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Before CARSON, Chief Justice, and GILLETTE, DURHAM, RIGGS, De MUNIZ, and BALMER, Justices.**Laura Graser, Portland, argued the cause and filed the brief for petitioners on review. Westwood, of Stoel Rives LLP, Portland, argued the cause and filed the brief for respondent on review. Woodworth & Associates, PC, Portland, filed the briefs for amicus curiae Association of Club Executives. Neill and Jennifer Williamson, of Davis Wright Tremaine LLP, Portland, filed the briefs for amicus curiae Danzine. Markley, of Perkins Coie LLP, Portland, filed the brief for amici curiae ACLU Foundation of Oregon, Inc. Tracy Pool Reeve, Senior Deputy City Attorney, City Attorney's Office, Portland, filed the brief for amici curiae City of Portland and the League of Oregon Cities. Defendants appealed their convictions to the Court of Appeals, arguing that the ordinance was facially unconstitutional as an unlawful restraint on expression in violation of Article I, section 8, of the Oregon Constitution. The dancer was less than a foot away from the patron.
With him on the brief was Gary Kiyuna, of Stunz, Fonda, Kiyuna & Horton, Nyssa. A divided, en banc Court of Appeals affirmed the ruling of the lower court. The officer arrested defendants for violating a section of the Nyssa City Code (NCC), which provides, in part:“5.10.130: Every adult concession shall comply with the following standards of operation and the following standards of conduct must be adhered to by employees and entertainers of all adult concessions:“ * * * * *“(17) No entertainer is permitted to be unclothed or in less than opaque and complete attire, costume or clothing, so as to expose to view any portion of the pubic region, buttocks, genitals, vulva, or anus, except removed at least four feet (4') from the nearest patron.” 3The Nyssa Municipal Court convicted both defendants of violating that city code provision.