After hearing oral arguments Tuesday that included discussions about breasts and anal clefts, U.S. District Court Judge Marsha Pechman will issue a written ruling sometime next week on whether to grant a preliminary injunction blocking city ordinances aimed at covering up bikini baristas working at Everett coffee stands.
The plaintiffs, including seven baristas and an owner of a chain of bikini coffee stands, have filed a lawsuit against the city of Everett over two ordinances unanimously passed in August — one tightening city regulations proscribing lewd behavior, and the other banning bikinis and requiring additional clothing to cover breasts, shoulders, midriffs and buttocks.
The city agreed to a moratorium on enforcing the ordinances pending Pechman’s ruling. To grant the plaintiffs’ motion for a preliminary injunction, Pechman would be acknowledging they would likely succeed on the merits of their claim, according to Tuesday’s arguments and briefs filed in the case. Should the baristas prevail, an injunction would be in effect pending the outcome of the lawsuit.
Attorneys representing the baristas argued that serving coffee in a bikini is protected by the First Amendment and that the city’s dress-code ordinance is not only vague but also violates equal protection because it applies only to women.
For instance, they claim the clothing ordinance, which prohibits workers from exposing “more than one-half of the part of the female breast located below the top of the areola” and the “bottom one-half of the anal cleft,” was difficult to understand.
The city’s attorneys countered that the messages the baristas purport to express — female empowerment, individuality and fierce body confidence — aren’t understood as such by customers and the First Amendment doesn’t apply. Further, the city is attempting to mitigate secondary impacts it says is associated with the bikini barista stands, such as lewd conduct, prostitution and sexual exploitation of minors.
The city also argued that the ordinances would apply to both genders and there is legal precedent for treating female breasts differently from male breasts.
“This case is about how far the city of Everett can go in what women can wear at work and in public,” said Derek Newman, one of the attorneys representing the baristas.
“Body confidence is a big part of the message here, and you can’t do that with words,” Newman said. He later added, “The city should regulate the crime, not the clothing.”
Newman told Pechman that Everett has been unable to show a connection between bikini-barista stands and crime, noting the city has filed thousands of pages of records, but most focus on “two bad actors” who were successfully prosecuted without need of the new ordinances. He said there have been only a dozen police incidents involving bikini baristas and were determined to be unfounded.
“There is more crime at McDonald’s and Starbucks locations than at any of the bikini barista stands,” Newman said.
When Pechman suggested using video-surveillance cameras to capture vehicle license-plate numbers to dissuade men from exposing themselves or masturbating and requiring windows that a customer wouldn’t be able to reach into so sex acts couldn’t be traded for tips, Newman replied, “Your honor, that sounds very reasonable.”
Sarah Johnson, one of the city’s attorneys, said Everett has been dealing with criminal conduct associated with bikini-barista stands for a decade. She said the city’s ordinances are meant to address the problems with legislation instead of relying on police to launch time-consuming criminal investigations.
Even monitoring video-surveillance footage would be an onerous task, she said.
“Is the city of Everett regulating modesty or is it trying to attack a business model?” Pechman asked. “ … It used to be women didn’t expose their ankles, women didn’t wear pants, women didn’t wear spaghetti straps to church. Is the city of Everett trying to change the mores?”
No, Johnson said. The ordinance requiring bikini baristas to cover up would make it more difficult for them to engage in sexual conduct with customers while making it easier for police to enforce the law, she said. It would be an obvious violation if, say, an officer drove by a coffee stand and saw somebody without a shirt, Johnson said.
Claiming the city has “a robust case” to support its ordinances, Johnson told Pechman most of the studies on secondary impacts reviewed by the city had to do with regulating the adult-entertainment industry.
“You’re telling me buying lattes and going into strip clubs is comparable?” Pechman asked.
“The attire is the same, the secondary effects are the same,” said Johnson, citing public masturbation, harassment and a variety of sexual conduct as the kind of behavior the city is trying to dissuade. “Changing the clothing will eliminate much of that conduct.”
