The Washington State Court of Appeals has unanimously upheld a lower court ruling that viewing rooms in a sex shop don’t conform to Spokane Valley municipal regulations. 

CA-WA Corp. operates a Hollywood Erotic Boutique store at 9611 E. Sprague, in Spokane Valley. CA-WA leases the premises from husband and wife Brian and Christine Dirks, and a man identified as John Doe Dirks and Maressa Dirks, who are husband and wife, court records say.

In April 2013, following legal action brought by the city, a trial court judge here entered an order declaring the boutique’s viewing rooms, where customers can watch pornographic movies, a public nuisance in violation of Spokane Valley’s Municipal Code. The trial court determined that the viewing rooms qualified as an adult entertainment establishment under the definitions of the code in Spokane Valley and Spokane County, the appeals court wrote.

“The trial court also determined that because HEB was not licensed under Spokane County licensing requirements, nor could it be because it was within 1,000 feet of a disqualifying zone, HEB was not a lawful nonconforming use,” it notes.

At trial, the city’s expert witness determined there were 54 available relocation parcels, none of which were in an industrial or manufacturing zone and all of which were commercially zoned, unlike HEB’s current location, court records indicate.

For its part, however, CA-WA Corp. argued that HEB’s viewing rooms are a “lawful nonconforming use,” and that HEB’s viewing rooms aren’t subject to the licensing requirements of the municipal code because “the viewing rooms do not fall within the definition of adult entertainment establishment.”

HEB’s retail portion of the store sells sexually explicit DVDs and magazines, as well as adult novelties and lingerie. Since 2002, HEB has also operated six enclosed viewing rooms on the premises where patrons can watch sexually explicit movies for an entrance fee, court documents indicate.

Five of the viewing rooms are on the second level of the building situated along a continuous corridor. Each viewing room is separated from the corridor by a closed door, and is roughly 10 by 10 feet. Patrons pay $12 to enter the darkened viewing rooms and are permitted to move from room to room during the course of movies that play continuously, the documents say.

In 2007, a city code enforcement investigation, started by a citizen complaint, concluded that an adult entertainment arcade was being operated on HEB’s second floor.

Code enforcement officers frequently observed patrons in the viewing rooms, most of whom were men, engaged in individual sex acts during the movies. After the inspection, all agency personnel who were present agreed that an adult entertainment arcade was being operated there.

“The manager agreed to shut down the viewing rooms until a license could be obtained. But HEB did not obtain an adult entertainment establishment license and eventually reopened the viewing rooms,” the court notes.

Erotic Boutique never filed for a license, and in May 2012, the city filed a complaint against CA-WA and the Dirkses for declaration of a public nuisance, code violations, and a warrant of abatement. The complaint was aimed at the viewing rooms, not the store’s first-floor adult retail business, court records said.

Spokane Valley attorneys cite city code in its desire to “protect the general public health, safety and welfare of the Spokane Valley through the regulation of operations and licensing of the adult entertainment devices, premises and personnel of adult entertainment establishments,” court documents say.

Erotic Boutique began its adult retail business in 1999 and the viewing rooms in 2002, prior to the city incorporating in March 2003, the documents say.

In 2010, Spokane Valley changed its adult licensing code, repealing a prior version and replacing it with new regulations it said were necessary to protect the public. The city based its determination on studies and police reports demonstrating the adverse impacts generated by adult entertainment businesses, including public sexual conduct, possible spread of sexually transmitted disease, prostitution, and other criminal conduct, the appeals court writes.