SENT VIA ELECTRONIC MAIL
June 25, 2019
Seattle City Council
600 Fourth Avenue, 2nd Floor
Seattle, WA 98104
Re: Proposed Chapter 14.26

Dear Members of the Seattle City Council:

901 Fifth Ave, Suite #630
Seattle, WA 98164
(206) 624-2184
aclu-wa.org
Tana Lin
Board President
Michele Storms
Executive Director
Emily Chiang
Legal Director
Antoinette Davis
John Midgley
Nancy Talner
Senior Staff Attorneys
Eunice Cho
Lisa Nowlin
Breanne Schuster
Staff Attorneys
Michael Youhana
Legal Fellow

The ACLU of Washington applauds the Seattle City Council’s recognition
of the serious need for improved protections for the health and safety of
hotel workers, who are often vulnerable to exploitation and abuse by both
their employers and hotel guests. Initiative 124—approved by Seattle
voters in 2016 and currently being considered by the Council as a package
of ordinances revising the Municipal Code—appropriately acknowledges
that these workers, who are typically women and often women of color,
are entitled to measures that take into account the nature of their work,
which is often performed in hotel rooms. Panic buttons—which we
supported in SB 5358—might seem superfluous but in fact reduce
workplace sexual harassment and assault and improve health outcomes
and inequities among isolated workers.
Although the ACLU strongly supports the overall package of ordinances,
we write to draw the Council’s attention to a series of problematic
provisions in one of the proposed chapters that, if not remedied, will likely
result in legal challenge.
Proposed new Chapter 14.26, “Protecting Hotel Employees from Violent
or Harassing Conduct” is well-intentioned but problematic because it (1)
contains unconstitutionally vague language, violates due process and First
Amendment requirements and impermissibly enables arbitrary and
discriminatory enforcement (2) fails to comport with basic procedural due
process requirements regarding notice and opportunity to be heard and (3)
impermissibly delegates law enforcement, adjudication, and sentencing
authority to private for-profit entities. These provisions also raise concerns
about the disproportionate impact they will likely have on people of color,
and men of color in particular; and about the security of the data the
ordinance requires hotels to maintain.
Our nation has had a troubling history with so-called “blacklists,” dating
back to the McCarthy era (targeting in relevant part public sector
employees and union activists) and continuing through to the post-9/11

 “no-fly” lists that continue to be administered in secret to the great
detriment of Muslims and members of the South Asian community. Time
and again we have learned that such lists are unreliable, do not make us
safer, lack procedural protections for those listed, and disproportionately
target people of color. In the new digital age, we have also learned that
unless necessary and appropriate steps are taken to protect sensitive data,
that data is not secure. That the City now additionally seeks to delegate
the creation, administration, and enforcement of such a list to private forprofit corporations is unprecedented, unwise, and dangerous.
ACLU-WA urges the City Council simply to delete Sections 14.26.070, .080, -.110.A(1)-(3), and the fine regarding failure to maintain records for
five years set forth in -.170.E, leaving the rest of the Ordinance and
Chapter intact. Proposed Section 14.26.250, “Severability,” already
contemplates that the provisions of this Chapter are considered separate
and severable.

1. Because Proposed Section 14.26.070 is Unconstitutionally Vague,
it Violates Due Process and the First Amendment, Enabling
Arbitrary and Disproportionate Enforcement
Proposed Section 14.26.070 contains a number of references to language
that is insufficient to “give the person of ordinary intelligence a reasonable
opportunity to know what is prohibited, so that he may act accordingly.”
Grayned v. City of Rockford, 408 U.S. 104, 108 (1972). “Vagueness may
invalidate a criminal law for either of two independent reasons. First, it
may fail to provide the kind of notice that will enable ordinary people to
understand what conduct it prohibits; second, it may authorize and even
encourage arbitrary and discriminatory enforcement.” Chicago v.
Morales, 527 U.S. 41, 56 (1999). See also State v. Padilla, 190 Wn.2d
672 (2018). Both reasons are applicable here.
The section refers repeatedly to “violent or harassing conduct” as the
trigger for various obligations and actions to be taken by hotel employers;
“violent and harassing conduct” is in turn defined as including
“unwelcome or inappropriate sexual remarks” and “intimidation.” But
nowhere does the ordinance clarify the meaning of “harassing conduct,”
what remarks might be considered “sexual” in nature, or how remarks will
be determined to be “inappropriate.”
An inquiry as to whether one has been following HBO’s Game of
Thrones—a popular television show that contains graphic depictions of
sex and sexual violence, but that is also a pop culture phenomenon—could
be interpreted by some as sexual, unwelcome, and inappropriate.
Reference to a “reasonable person” standard does not cure the deficiency,
particularly since it is a private for-profit hotel employee who is being

 asked to make the initial determination. Smith v. Goguen, 415 U.S. 566,
574 (1974) (“[P]erhaps the most meaningful aspect of the vagueness
doctrine is not actual notice, but the other principal element of the
doctrine—the requirement that a legislature establish minimal guidelines
to govern law enforcement. It is in this regard that the statutory language
under scrutiny has its most notable deficiencies.”); see also id. at 575
(“Statutory language of such a standardless sweep allows policemen,
prosecutors, and juries to pursue their personal predilections. Legislatures
may not so abdicate their responsibilities for setting the standards of the
criminal law”).
The ordinance fails to do that which every government prohibition must:
“enable the ordinary citizen to conform his or her conduct to the law.”
Morales, 527 U.S. at 58. Neither does the signage requirement contained
in proposed Section 14.26.060 suffice. That section refers to “Sexual
Harassment” without defining the term and merely refers readers to a
generic citation to Chapter 14.26 as a whole. The Ordinance’s requirement
that hotels develop “a written policy” is also circular: hotel employers
seeking guidance as to what such a policy should contain are told only that
“the policy must explain the employer’s obligations under this Section.”
14.26.070.
When it is unclear what speech is permissible, i.e. what constitutes that
which is sexual in nature, unwelcome, or harassing, law-abiding people
will err on the side of not speaking at all, or limiting their speech to only
the most banal. The vagueness of this particular prohibition thus also
creates an impermissible chilling effect under the First Amendment. Cf.
State v. Immelt, 173 Wn.2d 1, 8 (2011) (internal quotation marks and
citations omitted) (“[T]he threat of enforcement of an overbroad law may
deter or ‘chill’ constitutionally protected speech—especially when the
overbroad statute imposes criminal sanctions”); see also id. (“Many
persons, rather than undertake the considerable burden (and sometimes
risk) of vindicating their rights through case-by-case litigation, will choose
simply to abstain from protected speech . . . harming not only themselves
but society as a whole . . . .”).
The prohibition on vagueness also serves to prevent “arbitrary and
discriminatory enforcement.” Morales, 527 U.S. at 71 (Kennedy, J.,
concurring) (finding ordinance unconstitutional because police officers are
given too much discretion). ACLU-WA expects that in the context of
this particular ordinance, the population most likely to bear the brunt of
arbitrary and discriminatory enforcement are men of color and,
specifically, Black and Latino men. Cf. William O. Douglas, Vagrancy
and Arrest on Suspicion, 70 Yale L.J. 1, 13 (1960) (noting that vague laws
for “suspicion” and “vagrancy” are disproportionately enforced against
“minority groups who are not sufficiently vocal to protect themselves, and

 who do not have the prestige to prevent an easy laying-on of hands by the
police.”); David Rudovsky, Law Enforcement by Stereotypes and
Serendipity: Racial Profiling and Stops and Searches Without Cause, 3 U.
Pa. J. Const. L. 296, 296–07 (2001) (noting that in 1998, of 52,000 people
selected by customs officials for body searches, almost half of all persons
selected were African-American or Latino).

2. The Proposed Ordinance Fails to Provide Protections Required by
Due Process
Because hotel guests have both a liberty interest in their reputations and in
freely accessing what are otherwise places of public accommodation, the
proposed ordinance implicates procedural due process, which prohibits
deprivation of a liberty interest without proper notice and an opportunity
to be heard. “The fundamental requirement of [procedural] due process is
the opportunity to be heard ‘at a meaningful time and in a meaningful
manner.’” Mathews v. Eldridge, 424 U.S. 319, 332 (1976). Mathews sets
out the three factors that must be considered to determine whether the
procedural protections provided for are sufficient to protect the interest at
stake: (1) the private interest at stake (2) the risk of erroneous deprivation
and (3) the government interest. Id. at 321.
Although the government interest at issue is significant and compelling,
the Ordinance as currently drafted will create far too great a risk of
erroneous deprivation of the liberty interests at stake unless additional
protections are provided.
In the context of “no-fly” lists used to bar travelers from boarding
airplanes, courts have found that ample procedural safeguards must be
provided—and in the context of the no-fly lists, government was held to a
reasonable suspicion standard even to place someone on the list, whereas
here there is no clear standard (much less one administered by publicly
accountable government officials) that applies. Latif v. Holder, 28 F.
Supp. 3d 1134, 1151 (D. Or. 2014), appeal denied, No. 14-36027 (9th Cir.
2014) (finding a high risk of erroneous deprivation of travelers’ rights to
international travel and reputation even where the no-fly list used a
“reasonable suspicion” standard).
Here, the only apparent procedural safeguard is that guests may request a
hearing before the “Hearing Examiner” within 30 days. But nowhere does
this Chapter state who the “Hearing Examiner” is, how the location of the
“Hearing Examiner” is to be known, or what standards are to apply in such
hearings. Neither does it make any accommodation for the likelihood that
most guests staying in Seattle hotels are visiting from out of town, some
with additional stops on their itineraries, some for whom English is not
their first language etc.: if the appeal is not filed within 30 days, the

 findings made by the private for-profit hotel employer with no government
involvement whatsoever are final and binding.
3. The Ordinance Impermissibly Delegates State Law Enforcement
Authority to Private For-Profit Hotels that are Wholly
Unaccountable to the Public
Perhaps the most troubling aspect of the proposed Chapter 14.26 is its
wholesale delegation of state investigative, adjudicative, and enforcement
powers to wholly unaccountable private for-profit corporations who have
not traditionally been considered state actors.1 This delegation is in
contrast to the provisions contained in proposed Chapter 14.29 regarding
“Hotel Employees Job Retention,” which appropriately reserve
enforcement to the Office of Labor Standards and its Director.
Not only are private for-profit hotels—corporations in the business of
making money by renting rooms out to travelers—tasked with conducting
“fair and impartial investigation[s] into . . . alleged conduct,” they are
given no guidance whatsoever how to do so. They are additionally tasked
with providing legally sufficient notice, both to victims and alleged
perpetrators; with making “a prompt determination about whether the
conduct occurred,” “document[ing] the investigation and determination in
writing,” and “provid[ing] a written copy of the determination to the
accused guest and the alleged victim”—i.e. issuing a quasi-judicial
opinion. Additionally, and separately concerning, the proposed Ordinance
also requires private for-profit hotels to engage in law enforcement by
declining service to guests these hotels have adjudicated as being in
violation for five years.
These requirements are unlawful. Certain aspects of state authority are
properly reserved only to the state—and when delegation is proper, it
includes both substantive and procedural protections to prevent the abuse
of authority. Cf. State of Washington ex rel. Seattle Title Trust Co. v.
Roberge, 278 U.S. 116, 122 (1928) (citing Yick Wo v. Hopkins, 118 U.S.
356, 366 (1886) in holding a Seattle ordinance that delegated building
permit approval to nearby private property owners unconstitutional and a
“delegation of power . . . repugnant to the due process clause of the
Fourteenth Amendment”); see also Dep’t of Transp. v. Ass’n of Am. R.Rs.,
135 S. Ct. 1225, 1234 (2015) (Alito, J., concurring) (“Liberty requires
accountability. ... Government officials can wield power without owning
up to the consequences. One way the Government can regulate without
1

Of course, hotels exercising state authority pursuant to the Ordinance would be state
actors for the purpose of the exercise of that authority and bound by the state and federal
constitutions accordingly. Lugar v. Edmondson Oil Co., 457 U.S. 922, 937 (1982)
(noting the key question is whether the private person’s conduct “may be fairly
characterized as ‘state action’” or is “fairly attributable to the State.”).

 accountability is by passing off a Government operation as an independent
private concern.”).
Conclusion
Time and again, we have learned that lists purporting to ban people are
unreliable, do not make us safer, lack procedural protections for those
listed, and disproportionately target people of color. Because delegating
the creation, administration, and enforcement of such a list to private forprofit corporations is both unprecedented and unwise, ACLU-WA
respectfully urges the City Council to delete proposed Sections 14.26.070,
-.080, -.110.A(1)-(3), and the fine regarding failure to maintain records for
five years set forth in -.170.E. Failure of the Seattle City Council and
Mayor to address these civil liberties concerns will place at risk the
important worker protections we support extending to an already
vulnerable labor workforce.

Sincerely,

Emily Chiang
Legal Director
CC:

Jenny Durkan, Mayor of Seattle
Pete Holmes, City Attorney