F.4th 214 (4th 16 17
C-ir. 2021 ). Plaintiffs argue:
18 19
As the Ninth Circuit noted. "the particular history of sex discrimination has led to judicial recognition that certain forms of purported state interest are illegitimate as justifications for sex discrimination. such as interests stemming from romantic paterndlism toward women or sex stereotyping." Tucson Fro/ncr/7 's Clinic 1’. Eden. 379 F.3d 531. 543 (9th Cir. 2004).
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The City's bare bones appeal to community standards and protecting women from exploitation are rooted in exactly such impermissible -romantic paternatism toward women or sex stereotyping.'’ it is the embodiment of the belief that women must dress a certain way to avoid exciting men to sexual misconduct. Ol that society should be able to tell women–but not men–to cover up celtain body parts because others might find those parts sexual.
Those beliefs are rooted in impermissible stereotvpes about what is and is not proper dress and behavior for one-s sex.
28 ORDER RE: MOTIONS FOR SUMMARY JUDGMENT - II
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By contrast. the Baristas offer ample evidence that both Ordinances fail to serve the interests identified by the City. and that differences in sex and gender are not substantially related to those interests.
Dkt. #82 at 20. Plaintiffs rejy on the expell testimony of Dr. Tc>mi-Ann Roberts. professor of psychology and Chair of the Psychology Department at Colorado College in Colorado Springs.
While her testimony has value academically. it does little to illuminate community standards.
Ms. Roberts did not speak with City of Everett community members about this issue. See Dkt. #80 at 53-54 (Roberts Dep. at 8: 15-9:6).
The Court has considered the record and the case law above and finds that the Lewd Conduct Ordinance does not violate the Equal Protection Clause because the City's objectives in preventing the secondary adverse effects of public nudity and protecting the order. morality. health, safety. and u'ell-being of the community are important or substantial interests properly addressed by the Ordinance. Although public attitudes about gender and sexuality are constantjy’ changing and evolving. there is simply no basis on this record to conclude that the public exposure of female breasts no longer violates the community standards of the City of Everett. or that protecting those public sensibilities is not an important government interest.
The Coun finds that the City of Everett has met its burden of providing an exceedingly persuasive justification for treating the public exposure of bare breasts by females and males differently in the Ordinance. and that this is substantially related to the important governmental interest of protecting the public sensibilities of the City of Everett.
As acknowledged by the Fourth Circuit when addressing this issue last year. "[t]he judicial legacy of justifying la,„s on the basis of the perceived moral sensibilities of the public is far from spotless.- Elline r. To\t n of Ocean City. 7 F.4th 214, 222. However. the Court agrees ORDER RE: MOTIONS FOR SUMMARY JUDGMENT - 12
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here. as in that case. that "in this situation. protecting public sensibilities serves an important basis for government action." Id.
The Court agrees with the City of Everett that Plaintiffs' state law privileges and immunities claim under Article I. Section 12 is subject to federal equal protection analysis and fails for the same reasons above. See Dkt. #74 at 20–21. Because Plaintiffs did not plead it, a claim under Washington State's Equal Rights Amendment is not properjy before the Court.
2. Dress Code Ordinance
The parties appear to agree that the Dress Code Ordinance is -gender-neutral on its face." Dkt. #74 at 18; Dkt. #82 at 16. That would typicaliy shift the Court-s analysis from intermediate scrutiny to rational-basis review.
However. Plaintiffs can still trigger heightened scrutiny here in at least three ways.
First. they can show that the law is covertly targeted at one gender. Pers. ,4cl17t ’r ot Nlclssclchusetts I\ Fee trev . 442 U.S. 256. 274. ( 1979). Second. they can show that adverse effects of the law reflect invidious gender-based discrimination–ie.. that -a gender-based discriminatory purpose has. at least in some measure, shaped- the law at issue. Id. at 274. 276.
Discriminatory purpose... implies more than intent as volition or intent as awareness of consequences.... [i]t implies that the decisionmaker. .. selected or reaffirmed a particular course of action at least in part 'because of.’ not merely -in spite of.' its adverse effects upon an identifiable group." Id. at 279. Third. plaintiffs can show that an ostensibly neutral classification is an obvious pretext for discrimination based on the law's application. Id . at 275 (citing Tick r. Hopkins . 1 1 8 U.S. 356. 373–74 ( 1886)). If any of these tests are met. heightened scrutiny applies because "[c]lassifications based upon gender, not unlike those based upon race. have traditionally been the touchstone for pervasive and often subtle discrimination. ..[and I such ORDER RE: MOTIONS FOR SUMMARY JUDGMENT - 13
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classifications must bear a close and substantial relationship to important governmental objectives...'- Ict . at 273.
The Court declines to find that the Dress Code Ordinance is covertly targeting one gender. Based on the undisputed facts. there is nothing covert in the Ordinance-s intentions–it was clearly meant to address secondary problems caused by women wearing bikinis or "pasties and g-strings" in drive-thru settings.-' To respond to those problems, it sets a dress code that applies to workers of all genders.
A better fit can be found in the other two tests. The Court finds that "a gender-based discriminatory purpose has. at least in some measure. shaped-' the Ordinance. The record shows this Ordinance was passed in part to have an adverse impact on fema ie workers at bikini barista stands. The Ordinance-s ostensibly neutral classification is also an obvious pretext for discrimination based on the law's application. Plaintiffs' expert Dr. Roberts points out that the Dress Code Ordinance prohibits clothing typically worn by women rather than men. including mid-riff and scoop-back shirts. as well as bikinis. Dkt. #83- 1 ("Roberts Report-). q 18. There is evidence in the record that the bikini barista profession. clearly a target of the Ordinance. is entirely or almost entirely female. It is difficult to imagine how this Ordinance would be equally applied to men and women in practice. It appears designed to ban not just "pasties and g-strings- or bikinis. but a wide range of women's clothing. Intermediate scrutiny is appropriate here.
Under this heightened standard, the Ordinance must have an -exceedingly persuasive justification. serve "itnponant governmental objectives- and the means must be "substantial ly related to the achievement of those objectives.- The City of Everett addresses this standard in ' As Plaintiffs point out, the City does not point to a single instance of a man being employed as a bikini barista in Everett. Dkt. #82 at 17.
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its Response to Plaintiffs- Motion. See Dkt. #78 at 14–19. Plaintiffs point to at least some expert testimony indicating that this Ordinance fails to serve the interests identified by the City.
See Dkt. #76 at 1 9–20.
Some of this evidence is strong, and some of it weak. The City of Everett clearly has an interest in reducing secondary effects of the bikini barista stands like crime. lewd conduct, and exploitation. As stated above, the record shows that this business model has been linked to at least some incidents of prostitution, lewd conduct, and sexual assault. However. it does not necessarily follow that the Dress Code Ordinance -will fuITher the City's goal of preventing these harms by establishing minimum dress requirements and making it easier to detect violations and hold owners accountable." as stated by the City. Dkt. #78 at 14. The means by which the City is attempting to reduce crime and lewd conduct–a dress code for drive-thrus that bans lnidriffs and scoop back shirts–is so broad as to veer from being ''substantially related" to just '-related.-- The Court is particularly swayed by Dr. Robelts- observations that this Ordinance poses an unreasonable risk of demeaning enforcement. Assuming the owners of bikini barista stands are unable or unwilling to enforce this dress code, at some point law enforcement will be asked to measure exposure of skin by some method. This "encourage[s] a humiliating. intrusive, and demoralizing search on women. disempowering them and stripping them of their freedom." Roberts Report at $ 3 1 .
The Court finds that. although this Ordinance satisfies the lower standard set forth by the Ninth Circuit under the First Amendment, it does not satisfy the heightened standard under the Equal Protection Clause of the Fourteenth Amendment. This Ordinance clearly treats women differently than men by banning a wide variety of women's clothing. not just pasties and g- strings, or bikinis. The restrictions are so detailed they effectivejy prescribe the clothes to be ORDER RE: MOTIONS FOR SUMMARY JUDGMENT - 15
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worn by women in quick service facilities. In sum, the City has failed to demonstrate how this disparate treatment of women is substantially related to the achievement of the Ordinance-s stated objectives. Summary judgment in favor of Plaintiffs is warranted on this claim.4 E. Substantive Due Process Claim
Plaintiffs challenge the Ordinances on substantive due process grounds. claiming that both Ordinances infringe on their -liberty right to dress in the manner they so choose- and that the Dress Code Ordinance further infringes their "liberty right to engage in the occupation of their choice.'- Dkt. #1 at 1 6- 17.
There is a limited "liberty interest" in one's personal appearance/dress. See Kelley y.
Johnson. 425 U .S. 238. 244 ( 1976); Neillast v. Bd. of Trustees of Coltuubus Metro. Library, 346 F.3d 585. 596 (6th Cir. 2003). To prevail on this claim. Plaintiffs must prove the Ordinances are --so irrational that [they] may be branded 'arbitrary.- and therefore a deprivation of [Plaintiffs'] 'liberty’ interest[.1-' Kelley . 425 U.S. at 248.
The City of Everett argues:
As detailed above. the City has made reasonable determinations that the Ordinances are necessary to stem harmful effects of bikini barista stands and lewd conduct more generally. This satisfies rational basis rev ie\v.
Nor can Plaintiffs establish that the Dress Code Ordinance infringes on their right to engage in an occupation. To implicate this right. the Ninth Circuit has held that the regulation at issue must -operate as a complete prohibition" on the ability to pursue a profession. Frclnceschi . 887 F.3d at 938. And even when a law amounts to a complete prohibition. it will only be subject to the rational basis standard of review,. As Plaintiffs admitted in depositions, neither Ordinance at issue here prevents them from working in the coffee service business. See Dkt. #32-1 at 220 (Powell at 102:20-25). The Ordinances simply impose minimum 4 Because the Coun has granted summary judgment on this claim. it finds a discussion ofAllicle I, Section 12 of the Washington State Constitution unnecessary. It is not analyzed by Plaintiffs, other than to state that it affords at least the same equal protection guarantees as those in the Fourteenth Amendment. See Dkt. #76 at IS.
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clothing requirements on Plaintiffs and all other employees of Quick Service Facilities. These requirements do not amount to a complete prohibition and. thus. do not violate substantive due process. See Franceschi, 887 F.3d at 938-39. And even if they did. the record demonstrates the reasonableness of the Ordinances and they easily pass rational basis review as discussed above. 29 Because Plaintiffs fail to show that the City "cou Id have had no legitimate reason for its decision:' their substantive due process claim should be dismissed. Kcl\raoka \\ CitY of At'l'o\'o Grande. 17 F.3d 1227, 1234 (9th Cir. 1994) (quotations and emphasis omitted).
Dkt. #74 at 2 1 –22.
The Court agrees. Under the undisputed facts. Plaintiffs have failed to show that these Ordinances dre so irrational as to be arbitrary. These laws are clearly related. thinly at times, to the City's identified harms of crime prevention and the upholding of the community’s sensibilities. While the Court agrees that the Dress Code Ordinance’s language as to which body parts must be covered and by how many inches is excessive. such specifics are left to legislators under applicable case law and in any event the rational basis standard does not require that the City "choose the best means of advancing its goals:-- all that is needed is some 'rational connection-' between the rule and the govel'nlnental interest. regardless of whether that rule is an "exact fit" for the interest at issue. United St CItes v. N cl\’cll'r o . 800 F.3d I1 04. 1 114 (9th Cir. 2015) (citing Ver nlonth v. Corr( it hers. 827 F.2d 599. 603 (9th Cir. 1987): NIauro v.
Arpa io, 188 F.3d 1054, 1059-60 (9th Cir. 1 999)). The Ordinances do not infringe on Plaintiffs right to engage in the occupation of serving coffee. and Plaintiffs have failed to convince the Court that their occupation should be construed more narrowly for purposes of this constitutional analysis. This claim is properly dismissed. //
//
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F. Vagueness Claim
Plaintiffs concede that their claim that the Ordinances are void for vagueness is foreclosed by the Ninth Circuit-s decision. Dkt. # 82 at 14 n.6 (citing 929 F.3d at 666-67). This claim is dismissed.
G. Motions to Strike
The Court has considered the evidence submitted by the parties and the objections and declines to strike any of it. The evidence submitted into the record is consistent with the parties' stipulation. The Court has properly weighed the admissibility of hearsay testimony attacks on the opinions of experts go to the weight, not admissibility. Plaintiffs- expert reports have been properly submitted into the record. See DIcts. #83 – #85.
IV. CONCLUSiON
Having reviewed the relevant briefing and the remainder of the record. the Court hereby finds and ORDERS:
I ) Defendant City of Everett's Motion for Summary Judgment. is GRANTED IN PART and DENIED IN PART. All of Plaintiffs’ claims are DISMISSED except for Plaintiffs- claims that the Dress Code Ordinance violates the Equal Protection Clauses of the U.S. and Washington State Constitutions
2) Plaintiffs' Motion for Summary Judgment, Dkt. #76. is GRANTED as to Plaintiffs claims that the Dress Code Ordinance violates the Equal Protection Clause of the Foulteenth Amendment.
3) The Court DIRECTS the parties to meet and confer within 14 days of this Order regarding how' to proceed, including the submission of an additional proposed order if necessary.
ORDER RE: MOTIONS FOR SUMMARY JUDGMENT - 18
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DATED this 1 9th day of October. 2022.
RICARDO S. MARTINEZ
UNITED STATES DISTRICT JUDGE
ORDER RE: MOTIONS FOR SUMMARY JUDGMENT - 19
____________________________________________________________________________________________________________________ 6010 W. SPRING CREEK PARKWAY, SUITE 321, PLANO, TEXAS 75024 | 504-577-9764 | [email protected] February 5, 2024
Sent via Email: [email protected]
Sent via UPS 2nd Day Air: 1ZV615V90202571845
Mr. James Eckart
Dapeer, Rosenblit & Litvak, LLP
11500 West Olympic Boulevard, Suite 550
Los Angeles, CA 90064-1524
RE: Administrative Citations #CE11759 and #CE1160 – Ojos Locos Sports Cantina Dear Mr. Eckert:
Pursuant to our meeting on Wednesday, January 31st, I wanted to clarify concerns surrounding the “site plan” that was produced during this call. After speaking with our Vice President of Development and Construction, I realized where the confusion arises. The plan that was presented during our meeting is a floor plan, not a site plan. The floor plan showed the TV wall as a matter of reference and a couple TVs on the patio as the patio was still in development.
Floor plans by design only show items laid out in 2D. A floor plan does not have details of items in 3 dimensions or items hanging from the ceiling, as many of our TVs do. Items such as TVs from ceilings along with speakers would be depicted through a RCP (reflected ceiling plan), which was not part of the submittal requirements. There was never a city or municipality requirement to provide any details on the TVs on the floor plan. Had there been any specific requirements, then Ojos would have provided them in an appropriate AV (Audio Video) plan.
It is important to note that none of the applications for the CUP or Building Permit asked that the TV placement be identified. However, our approved building plans are very detailed and call out every TV location, which was stamped and approved by the City of Downey on January 23, 2023. Our floor plan includes everything asked of us for our CUP.
In addition, the City of Downey approved the T.V. Power and Data Plan and Bar Power Plan which had all TVs identified.
We contend that the Police Department’s approval should be based on the plans submitted to the City of Downey – again, those plans were stamped and dated, January 23, 2023, and do contain all T.V.s, although not required.
To further clarify, below are the only listed requirements for both floor plan and site plan approval for the CUP application. As you can see below from the City’s published documents, there is not any mention of having to provide TVs, speakers, ATMS, DJ connections or any other AV device.
Floor Plan, which shall include:
-Show existing and/or proposed individual rooms (include label of use). -Room dimensions.
-Show doors and windows (include any emergency exits).
-Show layout of room.
-North arrow & scale of drawings
Site Plan, which shall include:
-The location of all existing (to remain) and proposed structures, which are dimensioned and uses labeled. -Driveways and walkways
-Loading spaces.
-Off Street Parking (including table showing parking requirements for all uses on site):
-Designate handicap parking and the number parking stalls. -Dimensions of parking stalls.
-Curbing and wheel stops.
-Landscape area and total square footages of landscaping. -Adjoining streets & easements on the property.
-Property lines of the subject property with the lot dimension. -Curbline, drive approaches, and improvements within parkway. Dimension the distance between the curb and property line.
-Trash enclosures & ground mounted equipment.
-Existing or proposed walls and fences. Include label of wall height and material. -Easements on the property.
-North arrow & scale of drawings.
As for the expressed concern that public parking is being utilized by Ojos customers, as our customers are the public, we do not deem this an issue. If the City needs to address public parking and time limits of said parking, Ojos Locos will leave that to the City’s discretion. It also was brought to our attention that our customers at times form a line that wraps around the front of the building and onto the sidewalk. While Ojos has heard the concern, the space in question is outside of the leased and manageable space of our restaurant. This issue is again addressing the public’s use of public space. If there are additional concerns that the City has with the public’s behavior, we will leave this to the City to address.
During our call, we briefly spoke about business attire in which you requested that we comply as you did not see the District Court’s holding as having any weight. As a female forward company, we are not willing to place restrictions on our employees that we believe are predatory, discriminatory, and misogynistic. The City Council created this dress code restriction specifically to address its abhorrence of Ojos Locos, which became evident during the Downey City Council Meeting on March 8, 2022. Again, we request the City of Downey cease its targeting and discrimination against the female gender that we hire as Chicas, immediately refund all fines and fees paid concerning Administrative Citations #CE11759 and #CE1160, and revoke said business attire ordinance.
Thank you,
Dawn Diaz
General Counsel
Ojos Locos Sports Cantina
cc: Roger Bradley, Via UPS 1ZV615V90306222258
Downey City Manager
John Funk, Via UPS 1ZV615V90319635261
City Attorney
Lisa Kolieb Via E-Mail
Akerman LLP
Rich Hicks Via E-Mail
Michael Morales Via E-Mail