Gora v. City of Ferndale

• Citation: 551 N.W.2d 454,217 Mich.App. 295
• Decision Date: 21 June 1996
• Docket Number: Docket No. 194745
• Parties: Hildegard GORA, the Loving Touch, Inc., Jacqueline Maxwell, Lea M. Perkins, Traci L. Lepro, and Dawn Spangler, Plaintiffs-Appellants, v. CITY OF FERNDALE, Defendant-Appellee, and Valerie E. Kitchen, Defendant (on Remand).
• Court: Court of Appeal of Michigan — District of US

Page 454

551 N.W.2d 454

217 Mich.App. 295

Hildegard GORA, the Loving Touch, Inc., Jacqueline Maxwell Lea M. Perkins, Traci L. Lepro, and Dawn Spangler Plaintiffs-Appellants, v. CITY OF FERNDALE, Defendant-Appellee and Valerie E. Kitchen, Defendant (on Remand).

Docket No. 194745.

Court of Appeals of Michigan.

Submitted May 10, 1996, at Lansing.

Decided June 21, 1996, at 9:05 a.m.

Released for Publication Aug. 12, 1996.

Stephen M. Taylor, P.C. by Stephen M. Taylor, Farmington Hills, for Hildegard Gora.

Rubin & Rubin by Carl L. Rubin, Southfield, for Loving Touch, Inc., and others.

Brian M. Smith & Associates, P.C. by Brian M. Smith, Troy, for City of Ferndale.

Before MURPHY, P.J., and MICHAEL J. KELLY and SAAD, JJ.

ON REMAND

PER CURIAM.

On May 19, 1995, we issued our opinion in this matter, Gora v. Ferndale, 210 Mich.App. 622, 533 N.W.2d 840 (1995). On April 29, 1996, our Supreme Court, in lieu of granting leave to appeal, issued an order remanding this case for reconsideration in light of 1995 P.A. 104 and for consideration of the issues raised but not addressed in our original opinion. Gora v. Ferndale 451 Mich. 875, 549 N.W.2d 567 (1996). ¹ On remand, we considered defendant City of Ferndale's arguments that the circuit court erred in finding unconstitutional certain portions of its ordinance regulating massage parlors and practitioners (massagists). We affirm in part and reverse in part.

Ferndale's Ordinance No. 832, amended by Ordinance No. 836, contained numerous provisions regulating massage parlors and massagists. Section 7-247(a) and (b) require that both massage parlors and massagists have valid city permits to practice their trade in Ferndale. Sections 7-249 and 7-250 set forth the requirements for obtaining such permits. In order to obtain a massage parlor license, § 7-249(m) requires that the applicant show proof of having graduated from a "recognized school or other institution of learning" that taught massage. Similarly, in order to obtain a massagist's permit, an applicant must show proof of graduation from a recognized school or of being currently enrolled in a recognized school. Section 7-247(k) defines recognized school or massage school as including "any school or educational institution licensed to do business in the state in which it is located, or any school recognized by ... the American Massage and Therapy Association, Inc., and which has for its purpose the teaching of ... massage."

Section 7-266 of the ordinance specifies several unlawful acts. Section 7-266(a) prohibits massagists from treating persons of the opposite sex except upon the signed order of a licensed physician, chiropractor, or physical therapist. Massage parlors are required to keep specific records of any such mixed-gender massages, and such records are subject to inspection by police. Section 7-266(b) prohibits any person in a massage establishment from touching "a sexual or genital part of any other person." Section 7-266(b) provides that "sexual or genital parts shall include the genitals, pubic area, buttocks, anus, or perineum of any person, or the vulva or breasts of a female." Section 7-266(c) similarly prohibits any person in a massage establishment from "exposing his or her sexual or genital parts ... to any other person." Section 7-266(b) makes it illegal for persons in massage establishments "to fail to conceal with a fully opaque covering, the sexual or genital parts of his or her body."

Section 7-265 of the ordinance allows the chief of police or authorized inspectors from the city to inspect massage businesses to determine compliance with the ordinance and makes it illegal to refuse access to the premises or otherwise hinder such an inspection.

Additionally, § 7-261 prohibits anyone less than eighteen years old from being on the premises of a massage parlor, and § 7-255(b) requires that every patron of a massage parlor provide proof of identity by showing a valid driver's license or similar identification.

The circuit court concluded that the educational requirements of §§ 7-249(m) and 7-250(i) violated plaintiffs' due process rights because those requirements constituted an unreasonable and undue burden on the plaintiffs' right to practice their profession. The circuit court noted that the risk of potential harm from the nontherapeutic massages practiced by plaintiffs was minimal, so the educational standards were not necessary.

The circuit court found that the prohibition against mixed-gender massage contained in § 7-266(a) violated the constitutional rights of privacy and association and that the blanket-type classification by sex was prohibited by the Equal Protection Clause of the Fourteenth Amendment. The circuit court found that the requirement that a patron show identification did not violate privacy rights, but that any record keeping requirements would violate privacy rights. ²

The circuit court found that § 7-265 violated the constitutional right of privacy and was unduly oppressive because it provided for criminal prosecution for refusing to allow inspection and did not limit inspections to business hours and other reasonable times. The court noted that § 7-265 did not clearly establish that a massagist who conducts massages in private homes would not be subject to the same provisions providing for searches without a warrant. The court found that a provision allowing an initial inspection upon issuance of a permit to ensure compliance and reasonable inspections without a warrant during reasonable times and under reasonable conditions could be permissible.

Finally, the circuit court concluded that § 7-266(b), (c), and (d), prohibiting touching or exposure of sexual or genital body parts, were void for vagueness because they encouraged arbitrary enforcement. The court further found that the absence of a scienter requirement created the possibility that innocent or inadvertent acts would be punished and that the language of the ordinance was not sufficiently precise because it failed to give fair warning of what type of exposure would run afoul of the law.

Following entry of the circuit court's opinion, defendant moved for a remand to correct the opinion because the final order indicated that § 7-255(b) of the ordinance was unconstitutional. On remand, the circuit court issued an order nunc pro tunc correcting the prior error. ³

I

Defendant argues that the circuit court erred in finding §§ 7-249 and 7-250 of defendant's ordinance to be unconstitutional. We agree. The educational and licensing requirements of the ordinance do not violate constitutional guarantees of due process of law.

The right to engage in business is subject to the state's police powers to enact laws in furtherance of 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). Statutes and ordinances are presumed constitutional, and courts should construe them in a constitutional manner. Detroit v. Qualls, 434 Mich. 340, 364, 454 N.W.2d 374 (1990); Ullery v. Sobie, 196 Mich.App. 76, 79, 492 N.W.2d 739 (1992). The party challenging an ordinance has the burden of proving it invalid. Id., at 79, 492 N.W.2d 739.

The due process guarantees under the Michigan Constitution, Const.1963, art. 1, § 17, provide no greater protection than those guaranteed by the United States Constitution. Saxon v. Dep't of Social Services, 191 Mich.App. 689, 698, 479 N.W.2d 361 (1991). Where an ordinance is challenged on substantive due process grounds because of its interference with economic or business activity, the challenger must establish either that no legitimate public purpose is served by the legislation or that there is no rational relationship between the ordinance's provisions and a legitimate public purpose. Qualls, supra at 365, 454 N.W.2d 374; Ullery, supra at 80, 492 N.W.2d 739; Ludington & NR Co. v. Epworth Assembly, 188 Mich.App. 25, 43-44, 468 N.W.2d 884 (1991).

A review of the pertinent provisions of defendant's ordinance shows that the ordinance was designed to serve a legitimate public purpose, namely, to discourage surreptitious prostitution at massage parlors. This public purpose was related to the public health, safety, welfare, and morals. The licensing and education requirements of §§ 7-249 and 7-250 were rationally related to this public purpose because they ensured that only persons who possessed a certain amount of training in myomassology could be licensed as massagists in Ferndale. The ordinance requirements would have the effect of ensuring that only serious practitioners of massage would be operating massage parlors or be employed as massagists, thereby decreasing the likelihood that a massage establishment would merely be a front for prostitution.

II

Defendant argues that the circuit court erred in finding § 7-266(a) of its ordinance unconstitutional. We disagree. Section 7-266(a)'s prohibition of mixed-gender massage violates equal protection of law.

The equal protection guarantees contained in Michigan's constitution, Const.1963, art. 1, § 2, provide no greater protection than those guaranteed under the Fourteenth Amendment of the United States Constitution. Doe v. Dep't of Social Services, 439 Mich. 650, 672, 487 N.W.2d 166 (1992). Equal protection analysis depends upon the type of statutory classification and the nature of the interest affected. Ullery, supra at 81, 492 N.W.2d 739. Where the legislative classification does not involve a suspect classification or interference with a fundamental right, we use the rational-basis test, under which a statutory classification is upheld where it is rationally related to a legitimate government purpose. Doe, supra, at 662, 487 N.W.2d 166.

Where the statutory scheme creates a classification based upon suspect factors such as ethnicity or national origin, or impinges upon the exercise of a fundamental right, we use the strict-scrutiny test. Under...