Res 94-189
RESOLUTION NO.
94-189
A RESOLUTION OF THE CITY COUNCIL OF THE CITY
OF FEDERAL WAY, WASHINGTON, CONTAINING ITS
FINDINGS OF FACT, CONCLUSIONS OF LAW AND
DECISION IN CONNECTION WITH AN APPEAL HEARING,
WHICH DECISION ADOPTS WITH MODIFICATIONS, THE
DECISION OF THE FEDERAL WAY HEARING EXAMINER
DATED SEPTEMBER 30, 1994 TO REVOKE THE
BUSINESS REGISTRATION OF AVARICE, INC. DOING
BUSINESS AS X-OTIC TAN.
WHEREAS, on or about July 27, 1994, Ms. Luana C. Stone
submitted a Business Registration application to the City of
Federal Way Clerk's Office registering a tanning and lingerie
modeling showroom to do business in Federal Way; and
WHEREAS, Business Registration No.
4082 was issued to
Avarice, Inc., a Washington corporation ("Avarice"), in August of
1994; and
WHEREAS, on September 2, 1994, the City Clerk forwarded
a Notice of Revocation of Business Registration to Avarice stating
that the business activity described in Avarice's application was
not the activity being conducted at the business location, that
Avarice had failed to comply with federal, state or local laws or
regulations,
that Avarice had
failed to operate the business
activity in accordance with such orders, rules and regulations and
that Avarice had conducted a business activity in a manner which
endangers public health, welfare and safety; and
WHEREAS,
on September 8,
1994, Avarice forwarded its
Notice of Appeal to the City.
A hearing was held before the
Federal Way Hearing Examiner on September 29, 1994.
The Hearing
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94-189
, PAGE 1
c
pr
Examiner heard testimony and had an opportunity to review all
exhibits; and
WHEREAS,
on September 30,
1994,
the Hearing Examiner
issued his decision and held that Avarice had "failed to comply
with the business registration laws of Federal Way by failing to
obtain an adult entertainment registration; by registering in fact
as a modeling showroom;
and by registering under what is the
corporate ownership name as opposed to the name
it
is doing
business under"; and
WHEREAS, the Hearing Examiner's Decision resulted in the
revocation of Avarice's business registration unless such decision
was appealed by Avarice; and
WHEREAS, pursuant to section 9-16 of the Federal Way City
Code ("FWCC"), the Decision of the Hearing Examiner may be properly
appealed to the City Council within fourteen (14) days of the date
of such Decision; and
WHEREAS,
on October
14,
1994,
Avarice
appealed
the
Decision of the Hearing Examiner to the Federal Way city council.
FWCC 9-46 provides that the city Council shall hear such an appeal
within thirty (30) days of the filing of the Notice of Appeal; and
WHEREAS, after all public notice having been duly given,
this matter came before the City Council on November 1, 1994; and
WHEREAS, pursuant to FWCC 9-46, the City Council of the
City of Federal Way, Washington, is the governmental body having
jurisdiction and authority to pass upon the approval, denial or
modification of the Decision of the Hearing Examiner; and
RES #
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WHEREAS, FWCC 9-42 contains the decisional criteria for
revocation of a business registration; and
WHEREAS, the City Council having considered the written
record and the Decision of the Hearing Examiner and additional
testimony made during the appeal hearing on November 1, 1994; NOW,
THEREFORE,
THE CITY COUNCIL OF THE CITY OF FEDERAL WAY, WASHINGTON,
DOES HEREBY RESOLVE AS FOLLOWS:
section 1.
Record Before the Council.
The consideration
by the city Council was based solely on the record which includes
all
staff presentations,
Avarice's presentations,
the Hearing
Examiner's Decision, all Hearing Examiner exhibits, all testimony
from the September 29,
1994 hearing and all testimony from the
November 1,
1994 hearing relating to the record created at the
September 29,
1994 hearing.
No other evidence,
testimony,
or
public comment outside the record was accepted by the City Council,
To the extent that any improper submissions contained matters of an
evidentiary nature, they were disregarded by the Council.
The record consisted of the following:
L
Those portions of letter to City Council from Raj
Bains dated October 31, 1994 addressing the record
created at the Hearing Examiner's public hearing,
including paragraph 1, paragraph 2 (excluding the
last sentence), paragraphs 3, 4, 5, and 7, and
excluding paragraphs 6,8 and 9.
2.
city of Federal Way's Memorandum in Support of
Hearing Examiner's Decision.
3.
Decision of the Hearing Examiner dated September
30, 1994.
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, PAGE 3
4.
5.
6.
7.
8.
9.
10.
11.
12.
13.
Transcript of Public Hearing on September 29, 1994
Memorandum of Appellant (H.E. Ex. #1)
Business Registration
Inc. (H,E. Ex. #2)
Application
of
Avarice,
King County Police Reports (H.E. Ex. #3)
Two pages from publication "The stranger" dated
8/30 through 9/5/94 with name and advertisement for
X-otic Tan (H.E. Ex. #4)
Advertisement for X-Otic Tan from publication "The
Stranger" dated 9/13 through 9/19/94 (H.E. Ex. #5)
9/2/94 Letter of Revocation from Maureen M. Swaney,
City Clerk (H.E. Ex. #6)
9/8/94 Letter from Burns and Hammerly, appealing
revocation of Avarice, Inc. Business Registration
(H.E. Ex. #7)
City of Federal Way Ordinance No. 93-160 (H.E. Ex.
#8)
Notes from Fernando Fernandez and FWCC 22-798 (H.E.
Ex. #9); and
Law and
section 2.
citv Council Findinqs of Fact. Conclusions of
Decision.
Pursuant to
FWCC
City
9-46,
the
Council
considered the Business Registration Application filed by Avarice
and after full consideration of the entire matter on the record
before the Hearing Examiner and based upon the record of its appeal
hearing, the City Council hereby adopts by reference the Findings
of Fact, Conclusions of Law and Decision of the Federal Way Hearing
Examiner issued on September 30, 1994, following a public hearing
held on September 29, 1994, a copy of which is attached hereto as
Exhibit "A" and incorporated by this reference ("Decision"), which
Inc. ,
d/b/a
concludes that Business Registration No.
4082
issued to Avarice,
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X-otic Tan must be revoked,
with the
additional
, PAGE 4
findings set forth in Findings XVII,
XVIII, XIX, XX, XXI and XXII,
and with the modification of Conclusions II,
III,
IV and the
Decision as follows:
FINDINGS OF FACT
XVII.
FWCC 9-42 provides for revocation of a
business registration for any of the following
reasons:
(1)
(2)
(3)
(4)
(5)
A material false statement contained
in the application;
Failure to comply with federal,
state or local laws or regulations;
Failure to comply with any condition
imposed by the city on the issuance
of the registration;
Failure to operate the business or
activity in accordance to such
orders, rules, regulations as may be
applicable;
Conduct of the business or activity
in a manner which endangers the
public health, welfare and safety as
determined by the city clerk and/or
police chief and/or building
official and/or fire chief who may
be responsible for enforcement of
the applicable law, regulation,
condition, order, rules or
ordinance.
XVIII.
FWCC 9-71 defines adult entertainment as
follows:
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Adult entertainment shall mean
any exhibition or dance of any type
conducted in premises where such
exhibition or dance involves the
exposure to view of any portion of
the breast below the top of the
areola or any portion of the public
REst
hair, anus,
genitals.
buttocks,
vulva
or
Adult entertainment
establishment shall mean the
premises where an amusement,
diversion, entertainment, show,
performance, exhibition, display or
like activity is held for the use or
benefit of a member of the public,
or advertised for the use or benefit
of a member of the public, held,
conducted, operated or maintained
for a profit, direct or indirect,
where such exhibition or dance
involves the exposure to view of any
portion of the breast below the top
of the areola or any portion of the
pubic hair, anus, buttocks, vulva or
genitals.
XIX.
The FWCC prohibits adult entertainment
establishments from operating in the city
unless the owner has obtained a license and
prohibits any person from working as an adult
entertainer, or manager, without first
obtaining an entertainer's license after
making an application which contains the
entertainer's complete fingerprint information
(FWCC 9-106 and 9-107).
XX.
FWCC 9-128 contains standards of conduct
and operation for an adult entertainment
establishment. FWCC 9-128(3) provides that no
employee or entertainer shall perform acts
which simulate masturbation, or the touching,
caressing or fondling of the breasts, buttocks
or genitals. The uncontested testimony at the
hearing on September 29,1994 clearly provides
that the employees were in violation of FWCC
9-128 (3) (a) and (b).
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RES #
XXI.
FWCC 9-128(c) prohibits an employee from
displaying pubic hair, vulva or genitals, anus
and/or buttocks except upon a stage at least
eighteen (18) inches above the immediate floor
area and removed at least six (6) feet from
the nearest patron. The "couch dances" that
were described by the police officer's
uncontested testimony at the September 29,
1994 hearing are in violation of this section.
XXII.
FWCC 9-30 requires that a business
registration contain a description of the
nature of the business activity to be
conducted. FWCC 9-42 provides for revocation
of a business registration if an application
contains a material false statement.
CONCLUSIONS OF LAW
II.
The appellant has failed to comply with
FWCC 9-42(2). the business registration laws
of Federal Way, by failing to obtain an adult
'entertainment rc~i6tratioß license. The
appellant has violated FWCC 9-42(4). bv
failina to operate a business in compliance
with the adult entertainment code. includina
without limitation. FWCC 9-106 and 9-107
reauirina licensina of manaaers and
entertainers and FWCC 9-128 reauirina
standards of conduct and operation of an
adult entertainment establishment. The
appellant violated FWCC 9-30 and 9-42(1) which
requires that an applicant accuratelv describe
the nature of the business activity and which
allows revocation of a business license for a
material false statement contained in the
application by registering in fact as a
linaerie modeling showroom; and by registering
under what is the corporate ownership name as
opposed to the name it is doing business
under.
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III.
The activity conducted at ~ X-otic
Tan in Federal Way is the activity governed by
and regulated by the adult entertainment
ordinances and the conduct of this business
endangers the public health, welfare, and
safety as clearly outlined in the adult
entertainment section of the Federal Way
Ordinances, includina FWCC 9-72. Revocation
of a business reaistration is allowed pursuant
to FWCC 9-42(5) when a business is conducted
in a manner which endanaers the Dublic health.
welfare and safetv.
IV.
The acts of the employees in simulating
masturbation are in violation of Fcderal Hay
OràiRaRoca FWCC 9-128(3) (a) and (b).
DECISION
The business registration no. 4082 of
Exe~io TaRa X-otic Tan, i.e., Avarice, Inc.
shetH:è shall be revoked pursuant to FWCC 9-
42(11. (21. (4) and (51.
Section 3.
Severabilitv.
If any section,
sentence,
clause or phrase of this resolution should be held to be invalid or
unconstitutional
by
a
court
of
competent
jurisdiction,
such
invalidity or unconstitutionality shall not affect the validity or
constitutionality of any other section, sentence, clause or phrase
of this resolution.
section 4.
Ratification.
Any act consistent with the
authority and prior to the effective date of the resolution is
hereby ratified and affirmed.
Section 5.
Effective Date.
This resolution shall be
effective immediately upon passage by the Federal Way city Council.
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REst
RESOLVED BY THE CITY COUNCIL OF THE CITY OF FEDERAL WAY,
WASHINGTON, this 15th day of
November
, 1994.
CITY OF FEDERAL WAY
MA~~ E ~AT#a ~ /
APPROVED AS TO FORM:
~~ONDI K."'L~
FILED WITH THE CITY CLERK:
PASSED BY THE CITY COUNCIL:
RESOLUTION NO. 94-189
November 8,1994
November 15,1994
K:\RESO\AVARICE.REV
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EXHIBIT A
BEFORE THE HEARING EXAMINER
FOR THE CITY OF FEDERAL WAY
In.re the matter of:
NOTICE OF REVOCATION
OF BUSINESS REGISTRATION
FWHE # 94-12
BUSINESS REGISTRATION NO. 4082
MS. BARBARA BURKE
------------------------------------
THIS matter having come before the undersigned Hearing Examiner for
hearing, and the appellant appearing by and through her attorneys
of record JACK~. BURNS and RAJ BAINS and the City appearing by and
through t.heir attorney of record MICHAEL SMITH and the Hearing
Examiner having heard the testimony of:
1.
2.
3.
4.
5.
6.
1.
MAUREEN SWANEY, City Clerk;
2.
JOSEPH FITZGERALD, undercover police officer;
3.
DETECTIVE GILLIS, an undercover police officer;
4.
DETECTIVE COLBY, an undercover police officer;
5.
BARBARA BURKE, agent for the applicant; and
6.
KARISA DEHRENG, and considered the
Exhibits Presented:
Memorandum of Appellant
Business Registration
King County Police Report
2 page advertisement stating Exotic Tans dated August 30
- September 5, 1994
Advertisement for Exotic Tans dated September 13 - 19,
1994
Letter of revocation from Ms. Swaney, City Clerk, dated
1
cop,,)
September 2, 1994
7.
Letter from Burns & Hammerly dated September 8, 1994
8.
Copy of Ordinance no. 93-160
9.
Copy of business card from Fernando,
adult entertainment zoning chart, and
city worker,
and
The Hearing Examiner having heard arguments and being duly advised
in the premises does now therefore enter the following Findings of
Fa:'cts:
I.
On or about July 27, 1994, a Luwanus Stone submitted a
Business Registration application to the City of Federal
Way clerk office registering a tanning and lingerie
modeling showroom to do business in Federal Way.
II.
Business registration no. 4082 was issued to Avarice,
Inc., in August of 1994 and on September 2, 1994,
Avarice, Inc., was forwarded a notice of revocation of
business registration no. 4082 by the City Clerk, Maureen
M. Swaney (see Exhibit no. "6"). On September 8, 1994,
Avarice, Inc., forwarded its notice of appeal to Maureen
M. Swaney. Said notice of appeal was recei ved on
September 12, 1994, by the city clerk's office.
III.
Testimony of Barbara Burke, manager of the tanning and.
lingerie modeling showroom, indicated that she filled out
at least part of the business registration application.
IV.
The tanning and lingerie modeling showroom operates under
thè name Exotic Tans and is advertised as Exotic Tans as
indicated in Exhibits "4" and "5". Exotic Tans is owned
by Avarice, Inc., The business name of Exotic Tans was
not listed on the business registration application.
v.
The testimony of Barbara Burke and others indicate that
no lingerie is sold at Exotic Tans in Federal Way.
Further, each of the individuals who work at Exotic Tans
furnish their own costumes or outfits for work.
.2
VI.
A showroom is defined in the, Webster's Dictionary as "a
room where merchandise is exposed for sale or where
samples are displayed." Testimony clearly indicated that
Exotic Tans is not a showroom.
VII.
Webster's dictionary defines a model as "one who is
. employed to display clothes or other merchandise." The
testimony of Barbara Burke clearly indicates that the
individuals were not employed to display clothes or other
merchandise. In the traditional sense of modeling the
employees at Exotic Tans are not models. Further there
was no evidence that any of the employees of Exotic Tans
has a modeling background, was referred by a modeling
agency, or had any type of professional modeling
training.
VIII.
During argument the employees of Exotic
referred to as dancers and entertainers.
Tans
were
IX.
Advertisements appearing in The Stranger indicate that
Exotic Tan provides "Gentlemens entertainment and has an
all female staff featuring lingerie modeling."
X.
Three different undercover agents for the King County
Police Department went to Exotic Tans. On each occasion
they were met by a female employee who indicated that for
$60 that each of the officers woUld get a 30 minute
lingerie session where a model would join them in a room
and dance for them in. her bra and panties, that they
could not touch the model, and they could do anything to
themselves they wanted. The officers could take all their
clothes off, and there would be lotion and towels in the
room for the officers to use. After the session wasover~
they were offered the use of a tanning bed for a half
hour which each of the officers declined. On each
occasion the employee appeared in forms of bathrobes
which were taken off displaying that the employee was
wearing basically a bra and underpants. On each occasion,
the female employee displayed pubic hairs, portions of
their vaginas, and on two occasions one of the employees
pulled her pants up and pressed it into her ,vagina
exposing the edges of h'er vulva. The employee on at
3
least one occasion more likely two occasions, simulated
masturbation with herself and on one occasion one of the
employees blew air on the penis of one of the officers.
On the same occasion the employee poured lotion onto the
penis of an officer. On at least one occasion an
employee exposed her anus. The police report and
testimony of the officers provide graphic details of what
actually occurred. These findings are but a brief summary
and demonstrate the type of activity which is going on in
these facilities.
XI.
While the officers were testifying, Ms. Dehreng on of the
employees who had provided services including blowing on an
officers penis, was sitting in the full observation of the
Hearing Examiner who observed her nodding her head in
agreement with the officer as he testified as to her actions.
XII.
Each of the officers described what they classified as
couch dancing. The officer would be nude or partially
nude sitting on a couch. The employee would be scantily
clad wearing a bra and underpants and would perform a
dance by resting on her knees on the couch with her body
sometimes as close as four inches to the officers face.
The same employee would also lie on floor, spread her
legs, and simulate self stimulation and masturbation.
XIII.
The testimony of Barbara Burke, the manager, who was less
than credible, indicates that her rules are that the
employees are not allowed to touch, they do not sell
clothing, that they do not want to be classified as an
adult entertainment facility, that they spent a full day
of training employees to avoid breaking the adult
entertainment law, and that if she caught someone
breaking the law she would f ire them. However, there was
no indication that she had fired either Ms. Dehreng or
Sabrina, the girls who had provided services to the
officers in question.
XIV.
Testimony of Barbara Burke and argument indicate that
this facility is strictly structured to avoid the adult
entertainment section but to stay right on the edge of
the law with reference to adult entertainment.
4
xv.
The testimony of the officers is uncontradicted. That
testimony clearly indicates that these young ladies are
not models, that this facility is as Officer Gillis
testified "a house of masturbation" where the employees
intentionally expose pubic hair, anus, parts .of the
vulva, and where the employees clearly simulate
masturbation in small rooms where only the employee and
a male who probably is nude are confined and where the
employee is scantily clad and masturbation by the client
is at least permitted if not encouraged.
XVI.
The appellant voluntarily closed down the business
pending the outcome of hearings to avoid further arrest
of her employees.
From the foregoing Findings of Fact the Hearing Examiner makes the
following Conclusions of Law:
I.
The Hearing
matter.
Examiner
has
jurisdiction
to
hear
this
II .
The appellant has failed to comply with the business
registration laws of Federal Way by failing to obtain an
adult entertainment registration; by registering in fact
as a modeling showroom; and by registering under what is
the corporate ownership name as opposed to the name it is
doing business under.
III.
The activity conducted at Exotic Tan in Federal Way is the activity
governed by and regulated by the adult entertainment ordinances and
the conduct of this business endangers the public health, welfare,
and safety as clearly outlined in the adult entertainment section
of .~he Federal Way Ordinances.
IV.
The acts of the employees in simulating masturbation are
in violation of Federal Way ordinances.
V.
The
acts
of
the
emploýees
were
intentional
and not
5
accidental.
DECISION
ie Avarice,
DATED
6