Whiskey or Sex Question Stumps Seattle Lawyer

SEATTLE (CN) - A strip club that says it is being denied a chance to operate in Seattle had the 9th Circuit considering whether denizens are looking more for whiskey or sex.

Seattle had enforced a moratorium on issuing building permits for adult clubs since 1988, but a federal judge struck down the ban in 2005 after finding that it constituted an unconstitutional prior restraint on protected speech. The city now regulates the clubs through licensing and dispersion requirements.

It sets regulations on how close adult entertainment businesses can operate in relation to community centers, schools, churches, child care centers, parks and other adult clubs.

ATL Corp. tried to open a strip club on the site of a former pancake house, but was denied approval because it was too close to a day care center and another adult club. ATL sued in 2009, claiming that the dispersal requirements and the city's failure to timely decide on the application violated its civil rights.

U.S. District Judge Robert Lasnik struck down the portion of the ordinance that failed to place "reasonable time limits" on adult entertainment license decisions, but left the dispersion requirements intact.

Counsel for ATL asked an appellate panel last week to declare the dispersal requirements unconstitutional.

Kristin Olson, representing ATL, said the only location that meets the strict zoning requirements for an adult cabaret is a "very small area of a very big city."

Judge Sandra Ikuta asked Olson what was wrong with the ruling.

"The city only has the burden of showing there are reasonably available alternative sites," Ikuta said.

Olson responded that the map the city used to show potential adult club sites was "flawed" and included areas that were not available such as cemeteries and golf driving ranges.

Ikuta then asked Olson to cite case law "that says, for example, 10 sites is too few."

Though Olson could not offer any precedent, she said the total area of land available for adult clubs was important.

"Every case I found where it's under 1 percent was found unconstitutional," Olson said.

She argued that there were not enough sites available for the demand in the city. She said the requirements mean "essentially only three clubs can operate in downtown Seattle," and the best spots were already locked up.

"In a big city like Seattle, you can only have three adult cabarets," Olson said. "It's unconstitutional as a matter of law."

Carlton Seu, representing the city, said that everyone who followed the rules had been granted an adult cabaret permit.

"This is a case of an applicant who didn't want to follow the rules despite being told repeatedly by the city what was required."

He said the city identified "a thousand sites" that were available for adult entertainment businesses, and ATL presented "no real evidence" that the identified sites were not viable.

"It's the burden of the appellant to show that there are an insufficient number of sites," Seu argued.

Though ATL had argued that Portland, Ore., is smaller than Seattle but has around 50 adult cabarets, Seu said there is a difference in demand because adult clubs can sell alcohol in Portland but not in Seattle.

"That makes a marked difference between the demand in Portland and Seattle," he said.

Judge Ronald Gilman stumped the lawyer by asking: "So Whiskey is more attractive than sex, right?"

"I don't have an answer for that, your honor," Seu responded.

Seu said the ordinance provides "ample opportunity" to locate new strip clubs and that there have only been five applications since 2007.

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