Bikini baristas could take dress code fight to Supreme Court

For now, they’ve requested a rehearing after the federal court sided with the city of Everett in July.

By Stephanie Davey • August 20, 2019 1:30 am

EVERETT — If a recent request is denied in the 9th Circuit U.S. Court of Appeals, a group of local bikini baristas may ask to be heard by the U.S. Supreme Court.

They’ll likely know their next steps within a few months.

In early July, a panel of three judges on the 9th Circuit U.S. Court of Appeals sided with the city of Everett in a lawsuit filed by the baristas. Since then, the baristas have petitioned for a rehearing “en banc” in the same federal court before a larger panel of judges.

It’s rare for the appeals court to approve such a request, said Derek Newman, a lawyer for the baristas.

“It’s really difficult to get a circuit court to hear a case en banc. It’s almost impossible,” he said. “It’s almost the same as asking the Supreme Court of the United States to hear a case.”

They may have a chance because the decision conflicts with past federal court decisions, he said.

If denied, the baristas plan to ask the Supreme Court to hear their case.

The saga between Everett and bikini baristas has been ongoing for a decade.

It all started in 2009, when the Everett Police Department began to receive complaints about the drive-thru coffee stands.

The department investigated and found cases of prostitution and indecent exposure. Police began to prosecute, but found the method ineffective.

The department began to work with the city to find a legislative fix.

The city created a Dress Code Ordinance that said quick service workers must wear at least a tank top and shorts.

The baristas sued the city, arguing that their outfits were a way to express themselves and that the code violated their First Amendment rights.

In 2017, a U.S. District court judge banned the city from enforcing the law. The judge ruled that the code couldn’t be put in place until the lawsuit was resolved.

The city asked the 9th Circuit appeals court to review the enforcement ban. The two sides went to court in February.

Then last month that panel sided with Everett.

“The City looks forward to enforcing its ordinances consistent with the Court’s decision and in the best interest of the community,” a statement from the city says.

A few weeks later the baristas filed the petition for a rehearing. Now they’re waiting to hear back.

Stephanie Davey: 425-339-3192; sdavey@heraldnet.com; Twitter: @stephrdavey.