Judge: Everett’s Bikini Baristas Don’t Have to Cover Up — at Least for Now

A federal judge has issued an injunction that prevents the City of Everett from enforcing two laws aimed at curbing so-called “bikini barista” coffee stands, saying the ordinances are likely unconstitutional.

U.S. District Judge Marsha Pechman, in a 13-page order issued Monday afternoon, said an ordinance that attempted to impose a dress code was likely vague and violated 14th Amendment equal-protection guarantees because it particularly targeted women. More significantly, perhaps, is that the Pechman found the ordinances likely violate First Amendment protections of freedom of expression.

“Without a preliminary injunction, Plaintiffs will be deprived of their constitutional rights,” Pechman wrote.

“On the other hand, the City will face no serious injustice if the injunction issues,” she said, pointing out that the city has been dealing with the issue for nearly a decade. “The court sees no reason why it cannot continue to do so pending resolution of this action on the merits.”

The injunction means the coffee stands can continue to operate while a lawsuit filed by the baristas and their bosses against the city continues.

The ordinances were passed by the council but only briefly enforced before the lawsuit was filed. The city agreed to issue a moratorium on their enforcement while Pechman

“The court’s order confirms that our clients, like all women, have a constitutional right to express themselves,” said attorney Derek Newman, one of the lawyers representing the baristas. “The City’s over-broad, over-controlling ordinances violated those rights.”

“Our clients would welcome the opportunity to work with the City to address any legitimate concerns about crime by targeting criminals rather than criminalizing what women wear at work and in public,” he said.

The judge’s order throws into doubt the constitutionality of a dress code that the city intended to enforce not just at barista stands, but on the streets. Pechman said the ordinance is likely unconstitutionally vague — it uses undefined terms like “anal-cleft” — and risks arbitrary enforcement. The injunction means that, for now, as the lawsuit proceeds, it won’t be enforced.

“This is not only a win for our clients, but an important case defending women’s rights of expression,” said Newman’s partner, Jessica Newman. “We are pleased that the court affirmed these rights, especially during these currently troubling times for women in the workplace.”

The city, in an email, said it would review the judge’s decision before deciding how to proceed.

The plaintiffs, including seven baristas and an owner of Hillbilly Hotties, a chain of bikini coffee stands, filed the lawsuit over the two ordinances that were 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 Monday’s ruling by Pechman.

Attorneys representing the baristas argued in court last month 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.

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 said it 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.

By Mike Carter, The Seattle Times

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