City and County of Denver v. Nielson
Decision Date | 27 December 1977 |
Docket Number | No. 27423,27423 |
Citation | 194 Colo. 407,572 P.2d 484 |
Parties | CITY AND COUNTY OF DENVER, Plaintiff-Appellee, v. Lois Mae NIELSON, Defendant-Appellant. |
Court | Colorado Supreme Court |
Max P. Zall, City Atty., Charles E. Sellner, Asst. City Atty., Denver, for plaintiff-appellee.
Charles A. Friedman, Denver, for defendant-appellant.
Appellant was convicted of having administered massages to members of the opposite sex, in violation of Denver Revised Municipal Code 971.2-14 (hereinafter ordinance). The Superior Court in and for the City and County of Denver affirmed the conviction on appeal, relying on Colorado Springs Amusements, Ltd. v. Rizzo, 524 F.2d 571 (3d Cir. 1975), cert. denied, 428 U.S. 913, 96 S.Ct. 3228, 49 L.Ed.2d 1222 (1976). The case is before us for review to determine the constitutionality of the ordinance upon which conviction is predicated. We reverse.
Section 971.2-14 provides:
The Third Circuit Court of Appeals held that a similar ordinance which prohibited massage by a member of the opposite sex did not violate federal constitutional rights of equal protection or due process in Colorado Springs Amusements, Ltd. v. Rizzo, supra. It reversed the district court decision, reported at 387 F.Supp. 690 (E.D.Pa.1974), which had held the ordinance to be unconstitutional. Reversal was mandated by the United States Supreme Court decision in Hicks v. Miranda, 422 U.S. 332, 95 S.Ct. 2281, 45 L.Ed.2d 223 (1975): 1
Regardless of the Third Circuit Court's decision in Colorado Springs Amusements, Ltd. v. Rizzo, supra, states may interpret their own constitutional provisions to afford greater protections than the Supreme Court of the United States has recognized in its interpretation of the federal counterparts to state constitutions. Oregon v. Hass, 420 U.S. 714, 95 S.Ct. 1215, 43 L.Ed.2d 570 (1975); Cooper v. California, 386 U.S. 58, 87 S.Ct. 788, 17 L.Ed.2d 730 (1967); People v. Hoinville, Colo., 553 P.2d 777 (1976).
The appellant contends that Denver's ordinance violates the due process clause of the Colorado Constitution, Colo.Const. Art. II, Sec. 25, by creating an irrational conclusive presumption. We agree.
The district court decision in Colorado Springs Amusement, Ltd. v. Rizzo, supra, which was subsequently reversed, held a similar ordinance void as violative of due process on this basis "The ordinance makes a conclusive presumption that all who massage persons of the opposite sex will engage in illicit sexual activity. For such a presumption to be constitutionally valid, the presumption must in fact be reasonable. Tot v. United States, 319 U.S. 463, 63 S.Ct. 1241, 87 L.Ed. 1519 (1943). Even though there is a legitimate purpose for the legislation, such legislation must fail if there is no reasonable factual basis for the enactment. Cleveland Board of Education v. La Fleur, 414 U.S. 632, 645, 94 S.Ct. 791, 39 L.Ed.2d 52 (1974); United States Dept. of Agriculture v. Murry, 413 U.S. 508, 514, 93 S.Ct. 2832, 37 L.Ed.2d 767 (1973); Vlandis v. Kline, 412 U.S. 441, 93 S.Ct. 2230, 37 L.Ed.2d 63 (1973); Stanley v. Illinois, 405 U.S. 645, 655, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972). There is no evidence on the record from which a conclusion could be made that all persons who massage a person of the opposite sex will commit an illicit sexual act.
...
To continue reading
Request your trial-
People ex rel. T.B.
..., 402 U.S. 535, 91 S.Ct. 1586, 29 L.Ed.2d 90 (1971) (fault warranted suspension of driving privileges); City & Cty. of Denver v. Nielson , 194 Colo. 407, 572 P.2d 484 (1977) (masseuse of different sex than client will engage in illegal sex acts). Not so with CSORA.¶103 For these reasons, I ......
-
MRM, Inc. v. City of Davenport
...mem., 535 F.2d 1249 (4th Cir. 1976); Ex parte Maki, 56 Cal.App.2d 635, 644, 133 P.2d 64, 69 (1943); City & County of Denver v. Nielson, 194 Colo. 407, 410, 572 P.2d 484, 486 (1977) (ordinance prohibiting heterosexual massage held not "reasonable" under Colorado Constitution); Clevenger v. C......
-
People v. Sporleder
...Fourth Amendment when determining the scope of state constitutional protections. E.g., Charnes v. DiGiacomo, supra; Denver v. Nielson, 194 Colo. 407, 572 P.2d 484 (1977); People v. Hoinville, 191 Colo. 357, 553 P.2d 777 (1976). See also Brennan, State Constitutions and the Protection of Ind......
-
People v. Oates
...difficulty immeasurably. This court must ultimately be the final interpreter of the Colorado Constitution. City and County of Denver v. Nielson, 194 Colo. 407, 572 P.2d 484 (1977); People v. Hoinville, 191 Colo. 357, 553 P.2d 777 (1976). However, in the law of search and seizure, where the ......
-
Section 25 DUE PROCESS OF LAW.
...493 P.2d 1083 (1972); Carl Ainsworth, Inc. v. Town of Morrison, 189 Colo. 223, 539 P.2d 1267 (1975); City & County of Denver v. Nielson, 194 Colo. 407, 572 P.2d 484 (1977).B. Business. Right to carry on legitimate business is property right. Olin Mathieson Chem. Corp. v. Francis, 134 Colo. ......
-
Michigan v. Long and Its Effect on Colorado Court Decisions
...degree murder statute violated equal protection under Article II, § 25). 9. Article II, § 25. See, City and County of Denver v. Nielsen, 194 Colo. 407, 572 P.2d 484 (1977) (statute creating unreasonable conclusive presumption unconstitutional); People ex rel. Orcutt v. Instantwhip Denver, I......
-
Abortion in Colorado: if Roe v. Wade Is Reversed
...37. 389 F.Supp. 947 (D.Colo. 1975). 38. Supra, note 13. 39. People v. Franklin, 683 P.2d 775 (Colo. 1984). 40. E.g., Denver v. Nielsen, 572 P.2d 484, 485 (Colo. 1977), holding unconstitutional a statute making it unlawful to practice massage upon persons of the opposite sex. 41. Marbury v. ......