from the Superior Court of the State of Alaska No.
3AN-16-10280 CI, Third Judicial District, Anchorage, Eric A.
Orlansky and Brian Stibitz, Reeves Amodio LLC, Anchorage, for
K. Sherwood, Assistant Municipal Attorney, and Rebecca A.
Windt Pearson, Municipal Attorney, Anchorage, for Appellee.
Before: Bolger, Chief Justice, Winfree, Stowers, Maassen, and
the United States Constitution, the Alaska Constitution
generally guarantees citizens the right to free speech
without governmental infringement. Defining speech broadly,
as does the United States Supreme Court with respect to the
federal constitution, we have held that the Alaska free
speech clause protects nude dancing as a form of expression.
In this case an adult cabaret featuring nude dancing
challenges a municipal code provision prohibiting
adult-oriented establishments from operating during early
morning hours, arguing that if the provision applies to adult
cabarets, it is unconstitutional under the federal and Alaska
constitutional free speech provisions.
conclude that the current municipal closing-hours restriction
applies to adult cabarets, but, applying strict scrutiny,
that it may not be enforced against adult cabarets in light
of the Alaska Constitution's free speech clause. We leave
open the possibility that local governments may enact
constitutional closing-hours restrictions for adult cabarets,
but we must prohibit enforcement of this particular
restriction because the municipal assembly failed to
appropriately justify its imposition.
FACTS AND PROCEEDINGS
SinRock, LLC operates an adult cabaret featuring fully nude
dancing. Because SinRock does not serve alcohol, the
Municipality of Anchorage licenses and regulates it under the
Anchorage Municipal Code (AMC) as an adult-oriented
business.Since 2007 SinRock has received
adult-oriented establishment licenses from the Municipality.
January 2016 the Municipal Clerk received a complaint that
SinRock was violating AMC 10.40.015(A), mandating that
adult-oriented establishments close between 2:00 a.m. and
6:00 a.m., by staying open until 4:00 a.m. SinRock's
owner acknowledged that the club regularly remains open past
2:00 a.m., and the Clerk determined that SinRock was
violating the closing-hours restriction. In March, after
SinRock's owner applied for a license renewal, the
Municipal Clerk issued a notice stating that SinRock's
license would be conditionally renewed "provided that
[it] abides by the provisions of the Municipal Code."
challenged the Municipal Clerk's decision, and the
Municipality held administrative hearings in March and
September. SinRock argued that, based on the ordinance's
legislative history, the closing-hours restriction does not
apply to adult cabarets and that applying the restriction
would create a conflict with another municipal code section
prohibiting adult-oriented establishments from intentionally
exposing genitals to business invitees. SinRock also argued
that the closing-hours restriction violates its free speech
rights under the United States and Alaska Constitutions. In
October a hearing officer determined that she had no
authority to decide SinRock's constitutional claims and
recommended the Municipality conclude that the closing-hours
restriction applies to adult cabarets, that Sinrock violated
the restriction, and that no conflict exists in the code
provisions (but also that any potential conflict did not need
to be decided). The Municipal Clerk adopted the
recommendations a few days later.
appealed to the superior court, and in March 2018 the
superior court affirmed the Municipal Clerk's decision.
The superior court concluded that the ordinance's plain
language and legislative history indicate the closing-hours
restriction applies to adult cabarets. The court also
concluded that any potential conflict with the ordinance
prohibiting genital exposure-a prohibition the Municipality
was not seeking to enforce - does not mean the closing-hours
restriction was impliedly repealed or otherwise
unenforceable; the court noted that any potential conflict is
not relevant to deciding this case. And the court concluded
that the closing-hours restriction does not violate
SinRock's free speech rights under either the United
States or Alaska Constitution.
appeals, arguing that the superior court erred by determining
that the closing-hours restriction applies to adult cabarets
or, alternatively, by holding that the restriction is
constitutional under the federal and Alaska constitutional
free speech provisions.
STANDARD OF REVIEW
the superior court has acted as an intermediate court of
appeal, we review the merits of the administrative
agency's decision without deference to the superior
court's decision." When "statutory
interpretation does not involve agency expertise, or the
agency's specialized knowledge and experience would not
be particularly probative," we substitute our own
judgment and review de novo."Questions of constitutional
interpretation are also reviewed de novo under the
substitution of judgment standard."
'Ordinary principles of statutory interpretation
apply' to municipal ordinances." We therefore
interpret municipal ordinances "according to reason,
practicality, and common sense, considering the meaning of
the [ordinance's] language, its legislative history, and
its purpose." "We 'use a sliding scale
approach... in which "the plainer the [ordinance's]
language is, the more convincing the evidence of contrary
legislative purpose or intent must be."'
The Closing-Hours Restriction Applies To Adult
Municipal Code 10.40.015 lists four "[prohibited acts by
holders of adult-oriented establishment license[s] or massage
practitioner license[s]"; license-holders may not:
A. Operate the business or engage in the licensed activity
between the hours of 2:00 a.m. and 6:00 a.m.
B. Lock patrons inside any part of the premises during
C. Solicit for another person, engage in or offer to engage
in an act of prostitution, cunnilingus, or fellatio with a
D. Intentionally expose their genitals to a business invitee
or intentionally touch the genitals of a business
10.40.050(A) lists adult-oriented establishments, including
adult cabarets, which then are defined as follows:
"Adult cabaret means a cabaret which features topless
dancers, strippers, male or female impersonators, or similar
entertainers. An adult cabaret does not include an
establishment licensed for sale of alcoholic beverages."
on this plain language, the closing-hours restriction applies
to adult cabarets. SinRock "acknowledges that the plain
language of [these sections] standing alone is clear."
But SinRock argues that the legislative history demonstrates
that the Anchorage Municipal Assembly did not intend for the
closing-hours restriction to apply to adult cabarets ...