City of Indianapolis v. Wright

• Decision Date: 19 January 1978
• Docket Number: Nos. 477,s. 477
• Citation: 267 Ind. 471,371 N.E.2d 1298
• Parties: CITY OF INDIANAPOLIS, William Hudnut, as Mayor of the City of Indianapolis, Fred Armstrong, as City Controller of the City of Indianapolis, Appellants (Defendants below), v. John WRIGHT d/b/a Touch of Class Massage Parlor, and Mary Kay Gilbert, Appellees (Plaintiffs below), Mary Jo Kocher, Appellee (Intervening Plaintiff below). CONSOLIDATED CITY OF INDIANAPOLIS, Appellant (Defendant below), v. Karon GRIFFIN et al., Appellees (Plaintiffs below). S 272, 777 S 488.
• Court: Indiana Supreme Court

Page 1298

371 N.E.2d 1298

267 Ind. 471

CITY OF INDIANAPOLIS, William Hudnut, as Mayor of the City

of Indianapolis, Fred Armstrong, as City Controller of the City of Indianapolis, Appellants (Defendants below), v. John WRIGHT d/b/a Touch of Class Massage Parlor, and Mary

Kay Gilbert, Appellees (Plaintiffs below),

Mary Jo Kocher, Appellee (Intervening Plaintiff below).

CONSOLIDATED CITY OF INDIANAPOLIS, Appellant (Defendant below), v. Karon GRIFFIN et al., Appellees (Plaintiffs below).

Nos. 477 S 272, 777 S 488.

Supreme Court of Indiana.

Jan. 19, 1978.

Rehearing Denied March 6, 1978.

David R. Frick, Stephen Goldsmith, Indianapolis, for appellants.

John R. Cromer, Indianapolis, for appellees.

HUNTER, Justice.

Cause No. 477 S 272 was initiated by John Wright and Mary Kay Gilbert, appellees, when, on October 14, 1976, they filed their complaint for a temporary restraining order, permanent injunction and declaratory relief. A temporary restraining order was issued and subsequent to a hearing pursuant to Ind.R.Tr.P. 65(A)(2), the trial court granted the permanent injunction and the declaratory relief prayed for. The trial court's judgment determined that the massage parlor ordinance at issue here was unconstitutional. More specifically it found that state law has preempted municipal legislation regarding criminal sexual activity, making the ordinance an attempted local law prohibited by the Indiana Constitution. He also found the ordinance violative of the due process and equal protection provisions of the Indiana Constitution and of the prohibition against unreasonable searches and seizures of both the Indiana and United States Constitutions.

Cause No. 777 S 488 involves a nearly identical proceeding which resulted in an identical judgment one day later. Although separately tried and appealed, both appellants' and appellees' briefs present identical arguments to the issues involved. Appellants in Cause No. 477 S 272, the city, its mayor and its controller, sought transfer pursuant to Ind.R.Ap.P. 4(A)(10). Transfer was granted and Cause No. 777 S 488 is consolidated therewith for the purposes of this opinion. Hereafter the appellants shall be referred to as "the city" and the appellees shall be referred to as "the massage parlors" for the sake of convenience, unless it is otherwise indicated.

I.

The city argues that the trial court erred in its determination that the massage ordinance was an attempted local law in an area preempted by state law and therefore prohibited by the Indiana Constitution.

In City of Indianapolis v. Sablica (1976) Ind., 342 N.E.2d 853, this Court invalidated a municipal ordinance which made it a misdemeanor for one to interfere with or taunt a police officer. We determined that the legislature, by creating the state criminal offense of resisting or interfering with an officer, had determined that a general law shall apply and that local legislation on the same subject was constitutionally impermissible. Both the statute and the ordinance in that case provided criminal penalties for violation of their provisions.

In the present case the City-County Council of the City of Indianapolis and Marion County enacted an ordinance, City-County Council General Ordinance No. 110, providing for the detailed regulation of massage parlors. Among other things, this ordinance requires massage parlors and other similar establishments to be licensed by the City Controller. Massage therapists are prohibited from administering a massage to a person of the opposite sex, touching the sexual or genital area of any person or from performing, offering or agreeing to perform any act which would require the touching of the patron's genitals. Therapists are required to wear nontransparent outer garments and patrons are required to have their sexual and genital areas covered by a towel or garment at all times.

Ordinance No. 110 contains the following section relating to enforcement:

"Sec. 27-731. Complaints.

"All complaints of alleged violations of the provisions of this chapter shall be made in writing to the Controller. Upon learning of violation of the provisions of this chapter and/or related ordinances or laws, the Controller shall utilize the enforcement remedies provided in Section 17-49."

The enforcement remedies contained in the section referred to authorize the controller to suspend or revoke the license of the licensee. Sec. 17-49 does not provide criminal misdemeanor penalties for violation of the duties contained in the ordinance.

The massage parlors argue that the general penalty provision of the City-County Ordinances provide misdemeanor penalties for violation of the massage ordinance.

"Sec. 1-8. General penalties for violations of Code.

"(a) Whenever in any chapter, article, division or section of this Code, or of any ordinances amendatory thereof or supplemental thereto, the doing of any act, or the omission to do any act or to perform any duty, is declared to be a violation of this Code, or of any such amendatory or supplemental ordinance, or of any provision thereof, or is declared to be unlawful, and if there shall be no fine or penalty otherwise specifically prescribed or declared for any such violation, or for doing or for omitting to do any such act or to perform any such duty, any person who shall be convicted of any such violation, or of doing or of omitting to do any such act or to perform any such duty shall be fined, by way of a penalty therefor, not more than one thousand dollars ($1,000.00) for each such violation, act or omission, to which may be added imprisonment not exceeding one hundred and eighty (180) days." (Emphasis supplied.)

The trial court accepted the massage parlors' argument and invalidated the ordinance. However, the general penalty provision applies only if no penalty is specifically provided for by the ordinance defining the duty. The massage ordinance provides a specific penalty in the previously quoted section by mandating the controller to use the enforcement provisions of Sec. 17-49. This is the exclusive enforcement remedy, as is indicated by the use of the word "shall." The fact that Sec. 17-49 gives the controller discretion in determining whether or not to suspend or revoke a license does not indicate that the council intended otherwise.

In support of the trial court's decision that the ordinance is an invalid local law, the massage parlors cite the following state statutes, contending that these statutes preempt similar local laws: Ind.Code § 35-1-89-1 (Burns 1975) (sodomy, now repealed); Ind.Code § 35-45-4-1 (Burns Supp. 1977) (new penal code provision regarding public indecency); Ind.Code § 35-1-83-3 (Burns 1975) (public indecency, now repealed); Ind.Code § 35-45-4-2 (Burns Supp. 1977) (new penal code provision on prostitution); Ind.Code § 35-30-10.1-3 (Burns Supp. 1977) (obscene performance). The massage parlors contend that the city-county ordinance prohibits the same acts as are prohibited by the above state statutes and that the ordinance is therefore invalid. We have, however, already determined that the ordinance does not provide for misdemeanor penalties and there is no state statute which establishes a licensing system for massage parlors. Lancaster v. Municipal Court, (1972) 6 Cal.3d 805, 100 Cal.Rptr. 609, 494 P.2d 681, is distinguishable in that the ordinance involved in that case provided for misdemeanor penalties. Under the facts of this case we do not believe that the present massage parlor ordinance involves the same "subject matter" as the state statutes. City of Indianapolis v. Sablica, (1976) Ind., 342 N.E.2d 853, 855. The ordinance establishes a licensing plan whereas the statutes establish a penal scheme. The ordinance is therefore not unconstitutional under Ind.Const. Art. 4 §§ 22 and 23 as being an attempted local law where the legislature has determined that a general law shall apply.

II.

The trial court determined in each of these cases that the massage parlor ordinance was contrary to the due course of law and equal protection provisions of the Indiana Constitution. No finding was made with respect to the similar federal constitutional provisions. The city argues that the trial court was erroneous in its determination. The massage parlors, in support of the trial court, argue that the ordinance violates due course of law in that it deprives massage therapists of their fundamental right to earn a livelihood, that it unconstitutionally discriminates on the basis of sex, and that it creates an unconstitutional irrebuttable presumption that opposite sex massages lead to illicit sexual relations.

This Court's interpretation of a state constitutional provision is an independent judicial act. Federal cases are nonetheless persuasive, Reilly v. Robertson, (1977) Ind., 360 N.E.2d 171, as are the decisions of the courts of last resort of other state jurisdictions. Allen v. Van Buren Twshp., (1962) 243 Ind. 665, 184 N.E.2d 25.

"It is the province of the state courts to interpret and apply the provisions of their state Constitutions, but where a provision of a state Constitution is similar in meaning and application to a provision of the federal Constitution, it is desirable that there should be no conflict between the decisions of the state courts and the federal courts on the subject involved. While a decision of the Supreme Court sustaining the validity of a state statute as not violative of any provision of the Fourteenth Amendment is not absolutely binding on the courts of the state when the statute is attacked as being in conflict with a provision of the state Constitution having the same effect, still, the federal decision in such cases is strongly persuasive as authority, and is generally acquiesced in by the state courts."

Sperry & Hutchinson Co. v. State, (1919) 188 Ind. 173 at 180, 122 N.E. 584 at 587.

Numerous state and federal courts have considered the constitutionality of similar ordinances. Even before...