Harper v. Lindsay
| Decision Date | 09 May 1980 |
| Docket Number | No. 78-2305,78-2305 |
| Parties | Magalene HARPER, d/b/a Nugents Health Clinic, et al., Plaintiffs, Anchor Baths, Inc., et al., Plaintiffs-Appellants. v. Jon LINDSAY et al., Defendants-Appellees. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Clyde W. Woody, Mary M. Rawlins, Houston, Tex., for plaintiffs-appellants.
Joe Resweber, County Atty., Richard C. Beu, Billy E. Lee, Houston, Tex., for Jon Lindsay, Tom Bass, James Fonteno, R. Y. Eckels & E. A. Lyons, Jr.
Clyde F. DeWitt, III, Asst. Dist. Atty., Houston, Tex., for Jack Heard & Carol S. Vance.
Appeal from the United States District Court for the Southern District of Texas.
Before GEE, FAY and VANCE, Circuit Judges.
Appellants, 1 "massage establishments" and "massagers," engage in "the rubbing, kneading, tapping, compression, vibration, application of friction, or percussion of the human body or parts of it by hand or with an instrument or apparatus." 2 They ask this court to determine the constitutionality of comprehensive regulations governing the operation of massage parlors in Harris County, Texas.
The case presents a touchy situation, and our decision is likely to rub some of the parties the wrong way. We shall attempt, however, to apply the soothing balm of reason to the knotty issues before us in an effort to ease the tensions that have arisen.
We hold that all but one provision of Harris County's challenged massage parlor regulations are constitutional. 3 Because we find no rational basis for the requirement of a six-inch by six-inch unobstructed opening on all interior doors of a massage parlor, we hold that particular provision to be unconstitutional. We thus affirm for the most part, and reverse in small part the district court's determination of constitutionality.
In 1977 the Texas legislature enacted a statute authorizing the "commissioners court of any county . . . (to) adopt regulations applicable to the practice of massage and operation of massage establishments . . . ." Tex.Rev.Civ.Stat.Ann. art. 2372v, § 2(a) (Vernon) (Supp.1979) (hereinafter article 2372v). The massage parlor legislation was intended to curb the steady increase in the number of massage parlors in the state, many of which operated as houses of prostitution. 4
Pursuant to the statutory authorization of article 2372v, the Commissioners Court of Harris County, Texas adopted a comprehensive set of regulations for massage parlors on July 21, 1977, with enforcement to begin on September 1, 1977. These regulations were challenged on August 29, 1977 when Magalene Harper and twenty-one other named plaintiffs, on behalf of themselves and all others similarly situated, filed suit in district court against the individual members of the Harris County Commissioners Court, the Harris County sheriff, and the Harris County district attorney. Plaintiffs (appellants before us) alleged that certain provisions of the county's massage parlor regulations exceeded the legislative authority of the Commissioners Court, and that enforcement of the regulations would violate plaintiffs' constitutional and statutory rights. The complaint sought a declaratory judgment, permanent injunction, and damages, along with a temporary restraining order and a preliminary injunction enjoining enforcement of the regulations pending trial on the merits.
On August 31, 1977, counsel for the Harris County sheriff and district attorney agreed to the issuance of a temporary restraining order for a period of sixty days pursuant to Fed.R.Civ.P. 65 in order to maintain the status quo until the necessary briefing of the numerous legal questions raised by plaintiffs could be accomplished.
On September 9, 1977, counsel for the Commissioners Court filed a motion to vacate the temporary restraining order, contending that it was a preliminary injunction issued without proper notice. Since a temporary restraining order may remain in effect for a maximum of twenty days unless extended by agreement of the parties, see Fed.R.Civ.P. 65(b), the district court held a hearing on September 19, 1977, to determine whether a preliminary injunction should issue pending a final resolution of the case on the merits. The next day, September 20, the court issued a written order holding: (1) that the case was not a proper one for the exercise of abstention; (2) that dismissal for want of a substantial federal question was not appropriate at this stage of the proceedings; and (3) that on the state of the record plaintiffs met the criteria for issuance of a preliminary injunction. Record, vol. 2, at 250. In addition, the court set a briefing schedule and a trial date of October 25, 1977. Subsequently, defendant Commissioners Court appealed the preliminary injunction. On November 3, 1977, this court denied defendants' petition for writ of mandamus and application for stay of the preliminary injunction pending appeal. Record, vol. II, at 41-42.
On February 15, 1978, the parties submitted a joint pretrial order containing a stipulation of facts, a list of contested issues of law, and a briefing schedule with an April 1, 1978 completion date.
The district court considered the numerous voluminous briefs submitted by the parties throughout the litigation, and examined the relevant statutory and case authority. The court concluded that Harris County's massage parlor regulations were constitutional in their entirety under both the Texas and United States Constitutions; however, the prohibition of transsexual massages in section 8(b) of the regulations 5 was determined to exceed the scope of authority delegated to the Commissioners Court by the Texas legislature in article 2372v. Harper v. Lindsay, 454 F.Supp. 597, 600 (S.D.Tex.1978). Since the regulations contain a severability clause, the court permanently enjoined enforcement of section 8(b) and ordered that the remainder of the regulations take immediate effect. Id. at 600.
Appellants continue to challenge the constitutionality of the massage parlor regulations, raising several points of error on appeal. Neither party appeals the district court's finding that the case was not a proper one for abstention, and no appeal has been taken from the court's determination that section 8(b) of the regulations is invalid.
The prevailing law in this circuit indicates that all but one of Harris County's massage parlor regulations pass constitutional testing. Affirming the major portion and reversing in part the judgment of the district court, we now undertake a point-by-point analysis of the challenged regulations.
Appellants contend that certain provisions of the Harris County regulations exceed the scope of authority delegated to the Commissioners Court by the Texas legislature. Pointing out that counties in Texas can exercise only those powers which are specifically conferred upon them by the state's constitution and statutes, see, e. g., Canales v. Laughlin, 147 Tex. 169, 214 S.W.2d 451 (1948), appellants argue that sections 9, 11, 12, 13, 17, 18, 20, 31 and 53 of the regulations 6 go beyond the grant of power contained in article 2372v of the Texas statutes. 7
The district court examined the legislative history of article 2372v and determined that all of the Harris County massage parlor regulations came within either the specific enumerated provisions of 2372v or within the "catch-all" provision of section 2(b)(6), which permits the commissioners courts to "establish any other reasonable procedures or prohibitions consistent with the police power to protect the public health and safety and to prevent violations of state law." The court noted that none of the challenged regulations 8 contravened the legislative intent to provide some discretion to the commissioners court through the section 2(b)(6) "catch-all." Harper v. Lindsay, 454 F.Supp. at 608.
Appellants argue that section 2(b)(6) is too vague and fails to establish a standard by which regulations may be made. We agree with the district court that "the term 'reasonable procedures' (in section 2(b)(6)) provides a somewhat vague and amorphous standard which should be analyzed with an eye towards legislative intent as made manifest through the legislative history." Id. at 608. The legislative history clearly reveals the intent behind article 2372v: to allow counties to reasonably regulate massage parlors and to discourage their use as havens for criminal activity including prostitution and drugs. This intent should be considered in determining whether the procedures and prohibitions established by a county are reasonable.
We hold that the Harris County massage parlor regulations do not exceed the authority conferred upon the Commissioners Court by article 2372v. We interpret section 2(b)(6) of that statute to grant counties the power to regulate massage parlors by means calculated to protect the health, safety and welfare of the community. "(C)ommissioners courts have a broad discretion in exercising powers expressly conferred on them . . .." Canales v. Laughlin, 147 Tex. 169, 214 S.W.2d 451, 453 (1948). In this instance that discretion has not been abused.
Appellants assert that Harris County's massage parlor regulations go beyond the state's police power in that they do not reasonably serve the public health, safety, morals and general welfare. It is urged that the regulations violate state and federal due process guarantees because they (1) constitute an unconstitutional "taking" of vested property rights without due process of law, (2) deprive appellants of their fundamental rights without a compelling state interest, and (3) act in a retroactive manner. Appellants ask us to subject these regulations to a stricter scrutiny than is usually applied to exercises of police power, on the basis that ...
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