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Club Sinrock, LLC v. Municipality of Anchorage

Supreme Court of Alaska

August 2, 2019

CLUB SINROCK, LLC, Appellant,
v.
MUNICIPALITY OF ANCHORAGE, OFFICE OF THE MUNICIPAL CLERK, Appellee.

          Appeal from the Superior Court of the State of Alaska No. 3AN-16-10280 CI, Third Judicial District, Anchorage, Eric A. Aarseth, Judge.

          Susan Orlansky and Brian Stibitz, Reeves Amodio LLC, Anchorage, for Appellant.

          Todd K. Sherwood, Assistant Municipal Attorney, and Rebecca A. Windt Pearson, Municipal Attorney, Anchorage, for Appellee.

          Before: Bolger, Chief Justice, Winfree, Stowers, Maassen, and Carney, Justices.

          OPINION

          WINFREE, JUSTICE.

         I. INTRODUCTION

         Like 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.

         We 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.

         II. FACTS AND PROCEEDINGS

         Club 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.[1]Since 2007 SinRock has received adult-oriented establishment licenses from the Municipality.

         In 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."

         SinRock 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.

         SinRock 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.

         SinRock 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.

         III. STANDARD OF REVIEW

         "When 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."[2] 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.[3]"Questions of constitutional interpretation are also reviewed de novo under the substitution of judgment standard."[4]

         " 'Ordinary principles of statutory interpretation apply' to municipal ordinances."[5] 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."[6] "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."' "[7]

         IV. DISCUSSION

         A. The Closing-Hours Restriction Applies To Adult Cabarets.

         Anchorage 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 business hours.
C. Solicit for another person, engage in or offer to engage in an act of prostitution, cunnilingus, or fellatio with a business invitee.
D. Intentionally expose their genitals to a business invitee or intentionally touch the genitals of a business invitee.[8]

         Section 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."

         Based 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 ...


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