District, Salt Lake The Honorable Judge Mark Kouris No.
Certification from the Court of Appeals
Heather Lindsay, Salt Lake City, for appellee
Andrew McCullough, Midvale, for appellant
Justice Pearce authored the opinion of the Court in which
Chief Justice Durrant, Associate Chief Justice Lee, Justice
Himonas, and Justice Petersen joined.
Salt Lake City requires that any individual employed by an
escort service agency, or any other sexually oriented
business, obtain a license from the City before providing
services. When Karlie Kidd met an undercover Salt Lake City
police officer at the Grand America Hotel and asked him for a
"show-up" fee, she did not possess such a license.
She did, however, have an escort services license from
Midvale City. Salt Lake City nevertheless cited Kidd for
offering escort services without a valid license.
State law authorizes Salt Lake City and Midvale, as well as
any other municipality, to impose licensing requirements on
employees of sexually oriented businesses. This results in a
regulatory scheme where escorts must obtain licenses in each
jurisdiction in which they want to operate, if the
jurisdiction requires a license.
To Kidd, the statute promotes regulatory overkill and burdens
her constitutional rights because the license Midvale issued
to her satisfies Salt Lake City's requirements and any
legitimate interest the City might have in regulating her
profession. Kidd claims that the imposition of multiple
licensing requirements violates her First Amendment and Equal
Because Kidd's First Amendment argument is inadequately
briefed and because her Equal Protection claim was not
properly raised in the district court, we affirm her
Kidd and the escort service agency that employed her were
licensed to provide sexually oriented business services in
Midvale. Kidd was not, however, licensed by Salt Lake City to
provide sexually oriented business services in that
municipality. To obtain that license, Kidd would have been
required to pay a fee and provide her social security number,
fingerprints, and criminal history, as well as other personal
information. See Salt Lake City, Utah, Code §
An undercover Salt Lake City police officer answered
Kidd's online advertisement and arranged to meet her at
the Grand America Hotel. Upon arrival, Kidd requested a
"show-up" fee or "donation." The officer
provided the payment; additional officers then entered the
room. They informed Kidd that they were police, ran a records
check, and ascertained that Kidd did not have a Salt Lake
City-issued sexually oriented business license. They cited
Kidd for violating Salt Lake City Code section 5.61.100.
Section 5.61.100 provides that "[i]t is unlawful for any
sexually oriented business to employ, or for any individual
to be employed by a sexually oriented business in the
capacity of a sexually oriented business employee, unless
that employee first obtains a sexually oriented business
employee license." The Salt Lake City Code, like the
Utah Code, deems escorts to be employees of sexually oriented
The City defines "sexually oriented business" as
"[n]ude entertainment businesses, sexually oriented
outcall services, adult businesses, 'seminude dancing
bars' and seminude dancing agencies." Salt Lake
City, Utah, Code § 5.61.040. While this definition does
not expressly mention escorts, the City's definition of
"sexually oriented business employees" does,
specifying that "[a]ll persons making outcall meetings
under this chapter, including escorts, . . . shall be
considered sexually oriented business employees."
Id. The Utah Code is also explicit that escort
service agencies are "sexually oriented
businesses." Utah Code § 10-8-41.5(1)(f)(i)
(defining "[s]exually oriented business" as "a
business at which any nude or partially denuded individual .
. . performs any service for compensation");
id. § 10-8-41.5(1)(f)(ii) (noting that the term
"'[s]exually oriented business' includes . . .
an escort service").
Section 10-8-41.5 of the Utah Code expressly prohibits
escorts from providing sexually oriented business services in
a city, if the city requires that the employee be
individually licensed and the employee has not obtained such
a license. Utah Code § 10-8-41.5(2) ("A person
employed in a sexually oriented business may not work in a
municipality: (a) if the municipality requires that a person
employed in a sexually oriented business be licensed
individually; and (b) if the person is not licensed by the
municipality."). Section 10-8-41.5 therefore mandates
that escorts obtain a license in each city in which they want
to provide services, if that city requires a license.
Kidd challenged this regulatory framework before the justice
court. Kidd asserted that section 10-8-41.5
unconstitutionally prohibited individuals from providing
sexually oriented services if they did not satisfy the
license requirement of each city in which they wanted to
work. Kidd first raised these challenges in justice court,
without success. In a trial de novo before the district
court, Kidd reiterated her constitutional arguments. See
generally Utah Code § 78A-7-118(1) ...