And now, for something completely different, comes today's U.S. Ninth Circuit Court of Appeals decision in Edge v. City of Everett, No.17-36038:
"Bikini barista" stands are drive-through businesses where scantily clad employees sell coffee and other nonalcoholic beverages. In Everett, Washington, a police investigation confirmed complaints that some baristas were engaging in lewd conduct at these establishments, that some baristas had been victimized by patrons, and that other crimes were associated with the stands. The City responded by adopting Everett Municipal Code (EMC) § 5.132.010-060 (the Dress Code Ordinance) requiring that the dress of employees, owners, and operators of Quick-Service Facilities cover "minimum body areas." Separately, the City also broadened its lewd conduct misdemeanor by expanding the Everett Municipal Code's definition of "lewd act" to include the public display of specific parts of the body. EMC § 10.24.010. The City also created a new misdemeanor called Facilitating Lewd Conduct for those who permit, cause or encourage lewd conduct. EMC § 10.24.020
A stand owner and several baristas sued the City pursuant to 42 U.S.C. § 1983, contending that the Dress Code Ordinance and the amendments to the Lewd Conduct Ordinances violate their First and Fourteenth Amendment rights. The district court granted plaintiffs' motion for a preliminary injunction and enjoined enforcement of these provisions. The City appeals. We have jurisdiction over the City's interlocutory appeal pursuant to 28 U.S.C. § 1292. Because we conclude that plaintiffs did not show a likelihood of success on the merits of their two Fourteenth Amendment void-for-vagueness challenges, nor on their First Amendment free expression claim, we vacate the district court's preliminary injunction and remand this case for further proceedings.
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