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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
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
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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).
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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.
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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)).
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----------------------- 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.
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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.
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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).
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----------------------- 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
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----------------------- 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).
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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).
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----------------------- 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").
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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.
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----------------------- 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).
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----------------------- 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.
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