Sandy City v. Lawless

2016 UT App 63
THE UTAH COURT OF APPEALS
S ANDY C ITY ,
Appellee,
v.
M ICAELA B ETH LAWLESS,
Appellant.
Memorandum Decision
No. 20150014-CA
Filed April 7, 2016
Third District Court, West Jordan Department
The Honorable Barry G. Lawrence
No. 131401513
W. Andrew McCullough, Attorney for Appellant
Douglas A. Johnson, Attorney for Appellee
S ENIOR JUDGE P AMELA T. GREENWOOD authored this
Memorandum Decision, in which J UDGES S TEPHEN L. R OTH and
K ATE A. TOOMEY concurred.1
GREENWOOD, Senior Judge:
¶1 	Micaela 	Beth 	Lawless 	(Defendant) 	was 	convicted 	of
violating Sandy City ordinance 5-18-3 when she performed as an
escort 	without 	first 	obtaining 	a 	Sexually 	Oriented 	Business
License from Sandy. Defendant now appeals, challenging the
constitutionality 	of 	the 	state 	statute 	that 	grants 	Sandy 	the
authority to require such a license. See Utah Code Ann. § 10-8-
41.5 (LexisNexis 2012). Because Defendant did not preserve the
arguments in the district court, we affirm.
1. Senior Judge Pamela T. Greenwood sat by special assignment
as authorized by law. See generally Utah R. Jud. Admin. 11-
201(6).

Sandy City v. Lawless
20150014-CA 	2 	2016 UT App 63
¶2 	Defendant was licensed as an escort in Midvale City,
Utah, in accordance with Midvale’s Sexually Oriented Business
License ordinance. In the summer of 2013, an undercover Sandy
police officer arranged to meet with Defendant in a Sandy hotel.
Defendant was not licensed as an escort in Sandy. When she
arrived at the hotel, she was cited for doing business as an escort
in Sandy without a Sexually Oriented Business License.
¶3 	Defendant moved to dismiss, initially arguing that section
10-8-41.5 of the Utah Code, which permits a municipality to
require an escort to be licensed as a Sexually Oriented Business,
violated her rights under the First and Fourteenth Amendments
to the United States Constitution. Defendant later abandoned
these arguments and instead urged the district court to “review
the Sandy ordinance as to whether it violates the constitutional
rights of Defendant.”2 (Emphasis added.) The court concluded
that 	the 	ordinance 	“passes 	muster 	under 	the 	intermediate
scrutiny framework set forth in O’Brien” and denied the motion
to dismiss. See generally United States v. O’Brien, 391 U.S. 367
(1968). Following a bench trial, Defendant was convicted as
charged.
¶4 	On appeal, Defendant does not argue the constitutionality
of the Sandy ordinance. Instead, she urges us to conclude that
the relevant state statute is unconstitutional. See Utah Code Ann.
§ 10-8-41.5(2). That statute dictates that “[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.” Id.
2. Defendant was initially charged in the Sandy City Justice
Court. She filed a motion to dismiss there, which was denied,
before she was convicted following a bench trial. She then
appealed to the Third District Court in West Jordan, Utah. It is
the proceedings in the district court that we review on appeal.

Sandy City v. Lawless
20150014-CA 	3 	2016 UT App 63
¶5 	Normally, 	“[w]hether 	a 	statute 	is 	constitutional 	is 	a
question of law, which we review for correctness, giving no
deference to the trial court.” State v. Daniels, 2002 UT 2, ¶ 30, 40
P.3d 611. But in the instant case, we decline to reach the question
of 	the 	statute’s constitutionality 	because 	Defendant 	did 	not
present 	the 	issue 	to 	the 	district 	court. 	Because 	Defendant
abandoned 	her 	arguments 	regarding 	the 	state 	statute, 	“the
district 	court 	did 	not 	have 	the 	opportunity 	to 	give 	full
consideration to the issues at that time,” see O'Dea v. Olea, 2009
UT 46, ¶ 19, 217 P.3d 704, and we therefore have no district court
decision to review, see Harper v. Evans, 2008 UT App 165, ¶ 16,
185 P.3d 573 (declining to address an argument “as a matter of
lack of preservation in the district court” where the appellants
had 	abandoned 	a 	claim 	in 	the 	district 	court 	that 	they
subsequently argued on appeal); see also State v. Holgate, 2000 UT
74, ¶ 11, 10 P.3d 346 (clarifying that “the preservation rule
applies 	to 	every 	claim, 	including 	constitutional 	questions”).
“[R]equiring a party to raise an issue or argument in the trial
court gives the trial court an opportunity to address the claimed
error, and if appropriate, correct it.” Patterson v. Patterson, 2011
UT 68, ¶ 15, 266 P.3d 828 (citation and internal quotation marks
omitted).
¶6 	In the district court, Defendant abandoned her arguments
regarding the state statute. On appeal, Defendant attempts to
raise her previously abandoned arguments regarding the state
statute; she does not brief the question of the Sandy ordinance’s
constitutionality. We thus are not in a position to review the
issues raised.
¶7 	We therefore affirm.