Gora v. City of Ferndale

• Decision Date: 01 April 1998
• Docket Number: No. 11,Docket No. 106783,11
• Parties: Hildegard GORA, The Loving Touch, Inc., Jacqueline Maxwell, Lea M. Perkins, Traci L. Lepro and Dawn L. Spangler, Plaintiffs-Appellees, v. CITY OF FERNDALE, a Municipal body corporate of the State of Michigan; and Valerie E. Kitchen in her official capacity as City Clerk for the City of Ferndale, Defendants-Appellants. Calendar
• Court: Michigan Supreme Court

Page 141

576 N.W.2d 141

456 Mich. 704

Hildegard GORA, The Loving Touch, Inc., Jacqueline Maxwell,

Lea M. Perkins, Traci L. Lepro and Dawn L.

Spangler, Plaintiffs-Appellees,

v.

CITY OF FERNDALE, a Municipal body corporate of the State of

Michigan; and Valerie E. Kitchen in her official

capacity as City Clerk for the City of

Ferndale, Defendants-Appellants.

Docket No. 106783.

Calendar No. 11.

Supreme Court of Michigan.

Argued Dec. 10, 1997.

Decided April 1, 1998.

Stephen M. Taylor, Farmington Hills, for Plaintiffs-Appellees.

Brian M. Smith & Associates, P.C. by Lawrence J. DeBrincat and Justin L. Smith, Troy, for Defendants-Appellants.

Opinion

TAYLOR, Justice.

Plaintiffs, former operators and employees of massage parlor establishments in the city of Ferndale, brought suit challenging the constitutionality of Ferndale Ordinance No. 832, as amended by Ordinance No. 836. The ordinance is a comprehensive scheme of regulations governing the operation of massage parlors within the city of Ferndale. In a published opinion on remand, the Court of Appeals affirmed the circuit court's finding that two sections of the city's ordinance were violative of the state and federal constitutions. ¹ The panel determined that § 7-266(a) of the ordinance, which prohibits opposite sex massage in massage parlor establishments except on a written order from a licensed health care practitioner, impermissibly discriminates on the basis of gender in violation of the state and federal Equal Protection Clauses. ² It further held that § 7-265, which provides for periodic inspections without warrants of massage parlors by the police or other authorized city inspectors, violates constitutional protections against searches and seizures. ³ We granted leave to appeal ⁴ and now reverse because we find that the ordinance is constitutionally valid in its entirety.

I

In November 1990, the city of Ferndale enacted a comprehensive ordinance regulating massage parlors. Among other things, Ordinance No. 832, as amended by Ordinance No. 836, sets forth procedures and educational requirements for obtaining a city license or permit to own, operate, or work in a massage parlor, and prescribes necessary facilities, hours of operation, and employee conduct and dress. The ordinance also restricts opposite sex massages in § 7-266(a). That section provides:

Treatment of persons of opposite sex restricted. It shall be unlawful for any person holding a permit under this section and working in a massage establishment to treat a person of the opposite sex, except upon the signed order of a licensed physician, osteopath, chiropractor, or registered physical therapist, which order shall be dated and shall specifically state the number of treatments, not to exceed ten (10). The date and hour of each treatment given and the name of the operator shall be entered on such order by the establishment where such treatments are given and shall be subject to inspection by the police pursuant to this article. The requirements of this subsection shall not apply to treatments given in the residence of a patient, the office of a licensed physician, osteopath or registered physical therapist, chiropractor, or in a regularly established and licensed hospital or sanitarium.

Further, the ordinance provides for periodic inspections of massage parlor establishments at § 7-265, which states:

The chief of police or other authorized inspectors from the City of Ferndale shall from time to time make inspection of each massage business establishment for the purposes of determining that the provisions of this article are fully complied with. It shall be unlawful for any licensee to fail to allow such inspection officer access to the premises or hinder such officer in any manner.

Under § 2-270, violation of any provision of the ordinance is a misdemeanor punishable by a fine of up to $500 or ninety days in jail.

Plaintiffs filed suit in Oakland Circuit Court, challenging the constitutionality of the ordinance. Initially, the circuit court found that several sections of the ordinance were violative of the state and federal constitutions. In reviewing this decision, however, the Court of Appeals held that the entire ordinance was preempted by provisions of the Occupational Code regulating myomassologists and did not address plaintiffs' constitutional claims. ⁵ In lieu of granting leave to appeal, this Court issued an order vacating that decision and remanding the case for reconsideration in light of 1995 P.A. 104, which repealed those portions of the Occupational Code that formed the basis of the panel's finding of preemption. ⁶ In addition, we directed the Court of Appeals to consider the constitutional issues that were left unaddressed.

On June 21, 1996, the Court of Appeals issued a second opinion on remand, holding that the two provisions at issue are unconstitutional. 217 Mich.App. 295, 551 N.W.2d 454 (1996). The panel concluded that § 7-266(a) violated the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution, as well as the equal protection guarantees provided by Michigan's Constitution. Const. 1963, art. 1, § 2. The opinion observed that classification schemes based on gender require application of the heightened scrutiny test, which requires that the classification serve an important governmental purpose and that it must be substantially related to achieving the government's objective. 217 Mich.App. at 303, 551 N.W.2d 454. In applying this test to the ordinance at issue, it stated:

Section 7-266(a) of defendant's ordinance is directed at an important public purpose, mainly the prevention of prostitution at massage parlors. Defendant's brief does not explain how the means of prohibiting mixed-gender massage is substantially related toward this end. Although prohibiting massage performed upon persons of the opposite gender would certainly prevent any sort of heterosexual contact between female masseuses and male customers, it would also cut the available number of plaintiff's [sic] prospective customers in half, significantly affecting their business. Although defendant's goal is legitimate, the prohibition applied to accomplish that goal is far too broad to be considered substantially related under the heightened-scrutiny test. [Id. at 303-304, 551 N.W.2d 454.]

With regard to the section of the ordinance dealing with inspections, § 7-265, the Court of Appeals affirmed the circuit court's determination that the provision violated the Fourth Amendment's constitutional protections against conducting searches and seizures without warrants. Id. at 304, 551 N.W.2d 454. It reached this conclusion on the basis of the reasoning that the administrative search exception to the warrant requirement is inapplicable because the State of Michigan does not pervasively regulate the massage parlor industry. Id. at 305, 551 N.W.2d 454. However, the panel reversed the circuit court's finding of constitutional violations with regard to other provisions of the ordinance relating to educational requirements, minimum age restrictions, and prohibitions regarding touching or exposure of body parts. ⁷

II

Before beginning our analysis, we note that an individual's right to engage in business is subject to the state's authority, pursuant to its historic police powers, to enact laws protecting the public health, safety, welfare, and morals. Grocers Dairy Co. v. Dep't of Agriculture Director, 377 Mich. 71, 75, 138 N.W.2d 767 (1966). "The enactment and enforcement of ordinances related to municipal concerns is a valid exercise of municipal police powers as long as the ordinance does not conflict with the constitution or general laws." Rental Property Owners Ass'n of Kent Co. v. Grand Rapids, 455 Mich. 246, 253, 566 N.W.2d 514 (1997). The rules governing the construction of statutes apply with equal force to the interpretation of municipal ordinances. Macenas v. Michiana, 433 Mich. 380, 396, 446 N.W.2d 102 (1989). Statutes and ordinances must be construed in a constitutional manner if possible. Detroit v. Qualls, 434 Mich. 340, 364, 454 N.W.2d 374 (1990). Because ordinances are presumed constitutional, the party challenging the validity of an ordinance has the burden of proving a violation. Rental Property Owners Ass'n, supra at 253, 566 N.W.2d 514.

III

The city argues that the Court of Appeals erred when it concluded that § 7-266(a), prohibiting opposite sex massages, was unconstitutional as a violation of the Fourteenth Amendment. We agree. The Court of Appeals decision is contrary to numerous United States Supreme Court decisions allowing such ordinances to stand on the basis of its conclusion that no federal question implicating equal protection guarantees was raised by the measures. Further, the ordinance does not run afoul of our state constitution. In Doe v. Dep't of Social Services, 439 Mich. 650, 672, 487 N.W.2d 166 (1992), we stated:

[W]e do not find in the wording used, nor in its arrangement, any evidence of purpose on the part of the drafters to provide broader protection in the Equal Protection Clause of the state constitution than is found in its federal counterpart. Rather, the pattern suggests a deliberate effort to duplicate the protection secured by the federal clause.

The United States Supreme Court has repeatedly ruled that ordinances prohibiting opposite sex massage do not present a substantial federal question.

In the first of these cases, Kisley v. City of Falls Church, 212 Va. 693, 187 S.E.2d 168 (1972), the Virginia Supreme Court held that an ordinance restricting opposite sex massages did not violate constitutional due process or equal protection guarantees. Id. at 696, 187 S.E.2d 168. The court concluded that, because the ordinance applied equally to both men and women, "[t]here is nothing in the ordinance that denies the equal protection guaranteed by the Fourteenth Amendment...." Id. On appeal, the United States Supreme Court...