Bikini baristas: ‘Advanced math’ needed to define city rules

SEATTLE — Definitions of human anatomy and First Amendment rights continue to play a central role in the ongoing legal saga between bikini baristas and the city of Everett.

The two sides appeared Monday in the 9th U.S. Circuit Court of Appeals to argue, again, over city ordinances that would restrict what baristas working at coffee stands could wear. Adopted in August 2017, a city law required employees at fast food restaurants, food trucks and coffee stands to wear a minimum of tank tops and shorts.

The baristas sued the city in response. In December 2017, a U.S. District Court judge ruled that the ordinances cannot be enforced until the lawsuit is resolved. Some terms in the city’s rules are “not well-defined or reasonably understandable,” Judge Marsha Pechman said at the time.

The city then asked the 9th Circuit to review the enforcement ban, also known as a preliminary injunction.

The arguments at Monday’s hearing were much the same as before, revolving around how much or how little clothing certain restaurant employees in Everett can wear, and whether such rules violate their civil rights.

The baristas said the city ordinances are too vague when describing what body parts must be covered — and, in particular, how to define the anatomy around the buttocks.

Assistant city attorney Ramsey Ramerman said the legislation was precise and that anybody could reasonably understand what the city meant — and if someone couldn’t, an Internet search and a dictionary could help.

He added that Hillbilly Hotties owner Jovanna Edge, who is named as a plaintiff, apparently understood well enough to instruct her employees on how to follow the new laws.

Attorney Melinda Ebelhar, representing the baristas, said it would take “advanced math” to figure out if the rules were violated. Enforcing the ordinance would be too difficult, she said.

The baristas also have argued that their outfits are works of art and that they’re exercising their free speech rights to share positive messages about their bodies while earning a living.

Ramerman said the baristas must prove that clothing is a form of expression. So far, they have not met that burden, he said.

Three appeals court judges heard the case and will consider whether there’s enough evidence that the average coffee customer understands the message the baristas are expressing.

“What if there’s a huge disconnect between what the speaker says she intends to convey and what is very likely to be received?” Judge Morgan Christen asked.

Judge Sandra Ikuta said she was concerned the message to some customers would be: “I am sexually available.”

That’s not what the baristas are saying, Ebelhar said. It’s not a sex business, she said.

“The message they are sending is this is not your mother’s coffee stand,” she said.

Christen said she understood what people view as acceptable clothing has evolved over the years. But context is important.

“This is a retail establishment where we understand a transaction is going on,” she said.

The case will be decided by Christen, Ikuta and Jennifer Choe-Groves. The 9th Circuit is based in San Francisco but has a courthouse in Seattle.

A timeline for a ruling was not provided.

Zachariah Bryan: 425-339-3431; zbryan@heraldnet.com. Twitter: @zachariahtb.