EVERETT — Folks driving through Everett recently may have seen a readerboard outside a bikini barista stand that accuses the city of caring “more about bikinis than drugs and our homeless crisis.”
It’s a sign that, despite last month’s appeals-court ruling against the owners of the drive-through java huts, a legal clash over the coffee slingers’ clothing — or lack thereof — is far from over.
The decision in the 9th Circuit Court of Appeals trounced an earlier federal-court ruling that had prevented the city from enforcing its ban on near-nudity until the legal case was resolved. But the city’s victory in the appeals court simply means that the case goes back to U.S. District Court.
“The city knows they are in a very long fight,” said Schuyler Lifschultz, an attorney and co-owner of the Hillbilly Hotties stands. “Smart people realize it’s not about the bikini — it’s a women’s rights issue, and we’re prepared to walk back into the lower federal court and launch a whole new case.”
The battle has been brewing for about a decade — and has cost the city $294,533 in litigation fees so far.
Around the end of 2009, the city began receiving what it said were numerous complaints about the stands. Those complaints led to a police investigation in which officers took photos of baristas at the Grab-n-Go coffee stand bending over, licking whipped cream off each other and exposing themselves while squatting on the ledge of the drive-through window. The women were charged with prostitution, which state law says occurs when a person “engages or agrees or offers to engage in sexual conduct with another person in return for a fee.”
Two years ago, the Everett City Council unanimously passed restrictions on what employees there could wear. The council banned clothing that exposed the “torso and pubic and buttocks area,” along with the top three inches of leg below the buttocks, and the back below the shoulder blades.
A week later, a group of bikini baristas and the owner of Hillbilly Hotties filed a lawsuit in U.S. District Court alleging that the crackdown violated their constitutional right to free expression. The plaintiffs also asked the court to stop the city from enforcing the rules while the case was pending.
U.S. District Judge Marsha Pechman agreed, writing in a 13-page order that the ordinance was likely vague, violated baristas’ rights to free expression and, in targeting women, violated 14th Amendment equal-protection guarantees.
The city argued that the act of wearing pasties and G-strings at work did not constitute speech and that there is legal precedent for treating women’s chests differently than men’s.
Last month, the 9th Circuit Court of Appeals ruled in Everett’s favor, holding that if the baristas’ intended message was about empowerment and confidence, that message was unlikely to be understood by those who view them. The appeals-court panel accepted the city’s arguments about secondary effects associated with the stands, including sexual violence against the baristas themselves, as well as prostitution.
The appeals-court ruling “recognized the significant issues that the City has faced and the practical reality of regulating these businesses,” the city said in a statement.
Because the matter is still working its way through the courts, the city isn’t making any immediate plans to enforce the dress code but looks forward to doing so eventually, Everett spokeswoman Kimberley Cline said in an email.
Meanwhile, nothing about employee attire has changed at the Hillbilly Hotties stands, said owner Jovanna Edge, one of the plaintiffs in the case. Her baristas’ outfits can be revealing but aren’t see-through, she said.
“This whole bikini coffee thing: Who cares?” she said. “If you don’t like it, please don’t come.”