The Star – Online broke a news story earlier this month about a local bar owner who announced his plan to have topless dancers at his establishment in Grand Coulee. See story. Ted Wolf, the owner of Wolf’s Den Tavern, apparently announced his intentions at a city council meeting. The city’s police chief reviewed the city code, and apparently did not find any prohibition on such an activity. The news story explains the regulations that one would face would come from the State Liquor Control Board. Under the law, if it weren’t for the Tavern’s liquor license, the government would be limited in its ability to restrict such topless dancing. The Washington Supreme Court has ruled that the expression of a nude dancer receives constitutional protection. See Kitsap County v. Kev Inc. (1986). Courts consider nude dancing “low value” speech, but nevertheless speech that is protected by the first amendment. In Erznozick v. City of Jacksonville (1975) the U.S. Supreme Court ruled that entertainment involving nudity cannot be banned. However, the U.S. Supreme Court also ruled that States may prohibit sexually explicit live entertainment in places where alcohol is served because states are vested with the power to regulate alcohol under the 21st Amendment. New York State Liquor Authority v. Bellanca (1981). In Washington, the State does allow topless dancing at bars provided that the dancers are compensated and remain on a stage 6 feet away from patrons. See WAC 314-11-050. These sort of performances are not typically very lucrative for the licensees, and as reported by The Star, only one such topless bar exists in Eastern Washington. Most nude dancing occurs in establishments that only serve soft drinks. In some of those alcohol-free establishments, it is pretty much anything goes if you believe the frequent news reports of west-side newspapers. However, local governments are able to prevent dancer-on-patron contact with local regulations. For example the city of Bellevue prohibits fully nude dancers from coming within 4 feet of patrons, requires stages to be well-lit, and requires that the “adult cabarets” close by 2 a.m. The State Supreme Court found Bellevue’s ordinance to be constitutional in the case of Ino Ino, Inc. v. Bellevue (1993). In that case, the court rejected the argument of the dancers that the lighting and proximity restrictions interfered with their freedom of expression. In this country, dancing involving nudity is subject to what we call “time, place, and manner” restrictions. Oftentimes, local officials attempt to restrict the dancing so much that clubs simply give up and move to other locales. Such intent on the part of city officials is hard to prove, and State Supreme Court has explained that “a court should not strike down an otherwise constitutional statute on the assumption that the legislative body had a wrongful purpose.” See Ino Ino, Inc. v. Bellevue. Additionally, courts have upheld local zoning ordinances that prohibit “adult” establishments within 1000 feet of a church, park, school, or even a residence. Such was the U.S. Supreme Court’s holding in Renton v. Playtime Theaters (1986), a case that originated in Renton, Washington. These strict regulations were found to be justifiable due to the “secondary effects” of adult entertainment, meaning the crime and prostitution and drug use that often is associated with these clubs. I am not sure that merely providing topless dancers would justify such stringent regulation. Adult bookstores and “lap-dance” clubs, particularly when concentrated in certain areas, are bound to have more problems then a single tavern providing dancing only on Friday and Saturday nights. Additionally, many local governments do not have any nudity-restrictions at all when it come to the female breast. It will be interesting to see how this plays out. The city of Grand Coulee is attempting to change their ordinances right now to stop Ted Wolf from allowing topless dancing at his Wolf’s Den Tavern.
What do you think? Should Grand Coulee take active steps to try to prevent such dancing within city limits?