Federal appeals court rules against 'bikini baristas'

Case sent back to lower courts

By Ralph Ellis, Marlena Baldacci and Chris Boyette, CNN
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EVERETT, Washington (CNN) - The "bikini baristas" of Everett, Washington, may have to start wearing more clothes due to a new federal appeals court ruling.

The government in Everett, located about 30 miles north of Seattle, has complained for years that female employees of local drive-thru coffee stands were serving drinks while wearing bikinis and other forms of revealing clothing.

The city passed two ordinances in 2017 to address the issue. One ordinance created a dress code for employees of "quick-service facilities" that required employees wear at least a tank top and shorts. The other ordinance expanded the city's definition of lewd conduct to include the public display of specific parts of the body.

The owner of one stand, Hillbilly Hotties, and some baristas sued, saying the new ordinances violated the baristas' First and 14th amendment rights.

US District Court Judge Marsha Pechman initially ruled in late 2017 in the coffee chain's favor, saying the city ordinances were too vague and arbitrary, according to CNN affiliate KOMO. The ordinance was suspended while the matter worked its way through the judicial system.

A federal appeals court ruled Wednesday that the women may have to cover up after all.

The new ruling, from a three-judge panel of the 9th US Circuit Court of Appeals, vacated Pechman's injunction and sent the case back to lower courts.

"The panel concluded that the vagueness doctrine did not warrant an injunction prohibiting enforcement of the Dress Code Ordinance," the appeals court wrote. "The panel concluded that the mode of dress at issue in this case was not sufficiently communicative to merit First Amendment protection."

As to the lewd conduct ordinance, the appeals court said it was not vague, but was "ascertainable to a person of ordinary intelligence." The panel was composed of US Circuit Judges Sandra Ikuta and Morgan Christen, and US Judge Jennifer Choe-Groves.

Ramsey Ramerman, an Everett assistant city attorney, said some of the clothing was skimpier than a basic bikini.

Everett officials said they were grateful for the appellate court ruling and said the city has offered "extensive evidence of adverse secondary effects associated with the stands, including prostitution and sexual violence...."

A city police investigation had documented that some baristas engaged in lewd conduct, some baristas were victimized by patrons, and that other crimes were associated with the stands, according to the ruling.

"The city looks forward to enforcing its ordinances consistent with the Court's decision and in the best interest of the community," it said in a statement.

Melinda Ebelhar, who helped represent the baristas, said her clients may ask the full appellate court to hear their appeal.

"The baristas are seeking to exercise their right to choose their work clothing," she said. "The baristas sought to express positive messages of body confidence and female empowerment. This decision effectively tells women that the female body must be covered up and hidden, and that women must be protected from themselves."

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