HomeMy WebLinkAbout10/28/2025 - Regular - Additional Doc-Cabaret Licensing CommentsLetter on Behalf of Port Orchard Businesses Requesting
Abolition of the Cabaret License Requirement
Date: 10/28/2025
To: ?
Mayor Robert PutaansuuMembers of the Port
City of Port Orchard Orchard City Council CQ MF�T/N,
216 Prospect Street
Port Orchard, WA 98366
Dear Mayor Putaansuu and Members of the City Council,
We, the undersigned business owners and operators in the City of Port Orchard, respectfully
request the full repeal of the City's Cabaret License ordinance (Port Orchard Municipal Code
Chapter 5.20) and all associated penalty provisions.
This ordinance is outdated, duplicative, and inconsistent with both constitutional law and
Washington State regulatory standards. It serves no valid public -safety purpose and has now
become a tool of selective and retaliatory enforcement, undermining trust between City Hall and
its business community.
1. The Cabaret License Is Outdated, Redundant, and Without Legal Necessity
The Port Orchard cabaret license is a regulatory artifact — a relic of early 20th -century "dance
hall" ordinances meant to control public morality, not protect public safety. Every function it
once served — crowd management, noise moderation, or fire safety — is now fully covered by
state and local codes that have evolved to meet modem standards.
The Municipal Research and Services Center of Washington (MRSC) has clearly stated that
entertainment -specific licensing is now unnecessary:
"Most municipalities no longer maintain separate `cabaret' or `dance hall' licenses. Fire,
building, and liquor codes now provide sufficient oversight for public entertainment uses,
rendering additional licensing redundant and unnecessary." (MRSC, Regulating Public
Entertainment Venues, 2021)
Under the State Building Code Act (RCW 19.27) and WAC 51-50-003, local governments may
not duplicate or conflict with state -adopted building and fire codes. Maintaining the cabaret
ordinance exposes the City to legal scrutiny as arbitrary and capricious under O'Day v. City of
Bellevue, 64 Wn.2d 778 (1968), which requires that municipal regulation be reasonable,
necessary, and directly tied to public welfare.
Simply put, this ordinance is a legal fossil — obsolete, redundant, and inconsistent with modern
governance.
2. The $10 -Per -Month Penalty Is Arbitrary and Punitive
The City imposes a $10 monthly penalty for failure to hold a cabaret license.
In an April 2025 letter to the Bethel Saloon, the City wrote:
"This is your final notice that your cabaret license is now due and will result in a $10.00 per
month penalty fee for every month your cabaret license is not received."
— Jenine Floyd, Deputy City Clerk, City of Port Orchard
This automatic fine lacks both due process and rational basis. As the Washington Supreme Court
ruled in O'Day v. Bellevue (1968), municipal fees must relate to legitimate welfare purposes. A
recurring penalty for non -harmful conduct — particularly when the law itself serves no safety
purpose — is an abuse of administrative authority.
3. Businesses Already Meet Comprehensive Safety and Operational Standards
All Port Orchard establishments capable of hosting entertainment — restaurants, pubs, event
halls, and community venues — already comply with comprehensive state and local safety codes
that exceed anything the cabaret ordinance regulates.
Each venue classified as an "A occupancy" under the International Building Code (IBC) and
International Fire Code (IFC) must adhere to:
• Automatic fire suppression systems and alarms (IBC §903, IFC §907)
• Emergency exit lighting and signage (IBC § 1006-1013)
• Strict occupancy limits based on fire -escape capacity (IBC Table 1004.5)
• Annual fire and building inspections (RCW 19.27.110)
• Hood suppression systems for kitchens (NFPA 96, IFC §609)
• Liquor & Cannabis Board (WSLCB) oversight for alcohol -related entertainment
• Department of Health food safety inspections
• ADA accessibility and egress compliance under federal law
Every risk once claimed to justify cabaret licensing — fire hazards, overcrowding, disorderly
conduct — is already addressed by these codes and agencies.
And to reiterate, the Municipal Research and Services Center of Washington (MRSC) has clearly
stated that entertainment -specific licensing is now unnecessary:
"Most municipalities no longer maintain separate `cabaret' or `dance hall' licenses. Fire,
building, and liquor codes now provide sufficient oversight for public entertainment uses,
rendering additional licensing redundant and unnecessary." (MRSC, Regulating Public
Entertainment Venues, 2021)
The cabaret license adds nothing to public safety; it merely imposes an unnecessary fee and
license on lawful business operations already regulated at the state & local level.
4. The Mayor's February 21, 2025 Email Underscores the Ordinance's
Uselessness
In a February 21, 2025 email exchange between Mayor Robert Putaansuu, Community
Development Director Nick Bond, and City Clerk Brandy Wallace, the Mayor stated:
"A business I have spoken to said they spend about 10 minutes for their renewal."
This comment offered without identifying the business, the individual, or the context of the
conversation is purely anecdotal and unsupported by any verifiable evidence. It provides no
factual basis upon which public policy should rest.
A single, unsubstantiated claim about the ease of completing a form cannot justify the continued
existence of an ordinance that is redundant, unpopular, and legally questionable. Administrative
convenience, particularly one asserted without data, is not a substitute for sound governance.
Notably, no business subject to this licensing requirement supports it — not one.
Even if the Mayor's statement were accurate for a single business, it disregards the broader
reality: every other affected business has expressed consistent opposition to the ordinance and
the unnecessary burdens it imposes.
As established in City of Cleburne v. Cleburne Living Center, 473 U.S. 432 (1985), laws that
serve no rational purpose or rest on arbitrary reasoning fail constitutional scrutiny. The Mayor's
offhand remark exemplifies this deficiency — the City lacks any substantive justification for
maintaining the ordinance, relying instead on a passing anecdote that has no probative value.
A regulation that exists merely because "someone said it's no big deal" is not governance. It is
arbitrary policymaking.
5. Constitutional Violations: Selling Back the Right to Assemble
The cabaret ordinance is more than outdated it is unconstitutional. By requiring a separate
license for venues already zoned for assembly, the City is effectively charging businesses a fee to
exercise the right to peaceably assemble and engage in expressive conduct.
Music, dance, comedy, and live performance are protected forms of expression under the First
Amendment to the U.S. Constitution and Article I, Section 5 of the Washington Constitution.
Government may impose only reasonable, content -neutral regulations on time, place, and
manner, not prior restraints on expression through discretionary licensing.
The Supreme Court has struck down such systems repeatedly:
• Shuttlesworth v. City of Birmingham, 394 U.S. 147 (1969): invalidating a parade permit scheme
as unconstitutional prior restraint.
• Kunz v. New York, 340 U.S. 290 (1951): striking down a permit system for public speaking.
• Saia v. New York, 334 U.S. 558 (1948): prohibiting licensing schemes that grant officials
arbitrary discretion.
Because the Port Orchard ordinance applies only to expressive businesses (music, dancing,
performance), it also constitutes content -based discrimination, violating City of Lakewood v.
Plain Dealer Publishing Co., 486 U.S. 750 (1988).
Washington courts, including in O'Day v. Bellevue (1968), have held that licensing schemes
must be reasonable, non -oppressive, and tied to legitimate welfare purposes. The cabaret
ordinance fails every prong of that test.
In practice, this ordinance monetizes constitutional freedoms, converting a guaranteed right into
a regulated privilege. That is the definition of an unconstitutional prior restraint.
6. Administrative Overreach and Improper Use of Law Enforcement
The City's administration of this ordinance has also violated the boundaries of lawful authority.
In an April 9, 2025 email, Port Orchard Police Department staff responded to a request regarding
performance of background checks on cabaret -license applicants:
"At this time there is no Purpose Code E in the WASIS system and you would not have the
authority or ability to run a QR/QH for a cabaret license. For a city to have a background check
due to a city ordinance, they would either need to establish a Non -Criminal Justice ORI... or
create a WATCH account and pay the fee."
This response makes clear that the City lacked authority to direct criminal background checks for
administrative licensing. Under RCW 10.97.050, criminal databases may be accessed only for
criminal justice purposes. For administrative checks, a city must first obtain Non -Criminal
Justice ORI certification under RCW 43.43.832.
Attempting to use law -enforcement systems for civil licensing constitutes improper use of police
power, exposing the City to potential liability under 42 U.S.C. §1983 for civil-rights violations.
Requiring or seeking criminal background checks for routine entertainment activities — karaoke,
trivia, or live music — is bureaucratic intimidation, not public safety. It undermines community
trust and misuses taxpayer -funded law enforcement resources.
The City must operate as a partner to local businesses, not as an adversary leveraging
investigative powers for administrative control.
7. Retaliatory and Selective Enforcement
City correspondence demonstrates that enforcement of the cabaret license has not been even-
handed but rather selectively directed toward specific local establishments, following internal
staff discussions that reveal a retaliatory and coercive approach rather than a neutral
administrative process.
On April 21, 2025, Deputy City Clerk Jenine Floyd wrote:
"The End Zone is holding karaoke, I don't see anything for Port Orchard Pub and New Way
Lounge holds karaoke, bingo and trivia night. I will start drafting emails/letters tomorrow."
—Jenine Floyd, Deputy City Clerk (April 21, 2025)
This message, sent after an internal directive from City Clerk Brandy Wallace to investigate
those businesses, illustrates an intent to pursue targeted enforcement actions rather than applying
code provisions uniformly. Such behavior is inconsistent with due -process standards and violates
equal -protection guarantees as articulated in City of Seattle v. Ludley, 76 Wn. App. 656 (1995).
At the same time, the City sent notices to other establishments, such as Bethel Saloon, alleging
noncompliance and threatening financial penalties. The timing and tone of these
communications, arriving immediately after public criticism of the ordinance, reflect a retaliatory
pattern of enforcement.
Even more concerning are public -record emails revealing that the City has withheld cabaret
license approvals to pressure businesses over unrelated building -permit matters. In a March 6,
2025 exchange among Deputy City Clerk Jenine Floyd, Building Official Angela Garcia, and
Permit Technician Lisa Stone, staff explicitly discussed delaying Hi -Joy Bowl's cabaret license
renewal until unrelated re -inspections were completed for a construction project.
"I believe that they just need to schedule the final reinspection, we will need to verify that
sprinkler heads were not modified as they are stating."
— Angela Garcia, CBO/CFM, Deputy Director of Community Development, Building
Official/Fire Code Official (March 6, 2025)
This correspondence shows that, even after the business had affirmatively stated that no
modifications were made, the City withheld the license anyway, signaling a lack of trust and a
misuse of authority. Linking cabaret -license approval to completion of unrelated project
inspections is an improper and coercive administrative practice that exceeds the City's legitimate
regulatory scope and violates both procedural and substantive due -process principles.
By using licensing as leverage, the City effectively converts a ministerial process into a punitive
tool — contrary to law, fairness, and the principles of cooperative governance. Such actions are
emblematic of selective and pretextual enforcement, exposing the City to potential liability under
42 U.S.C. § 1983 for deprivation of rights under color of law.
Small businesses should never be treated as adversaries for exercising routine freedoms such as
hosting karaoke, trivia, or live music. This approach undermines public confidence, damages the
City's credibility, and chills lawful economic activity that benefits the local community.
City government must serve as a partner, not an enforcer seeking compliance through
intimidation. Selective enforcement and coercive withholding of licenses are unacceptable,
unethical, and fundamentally inconsistent with the professional standards expected of public
administration.
8. Flawed Comparisons and National Legal Context
The City has referenced, in emails obtained through FOIA requests, Tacoma and Tukwila as
examples supporting retention of the cabaret license. This reasoning is fundamentally flawed.
Tacoma and Tukwila are large, urban jurisdictions with populations and enforcement
infrastructures several times greater than Port Orchard's. Both allow adult cabarets and high -
occupancy nightclubs, creating entirely different regulatory and law -enforcement needs. Port
Orchard's business community, composed primarily of restaurants, pubs, and family venues,
bears no resemblance to those metropolitan environments.
Relying on such comparisons is, at best, intellectually dishonest. A small city of 16,000 residents
does not need or benefit from regulations designed for metropolitan nightlife economies. If
Tacoma and Tukwila choose to keep relic ordinances on their books, that does not justify Port
Orchard doing the same. Policy should be crafted for and by the people of Port Orchard, not
copied from cities that neither share its demographics nor its values.
As a benchmark, New York City — one of the most complex nightlife ecosystems in the world
— repealed its 1926 Cabaret Law in 2017, acknowledging that it violated constitutional
protections of free expression and assembly. If the largest city in America, with millions of
residents and thousands of entertainment venues, determined such a law was unnecessary and
unconstitutional, there can be no rational basis for a small city like Port Orchard to maintain one.
Port Orchard should lead, not follow. Its governance should reflect community partnership and
respect for liberty, not bureaucratic imitation.
9. Legal Basis and Obligation for Repeal
Under RCW 35A.11.020, code -city councils have the power — and indeed the duty — to repeal or amend
ordinances that have become inconsistent with state law, redundant, or unconstitutional. RCW
35A.63.100 further empowers the Council to revise local codes to ensure uniformity with the State
Building Code and public -safety regulations.
Maintaining a pre-empted and unnecessary licensing ordinance invites litigation and erodes public
confidence in municipal authority. The Washington Supreme Court in O'Day v. Bellevue (1968) and
subsequent cases (MargolaAssocs. v. City of Seattle, 121 Wn.2d 625 (1993)) reaffirmed that local
governments cannot impose duplicative or arbitrary regulatory burdens once the State has occupied the
field.
Therefore, repealing the cabaret ordinance is not only permissible but legally prudent. The Council would
be acting squarely within its statutory mandate to align municipal law with higher authority and
constitutional standards.
10. Real Costs of Compliance and Demonstrated Regulatory Redundancy
In addition to the legal and procedural concerns previously outlined, it is important to recognize the
substantial financial and operational burden that Port Orchard businesses already bear to maintain full
compliance with existing state and municipal codes governing fire protection, life safety, and facility
operation.
Every business subject to this ordinance is already required to comply with multiple overlapping
regulatory frameworks, including but not limited to:
• The Washington State Building Code (RCW 19.27; WAC Title 51)
• The Washington State Fire Code (RCW 19.27.031, adopting the International Fire Code)
• The Washington State Liquor and Cannabis Board regulations (Title 314 WAC)
• The Kitsap County Health District codes and inspection standards
• Existing City of Port Orchard business and occupancy licensing requirements
Together, these laws provide comprehensive oversight of building safety, crowd control, sanitation, noise,
and operational safety standards. The Municipal Research and Services Center (MRSC) — the same body
relied upon by cities and counties statewide for model codes and best practices — has explicitly stated
that cabaret and dance -hall licensing ordinances are "relics of early twentieth-century regulation, rendered
unnecessary by modern fire, building, and liquor codes." (MRSC Insight Blog, "Dance Halls, Cabarets,
and Other Outdated Ordinances, "August 2017.)
Despite this, the City of Port Orchard continues to impose an additional cabaret license requirement that
duplicates existing regulatory oversight and imposes no identifiable public -safety benefit.
Estimated Annual Cost of Compliance
Inspection / License Type
Fire sprinkler inspection
Fire alarm testing
Fire extinguisher service
Exit lighting inspection and maintenance
Hood suppression system inspection
Hood cleaning
Backflow prevention device testing
Business, state, liquor, and health department licenses
(combined)
Frequency Approximate Annual
Cost
Annual $400-800
Annual $400-600
Annual $400
Annual $300
Semiannual $800 total
Semiannual $2,000 total
Annual $200
Annual $3,600
These combined obligations routinely exceed $8,000 to $10,000 per year, exclusive of staffing, payroll
taxes, insurance, and multitudes of other fixed business costs.
Moreover, many of these inspections are conducted by private contractors approved by the City or Fire
Marshal, for which the business pays directly. Following completion, business owners are required to pay
again to submit those same inspection reports through a City -adopted online submission program, adding
yet another recurring expense with no direct public -safety outcome.
This practice constitutes a form of duplicative fee collection — requiring payment once for the inspection
itself, and again for the administrative act of proof submission.
Regulatory Overlap and Obsolescence
Given the comprehensive coverage already provided by state and local codes, the cabaret license serves
no independent regulatory function. The International Fire Code (2018, as adopted by RCW 19.27.03 1)
already governs occupancy limits, fire exits, and crowd management. The Liquor and Cannabis Board
regulates alcohol service, age restrictions, and entertainment conditions for licensed premises. The Health
District enforces sanitation and ventilation standards.
Each of these frameworks provides clear, enforceable authority. There is no gap for the cabaret license to
fill. Accordingly, the license exists not as a public -safety measure, but as a redundant administrative
mechanism that imposes additional costs, delays, and potential for arbitrary enforcement — all of which
are inconsistent with the principles of fair governance and economic development outlined in RCW
35A. 11.020 (general powers of code cities) and RCW 19.85, the Regulatory Fairness Act.
The City's continued enforcement of the cabaret license under POMC Chapter 5.20 constitutes regulatory
redundancy and imposes an unnecessary burden on the small business community without corresponding
public benefit. By maintaining a regulation that duplicates existing state and local code requirements, the
City is not enhancing safety — it is double -charging compliance. This approach undermines both public
confidence and the City's stated goals of supporting local business growth.
11. Requested Council Action
We respectfully request that the City Council:
1. Repeal Port Orchard Municipal Code Chapter 5.20 in its entirety.
2. Forgive and refund all cabaret -license penalties assessed to date.
3. Prohibit staff from conditioning unrelated permits on cabaret -license compliance.
4. Forbid use of police or CJIS databases for non -criminal licensing purposes.
5. Investigate and review April 2025 enforcement communications for professionalism and legality.
6. Affirm publicly that entertainment in approved "A -occupancy" venues requires no additional
license.
12. Conclusion
The Port Orchard Cabaret License ordinance is not merely an outdated administrative rule — it is a
symbol of unnecessary government intrusion and overreach. It duplicates existing state regulations,
infringes on constitutionally protected rights of assembly and expression, and has been used in a manner
that divides rather than unites the local business community.
Repealing it will:
• Help restore constitutional integrity, reaffirming Port Orchard's commitment to lawful, fair, and modern
governance.
• Help rebuild public trust, demonstrating that City Hall listens to its citizens and acts with integrity.
• Help promote economic vitality, freeing small businesses from redundant bureaucracy so they can focus
on serving the community.
True leadership is defined not by how tightly government can control its citizens, but by how effectively
it empowers them. The repeal of this ordinance would be a powerful statement — that Port Orchard
stands for fairness, liberty, and common sense in government.
We therefore urge the City Council to act decisively to repeal Chapter 5.20, restore the rights of its
citizens, and demonstrate that Port Orchard's government is committed to partnership, not punishment.
Respectfully submitted with permission and on behalf of:
Sylvia Morgan / Peninsula BevCo / 110 Harrison
Harlan Morgan / Peninsula BevCo / 110 Harrison
Cody Morgan / Peninsula BevCo / 110 Harrison
Kylie Hicks / Hi Joy Bowl / 1011 Bethel Ave
Shelby Nelson / Brick House 714 Bar & Grill / 714 Bay Street
Tracy Nickerson / Brick House 714 Bar & Grill / 714 Bay Street
Steve & Janet Wilson / The End Zone Sports Pub/1023 Bethel Ave
Alan Roberts / Bethel Saloon / 3840 Bethel Ave SE
Cassie McClellan / New Way Lounge (Shifties Bar and Grill) / 1551 SE Piperberry Way
Clay Caldwell / New Way Lounge (Shifties Bar and Grill) / 1551 SE Piperberry Way
Jeanette Caldwell / New Way Lounge (Shifties Bar and Grill) / 1551 SE Piperberry Way
Janell McMannamy / Hi Tide Bar and Grill / 1371 Bay Street
Gary Fox / Port Orchard Pub / 2591 Mile Hill Drive
Becky Fox / Port Orchard Pub / 2591 Mile Hill Drive
Robert P. McGee / Whiskey Gulch / 2065 Bay Street
Kristi McGee / Whiskey Gulch / 2065 Bay Street
Chuck Huck / Whiskey Gulch / 2065 Bay Street
Cassandra Huck / Whiskey Gulch / 2065 Bay Street
Frank Tweten / Blue Goose Tavern & Dino's Pizza / 1604 Bay Street
South Kitsap Chamber of Commerce Jaclyn Williams / Executive Director