City of Spokane v. Bostrom, 973--III
| Decision Date | 22 November 1974 |
| Docket Number | No. 973--III,973--III |
| Citation | 12 Wn.App. 116,528 P.2d 500 |
| Parties | CITY OF SPOKANE, Respondent, v. Barbara Ann BOSTROM, Appellant. |
| Court | Washington Court of Appeals |
Ross Worthington of Erickson & Worthington, Spokane, for appellant.
Richard Wrenn, Corp. Counsel, Roger A. Felice, Asst. Corp. Counsel, Spokane, for respondent.
The defendant violated § 20 of Spokane Municipal Ordinance No. C--21777, after having notified the Spokane Police Department of her intent to do so, for the sole purpose of challenging the constitutionality of § 20. She was found guilty and appeals.
Section 20 of the ordinance reads as follows:
Business Hours. It shall be unlawful to conduct business in a massage parlor or bathhouse between the hours of 10:00 p.m. and 6:00 a.m.
Defendant contends the city does not have the constitutional power to regulate the business hours of massage parlors; further, that the restriction, from 10 p.m. to 6 a.m., is an unreasonable exercise of police power upon a private business, conducted upon private property. We disagree.
A municipal corporation may, in the lawful exercise of its police power, regulate massage parlors and massagists. J.S.K. Enterprises, Inc. v. Lacey, 6 Wash.App. 43, 492 P.2d 600 (1971).
Thus, the limited issue presented is whether the mandatory closure constitutes a reasonable exercise of the city's police power. State v. Spino, 61 Wash.2d 246, 377 P.2d 868 (1963); Remington Arms Co. v. Skaggs, 55 Wash.2d 1, 345 P.2d 1085 (1959).
The judiciary should not invade the province of the legislative branch of government. State v. Conifer Enterprises, Inc., 82 Wash.2d 94, 508 P.2d 149 (1973). In an attempt to define the boundaries of judicial review of legislative action, certain limitations upon the court have been established, Petstel, Inc. v. County of King, 77 Wash.2d 144, 459 P.2d 937 (1969); Lenci v. Seattle, 63 Wash.2d 664, 388 P.2d 926 (1964); Lillions v. Gibbs, 47 Wash.2d 629, 289 P.2d 203 (1955):
(a) Any ordinance regularly enacted is presumed constitutional, Spokane v. Carlson, 73 Wash.2d 76, 436 P.2d 454 (1968). The presumption applies here.
(b) If a state of facts which would justify the legislation can reasonably be conceived to exist, courts must presume it did exist and the legislation was passed for that purpose. There is no requirement that the court find facts justifying the legislation. Spokane v. Carlson, Supra; Lenci v. Seattle, Supra.
(c) An ordinance to be void for unreasonableness must be clearly and plainly unreasonable. Seattle v. Hurst, 50 Wash. 424, 97 P. 454 (1908).
(d) The burden of establishing the invalidity of an ordinance rests heavily upon the party challenging its constitutionality. Letterman v. Tacoma, 53 Wash.2d 294, 333 P.2d 650 (1958).
This ordinance contains 29 sections, including, but not limited to, licensing of massage parlors and employees. It provides for exemptions, denials, suspensions or revocations of licenses, in part for violations of any 'federal, state or local law relating to sex offenses . . . drugs, controlled substances . . . alcoholic beverages . . . or of any crime involving moral turpitude . . .'
Noting the court's findings in J.S.K. Enterprises, Inc. v. Lacey, Supra, we can reasonably conceive a set of facts justifying the enactment of this ordinance. There the court stated at page 45 of 6 Wash.App., atpage 601 of 492 P.2d:
There was substantial evidence to justify the court's finding that a sauna massage business, such as that conducted by the plaintiff, is a potential setting for lewd and immoral acts and can and does attract people interested in lewd and immoral acts. The plaintiff has conducted its business with a certain degree of emphasis on sex and as a result has contributed to the setting of a background for lewd and immoral acts to be possibly permitted or performed on the premises.
No comparable evidence is presented here concerning this defendant's conduct or her business; however, no such showing is necessary. The preamble of the ordinance reads:
WHEREAS, the unregulated operation of massage parlors and bathhouses has given rise to practices which endanger the public health, safety, morals and welfare; and
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WHEREAS, the necessity in the public interest for the provisions and prohibitions...
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