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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Club Sinrock, LLC v Municipality of Anchorage (8/2/2019) sp-7392

Club Sinrock, LLC v Municipality of Anchorage (8/2/2019) sp-7392

         Notice:  This opinion is subject to correction before publication in the PACIFIC  REPORTER.  

          Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts,  

          303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email  

          corrections@akcourts.us.  



                    THE  SUPREME  COURT  OF  THE  STATE  OF  ALASKA  



CLUB  SINROCK,  LLC,                                           )  

                                                               )   Supreme  Court  No.  S-17068  

                             Appellant,                        )  

                                                                                                                        

                                                               )   Superior Court No. 3AN-16-10280 CI  

          v.                                                   )  

                                                                                      

                                                               )   O P I N I O N  

                                  

MUNICIPALITY OF ANCHORAGE,                                     )
  

                                                                                                    

                                                 

OFFICE OF THE MUNICIPAL CLERK,  )                                  No. 7392 - August 2, 2019
  

                                                               )  

                             Appellee.                         )  

                                                               )  



                                                                                                   

                   Appeal from the Superior Court of the State of Alaska, Third  

                                                                                       

                   Judicial District, Anchorage, Eric A. Aarseth, Judge.  



                                                                                                

                   Appearances:           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.  



                                      

                   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  


----------------------- Page 2-----------------------

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,LLCoperates an adult cabaret featuring fully nude dancing.                                                                                                                                                                                                                                                              



Because SinRock does not serve alcohol, the Municipality of Anchorage licenses and                                                                                                                                                                                                                                                                                          



                                                                                                                                                                                                                                                                                                                                                                                          1  

regulates it under the Anchorage Municipal Code (AMC) as an adult-oriented business.                                                                                                                                                                                                                                                                                                             



                                                                                                                                                                                                                                                                                                                                                                            

 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  



                              1                            See  AMC 10.40.050 (listing "[a]dult-oriented establishment" businesses,   



including adult cabarets, and defining "[a]dult cabaret" as "a cabaret which features                                                                                                                                                                                                                                    

topless dancers, strippers, male or female impersonators, or similar entertainers" and                                                                                                                                                                                                                                                                                      

which is not "licensed for sale of alcoholic beverages,"); AMC 10.40.015 (regulating                                                                                                                                                                                                                                                       

adult-oriented establishments, including adult cabarets).                                                                                                                                                   



                                                                                                                                                                                         -2-                                                                                                                                                                            7392
  


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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  



                                                                                                               

constitutionalclaims and recommended theMunicipality concludethattheclosing-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  



                                                                                                                        

ordinanceprohibiting genital exposure -aprohibition theMunicipalitywasnot 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.  



                                                               -3-                                                         7392
  


----------------------- Page 4-----------------------

                          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  



                                                     2  

superior court's decision."                                                                                                                                

                                                          When "statutory interpretation does not involve agency  



                                                                                                                                                                   

expertise,  or  the  agency's  specialized  knowledge  and  experience  would  not  be  



                                                                                                                                                                       3  

                                                                                                                                                                          

particularly  probative,"  we  substitute  our  own  judgment  and  review  de  novo. 



                                                                                                                                                                 

"Questions  of  constitutional  interpretation  are  also  reviewed  de  novo  under  the  



                                                                     4  

                                                  

substitution of judgment standard." 



                                                                                                                                              

                          "  'Ordinary  principles  of  statutory  interpretation  apply'  to  municipal  

                         5     We  therefore  interpret  municipal  ordinances  "according  to  reason,  

ordinances."                                                                                                                                              



practicality, and common sense, considering the meaning of the [ordinance's] language,  

                                                                                                                                                      



             2            Studley  v.  Alaska Pub.   Offices   Comm'n,  389  P.3d   18,  22  (Alaska  2017)  



(quoting  Tolbert  v.  Alascom,  Inc.,  973  P.2d  603,  606-07  (Alaska   1999),  superseded  by  

statute  on  other  grounds  as  stated  in  Huit  v.  Ashwater  Burns,  Inc.,  372  P.3d  904  (Alaska  

2016)).  



             3            Id.  (quoting Lakloey, Inc. v.  Univ. of Alaska , 141 P.3d 317, 320 (Alaska  

                                                                                                                                                          

2006)).  



             4            Id. at 22-23.  

                                      



             5            Rosauer v. Manos, 440 P.3d 145, 147 (Alaska 2019) (quoting S. Anchorage  

                                                                                                                                                    

Concerned Coal., Inc. v. Municipality of Anchorage Bd. of Adjustment, 172 P.3d 768,  

                                     

771 (Alaska 2007)).  

                          



                                                                                 -4-                                                                           7392
  


----------------------- Page 5-----------------------

                                                                               6  

its legislative history, and its purpose."                                         "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  "[p]rohibited  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  

                                                                                                                                        [8]  

                                                                                                                         

                            intentionally touch the genitals of a business invitee. 



Section10.40.050(A) lists adult-orientedestablishments, including adultcabarets, 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."  

                                                                                                                                                    



              6            Attorneys Liab. Prot. Soc'y, Inc., v. Ingaldson Fitzgerald, P.C.                                                                  , 370 P.3d   



 1101, 1105 (Alaska2016) (quoting                                       Municipalityof Anchoragev.Stenseth                                          , 361 P.3d898,        

905 (Alaska 2015)).        



              7            Id. (quoting Stenseth, 361 P.3d at 905).  

                                                                                                  



              8            AMC 10.40.015.  

                                         



                                                                                      -5-                                                                               7392
  


----------------------- Page 6-----------------------

                                 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 because it was enacted originally to address problems attributable to                                                                                                                         



massage parlors.                               



                                 Anchorage Municipal Code 10.40.015 was enacted in 1977 and amended                                                                                            

                    9    The original ordinance contained the same restrictions as the current version,  

in 1978.                                                                                                                                                                                         

but  applied  only  to  physical  culture  studios  and  massage  parlors.10                                                                                                       The  enacting  

                                                                                                                                                                                               



Assembly wasconcerned primarily about prostitution, noise, and traffic congestion from  

                                                                                                                                                                                                         

these businesses.11  There was evidence that "massage parlors were generally found in  

                                                                                                                                                                                                                



more residential areas and presented distinct problems through flashing neon signs,  

                                                                                                                                                                                                      



increased noise and traffic" and that "substantial prostitution activities occurred during  

                                                                                                                                                                                                     

the period of 2 a.m. to 6 a.m."12  

                                                           



                                 The Assembly revisited the ordinance in 1994, creating a broad licensing  

                                                                                                                                                                                               



and  regulatory  scheme  for  adult-oriented  establishments  and,  relevant  to  this  case,  

                                                                                                                                                                                                        



enacting   AMC   10.40.050   and   amending   AMC   10.40.015.                                                                                                           This   version   of  

                                                                                                                                                                                                             



AMC10.40.050defined"adult-orientedestablishment"to includeadult bookstores, adult  

                                                                                                                                                                                                         



motion  picture  theaters,  adult  mini-motion  picture  establishments,  physical  culture  

                                                                                                                                                                                                  



                9                Hilbers  v.  Municipality  of  Anchorage ,  611  P.2d  31,  34  n.1  (Alaska  1980).  



                 10              Id.  at  34.   



                 11              Id.   at   37;   see   also   id.   at   40   ("The   two   purposes   of   AMC   10.40.015 as  



already   noted   are   the   reduction   of   adverse   environmental   effects   and   control   of  

prostitution.").  



                 12              Id. at 40-41.  

                                                                 



                                                                                                       -6-                                                                                              7392
  


----------------------- Page 7-----------------------

studios, massage parlors, and escort services.                                                                                                    But the ordinance expressly exempted                                                        



adult   cabarets   from   the   "adult-oriented   establishment"   definition.     Although   the  



ordinance did                              not explain why adult cabarets were exempted, an assembly member noted                                                                                                                                            



that the exclusion "mean[t] that businesses conducting topless dancing or similar shows                                                                                                                                                                   



 [could] not be regulated by th[e] ordinance unless the enterprise also falls into one of the                                                                                                                                                                       



other classifications."                                               



                                          The ordinance amending AMC 10.40.050 included a "whereas" clause,                                                                                                                                            



providing:  



                                          [A]dult businesses have been determined, by court accepted                                                                                                     

                                          independent    studies,    to    produce    secondary    impacts    on  

                                          surrounding   land   uses.     The impacts include a decline in                                                                                                                    

                                         property values, and increase in the level of criminal activity                                                                                                     

                                          including prostitution, rape, and assaults in the vicinity of                                                                                                                      

                                          these   types  of   enterprises,   and   the   degradation   of   the  

                                          community   standard   of   morality   by   including   a   loss   of  

                                          sensitivity    to    the    adverse    effect    of    pornography    upon  

                                          children, upon established family relations, and upon respect                                                                                                       

                                          for marital relationships.                                                   [13]  



This amendment brought most adult entertainment businesses - but not adult cabarets  

                                                                                                                                                                                                                                                    



- within AMC 10.40.015's scope.  

                                                                                                                 



                                          In  2003  an  assembly  member  proposed  amending  AMC 10.40.050  to  

                                                                                                                                                                                                                                                                      



include adult cabarets in the list of businesses required to be licensed, "in furtherance of  

                                                                                                                                                                                                                                                                       



the protection of the public's health, safety, and welfare."  The proposal reiterated that  

                                                                                                                                                                                                                                                                  



"secondary impacts" associated with adult-oriented establishments "affect[] the quality  

                                                                                                                                                                                                                                                        



of life in neighborhoods" by "increas[ing] crime rates, declining property values," and  

                                                                                                                                                                                                                                                                  



by causing "disinvestment and decline in economic and pedestrian activity."  

                                                                                                                                                                                                                                                 



                     13                   AO  No.  93-157(S-6)  (Feb.   15,   1994).  



                                                                                                                                   -7-                                                                                                                        7392  


----------------------- Page 8-----------------------

                                                                                                                   

                    The Assembly  held a public hearing on the proposal.   A   community  



                                                                                                                       

member testified that research showed a direct correlation between sexually oriented  



                                                                                                                      

businesses and sexual assaults, prostitution, lower property values, and lower morality;  



                                                                                                                            

that community member expressed concern over the absence of closing times at these  



                                                                                                                             

businesses. Another community member testified that girls were being exploited at adult  



                                                                                                                                     

cabarets where there were unhealthy working conditions and underage employment.  



                                                                                                                        

Others, mostly associated with a local adult cabaret, contested these reports; the minutes  



                                                                                                                             

reflect  their  testimonies  that  young  female  employees  were  able  to  grow  into  



                                                                                                                     

"competent" women "able to support themselves and their families without assistance  



                                                                                                               

from government or welfare."  Professional dancers also testified to their independence  



                                                              

as a result of working at adult cabarets.  



                                                                                                                  

                    Some testimony evidenced a misunderstanding about AMC 10.40.050's  



                                                                                                                               

previous exemptionofadult cabarets fromthedefinition ofadult-oriented businesses and  



                                                                                                                               

the potential impact of including them.  One person testified that she had been on the  



                                                                                                                      

Assembly when the original ordinance was passed and did not know how it had excluded  



                                                                    

adult cabarets.  She believed adult cabarets should conform to the same regulations as  



                                                                                                                        

other adult-oriented establishments. The minutes indicate that the amendment's sponsor  



                                                                                                                           

summarized the ordinance as "simply correcting an error in the original law, since  



                                                                                                                      

cabaretshad been overlooked when licensingfor adult-orientedbusinesseshadoriginally  



                                                                                                                         

been  addressed."             And  despite  AMC  10.40.015(D)  prohibiting  intentional  genital  



                                                                                                                    

exposure  at  adult-oriented  businesses,  the  minutes  reflect  one  assembly  member's  



                                                                                                                              

statement that the proposed "ordinance did not prohibit nudity or sexual activity."  The  



                                                                                                                          

minutes show another assembly member advocating postponing the vote because "many  



                                                                                                                                

questions  had  been  raised  about  how  this  ordinance  fit  into  the  larger  scheme  of  



                                                                                                                             

Municipal regulations"; he also "voiced his concern over possible unfair labor acts  



                                                               -8-                                                         7392
  


----------------------- Page 9-----------------------

                                                                                                                         

within these clubs."  The Assembly passed the ordinance, and the amended law became  



                                          

effective in January 2004.  



                                                                                                                                

                     SinRock argues that "the 2003 ordinance that added adult cabarets to the  



                                                                                                                       

municipal  licensing  scheme  explicitly  addressed  only  AMC  10.40.050."                                            SinRock  



                                                                                                                             

contends that the Assembly, therefore, did not realize that defining and licensing adult  



                                                                                                                         

cabaretsas adult-oriented businesses under AMC10.40.050 would subjectadult cabarets  



                                                                                                                    

to AMC 10.40.015's prohibitions.   SinRock relies on assembly member comments  



                                                                                                                            

indicating  unawareness  that  adding  adult  cabarets  would  subject  them  to  these  



                                                                                                                            

prohibitions, including thetestimony that the"ordinancedid not prohibit nudity orsexual  



                                                                                                                     

activity" and that there remained many questions about how the amended ordinance  



                                                                       

would fit into the larger regulatory structure.  



                                                                                                                              

                    Although this legislativehistoryindicatesthat the2003Assemblymayhave  



                                                                                                                               

misunderstood the original intentional exclusion of adult cabarets from licensing and  



                                                                                                                             

been unaware of all the ordinance's consequences, SinRock's argument that the 2003  



                                                                                                                                  

Assembly did not intend to subject adult cabarets to the closing-hours restriction is  



                                                                                                                                

unpersuasive.   Whether the Assembly considered the ramifications of applying the  



                                                                                                                  

ordinance  to  adult  cabarets  is  irrelevant;  the  minutes  reflect  the  2003  ordinance's  



                                                                                                                         

sponsor's indication that the ordinance "was simply correcting an error in the original  



                                                                                                                             

law."  The 2003 Assembly thus clearly intended to subject adult cabarets to the same  



                                                      

regulations as other adult-oriented businesses.  



                                                                                                                  

                     SinRock   additionally   argues   that   AMC   10.40.015(D),   prohibiting  



                                                                                                                             

intentional  genital  exposure,  is  unconstitutional  as  applied  to  adult  cabarets  and,  



                                                                                                                             

therefore, that the Assembly could not have intended for subsection (A) to apply to adult  



                                                                                                                                

cabarets. Even assuming subsection (D)'s unconstitutionality, there is no indication the  



                                                                                                                               

Assembly intended that AMC 10.40.015(A)'s closing-hours restriction not apply.  We  



                                                                                                                      

therefore   decline   to   consider   in   this   case   whether   subsection   (D)'s   potential  



                                                                -9-                                                         7392
  


----------------------- Page 10-----------------------

unconstitutionality, as a proxy for legislative intent, renders subsection (A) inapplicable                                                                                                                                                                                                                                                                                                                                     



 to adult cabarets.                                                                               



                                                                            In conclusion, we hold that AMC 10.40.015(A)'s and AMC 10.40.050's                                                                                                                                                                                                                       



plain   language   makes   the   closing-hours   restriction   applicable   to   adult   cabarets;   no  



 legislative history evidences a contrary intentcompelling                                                                                                                                                                                                                                                                a different result. We                                                                                                  therefore  



 affirm the superior court's decision upholding the Municipal Clerk's conclusion that -                                                                                                                                                                                                                                                                                                                                                                                                



 as a matter of statutory interpretation - adult cabarets are prohibited from operating                                                                                                                                                                                                                                                                                                                                                       



between 2:00 a.m. and 6:00 a.m. under the adult-oriented establishment regulations.                                                                                                                                                                                                                                                                                                                                                                                                       



                                      B.	                                  Applying    This    Particular    Closing-Hours    Restriction    To    Adult  

                                                                            Cabarets   Is   An   Impermissible   Government  Suppression   Of   Free  

                                                                            Speech Under The Alaska Constitution.                                                                                                                                                                                                          



                                                                            SinRock   challenges   as   unconstitutional,   under   the   federal   and   Alaska  



 constitutional free speech provisions, the closing-hours restriction as applied to adult                                                                                                                                                                                                                                                                                                                                                                              



 cabarets.    SinRock argues we should conclude that the closing-hours ordinance is a                                                                                                                                                                                                                                                                                                                                                                                         



 content-based restriction burdening the right to free speech, subject the ordinance to                                                                                                                                                                                                                                                                                                                                                                                                 



 strict scrutiny, and hold that it cannot stand. SinRock accurately notes that, on questions                                                                                                                                                                                                                                                                                                                                                    



 arising under Alaska's Constitution, we are not bound by decisions of the United States                                                                                                                                                                                                                                                                                                                                                                           



 Supreme Court on similar federal provisions but may determine that Alaska provides                                                                                                                                                                                                                                                                                                                                                                



                                                                                                                                                                                                                                14  

 greater protection for individual rights.                                                                                                                                                                                                                                                                                                                                                                                                                   

                                                                                                                                                                                                                                                 Because we hold that Alaska's free speech  



                                      14                                    See Baker v. City of Fairbanks                                                                                                                                                       , 471 P.2d 386, 402 n.26 (Alaska 1970)                                                                                                                                                           



 ("We again iterate our position . . . that '(w)e are not bound in expounding the Alaska   

 Constitution's Declaration of Rights by the decisions of the United States Supreme                                                                                                                                                                                                                                                                                                                                                             

 Court, past or future, which expound identical or closely similar provisions of the United                                                                                                                                                                                                                                                                                                                                                                    

 States Constitution.' ") (alterations in original) (quoting                                                                                                                                                                                                                                                            Roberts v. State                                                                           , 458 P.2d 340,                                          

 342 (Alaska 1969));                                                                                              see also State, Div. of Elections v. Green Party of Alaska                                                                                                                                                                                                                                                                  , 118 P.3d                   

  1054, 1060 (Alaska 2005) (explaining "we have often held that Alaska's [C]onstitution                                                                                                                                                                                                                                                                                                                               

 is   more   protective   of   rights  and  liberties   than   is   the   United   States   Constitution");  

Malabed v. N. Slope Borough                                                                                                                                           , 70 P.3d 416, 420 (Alaska 2003) (stating that "the Alaska                                                                                                                                                                                                                             

                                                                                                                                                                                                                                                                                                                                                                                                                           (continued...)  



                                                                                                                                                                                                                                        -10-	                                                                                                                                                                                                                             7392
  


----------------------- Page 11-----------------------

clause is more protective of individual rights than its federal counterpart in the present                                                 

context, we focus our analysis on the Alaska Constitution.                                            15  



                                                                                                                               

                       1.	         As a content-based restriction on free speech, the closing-hours  

                                                                                         

                                   ordinance is subject to strict scrutiny.  



                                                                                                                                            

                       In arguing that we should apply strict scrutiny to the ordinance as a matter  



                                                                                                                                                         

of Alaska constitutional law, SinRock notes the fractured federal precedent in this area.  



                                                                                                                                                   

Although the United States Supreme Court long has construed expressive dancing as  



                                                                                                                                               

falling under the First Amendment's purview, a plurality of the court has held that nude  



                                                                                                                                                    16  

                                                                                                                                                         

dancing  "falls only within  the outer  ambit of the First Amendment's protection." 



                                                                                                                                              

Subjecting sexual speech to a lesser degree of free speech protection, the Supreme Court  



                                                                                                                                  

has reviewed otherwise content-based restrictions as content-neutral under intermediate  



                                                                                                                         

scrutiny when the primary motivation behind their enactment is to prevent negative  



                                17  

                    

secondary effects. 



            14         (...continued)  



                                                                                                                                                

Constitution's equal protection clause affords greater protection to individual rights than  

                                                                                                                                                

the United States Constitution's Fourteenth Amendment"); State v. Jones, 706 P.2d 317,  

                                                                                                                                            

324 (Alaska 1985) (reading Alaska Constitution's prohibition on unreasonable search  

                                                                                                                                                

and seizures more expansively than federal prohibition); State v. Browder, 486 P.2d 925,  

                                                                                                                                              

935-36 (Alaska 1971) (interpreting right to jury trial in criminal contempt cases more  

                                                 

broadly than federal right).  



            15         Cf. Mickens v. City of Kodiak, 640 P.2d 818, 820 (Alaska 1982) (holding  

                                                                                                                                        

that Alaska's free speech clause "was meant to be at least as protective of expression as  

                                                                                                                                                    

the First Amendment to the United States Constitution").  

                                                                          



            16         City of Erie v. Pap's A.M., 529 U.S. 277, 289 (2000).  

                                                                                                        



            17         City of Los Angelesv. Alameda Books, Inc., 535 U.S. 425, 434 (2002); Erie,  

                                                                                                                                               

529 U.S. at 293;  City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 47-48, 50  

                                                                                                                                                  

(1986).  



                                                                        -11-	                                                                 7392
  


----------------------- Page 12-----------------------

                               We previously have not designated sexually oriented speech as less worthy                                                                                   



of protection                    than   other   types  of speech,                                     and   we decline to                           do   so   now.     Article I,   



section 5 of Alaska's Constitution provides that "[e]very person may freely speak . . .                                                                                                                



being responsible for the abuse of that right."                                                           We held in                 Mickens v. City of Kodiak                                   that  



this clause protects nude dancing and that "[l]aws prohibiting free expression, based on                                                                                                             



                                                                                                                                                                                                       18  

the content of the expression, are sustainable only for the most compelling of reasons."                                                                                                                    



And we stated that "it is not permissible to suppress constitutionally protected forms of  

                                                                                                                                                                                                      



expression . . . to curb the lawless conduct of some of those who are reacting to it, unless  

                                                                                                                                                                                             



other law enforcement techniques which do not infringe first amendment freedoms are  

                                                                                                                                                                                                    

unavailable or likely to be ineffective."19  

                                                                                                      



                               We  long  have  held  that  Alaska's  constitutional  heritage  may  require  

                                                                                                                                                                                         



individual protections over and above federal guarantees:  

                                                                                                                                          



                                [W]e are free, and we are under a duty, to develop additional  

                                                                                                                                                     

                               constitutional   rights   and   privileges   under   our   Alaska  

                                                                                                                                                         

                               Constitutionifwefind suchfundamental rightsandprivileges  

                                                                                                                                                     

                               to be within the intention and spirit of our local constitutional  

                                                                                                                                            

                               language and to be necessary for the kind of civilized life and  

                                                                                                                                                                    

                               ordered  liberty  which  is  at  the  core  of  our  constitutional  

                                                                                                                                

                               heritage.[20]  



These  additional  state  constitutional  guarantees  have  compelled  us  to  balance  an  

                                                                                                                                                                                                    



individual's right to liberty against "society's right to impose some limitation on the  

                                                                                                                                                                                                   

individual liberty" under a strict scrutiny standard,21  holding:  

                                                                                                                            



                18             640 P.2d at 820-21.          



                19  

                                             

                               Id. at 822.  



                20  

                                                                                                                                                                 

                               Baker v. City of Fairbanks, 471 P.2d 386, 402 (Alaska 1970).  



                21  

                                                                                                                                    

                               Messerli v. State, 626 P.2d 81, 84 (Alaska 1980).  



                                                                                                 -12-                                                                                          7392
  


----------------------- Page 13-----------------------

                               Once a fundamental right under the constitution of Alaska                                                                 

                               has been shown to be involved and it has been further shown                                                                 

                               that this constitutionally protected right has been impaired by                                                                       

                               governmental    action,    then    the    government    must    come  

                               forward and meet its substantial burden of establishing that                                                                      

                               the abridgement in question was justified by a compelling                                                        

                               governmental interest.                              [22]  



And we have held that the "adoption of the compelling interest standard best comports  

                                                                                                                                                                                   



with the kind of ordered liberty which represents the core of Alaska's constitutional  

                                                                                                                                                                         

heritage."23  



                               Based on the strong constitutional protections afforded Alaska citizens, we  

                                                                                                                                                                                                   



confirmthat lawsregulatingthesexual contentofmessages, and thereby restricting one's  

                                                                                                                                                                                             



right to liberty, are content-based and that we will apply strict scrutiny to determine their  

                                                                                                                                                                                               

constitutionality.24  Applying the closing-hours restriction to adult cabarets is content- 



based;  determining  whether  the  restriction  applies  to  a  particular  business  requires  

                                                                                                                                                                                     



                22             Id.  (quoting  Breese  v.  Smith,  501  P.2d   159,   171  (Alaska   1972)).   



                23             Id .  (quoting  Breese,  501  P.2d  at   172).  



                24             We  note  the  Massachusetts  Supreme  Court  likewise  has  recognized  that  the  



"[f]ederal   rule   does   not   adequately   protect   the   rights   of   the   citizens"   under   its   state  

constitution.   Mendoza  v.  Licensing  Bd.  of  Fall  River,  827  N.E.2d  180,  191  (Mass.  2005).   

Other  state  supreme  courts,  including  Pennsylvania  and  New  York,  have  reached  similar  

conclusions.   Pap's  A.M.   v.   City   of  Erie,   812  A.2d   591   (Pa.   2002)   (on  remand   from  

United States Supreme Court,  court  invalidated on  state constitutional grounds ordinance  

proscribing  nudity  in  public  places);  Bellanca  v.  N.Y.  State  Liquor  Auth. ,  429  N.E.2d  765  

(N.Y. 1981) (on  remand  from United States  Supreme  Court,  court invalidated on state  

constitutional   grounds   complete   ban   on   topless   dancing   in   establishments   serving  

alcohol).   At  least   one   federal   circuit  court   also  has  questioned the   secondary-effects  

doctrine's  continued  validity.   See  Free  Speech  Coal.  v.  Attorney   Gen.   U.S., 825  F.3d  

 149,  164  (3d  Cir.  2016)  (stating  that  "we  can  no  longer  look  to  the  purpose  of  a  law  that  

draws  a  content-based  distinction  on  its  face  in  determining  what  level  of   scrutiny  to  

apply").  



                                                                                                -13-                                                                                         7392
  


----------------------- Page 14-----------------------

                                                                                                                               25  

considering whether it is an "adult-oriented establishment,"                                                                        and then a business is                      



                                                                                                                            26  

"burdened only if its expressive products have adult content."                                                                                                            

                                                                                                                                 We therefore apply strict  



                                                                                                                                                                                 

 scrutiny, and we will uphold the ordinance only if it is "narrowly tailored to promote a  



                                                                                                                                                                               

compelling governmental interest" and if it is "the least restrictive means available to  



                                                27  

                              

vindicate that interest." 



                                                                                                                                                                             

                            2.	           The closing-hours restriction as applied to adult cabarets is not  

                                                                                                                                          

                                          sufficiently narrowly tailored to achieve its ends.  



                                                                                                                                                                               

                            The parties do not dispute that in general the Municipality's interests in  



                                                                                                                                                                 

regulating the "negative effects of cabarets on the community" - including potential  



                                                                                                                                                                              

"increased  crime  rates,  declining  property  values,  disinvestment[,]  .  .  .  decline  in  



                                                                       28  

                                                                                                                                                                           

economic and pedestrian activity,"                                          and "the harmful effects of cabarets on young girls  



                                                                                                                                                         

in the community" - are compelling.  But the critical issue is whether the Municipality  



                                                                                                                                                                     

has met its burden of evidence demonstrating that the closing-hours restriction as applied  



                                                                                                                                                                             

to adult cabarets is narrowly drawn to achieve those interests.  We conclude that the  



              25	           AMC 10.40.015(A); AMC 10.40.050(A).                      



              26            City of Los Angeles v. Alameda Books, Inc.                                                   , 535 U.S. 425, 457 (2002)                  



(Souter, J., dissenting). See also Gammoh v. City of La Habra, 395 F.3d 1114, 1123 (9th  

                                                                                                                                                                            

Cir. 2005) ("[T]he Supreme Court has recognized that virtually all regulation of adult                                                                                   

businesses is content-based." (citing                                         Alameda Books                     , 535 U.S. at 448 (Kennedy J.,                                

concurring))).  



              27            See Alaskans for a Common Language, Inc. v. Kritz, 170 P.3d 183, 207-08  

                                                                                                                                                                     

(Alaska 2007).  

                  



              28            When the licensing structure originally was enacted in 1977, there was  

                                                                                                                                                                           

evidence that massage parlors and physical culture studios produced negative secondary  

                                                                                                                                                               

effects including prostitution, noise, and traffic congestion.  Hilbers v. Municipality of  

                                                                                                                                                                                

Anchorage , 611 P.2d 31, 40-41 (Alaska 1980). We assume, without deciding, that adult  

                                                                                                                                                                         

cabarets might produce similar negative secondary effects.  

                                                                                                                            



                                                                                      -14-	                                                                              7392
  


----------------------- Page 15-----------------------

Municipality has not met this burden and that the closing-hours restriction, therefore, is                                                                                                                                                                                                                                                            



constitutionally invalid.   



                                                      The   Municipality   argues   that   it  has   "specific   evidence   to   support   a  



compelling reason" to uphold AMC 10.40.015(A).                                                                                                                                                                The Municipality contends that the                                                                                                



public hearing minutes evidence testimony about adult cabarets' negative effects. Even                                                                                                                                                                                                                                                 



assuming the limited testimony was sufficient to demonstrate secondary effects from                                                                                                                                                                                                                                                     



adult cabarets, the Municipality fails to offer specific evidence that forcing adult cabarets                                                                                                                                                                                                                               



to close in the early morning was designed to help reduce these negative effects.                                                                                                                                                                                                                                                         The  



restriction's pre-enactment record consists entirely of private individuals' and assembly                                                                                                                                                                                                                              



members' testimonies discussinginageneralconclusorysenseperceived negativeeffects                                                                                                                                                                                                                                                 



of adult cabarets on surrounding communities.                                                                                                                                                       The minutes reflect that one person                                                                                         



mentioned closing hours but only as having "concerns" that none existed. There was no                                                                                                                                                                                                                                                             



evidence, direct or indirect, connecting forced early morning closures with reducing                                                                                                                                                                                                                                    



these secondary effects.                                                                           



                                                      As we stated                                            in   Mickens v.                                              City   of  Kodiak, suppressing                                                                                           constitutional  



 speech is impermissible "to curb the lawless conduct of some of those who are reacting                                                                                                                                                                                                                                     



to it, unless other law enforcement techniques which do not infringe first amendment                                                                                                                                                                                                                         

                                                                                                                                                                                                                  29   The Municipality has not shown  

freedoms are unavailable or likely to be ineffective."                                                                                                                                                                                                                                                                            



that it could not effectively reduce secondary effects without infringing on otherwise  

                                                                                                                                                                                                                                                                                                                    



constitutional speech, and we therefore find no basis for concluding that the current  

                                                                                                                                                                                                                                                                                                                              



closing-hours restriction is constitutional.  

                                                                                                              



                                                      Despite the Municipality not meeting its burden of demonstrating narrow  

                                                                                                                                                                                                                                                                                                                               



tailoring in this case, we do not foreclose the possibility that a similar ordinance may be  

                                                                                                                                                                                                                                                                                                                                                   



constitutional. We recognize that the government has compelling interests in combating  

                                                                                                                                                                                                                                                                                                                  



                           29                         640  P.2d  818,  822  (Alaska   1982).  



                                                                                                                                                                      -15-                                                                                                                                                                                 7392  


----------------------- Page 16-----------------------

potential harmful secondary effects.                                                                                     But we require, in all cases, an evidence-based                                                             



analysisdemonstratinghowarestriction is narrowly tailored to meetspecific,compelling                                                                                                                                                                



government interests.                                                   This may be satisfied, for example, by relying on solid evidence                                                                                                                   



ofother communities' experiences                                                                               or by specific studies presented to thelegislatureprior                                                                                                   



to enactment; the government need not wait for harm to arise before enacting legislation                                                                                                                                                               



aimed at combating potential harmful secondary effects.                                                                                                                                       And the government must                                                   



demonstrate both that there is evidence of potential harm and that non-infringing law                                                                                                                                                                                       



                                                                                                                                                                                                                              30  

enforcement techniques "are unavailable or likely to be ineffective."                                                                                                                                                                



                                           A connection between negative secondary effects and the lack of closing  

                                                                                                                                                                                                                                        



hours for adult cabarets may exist, but the Municipality has failed to meet its burden of  

                                                                                                                                                                                                                                                                                           



demonstrating that connection. Wethereforereversethesuperiorcourt's decision on this  

                                                                                                                                                                                                                                                                             



issue.  

                    



v.                    CONCLUSION  



                                           WeREvERSEthesuperior court's decision denying SinRock's appeal and  

                                                                                                                                                                                                                                                                              



hold that, under article I, section 5 of Alaska's Constitution, AMC 10.40.015(A)'s  

                                                                                                                                                                                                                                     



closing-hours restriction is unconstitutional as applied to adult cabarets.  

                                                                                                                                                                                                            



                      30                   Id.   



                                                                                                                                      -16-                                                                                                                                           7392  

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