(Reuters) – Scantily clad “bikini baristas” in Everett, Washington, will have to cover up more of themselves after a federal appeals court on Wednesday freed the city to enforce a dress code requiring that they clothe “minimum body areas” when serving coffee to customers.
The 9th U.S. Circuit Court of Appeals in Seattle ruled 3-0 against the owner and five baristas at Hillbilly Hotties, a chain of drive-up coffee stands, by lifting a lower court injunction against both the dress code and a related ordinance that expanded Everett’s definition of “lewd” conduct.
Melinda Ebelhar, a lawyer for the plaintiffs, said her clients were disappointed with the decision, and have “indicated eagerness” to ask the appeals court to revisit the case.
Everett’s dress code requires workers at “quick-serve” retailers including coffee stands, delis, fast food restaurants and food trucks to cover their breasts or pectorals, backs, torsos, buttocks, upper legs and pubic areas while on the job.
The city said the code and lewd conduct law, both adopted in 2017, were needed to combat “dangerous and unlawful conduct” allegedly inherent to bikini barista stands, including prostitution, flashing, public masturbation and sexual violence.
Bikini barista stands have operated for about a decade in and around Everett, a city of roughly 111,000 people located 28 miles (45 km) north of Seattle.
In Wednesday’s decision, Circuit Judge Morgan Christen said the Hillbilly Hotties owner and baristas were unlikely to show that serving coffee in a bikini was constitutionally protected speech under the First Amendment.
While the baristas called their dearth of clothing a means to demonstrate female empowerment, confidence and “fearless body acceptance,” Christen said customers might not view it that way, in part because the baristas solicited tips.
“Context is everything,” the judge wrote. “The baristas’ act of wearing pasties and g-strings in close proximity to paying customers creates a high likelihood that the message sent by the baristas’ nearly nonexistent outfits vastly diverges from those described in plaintiffs’ declarations.”
Christen also said the plaintiffs were unlikely to show that the lewd conduct law was unconstitutionally vague, and that the lower court judge, U.S. District Judge Marsha Pechman in Seattle, abused her discretion in concluding otherwise.
The appeals court returned the case to Pechman for further proceedings.
A spokeswoman for Everett said the city was grateful for the decision, which “recognized the significant issues that the city has faced and the practical reality of regulating these businesses.”
The case is Edge et al v City of Everett, 9th U.S. Circuit Court of Appeals, No. 17-36038.
Reporting by Jonathan Stempel in New York; Editing by Matthew Lewis
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