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Salt Lake City v. Kidd

Supreme Court of Utah

January 23, 2019

Salt Lake City, Appellee,
v.
Karlie Kidd, Appellant.

          Third District, Salt Lake The Honorable Judge Mark Kouris No. 131401513

         On Certification from the Court of Appeals

          Heather Lindsay, Salt Lake City, for appellee

          W. 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.

          OPINION

          Pearce, Justice.

         INTRODUCTION

         ¶1 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.

         ¶2 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.

         ¶3 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 Protection rights.

         ¶4 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 conviction.

         BACKGROUND

         ¶5 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 § 5.61.110.[1]

         ¶6 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.

         ¶7 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 businesses.

         ¶8 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").[2]

         ¶9 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.

         ¶10 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 ยง 78A-7-118(1) ...


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