Judge grants injunction, says ordinances violate Everett bikini barista's amendment rights

EVERETT, Wash. -- Bikini baristas in Everett can wear or not wear what they want--at least for now.

A U.S. District Judge granted a preliminary injunction Monday  allowing the baristas to continue wearing lingerie at some drive-through coffee stands despite the city of Everett's efforts to make them cover up.

"I think it was ridiculous," said mom of two, Kristen McMahon of the city's ordinances.

McMahon has been a barista for ten years and says she's saving up for college.

"A lot of us are moms or they're girls trying to put ourselves through school. The economy--it's pretty rough right now and its nice to have that extra money, " said McMachon.

It's more money baristas say then they'd get if they were forced to cover up.

"It's not a job you could have forever-- we know that-- but its good for right now" said McMahon, who said her boss, Jovanna Edge, believes in empowering woman and that she's made it very clear 'shows' or bad behavior won't be tolerated.

"I think they really put a bad name for us," said McMahon of the city. "They were talking about us doing prostitution or saying that there’s a bunch of crime here and it's not true-- I see more bad things happen at McDonald's in town."

McMahon works for Jovanna Edge who owns several Hillbilly Hotties barista stands in Everett, Monroe and Arlington. Edge is one of  six baristas who sued the City of Everett  over a new dress code requiring them to cover up.

Emilia Powell is a plaintiff and a barista at one of Edge's Hillbilly Hotties coffee stands and said "I think that the judge made the right call and it’s a big step forward for woman."

Derek Newman is representing the six plaintiff's suing the city and says the ordinances were "unconstitutional".

"The court’s order stops the City of Everett from going too far in controlling what women wear at work and in public. With today’s order, our clients can continue to serve coffee, confidently dressed in bikinis, even though the city disagrees with the manner of the baristas’ expression. The city should enforce laws against criminals rather than get distracted targeting the clothing choices of women. This isn’t the first time a city has tried to regulate expression, and probably won’t be the last. But we have an excellent federal judiciary, and strong Supreme Court precedent, that makes clear government should not interfere with our First Amendment freedom of speech and expression," said Newman in a statement Monday.

McMahon isn’t named in the suit herself, but has been in court to support her boss and her rights to wear whatever she wants.

"It's empowering," said McMahon. "If you think back, woman weren’t even able to show their ankles."

Monday United States District Judge Marsha J. Pechman agreed – granting the plaintiff's motion for a preliminary injunction.

The order stating in part:

"The Court finds that the Citywide Ordinance and the Dress Code Ordinance are likely void for vagueness under the Fourteenth Amendment. The term “bottom one-half of the anal cleft” is not well-defined or reasonably understandable, and the ordinances otherwise fail to provide clear guidance and raise risks of arbitrary enforcement. The Court finds that the Dress Code Ordinance likely violates Plaintiffs’ right to free expression under the First Amendment. Accordingly, the Court GRANTS Plaintiffs’ Motion for a Preliminary Injunction."

The injunction saying the ordinances  leaving it up to police officer's discretion to make the final call.

"I think that if they did put those rules on us it would be backtracking and it just wouldn’t be beneficial, said McMahon.

The baristas were challenging  two Everett ordinances.

"The Citywide Ordinance" issued by the city to amend the definition of lewd conduct--concerned the lack of clothing would attract more crime.

"The Citywide Ordinance amends the City’s existing definition of “Lewd Conduct” to include “exposure of more than one-half of the part of the female breast located below the top of the areola” and “exposure or display” of “one’s genitals, anus, bottom one-half of the anal cleft, or any portion of the areola or nipple of the female breast.”  Violation is punishable by up to 90 days in jail and a fine of up to $1,000.  An owner, manager, or operator of a public place who “knowingly permits, encourages, or causes to be committed lewd conduct” is guilty of “facilitating lewd conduct,” and is subject to up to one year in jail and a $5,000 fine."

Another ordinance calling for “quick service employees” to have a dress code basically covering from their shoulders to 3 inches below their butt.

"The Dress Code Ordinance requires employees of “Quick-Service Facilities,” including coffee stands and coffee shops, fast food restaurants, delis, food trucks, and “businesses that provide drive-thru forms of food and/or beverage service” to wear clothing that covers “the upper and lower body (breast/pectorals, stomach, back below the shoulder blades, buttocks, top three inches of the legs below the buttocks, pubic area and genitals).” Violations are issued against the owner of the Quick-Service Facility, and are punishable by a fine of up to $500 and revocation of license to operate."

The barista's in the suit claim those ordinances violate their right to free expression and are discriminate against women.

Monday a spokesperson for the City of Everett responded to the judges decision, saying “We are in the process of evaluating the court’s ruling. Once that review is completed, a determination will be made about how to proceed.”

The City of Everett can choose to appeal the judges decision.