Loading...
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 REst 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 # 9$1'~ /?'j , PAGE 2 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. REst 9Ý'/J! ;; , 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, REst ;;~ -/ <I- ;1 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: REst 9V-/ "I .? , PAGE 5 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). ~</-/~~ . PAGE 6 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. '7Ý-//' f1 , PAGE 7 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. ~ý~/"c ~ , PAGE 8 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 RES # 9V-/r;PfJ , PAGE 9 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