Colorado Spring Amusements, Ltd. v. Rizzo
| Decision Date | 05 December 1974 |
| Docket Number | Civ. A. No. 74-955,74-2174. |
| Citation | 387 F. Supp. 690 |
| Parties | COLORADO SPRING AMUSEMENTS, LTD., t/a Velvet Touch, et al. v. Mayor Frank RIZZO et al. Max RUBENSTEIN, t/a Philadelphia Health Club, et al. v. Mayor Frank L. RIZZO of the City of Philadelphia and Emmett F. Fitzpatrick, District Attorney of the City, et al. |
| Court | U.S. District Court — Eastern District of Pennsylvania |
William J. Cottrell, Philadelphia, Pa., for plaintiffs.
Murray C. Goldman, Philadelphia, Pa., for defendants.
The quoted portion of the ordinance, on its face, violates both the "due process" and "equal protection" clauses of Section 1, Amendment 14 of the United States Constitution, irrespective of whether the proper standard to be applied is a "compelling governmental interest" or a "rational basis." Declaratory and injunctive relief will be granted in both actions.
On April 11, 1974 in Civil Action 74-955, plaintiffs, Colorado Springs, Ltd., t/a Velvet Touch and Laurel Benzer, et al., employees of the Velvet Touch, filed a "Complaint for Injunctive Relief, Declaratory Judgment and Money Damages" against the Mayor, Police Commissioner, Police Officers, Department of Health and Department of Licenses and Inspections of the City of Philadelphia. The complaint charges that Philadelphia Ordinance Bill No. 2524 (Nov. 1, 1963), Philadelphia Code 9-610(4), is unconstitutional on its face and as applied to plaintiffs.1 On April 16, 1974, a hearing was held on a motion for a temporary restraining order and preliminary injunction. At that time an understanding between counsel was reached; viz., the request for preliminary injunctive relief would not be pressed in exchange for the non-enforcement of 9-610(4), pending a determination of the constitutionality of the ordinance by this court. Plaintiffs' complaint was amended on April 23, 1974. A "Supplemental Complaint" was filed June 20, 1974 which charged defendants with enforcement of 9-610(4) against the plaintiffs in violation of the agreement. Plaintiffs sought to depose certain defendant police officers on July 10, 1974. Defendants through their counsel refused on the grounds that a criminal prosecution was pending against certain of the plaintiffs. Plaintiffs filed a motion for sanctions for failure to appear at a deposition. A conference was held on July 11, 1974 to resolve the disputes over continued enforcement of 9-610(4), scheduling of depositions, discovery and sanctions. At that conference all counsel agreed that the original stipulation of April 16, 1974 would remain effective and that 9-610(4) would not be enforced against the Velvet Touch, pending determination of the validity of the ordinance, and that a decision on motions for discovery and sanctions would be postponed until after the constitutionality of 9-610(4) had been determined by the district court. Defendant through its counsel, Murray C. Goldman, Esquire, conceded that the standard to be used in assessing the constitutionality of 9-610(4) was "compelling state interest." Briefs were filed concerning the facial validity of 9-610(4).2 The essential facts are not in dispute.
On August 21, 1974 in Civil Action 74-2174, a "Complaint for Declaratory Judgment, Injunctive Relief, and Money Damages" was filed by Max Rubenstein, t/a Philadelphia Health Club (Club) and Nicole Jones, et al., employees of the Club, against the Mayor, District Attorney, Commissioner of Police, Licenses and Inspections, and Health Departments of the City of Philadelphia as well as various police officers. The substance of this complaint is the same as in Velvet Touch with additional allegations in Rubenstein that plaintiffs come within the express exception to 9-610(4) because Max Rubenstein is a licensed physical therapist. (Section 9-610(5) (a) of the Ordinance.)3 The cases were consolidated as related under Local Rule 3(c) (3). A hearing on a motion for a temporary restraining order in Rubenstein was held on August 22, 1974 at which time that motion was denied.
1. Bill Number 2524 was approved by the Mayor of the City of Philadelphia on October 1, 1963 and became effective on November 1, 1963 under Section 9-610 of the Philadelphia Code.
2. Colorado Springs Amusements, Ltd., operates a massage parlor, trading as Velvet Touch at 11 North Thirteenth Street, Philadelphia, Pennsylvania.
3. Plaintiffs Bezner, Bell Stevens, Rowland, Savage, Cooley, Hampton, Adams, Stone, Viola, Davis, Barnes and Dollar were employees of the Velvet Touch during March and April, 1974.
4. Max Rubenstein is a licensed physical therapist with a place of business known as the Philadelphia Health Club located at 101 N. 15th Street, Philadelphia, Pennsylvania.
5. Plaintiffs Spence, Rementer, Jones and Nichols were employees of the Philadelphia Health Club in April 1974.
6. Defendant Rizzo is Mayor of the City of Philadelphia.
7. Defendant Fitzpatrick is District Attorney of the City of Philadelphia.
8. Defendant O'Neill is Police Commissioner of the City of Philadelphia.
9. Defendant Sabatini is Commissioner of the Department of Licenses and Inspections of the City of Philadelphia.
10. Defendant Weinberg was Solicitor of the City of Philadelphia during the first nine months of 1974.
11. Defendant Polk is Health Commissioner of the City of Philadelphia.
12. Defendants Roselli, Brenton, Powell, DeVecchio, DeLoach, Feldman, Lyons, English and Ford are members of the Philadelphia Police Department.
13. On March 15, 1974 plaintiffs Savage, Cooley, Hampton and Adams were arrested by defendants DeVecchio and DeLoach for violating 9-610(4).
14. Charges stemming from the March 15, 1974 arrest against Savage, Cooley, Hampton and Adams were discharged.
15. On March 25, 1974 defendant Shaw entered the Velvet Touch and arrested plaintiff Viola for violating 9-610(4).
16. Plaintiff Viola was subsequently found guilty of violating 9-610(4).
17. On April 8, 1974 defendant Lyons entered the Velvet Touch and arrested plaintiff Stone for violating 9-610(4).
18. On April 8, 1974 defendant English entered the Velvet Touch and arrested plaintiff Davis for violating 9-610(4).
19. On April 8, 1974, Philadelphia Police Officers entered the Velvet Touch and arrested an employee, Barbara Smith, a/k/a Marth Smith for violating 9-610(4).
20. Stone, Davis and Smith were subsequently found guilty of violating 9-610(4).
21. On April 9, 1974 defendant Ford entered the Velvet Touch and arrested plaintiff Viola for violating 9-610(4).
22. Plaintiff Viola was subsequently found guilty.
23. On April 14, 1974, plaintiffs Spence and Rubenstein were arrested at the Philadelphia Health Club by a Philadelphia Police Officer for violating 9-610(4).
24. Charges against Spence and Rubenstein were subsequently dismissed.
25. On or about May 16, 1974 defendant Ford entered the Philadelphia Health Club and arrested plaintiffs Rementer, Jones and Nichols for violating 9-610(4).
26. Plaintiffs Rementer and Nichols were arrested for indecent assault, Pa. Stat.Ann. tit. 18, § 3126 (1973), by defendant Ford at the Philadelphia Health Club in connection with massages administered by them to male customers of the Philadelphia Health Club.
1. The court has jurisdiction of the parties and the subject matter.
2. Plaintiffs have standing to sue.
3. Philadelphia Code 9-610(4) violates Section 1, Article 14 of the United States Constitution.
4. Plaintiffs are entitled to injunctive and declaratory relief.
Plaintiffs assert that the ordinance is unconstitutional because it conflicts with Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e-2(a), and the Fourteenth Amendment of the United States Constitution both as to "due process" and "equal protection of the laws." A long settled doctrine dictates that federal courts "ought not to pass on questions of constitutionality . . . unless such adjudication is unavoidable." Spector Motor Service, Inc. v. McLaughlin, 323 U.S. 101, 105, 65 S.Ct. 152, 154, 89 L.Ed. 101 (1944), accord, Rosenberg v. Fleuti, 374 U.S. 449, 451, 83 S.Ct. 1804, 10 L.Ed.2d 1000 (1963); Hurd v. Hodge, 334 U.S. 24, 30 fn. 6, 68 S.Ct. 847, 92 L.Ed. 1187 (1948). In this case the only issue before the court involves contentions that the ordinance, on its face, is unconstitutional. The facts are not in dispute. An adjudication as to the constitutionality of the ordinance is thus unavoidable to a determination of this litigation.
CIVIL RIGHTS ACT — TITLE VII EQUAL EMPLOYMENT OPPORTUNITIES (42 U.S.C. § 2000e)
Plaintiffs assert that Section 9-610(4) conflicts with Section 703, Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a).4 The contention is that sexually discriminatory employment practices will inevitably result from compliance with the ordinance in direct conflict with § 2000e-2. Plaintiffs contend that the "supremacy clause" of Article 6 of the United States Constitution thereby invalidates the ordinance, rendering it unconstitutional.4a One recent federal district court case has unequivocably so held. Cianciolo v. Members of City Council, Knoxville, Tenn., 376 F.Supp. 719, 723 (E.D.Tenn.1974).5 See also Joseph v. House, 353 F.Supp. 367 (E.D.Va.), aff'd sub nom. Joseph v. Blair, 482 F.2d 575 (4th Cir. 1973), where enforcement of a similar ordinance was preliminarily enjoined.
On the present record, no determination can be made as to...
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