MAYOR PRO TE
HECTOR SOSA
Ili i to ii . ,ii i V
Regular Meeting
5:30 p.m. — Closed Session
6:30 p.m. — Open Session
Council Chambers
11111 Brookshire Avenue
Downey, CA 90241
ew_
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 Tern 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.
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 Tern 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, address 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, referral to the City Manager/staff or schedule for a subsequent agenda, shall be taken by the City Council/Agency 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. 11 W I-,,% i 1 0 1 *A h 'Z•T611P► [a]
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 11�I50*11P4 11_y,111:7 __ I _1'1 ?J,
4 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 CITY'S 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 THE INDEPENDENT CITIZENS' OVERSIGHT COMMITTEE FOR COUNCIL 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 THE 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 THE PUBLIC WORKS COMMITTEE FOR COUNCIL DISTRICT 4: Council Member Frometa.
3 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 AND THE DOWNEY LANDING 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. 111 M I-,,%ii 0 1=to]hwZ916111i![a]
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
Id
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 11 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 ADACoordinator(7a downeyca.org: 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 Titulo VI de la Ley de Derechos Civiles, la Ciudad de Downey prohibe la discriminacion de cualquier persona en todos sus programas y servicios. En caso de necesitar una traduccion escrita de las ordenes del dia o las actas de las reuniones de la ciudad, o para solicitar un interprete oral para una reunion de la ciudad, comuniquese a la oficina de la secretaria de la Ciudad al (562) 904-7280, o al (562) 299-6619, en el horario de atencion comercial, 48 horas antes de la reunion.
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 7t" day of March, 2024. Varia Alicia Duarte, CVC, Citij Clerk Scan QR Code to view the City of Downey City Accomplishments 2022-2023 r
❑7-.
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
• •- r • •- ••11•Ila•
9 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.
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December 21, 2023
Sent via Email: deEnf(a downey.ca.or
Sent via UPS:1ZV615V90233206520
Mr. Rudy Monroy
City of Downey - Code Enforcement Division
1st Floor Downey City Hall
11111 Brookshire Avenue
Downey, CA 90241
RE Administrative Citations #CE11759 and #CE1160 - Ojos Locos Sports Cantina Dear Mr. Monroy:
Pursuant to our conversation on December A I I am General Counsel for Ojos Locos" please direct any and all future correspondence concerning our establishment to my below. Refrain from contacting any of our local staff, management, or business owner; Our office is in receipt of the two recent administrative citations issued to the Ojos L Blvd, Downey, CA`90241 It should be noted that these citations are for the same v billing because there are two company officers. We request that going forward any viola Michael Morales. This double billing resulted in FOUR THOUSAND DOLLARS being paid t appeal process.
If you are not already aware, the City of Downey's Municipal Code D.M.C. 4996(a) unlawful. The legal precedent ("Edge v. City of Everett") relied upon when D.M.C.49 since been declared unconstitutional. The United States District Court Western Di! that the Dress Code Ordinance violates the Equal Protection Clause of the U.S. Co paid $500,000 to settle this claim. We are requesting that the city not target a gender that we hire as Ch'icas, immediately refund all fees paid, and revoke said o A copy of the Court of Appeals Opinion is attached fo'rconvenient reference. Hopef address the irrational and unlawful actions taken by Code Enforcement.
Thank you,
t p"
Dawn Diaz
General Counsel
Ojos locos Sports Cantina
6010 W. SPRING CREEK PARKWAY, SUITE 321, PLANO, TEXAS 75424 l 504-577-9764 1 350 Firestone
ted in double
:o one officer,
i the required
nd discriminate against the female
rdinance.
ully your office is able to reasonably
DAWN. [email protected]
cc Roger Bradley,
Via UPS
Downey City Manager
John Funk,
Via UPS
City Attorney
Lisa Kolieb
Via E-Mail
Akerman LLP
Rich Hicks
Via E-Mail
Michael Morales
Via E-Mail
n Case 3:17-cry-01361.-RSM DOCU ent 91 Filed 10/1.9/22 Page 1 of 19 2 3
6 UNITED STATES DISTRICT COURT
WESTERN ERN DISTRICT OF V+ ASHINGTO
8 AT SEATT1_E
10 .COVANNA EDGE, et al.m Case No. C 17-136 IRS 'Ii
11 Plaintiffs, ORDER RE: MOTIONSFOR SUMMARY
JUDGMENT
12 V.
13 CITY OF E1II;RF:'hT. a Washington
14 Municipal Corporation.
16 Defendant.
1 17 I. INTRODUCTION
15 This case corner before the Court on the panties' Motions for Summary Judgment. Dkts. 1 #74 and #76. The Court has determined that it can rule without oral argument. For the 0 2 following reasons. the Court :. GRANTS IN PART and DENIES IN PART these Motions as. 22 stated below.
23 IL BACKGROUND
24 The general background facts of this case have been set forth previously by this C OUr 2 2
when granting Plaintiff's Motion for Preliminary ItTJun Lion, Dkt. 5, and by the Ninth CircLrit 27 when that Order was appealed. Dkt. #65. ' These; facts are generally + sufficient for the Court's 2 ORDER IMP: MOTIONS FOR. SUMMARY JUDGMENT - I
Case 2:17-cv-01361-RSM Docurnent 91 Piled 10/1 /22 Page 2 of 19 analysis below.' The Court adopts the factual and procedural background set forth in the ninth` Circuit's Opinion. &e Dkt. 65.
3 Plaintiffs Jovarna Hoe and others are or were employed by "bikini barista stands."' Plaintiffs challenge the constitutionality of two ordinances enacted by the City of Everett, 5 Ordinance No. 355 -17 (the "Lewd Conduct Ordinance"') and Ordinance No. 0-17 (the 6 7 "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 part of the female breast located below the toga cif. the areola," "the genitals, anus, bottom one-half of the anal cleft, or ;.any portion of the 10 areola or nipple ofthe female breast"" and created the new crime of Facilitating Lewd Conduct. 11,
12 Dkt. #65 at 7-8. The Dress Code Ordinance requires all employees, owners, and operators of 13 "Quick -Service Facilities" to wear clothing ;that covers "the tipperand lower body 14 (breast/pectorals, stomach. back below the shoulder blades, buttocks, top three inches of the 1 legs below the buttocks. pubic area and genitals)." Irt at 8. The Ordinance defines Quick- 16 Service Facilities as "coffee stands, fast food restaurants. delis, food trucks and coffee shops" 17 18 in addition to all other drive -through restaurants. 141. Violations rc deemed civil infractions. lcj Id. To ensure that stand owners are motivated to enforce the dress code. the City instituted a 20 $250 fine for first time offenders. Ir/. Repeat offenders face increased fines and risk losing their 2 business licenses.
2 Although the Dress Code Ordinance ce defines *'Quick -Service Facilities" broadly, it is 2 24 clear from the title ("an Ordinance concerning the regulation of Quick Servile. Facilities 25 including Barista Stands") and the; preansble (e,�., "Tile City has seen a proliferation of crirnes 2 27
The parties have stipulated to "`rely solely on the factual record already presented to the Court during the 28 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 JLIi3GMFNT -
a��
2 3
4 5
6 7
8 9
10 11
12 13
14 Case 2:17-cv-01361-RSM Document 91 Filed 10/19/22 Page 3 of 19 of as 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. 1. see. 12 (equal protection)), Dkt. #L
This Court granted Plaintiffs' Motion for a Preliminary lnliunction on December 4. 2017.
Dkt. #55. In that Order, the Court found as likelihood of success on the merits with regard to Conduct Ordinance was likely void for vagueness and that both ordinances create dangers of arbitrary enforcement. The Court found that Plaintiffs' choice of clothing was communicative. the dress code ordinance was content neutral, that it was subj ect 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 18 constitutional nroblem by invitina, discretionary enforcement.- Dkt. #65 at 14-17. Tile Ninth 19 Circuit ruled that "the vagueness doctrine does not warrant an injjunction prohibiting 20 enforcement of the Dress Code Ordinance." h-L at 19. Plaintiffs* First Amendment clairns 21 failed to "show a likelihood that their intended message will be understood by those who 22 receive it.- Iti. at 22; see also icy. at 23 ("The baristasact of wearing pasties and g-strings in 23 24 close proximity to paying customers creates a high likelihood that tile message sent by the 25 baristas' nearly nonexistent outfits vastly diverges from those described in plaintiffs' 26 declarations."). The Ninth Circuit then provided a framework for this Court in thinking about 27 the First Amendment claims:
28 ORDER RE: MOTIONS FOR SUMMARY JUDGMENT- 3
Case 2,7-cv-01 1-I I Document 91 Filed 10/1 /22 Page 4 of 1 1We stress that ,plaintiffs deny that they engage in nude: dancing and erotic: performances. thereby disavowing the, First Amendment 2 protections available for that conduct. &,e Barnes, 5€ 1 U.S. at 566.
The outcome of this case trans can the plaintiffs* contention that the 3 act or wearing almost no clothing while serving coffee in a retail establishment constitutes speech. Because wearing pasties and g- strings while working It QU ck-` ervice Facilities is not "expressive'; conduct- within the meaning of' the First Amendment, the dress Cade Ordinance does not burden protected expression
6 7 1"'he district court"s application of intermediate scrrtrti ly under the -secondary effects" line of authority was inapposite because that doctrine applies to regulations that burden speech within in the ambit of the First r mendrrrenVs sphere cad" protection. See lf'or~led. ffxielea Video (#' Wash— h7c. . C it'i, (#"Sf)okane, 68 F.3d It 6, 1 192 (9th 10 C'ir. 2004). Here. b caatrse the cress Code Ordinance does not burden expressive conduct protected by the First Amendment. the 11 City need only demonstrate that it "promotes a substantial 12 government interest that would be achieved less effectively absent tyre regulation." Rum,�felyd i% ff"o)•wn frar Acml & ;Institutional 13 Rights, Ine - 547 U. S. 47. 67 (2 006) (qL10ting Liniterd Slates v.
Alberlini, 472 U.S. 675, 689 (1985)). The district court did not `l.4 analyze the ordinance under this Framework. so we vacate its preliminary initrnctio l and remand for further proceedings. ;l
1.6 W, at 23. The Court now considers these claims can SUrn vary judgnaeht. � 17 111. DISCUSSION
18 A. Legal Standard for Summary Judgment
19 S'tanarnary Judgment is appropriate where "the movaant shows that there is no genuine 2)
II dispute as to any material fact and the movant is entitled to judgment as a matter of law." heed. 22 R. Civ. P. 5 (a), Anderson a Liberr lY l.rrbbY, Inn. 477 U.S. 241247 (1986). M itcrial facts are 23 these which Haight affect the outcome of" the suit under governing law. Anderson. 477 U.S.at 2 148. In ruling; Oil summary Judgment, a Court deans not weigh evidence to determine the truth of 2 the matter, but `only determine[s] whether there is a genuine: issue for trial."" Crane v. Conoco, 26 27 lrrc°.. 41 F.3d 547, 549 (9th C4ir. 1994) (citing 'Federal Dej,7osil Ins. C orlr. v, O'Alelven.y & 28 rl eet er•.s, 969 I~ .2d 744. 747 (9th Ci r, 1992) ).
ORDER RE-, MOTIONS FOR SL.iMMARY .l[.iIJCfMF:NT - 4
Case 2,117-cv-01361-RSM Document 91 Filed 0/19/ 2 Page 5 of 19" 1 On a motion for summary judgment, the court views the evidence and draws inferences 2 in the light rnost favorable to the non-moving party. 4ndctrson, 477 U.S. at 5: Sullivan v, US. ej)'1 o the j%7a µv, 365 F.3d 827. 32 (9th Cir. 2004). The C (,)Urt must draw all reasonable 4 inferences in favor of the non-moving party. See O'Hela°en.v c4 YIIc very. 969 F.2d at 747. r°ev'(l' 5 5 on olher° r°ouncls. 51 _ 'U S, 79 (1994). Efcawever the nt nmoving party must make as °'suf� is icnt 7 showing on an essential element of her case with respect to Nvhic:h she has the burden of proof' S to survive suanraiary, judgment. (,,elolex t'cri7), v, Calrell 77 U.S. 317, 323 (19fi). 1 . No Genuine Disputes of Material l Facet
10 s an initial matter, the parties appear to agree that there are no genuine disputes as t€� 11 '
2 any material facts such that entry o1judgment as matter of law would be precluded.. See Mt. 13 #74 at 8. The parties have stipulated to the facts; although they disagree with the: admissibility 14 or certain expert testimony. They have apparently agreed to submit the remaining issues in this 15 case to the Court on these cross motions.
16 C. First Amendment Claims
17 IS Plaintiffs -allege in the Complaint that they use 'their clothing tear lack of it) to convey i
19 messages including, - ernale empowerment, positive body irnage» freedom of choice. and 20 personal and political vievvpoints. " and claim that the. Dress Code and Lewd Conduct 2 Ordinances infringe on their first Amendment right to convey such messages at work and on 2'
their- free time in public areas of the City. Dkt. 4'1 at 1 I-13. Plaintiffs affirmatively ' -deny that 23 24 they engage in nude dancing and erotic performances.` lWgL% 929 F aid at 669: ML #32-1 at 4. 5 116. 20 -09.
6 2
28 ORDER RE: MOTIONS S FOR S[1MMARY .ii1EDGME:NT - 5
Case 2:1 - v-01661-RS ct t ment 91 Filed 10/19/ P Fags 0 of 1 Plaintiff's do not contest dismissal of their First Amendment challenge to the Lewd` Conduct Ordinance, The C'otr t aka°ec:s that this c'lairn should be dismissed for the reasons stated by the; City ofEverett. See Dkt. #74 at 1 1-12.
~
Turning to the Dress Code Ordinance, theNinth Circuit has already ruled that it does riot:
burden expressive conduct protected by the First Amendment and that the City ol"E erect need 6 only. demonstrate that it `promotes d Substantial government interest that would be achieved less effectively absent the r;egulati an." &� w Dkt. 965 at ?; (citing Rn,s,°ft}/r/, sujnw). 9 The City of Everett paints to the record before the: Everitt City C"OLHIuil and this Court as 10 s€IffiCiCnt to explain why this Ordinance "promotes a substantial government interest in 11 12
reducing crime and other negative impacts stemming from the Quick Service b€ISiness model ,13 and why the ability to do so would be less; effective ;.absent the regulation.„ Dkt. #7.1 at 10---1 l 14 (citing Dkt. #9-1 at 71, Dkt. #9-2; Dkt. #94 at 82-96. Dkt. #9-5 at 7-90, Dkt. 429 it 2-18, Dkt.' 15 #9-6 at 54-57), 1-he 'City] passed this Ordinance after seven police investigations of:: bikini:
16 Sar°ista stands uncovered criminal condUCt. These investiammions revealed that "baristas` 1 Jd roratinely',appeaaired in the windows of coffee stands nUde or partially nude. posed in vario€as 19 states of atudity°. (allowed cu tOrn rs to photograph and/or touch therm for a f e, performed sexual 20 'shows.' openly advertised Prostitution activities, and (allowed customers to masturbate while 21 watching them perform, all within public view."ki. at 5. The City Council considered the 22 alternative of sticking with "existing enforcement tools." but the City argues that -prosecution 23 24 of' the btaristas has proven ineffective and prosec>utinIg stand € wners required extensive. 25 expensive undercover ;operations, which resulted in the creation of pornographic videos and 26 photographs that engendered numerous public records requests and lawsuits over those images.1 27 Il, at 6 {citing Dkt. 49-5 at 71-75, 84. Dkt. #94 at 92-93, 96). The City notes that the
Case 2,17-cv-01361-RSM Document 91 Riled 10/19/22 Page 7 of 1 Ordinance "pats the burden can stand owners to re(ulatC the conduct at their establishments at 2 risk of losing their business license." M at 11.
The C OUrt agrees that. tree candisptated exiting record is sufficient to reach a rLdithLI y here.
The Court need not consider the City's expert testimony, Reducing the crime associated vvith the bikini barista stands would alone e a Substantial government ent interest, and Plaintiffs do not 6 contend otherwise. The attempts by Plaintiff's to cloud the issue with expert testimony are Unpersuasive and Ultimately insufficient to overcome the test set forth by the plinth Circuit. See, c
e.g:, Dkt. #82 at ` 6 ("[Plaintiffs' expert] concluded thattile Ordinances have no positive impact 10 on preventing ci;itaae...'. Instead_ coon- aerci<al establishments, such ash ttarbucks or ScDontald's 11 12 aCtUaIly experience higher incidents of crimes. specifically violent cringes. than the bikini- 1 3 haarista stands in Everett.... This evidence shows that crime prevention will be achieved more 14 effectively absent the regulation because the bikini-barista stands are not the primary Cause Of 115 serious crime."). The crimes at the bikini haaristaa stands include sexual assault. but also 1€
prt stittaticin. See Mt.' 65 at 6. The redUCtican Of any of these crimes constitutes as substantial 1 18 government interest. even if the ordinance cannot eliminate such crime, plaintiffs 4peCUlate that' 19 a reduction in cringe in one area comes at tlae expense of fighting crime in another, Although 20 police rescaaarces are finite, the Dress Code Ordinance is designed to he enforced by the owners21 of the establishments. not with constant police patrols. The City of Everett need not show that. 22 23
this Ordinance is perfectly effective, or that it is getter than an ordinance crafted by Plaintiffs' expert. The Cite need only show that a substantial government interest would he achieved less 2 2-9 effectively without it. The City has clearly met this reduced standard. There is no genuine 26 dispute of material fact; and this claim can be dismissed on summary judgment.' 2 2 = The Court declines to speculate as to the adoption of tine 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 SifNIMARY .6UI)CiMENT - 7
Case 2A7-cv-01361-RSM Document 91 Filed'1.0/19/22 Page 8 of 1 1 Linder the above reasoning. Plaintiffs' ; claims Linder Article 1. Section 5 of the 2 Washington State Constitution are also dismissed.
3 D. Equal Protection Clause Carina
4 Plaintiffs c lairn the Ordinances violate the Equal Protection Clause by discriminating 6afainst women and women -only businesses bec.aLlSe ( 1) the Levvd Conduct Ordinance 7 criminalizes the partial exposure or tOLIching of female 'breasts but not male breasts and (?) the Dress Code Ordinance tarp-ets bikini-baarista stands at which "only women work,"" Dkt. 41 at 9 13-1 . The Complaint also indicates that the Ordinances discriminate against worrien by 10 targeting "bikini wearing.- Itt at 14.
11 12 The Equal Protection Clause requires that all siniilaar°ly'situated persons be treated alike. 1; City €,af' 0ebur ne, Tex. v. Cleburne bur•ne Living C"trr., 473 U.S. 432. 439 (1985). Gender -based 14 classifications require a heightened standard ofrev ievv—intern ediate scrutiny. Unilet yl€at€s v. 15 t'it°gini€a, 518 U S. 515, 5 31 (1996). Classifications based Oil sex riicrst have an -exceedingly 16 persuasive" justification. serve -important governmental objectives- and the naeaans must be 1 18 `Substantially related to the aachiev#e nent of those oij1e tives." 1c/. at 533. Unlike race. sex is 19 not a proscribed classification. Ito The Supreme Court has bested that "[1a]hy°sical differences' 20 between inaen and wornen are endearing- and "[t]he two sexes are not fungible[,]"" ItL 21 Therefore, there are "`[i]nheretit differences' between men and vvornen" that --we have come to 2 appreciate [and] remain cause for celebration. but not For denigration of the: members of either 23 24 sex or for artificial constraints can an indiv=idual's opportunity .° W. 25 If the Ordinances do riot impose gender -based classifications, the Court exercises as 26 rational -basis review. That would require. at minimum. the Ordinances to "bear a rational 2 28
ORDER RE: MOTIONS FOR SLlMyi ARY .1U1v3CiMExi--
i
2 4
6 d
8 9
10 11
12 13
1 15
16 Case ;17-cv-01:361-RSM Document 01 Filed 0/19/ 2 Page 0 of 19 relationship to an independent and legitimate legislative end.`" Romer a". Evans, `5 17 U.S. 620.% 633 (1996).
1. Lewd Conduct a°clinance
The City of Everett argues that this Ordinance does ;not discriminate on tlae 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 bath genders* most intimate` body parts," Dkt. #74 at 14. To the City. the Ordinance'-, definition of lewd conduct to include exposure of the female but not male breast simply reflects the Fact than "men and women are not fungible with respect to the; traditional understanding of what Constitutes nudity." A/. (citing' ,9 ale v. LilleY, 204 A.3d 198, 20 (N.H. 2019)).
Plaintiffs point out than LilleY. a New Hampshire state case, hardly SU aznnari es the state of federal law oil this issue:
Every federal appellate decision toiconfront the issue after T h-,gr`nia has either assumed or directly held that laws like the Lewd C'ondUCt Ordinance trigger intermediate scrutiny. Where on "its Ld race, that; ordinance plainly does impose ditfcrent rules for VV%jtar"it is and men," intermediate scrutiny Must apply. TeWanii v. C il.v eff C hic(IMID, 875 F 3d 373, 380 (7th C:'ir. 2017). as amended (Dec. 11, 19 2017) (emphasis in original) (rejecting the same position advanced by the City, here); see JVews a: ("it' ° cif f-incoln, 331 ha 3d 596, 600 2 (8th C ir. 2003) (asst.ialling without deciding); see also Buzzelli v.
C iti, ot"t" eaa, Eaa•k, 140 F.3d 134, 141 (2d Cir. 199) (considering21 ' �
issue in context of challenge to adult-enterta:innaent coning law 22 rather than lewd conduct ordinance).
23 Dkt. #82 at 15-16. The Court agrees with Plaintiffs' analysis ofthe law and concludes that the 24 Lewd Conduct Ordinance on its face imposes different rules for women and men, triggering; 2 26 intermediate scrutiny.
27 Tile City of Everett nevertheless argues that the `"overvdielming maJority' of;courts 28 have heldthat lawns or ordinances prohibiting public exposure of female (hint not 'male) 'breasts ORDER RE: MOTIONS s OR SUMMARY JUDGMENT- 9
Case 2:17-cv-01361-RSM Document 91 Filed 10 19/22 Page 10 of 19 do not violate equal protection."" 1 kt. 474 at 15 (citing State v. Vogr/, 775 A.2ci 551, 55 (N 1. 2 Super. Ct. 2001), Dkt. #74 at 15 n 13 (citing IT c'ivS v. 'Cata, of`Lincoln. 331 F. 3c1 596. 600 ( th 3 Cir. 2003): Biczetti v. Gila cff'rylew ) or"k, 140 F.3c1 134142-4 3 (2c1 Cir. 1998)e, C. niletl Slates v 4 Bioc°ic, 928 F2)d 112. 1 15-16 (4th Cir. 1991); S'I.9.1. Inc, v. City of Ilouslon. 837 } .2d 1268, E
1279- f (5th Cir. 1 c9 ` ): J & B Social Club No' 1, Inca v. C "ifY of illo pile, 966 F. SuppIt 31 q 6 7 1 1 9- CI (S.D. Ala. 1996), t rgfi v° He del. 683 F. Supp. 289. 99-301 (D. Mass, 1 9); Tolbert, 83 568 F. Stipp. at 1290 C'itY rif' Tuc°.Sso v. fi `o4% 917 P 2d 706, 707-0 9 (Ariz, Ct. App. 1 995), Locker" v. lCh-b. , 31 CtaL App. 3cl 520. 526 (Cal: Ct, App, 1 7>); Stile 1'. Turner. 382 N.W.2d 1(l
252, 255.-56 (Minn. Ct. App� 19) C'ily r11'.Icrcrkv°on v. Lakeland Loun,(,e c f ,hickson, Irrc°.. 688 1:I
12 3o.2ci 7.12, 751-52 (Miss. 1996)). The City maintains that its cit?j ctives in ° preventing til 13 secondary adverse effects of public: nudity and protecting the circler" morality, health, safety. and i
14 well-being of the corniTaunity are important (W substantial interests" and that the I et,ci Conduct 1`' Ordinance's A istinction between male and female breasts is Substantially related to the City"s 1 objectives in protecting unWillin" ttr.dienc°a:s from expOsure to nudity (which, consistent N ith 1°
i corn runity standards.' includes the public exposure of fem ale breasts) and it simplifying 19 enforcement activities with respect to lewd conduct violatio s," Al. at 16. In support <at its 0 contention that the treatirient of public exposure of female breasts is consistent with community 21 standards, the City of Everett notes.
22 Numerous jurisdictions across Washington have adopted similar 23 lewd conduct prohibitions applicable to conduct in streets, 24 sidewalks. parks, and other public place Sc,,e, c'=<�X., Pierce C"tyT.
Code 9.16,080 (criminalizing exposure of "any portion of the 25 fermate breast lower than the upper; edge of the areolca"), Slnohonlish Cry. Corte 10.04.010, .025 (criminalising eel-r0SUre Of 2 b [aa]ny part of` the ar°eola or nipple of the female breast" and 27 [m]ore[m]ore than one-half of the pant or the ferfale breast located below the top of the areolaa`"); Kent Mun. Code 9.02.800 (similar); 28 Olympia 1! Ulf. Code 9.24.010, a110 (criminalizing exposure of ORDER RE: MOTIONS FOR St.1MARY .JUDG1 1ENT - 10
Case 2,17-cv-01361-RSM Document 91 . Filed 1011 122 Page 11 of 1 "fernalc breasts"): Bellevue Mun. Code I ,04,C)1tf- ,Cf20 (critninalizin :exposure of "the female breast lower than the tipper edge of the arcola")„ Tacoma M n, Cede .32,010,020
(criminalizirio exposure or display of ' female breasts," in public 2 places); Yakima Mun. Cade 6.55.020 (criminalizing exposure of the "areola, the nipple and/car the area of the breast below the bottom of the areola of the female:breasts" in a public lace). 5 Id. at 16 ti,1 Ci.
Plaintif"ts` briefing relies on 1-r°ee the t�'ilrl lc� - For"i Collins v. 0' 1, rff For"1 Collins, 227 F.
Stipp. ?,cf 1126 (I . Colo. ?ff 17)a crf1'cl" 916 Fn d 792 (1 )th C'ir, 2019' . where the Tenth Circuit' cf
ruled in favor ofchallengers claiming egUal protection violations arising born a lewd conduct 10 ordinance prohibiting eXp0SUre of fernale breasts. As the City of" Everett points out, the Tenth' 11 12
Circuit recognized its position was the minority viewpoint nationwide and that most ether -13 courts had Upheld similar lazes. F; rhseclu nt federal ral cases in tither districts have declined to 14 follow the Tenth Circuit's holding. See C"i1v q ',S )r°ingr ielcl" 923 F.2c1 50& 5 10 ( th Cir, 2019):
15 I'1ine v, Z:cawn ofocean an C "t1t' 452 Ftipp, aid 270, 281 (D. Md, 2020) 7 FAth 214 (4th' 16 Cir. 2021). plaintiffs argue:
fj
18 As the Ninth Circuit rioted, '-:the particular history of sex discrimination has led to judicial recognition that certain forms of � 19 purported state interest are illegitimate as justifications for sex discrimination. such as interests sternming from romantic 20 paternalism toward women or sex stc reotypino .;" Tucson f°f'b mean 's (7irtic r" E'ilen. 379 F.3d 551. 543 (9th Ch. 2004
21 22 The C"ity*s bare bones appeal to community standards and protecting women from exploitation are rooted in exactly such 23 impermissible "romantic paternalism toward w rt en or sex 24 stereotyping." It is the embodiment of the belief that women must dress a certain way to avoid exciting men to seXUal misconduct, Or 25 that society should be able to tell Nvomen----hut 'not rnen__.-ter cover'- Lip certain body parts because others might find those parts sexual. 26 Those beliefs are rooted in impermissible stereotypes about what is 27 and is not proper dress and behavior for one°s sex.
2 ORDER FEE; MOTIONS FOR i.1M'MARY JUDGMENT- I I
Case 2:17-cv-01361-RSM Document 91 filed 10/19/22 Page of 19 By contrast. the Baristas offer ample evidence that bath Ordinances fail to serve the interests identified by. the City. and 2 that differences in sex and gender are not substantially related to those interests:
3 Dkt. #82 at 20. Plaintiffs rely on the expert testimony of Dr. Torni-Ann Roberts professor of psychology and Chair of the psychology Department at Colorado o College in Cc>Icit•ado Springs.
Ca While he.r testimony has value academically, it does little to illuminate community standards. i
.ifs. Roberts did not speak with City of Everett community members about this issue. See Dkt. 8 # 80 at 5 3-54 (Roberts lets. at, 8:15-9:6).
10 The Court has considered the record and the case law above and finds that the LeNvd 11 Conduct Ordinance dos not violate the Equal Protection Clause because the ity's cahjectives 12 in preventing the secondary adverse effects of public nudity and protecting the order, morality. 1 health. safety, and well-being of the con°aa unity ;are important or substantial interests properly "i
15 addressed by the Ordinance. . lthcraa h public attitudes about gender and sexuality are 16 constantly staantly changing and evolving, there is simply no basis can this regard to conclude that the 17 public exposure of fleniale breasts no longer violates the community standards of the City of .t
Everett, or that protecting those public sensibilities is not an important government interest. f
fhe Court fiends that the City of Everett has inet its burden of providing an exceedingly 20 21 persuasive Justification for treating the Public exposure of bare breasts by f males and males' 22 differently in the Ordinance. ;;anal than this is substantially related to the important governmental 23 interest of protecting the public sensibilities of the City of Everett. 24 s acknowledged by the Fourth Circuit when addressing this issue last year, "ItIlae 2 judicial legacy c f justifying Ia NVS can the basis of the perceived moral sensibilities of'the public is 27 f'arRona spotless." IS'linex i% Town of 'dean Cfly: FAth 214, 221 However. the :C Curt agrees 2 ORDER RE: MOTIONS FOR SUMMARY ,1t. DGME T - 12
Case 3 17- -0 361- 2:S 1 Document 91 Filed 10i1 l 3 Page 13 of 19 1 here. as in that case. that -in this Situation., protecting public sensibilities serves an important 2 basis for government action."" Id,
3 The Court agrees with the City of Everett that Plaintiffs' state lase privileges and immunities claim under article 1, Section 12 is subject to federal equal protection analysis and 5 fails for the same reasons above. S'ee Dkt #74 at 2 _°21. Because Plaintiffs did not plead it, a 6 claims uncles- Washington State "s Equal Rights Amendment is not properly before the Court. 8 2. Dress Code Ordinance
9 The parties appear to agreethat the Dress Code Ordinance is *-geli ier-neutrral'can its 10 face." Dkt. 474 at 18, ML # 2 at 16. That would typically shift the COUrt's analysis from 11 12 intermediate scrutiny to rational -basis review.
13 However, Plaintiffs can still trigger heightened scrutiny here in at least three ways. 14 First. they can show that the law is covertly taarg ted at one gender; Pers. Alin 'r• q 15 Allitssetclrtrscau v, I*'eene.'. 442 U.S. 256. "274, (1979). Second. they can show that adverse 16 effects of" the law reflect invidious gender -based discrimination--i.e.. that p4a gender -based' 1 18 discriminatory purpose has, at least in sorne measure, shaped" the law at issue. Id. at 274, 276. 19 "D scrinnnatory purpose... implies more than intent as volition or intent as awareness of 20 consequences.. .. [i]t implies that the decisionmal er... selected or reaffirmed a particular course 27 of {action at least in part "bec:aaaase oaf: not merely `in spite of.,' its adverse effects upon an 22 identifiable p,rc�iap.' Ici. at 279. Third. plaintiffs can shoe-. that an ostensibly neutral' 23 24 classification is an obvious pretext for discrimination based on tlae laws application. N. at 275 25 (citing Eick v. I1gj,)kins, l l 8 US. 356, 373-74 (18 )im if any of these tests are met, heightened 26 scrutiny applies because "1c]lassifications based upon gender, not unlike these based upon race. 27 have traditionally been the touchstone for pervasive and often saabtle discrimination... [and] such 2 ORDER E: MOTIONS FOR SUMMARY JUDGMENT - 13
Case 2:17-cv-01361-RSM Docurnent 91 Filed µ. /1 / 2 Facile 14 of 1 , classifications Must bear ai close and strbstat tiaal relationship to important governmental 2 objectives.,." Al. at 1-73.
The Court declines to find that the Dress Code Ordinance is covertly targeting one gender. Based oil the crndisptrted facts, there is nothing covert in the Ordinance's intentions ----it 4 was clearly meant to address secondary problems caused by women wearing bikinis or "pasties 6 and g-strings" in drive-thru settings.=' To respond to those problerns, it sets as dress code that applies to workers of all genders.
A better lit can be lound in the either two tests. The COUrt Finds that "aa gender -based 10 discriminatory purpose has, at least in so me measure, shaped" the Ordinance. The record shows 11 12 this Ordinance was passed in part to have an adverse impact oil female workers at bikini barista 13 stands. The Ordinance's ostensibly neutral classification is also an obvicacrs pretext for 14 discrimination based on the l aww's application, Illaintiffs" expert Ear. Roberts paints out that the:
I' Dress Code Ordinance prohibits clothing typically worn by wworne:n gather than men. including l
raid-rifl"atnd scoop -back shirts, as Nv ll as bikinis. f kt. 01-1 ("Roberts Report-), 18. There is 17 µl
evidence in the record that the bikini barista procession, clearly a target of the Ordinance, is i
19 entirely c r almost entirely female. It is difficult to imagine how this Ordinance would be m {
20 equally applied to men and women in practice. It appears designed to barn of just '"pasties and 2 g-strings"" or bikinis, but a wide range of Nvor aen's clothing. Intermediate scrutiny is 22 23
appropriate here.
2 Under this hei�„htened standard, the. Ordinance must have an -'exceedingly persriaivc" 25 justification. serve "iniportaar t governmental cwN c°tives"" and thy: me arcs 111trst be "SUbsttantiaally 26 related to the achievement of these objecfives.' The City of Everett addresses this standard it 2 28 i As Plaintiff point out, the City does not point term single instance of a nr.tn being employed as ar-bikini barista in Everett. Dkt. 982 at 17.
ORDER RE: MOTIONS FOR tJ ATM RY.lC.,fI CiMItNT - 1
Case 2:17-cv-01361-RSM Document 1 Filed 10/19/ 2 Page 15 of 1 1 its 'Response to Plaintiffs' Motion, Arce Dkt, #78 at f --I . plaintiffs point to at least some expert testimony indicating that this Ordinance fails to serve the interests identified by the City. 3 See Dkt. #76 at 1 —20.
Some of this evidence is strong, and some of it weak. The City of Everett clearly has an 5 interest in reducing secondary efi'ects of the bikini barista stands like crime, lewd conduct, and 6 7 exploitation. As stated above, the record shows 'that this business model has been linker to at least some incidents of prostitarticara;R lewd conduct. and sexual assault, However. it does not 9 necessarily follow that the, dress Cody: Ordinance -will further the C`ity's goal of preventing
1.0 these harryis by establishing; minirnUrn dress requirements and making it easier to detect' 1 12
violations and hold owners accountable." as stated by the City. Dkt. #78 at 14. The means by, 13 which the City is attempting to reduce crime and lewd conduct --a dress code for drive-thrus 14 that bans midriffs and scoop back shirts ----is so broad -,is to veer from being "substantivally 1`) related" to just `'related." The Court is particularly swayed by Dr. Roberts' observations that 16 this Ordinance poses air unreasonable risk of`demeanin enforcement, Asstir�r-rin the owners of 7 18 bikini barista stands are unable or €.€nWilling; to enforce this dresscode, at some point law 19 enforcement will be tasked to measure exposure of skin by sorne method. "rhis "encourage[s] a 20 humiliating;, intrusive, and demoralizing search on women. disernpowering them and stripping21 ] them of their freedom." Roberts Report at 1131.
2 The Court finds that, althcrLrgh this Ordinance satisfies the lower standard sett forth by the 2 24 Ninth Circuit tinder the. First Amendment, it does not satisfy the heightened standard treader the 25 Equal al Protection Clause or the fourteenth Amendment. This Ordinance clearly treats women 26 differently than men by banning a wide variety of women"s clothing, not gust pasties and g- d
2 strings, or bikinis. The restrictions are so detailed they effectively prescribe the clothes to be 2 ORDER R MOTIONS FOR SUMMARY JUDGMENT - 15
Case 2:17-cv-01361-RSM Document 91 Filed 10/19/22 Page 16 of 19 1 worn by wornen in quick service facilities. In sure, the City has failed to demonstrate how this 2 disparate treatment ot` women is Substantially related to the achievement of the Ordinance"s 3 stated objective's. Summary judgment in favor of Plaintiffs is warranted on this claim.' E. Substantive Due Process Claim
5 Plaintiffs challenge the Ordinances on Substantive due process grounds, claiming that 7 both Ordinances infringe on their "liberty right to dress in the: manner they so choose" and that the Dress Code Ordinance further infiringcs their "liberty right to engage in the: Occuptation of 9 their choice." filet. 41 at 1 -17.
10 There is a limited "liberty interest- in one s personal appearance/dress, ee Kelle,v v.'
1.1 Jrr arrsrrrr, 42 11: . 23 244 (l l?7Ci1;111 r'r ast v° Bel cad' Dws�i��es of C olirr�rbits Metro. Li r ol-y, 346 12 13 F, )d 585, 596 (6th C:'ir. 003). 'ro prevail on this claim. Plaintiffs Must prove the Ordinances 14 are "so trrat onar that Ithey°l may be branded arr)rtrary, and inere[ore a aeprivation or
1.5 [Plaintiffs"] 'liberty' interest.]" Kellely, 425 U.S. at 248. 16 The City of Ev rett argues:
17 18 As detailed above, the City has made reasonable determinations that the Ordinances are necessary to stern harmful effects of bikini 19 btarista stands ;.and lewd conduct more; generally. This satisfies rational basis review.
2 1 Nor can Plaintiffs establish that the Dress Code Ordinance infringes can their right to engage in an occupation. To implicate 22 this right, the Ninth Circuit has held that the regulation at issue must `*operate as a c on-iplett prohibition" on the ability to pursue a' 23 profession. Franceschi. 887 F.3d at 931. And even when a lave 24 amounts to a complete prohibition. it will only be subject to tlae rational basis standard of review. As Plaintiffs admitted in; 25 depositions, neither Ordinance at issue 'here prevents thein> from working in the coffee service business &,e Dkt. 922-1 at 220 2 ,
(Powell at 102:20-25). The Ordinances simply impose minirauna 27 _-
4 Because the Court has granted summary judgment on this claim, it hinds a discussion of Article I, Section 12 of; 28 tlae 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 13 ORDER RE: mariONS FOR SUMMARY JUDGMENT- 16
1 3
4 6
S
9 10
Case 2:17-cv-01361-RSM Document 91 Filed 10/19/22 Page 17 of 19 clothing requirements on Plaintiffs and all either employees of Cusick Service Facilities. These requirements do not arnou t to a complete prohibition and, thus. do not violate substantive: due process. S1?e P'r anc esc hi, 887 F.3ci at 93 -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 shove that the City "Could have had no legitimate reason four its decision." their° substantive due process claim should be dismissed, mraok-a r. 0tv of Aif ro.v Grande. 17 1a 3d 1227, 1234 (9th C"ir. 1994) (quotations and emphasis omitted).
DU #74 at 21—` 1
The Court agrees. LJ der the t
Ii
, __.:c,_.r 'L--....1 ._0 —
14 body
1 disputed facts. Plaintiffs have failed to show that these' trary. These laws are clearly related, thinly at times, to prevention and the upholding of the coanan anity's
aat the Dress Code Ordinance's language, as to which
,s! many inchesis excessive, such specifics are tell to nd in any event the rational basis standard does not
tt:qunc mat t„; - ay %>w)vaiw:UK; c,c,�c taaelaCis of"'advanc:an� [ts VIA 1: ` all tlaait 9s needed as 5o11ae' 17 18 "rational connection"° between the rule and the governmental interest, regardless of whether that 19 male is an "exact fit" fear the interest at issue. United States v. Navarro, 800 F. )d 1 1 p4 1 1 14 20 (9th C ir. 2015)'(citing ! Vei,arrc ulh v, C'orrothers, 827 1 2d 599. 603 (9th C ir. 1987), a11€iuro v. 2 frlrcric a 1i1 I',3€1 10S f; 1i159-60 (9th C'ir. 1999)). The Ordinances do not infringe on Plaintiffis' 22 23
right to engage in the Occupation of serving coffee, and Plaintiffs have failed to convince the 24 Court that their occtnpation should be construed more ,narrowly for purposes cif` this 25 constitutional analysis. This claim is properly dismissed. 2�
2 28
ORDER R.E: MOTIONS FOR SUMMARY JUDGMENT- 17
is must be covered and by I-
Case 2,17-cv-01361,-RSM Document 91 Piled 10/19/22 Page 1 ; of 19 1 F. Vagueness ss Claim
im
2 Plaintiffs concede that their claim that the Ordinances are void for vagUeness is foreclosed by the Ninth it Uit"s decision.Dkt. # 82 at 14 n.6 (citing 929 F :3d at 666-67). This claim is dismissed.
5 G. Motions to Strike
6 The Court has considered the evidence submitted by the parties and the objections and 8 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' testimon p` p . t ., , y,` � y
10 attacks on the opinions of experts go to the weight, not admissibility. Plaintiffs' expert reports 11 12 have been propertpropertys�. omitted' into the record. k`,k�e tfkts. # 3 — # 5. 13 IV. ' CONCLUSION
LUSION
14 Slaving reviewed the relevant briefing and the remainder of" the record, the Court hereby 15 finds and ORDERS:
1 Ii' Defendant City of' Everett's Motion f`or Summary, Judgment'. is GR NTFD IN f
18 PART` and DENIED IN PART. All of Plaintiffs' claims are DISMISSED except for Icy Plaintiffs' claims that the Egress Code Ordinance violates the Equal Protection 20 Clauses of"the U.S'. and Washington State Constitutions. 21 ?}; Plaintiff's' Motion liar Summary Judgment, E kt. #76. is GRANTED as to Plaintiffs' 2'
claims that the Dress Code Ordinance violates the E:gUal Protection Clause of the 25 24 FOUrteenth amendment.
25 6) The Court DIRECTS the parties to meet and confer within 14 days of this Order 26 regarding how to proceed, incl iding the submission of an additional proposed order 27 if' necessary,
28 ORDER RE;. MOTIONS FOR SUMMARY JUDGMENT
- 18
Case ;1. -car- 1* 1,-RSM Document 91 Filed 10/1/ Page 19 of 1.
DATED this a ct, dav of October. 2022.
ORDER RE: MOTIONS FOR SUMMARYJUDGMENT- 19
February 5, 2024
Sent via Email: [email protected]
Sent via UPS 2"d Dav 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
6010 W. SPRING CREEK PARKWAY, SUITE 321, PLANO, TEXAS 75024 1 504-577-9764 1 [email protected]
-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,
1 f }
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