Tukwila Ordinance Struck Down -- Court Rules On Adult Entertainment

TUKWILA - In a judicial striptease that left neither side completely satisfied, the state Supreme Court yesterday struck down Tukwila's zoning ordinance for adult entertainment.

The court never directly addressed the question on the mind of Tukwila officials, adult-business operators and other cities' officials: Was the ordinance unconstitutionally restrictive?

Instead, the Supreme Court decided the case on narrower grounds.

"There were a whole lot of questions unanswered," said Jack Burns, an attorney who represents a number of adult-entertainment businesses around Seattle.

"It doesn't give anybody a whole lot of guidance on how cities can regulate adult businesses under our state Constitution, and that was what everyone was looking for."

The zoning ordinance limited a wide range of adult businesses, from bookstores to dancing, to areas zoned for heavy industry, and it mandated a 1,000-foot buffer around schools, churches and residential areas.

World Wide Video Inc., which offers sexually explicit books, magazines, videos and peep shows, challenged the zoning ordinance and an ordinance that regulated peep shows.

The 24-hour store is on Interurban Avenue South, adjacent to a residential area. Gilbert Levy, the lawyer for World Wide Video, had argued that the zoning ordinance would prevent the store from finding a suitable location in the city.

A Superior Court in October found the zoning ordinance

unconstitutional but upheld the peep-show regulations, which levied fees of $825 per applicant and $50 per booth. The Supreme Court agreed.

However, the court found the books and magazines sold by World Wide Video to be "pure" speech, as opposed to symbolic speech such as dancing.

Using the U.S. Supreme Court decision, Renton vs. Playtime Theaters Inc., as a guide, the state Supreme Court noted that governments must show a "substantial" interest before they can regulate pure speech.

"Tukwila has not shown that adult businesses with predominantly `take-home' merchandise . . . have the same harmful secondary effects traditionally associated with adult movie theaters and peep shows," wrote Justice James Dolliver in the 7-2 decision. "We need not, and therefore do not, reach the question whether the ordinance `unreasonably limits alternate avenues of communication.' "

The court considered only federal law, not state law, in its decision.

It was unclear to most observers how the decision might affect efforts to restrict adult businesses in other cities, such as SeaTac, Lynnwood, Mountlake Terrace and Federal Way.

"Its immediate impact is limited to Tukwila," Burns said.

Officials in Mountlake Terrace and Lynnwood have been awaiting the state Supreme Court decision to guide them on their adult-entertainment ordinances. In the meantime, both cities have moratoriums on licenses for adult businesses.

"We'll certainly carefully evaluate the decision," Mountlake Terrace City Attorney Levy Johnston said yesterday. "We were hoping the case would furnish us with some guidance. That's the main reason we've been holding back."

World Wide Video district manager Fred Jones said the decision was vindication for his company, despite having lost on the peep-show rules. "They were trying to compare us to a dancing place and we're nothing like that - we're a video store," he said.

Tukwila city officials were less enthusiastic.

"I was just shocked," said Mayor Gary VanDusen.

With its recent annexation of land along Pacific Highway South, Tukwila became home to two adult-dancing establishments.

The fate of those businesses is still unclear.

"To my understanding, the city of Tukwila told us if they lose this case, then they'd leave us and Deja Vu alone," said Walt Szafryk, an owner of Dandy's, a male striptease dance club on Pacific Highway South.

But Tukwila city attorney Mike Kenyon said the show may not be over yet.

"There's an implication in there, though not a holding, that this ordinance might be sufficient for live entertainment or a movie house," he said. "This is not all bad."

-- Times staff reporter Anne Koch contributed to this report.