Can cities require licenses for dancers performing in establishments that serve alcohol? Salt Lake City v. Wood Explained

In Salt Lake City v. Wood, the Utah Court of Appeals addressed whether a municipal ordinance requiring professional dancers to obtain licenses before performing in establishments serving alcohol violates the First Amendment. The case arose when eighteen-year-old Jennifer Wood was cited for dancing at “Runway 69” without the required license.

Background and facts: Salt Lake City Code section 5.28.030 required professional dancers to obtain licenses before performing in establishments licensed to serve liquor. The ordinance also mandated that dancers be at least twenty-one years old, meet minimum costume coverage requirements, and have no physical contact with patrons. Wood, who was eighteen, was observed dancing on stage by undercover officers and cited for violating the license requirement. She moved to dismiss the charges on First Amendment grounds, but the trial court denied her motion and found her guilty after a bench trial.

Key legal issues: The primary issue was whether the licensing requirement constituted an unconstitutional restriction on freedom of expression. Wood argued the ordinance was subject to strict scrutiny as a content-based restriction. The city contended it was a permissible time, place, and manner restriction subject to intermediate scrutiny under the O’Brien test.

Court’s analysis and holding: The court applied the four-part O’Brien test, finding the ordinance satisfied each prong. The licensing requirement was within constitutional power, furthered substantial governmental interests in protecting societal order and morality, was unrelated to suppression of free expression, and imposed restrictions no greater than essential to further those interests. The court emphasized that dancing was not banned—only that dancers must first obtain licenses. The ordinance was content-neutral because it did not regulate the type or message of dancing performed.

Practice implications: This decision demonstrates that licensing schemes for expressive conduct in alcohol-serving establishments will likely survive constitutional challenge when properly structured as content-neutral regulations. However, Judge Orme’s lengthy dissent highlighted potential overbreadth problems with the ordinance’s broad prohibition on all entertainment by persons under twenty-one, suggesting that overly expansive licensing requirements may face successful facial challenges.