J. S. K. Enterprises, Inc. v. City of Lacey

• Decision Date: 17 December 1971
• Docket Number: No. 361--II,361--II
• Citation: 6 Wn.App. 43,492 P.2d 600
• Parties: , 9 Fair Empl.Prac.Cas. (BNA) 1281, 4 Empl. Prac. Dec. P 7627 J.S.K. ENTERPRISES, INC., Appellant, v. CITY OF LACEY, Respondent.
• Court: Washington Court of Appeals

Page 43

6 Wn.App. 43

492 P.2d 600, 9 Fair Empl.Prac.Cas. (BNA) 1281,

4 Empl. Prac. Dec. P 7627

J.S.K. ENTERPRISES, INC., Appellant, v. CITY OF LACEY, Respondent.

No. 361--II.

Court of Appeals of Washington, Division 2.

Dec. 17, 1971.

Opinion on Rehearing Feb. 7, 1972. See 493 P.2d 1015.

Review Denied March 21, 1972.

Anthony T. Ressa, Bellevue, for appellant.

Argal D. Oberquell, Asst. City Atty., Lacey, for respondent.

ARMSTRONG, Judge.

The plaintiff commenced this action against the City of Lacey to declare invalid an ordinance which amends a prior ordinance regulating the operation of massage parlors, to restrain the city from enforcing the ordinance, and to seek damages for interfering with the operation of plaintiff's business. At the conclusion of the plaintiff's case the defendant city moved to dismiss the amended complaint for failure to state a claim upon which relief can be granted. This motion was primarily grounded upon the validity of ordinance No. 139 as a reasonable exercise of the police power of the city. After considering the evidence the court entered findings of fact and conclusions of law dismissing the amended complaint. Although the court stated: 'there is no way this court will grant a money judgment in favor of plaintiffs and against the defendant city', it is not clear whether that statement and the conclusion that the plaintiff failed to state a claim upon which relief can be granted were predicated upon the assumed validity of ordinance No. 139. Plaintiff appeals from the dismissal of its case.

The plaintiff was licensed under ordinance No. 86 to conduct a sauna parlor in the City of Lacey in 1968, 1969 and 1970. The license was renewed by the city on February 18, 1970--2 months before the enactment of ordinance No. 139. The court found, and the evidence disclosed, that the city has not conducted a harassment program against the plaintiff but has, over the last 2 years, conducted an investigation of plaintiff's Royal Sauna and one other sauna located in the City of Lacey. 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.

In support of the court's findings there is evidence that sexually provocative advertising was carried in the classified advertising columns of the Daily Olympian, the masseuses wore mini skirts and low cut blouses, and talked and acted in a sexually provocative manner. They adopted what they termed 'nicknames' for their professional service.

Undercover agents were employed to obtain massages at the plaintiff's Royal Sauna as well as the other sauna that is no longer in operation in the City of Lacey. For a fee of $20 they received what the police chief modestly referred to as a 'lower abdominal massage.'

The evidence clearly established that lewd acts occurred at the Royal Sauna before the amendment of ordinance No. 86 and before and after the Royal Sauna received its last license. There were no cases brought to trial for anything other than the failure of one masseuse to have a valid license. There were no convictions of lewdness relating to this sauna although the statements of police officers and reports of undercover agents clearly described acts of lewdness for which the masseuses, if convicted, could have been jailed for terms up to 6 months and fined up to $500 under the city statute relating to lewd acts.

On April 23, 1970 the Lacey City Council adopted ordinance No. 139 as an amendment to ordinance No. 86. That amendment permits massagists to administer massages only to customers of their own sex; except that a person of the opposite sex may administer treatment in good faith in the course of practice of any healing art or profession provided for under RCW Title 18, relating to businesses or professions. Massage or massotherapy is not specifically included in the healing arts covered in that section although it is utilized in varying degrees by several classifications which are licensed.

The trial court held that (1) ordinance No. 139 is a legitimate exercise of the police power of the City of Lacey; (2) it regulates sauna and massage parlor businesses but does not prohibit them; (3) the fact that a regulatory ordinance changes the nature of the business by its regulation does not make it discriminating; (4) the ordinance is clear and not ambiguous; (5) it is not class legislation; (6) it is not discriminating to women in violation of RCW 49.12.200; and (7) the plaintiff failed to state a claim upon which relief can be granted.

The plaintiff contends that ordinance No. 139 is an unreasonable imposition of police power which resulted in a denial of due process, and equal protection under the Fourteenth Amendment to the United States Constitution and that RCW 49.12.200, relating to the right of women to pursue any employment, prohibits the enactment of the ordinance.

It has been established that a city, in the exercise of its police power, may regulate massagists on the grounds of public health, safety and morality. See Annot., Regulations of masseurs, 17 A.L.R.2d 1183 (1951). As in any other exercise of the police power the means adopted must be reasonably necessary and appropriate to accomplish the objective sought and it must not be unduly oppressive upon individuals. Seattle v. Proctor, 183 Wash. 293, 48 P.2d 238 (1935). In addition to those tests, the police power regulation is subject to the provisions of the state and federal constitutions which prohibit the granting of special privileges and immunities and guarantee equal protection of the laws, require that class legislation must apply alike to all persons within a class, and reasonable grounds must exist for making a distinction between those within and those without a designated class. Within the limits of such restrictive rules, the legislative body has a wide measure of discretion and its determination cannot be successfully attacked unless it is manifestly arbitrary, unreasonable, inequitable and unjust. State ex rel. O'Brien v. Towne, 64 Wash.2d 581, 392 P.2d 818 (1964).

At the outset we must agree that all of the court's conclusions can be sustained if we were to adopt the rationale of Ex Parte Maki, 56 Cal.App.2d 635, 133 P.2d 64 (1943), the leading case on this subject. The rationale of Maki was adopted in Cheek v. City of Charlotte, 273 N.C. 293, 160 S.E.2d 18 (1968) and in other cases.

In Maki the court upheld the constitutionality of a city ordinance which forbade any person, for hire or reward, to administer a massage to a person of the opposite sex unless the massage be given under the supervision of a licensed physician. The appellant there, as here, contended that the ordinance was an unreasonable exercise of the police power, was sexual discrimination of the right to employment, denied him the equal protection of the laws, and deprived him of property without due process of law. In declaring the ordinance constitutional, the California Court of Appeals stated in Ex Parte Maki, Supra, 56 Cal.App.2d at pages 639, 643 and 644, 133 P.2d at page 67:

The ordinance applies alike to both men and women. . . . The barrier erected by the ordinance against immoral acts likely to result from too intimate familiarity of the sexes is no more than a reasonable regulation imposed by the city council in the fair exercise of police powers. . . . (133 P.2d at 67).

The reasonable exercise of the police power in regulating any occupation in order to maintain the moral welfare does not arbitrarily deprive a person so engaged of his property. . . . Enactments that curb the vicious or restrain the wicked necessarily restrict the emoluments of his enterprise. However, such results are not to be considered in determining the validity of a law.

There is nothing in the ordinance that denies the equal protection guaranteed by the Fourteenth Amendment. It applies to all alike who give massages for hire and who are not licensed to practice one of the arts of healing. . . . (133 P.2d at 68--69).

The trial judge accepted this rationale in his analysis and oral decision. We have set forth in the footnote a portion of his analysis and his own viewpoint of the ordinance in question. ¹

We decline to follow the doctrine of Maki because the 1943 decision of the California Court of Appeals does not recognize the economic, social and legal rights of women and the right of both men and women to be free from sex discrimination in employment as such rights exist today. The doctrine of that case permits an unreasonable exercise of police power that unnecessarily goes beyond the objective of protecting the public from lewd acts in sauna massage parlors; under the guise of regulation it denies All massagists the right to treat members of the opposite sex. This is the blanket-type classification by sex which is prohibited by the Equal Protection Clause to the Fourteenth Amendment of the United States Constitution.

At the time this case was argued before our court the Supreme Court of the United States had consistently held that sex is a valid basis for classification. Muller v. Oregon, 208 U.S. 412, 422, 28 S.Ct. 324, 52 L.Ed. 551 (1908); Goesaert v. Cleary, 335 U.S. 464, 69 S.Ct. 198, 93 L.Ed. 163 (1948). The weight of authority, in state as well as federal courts, recognized the principle of 'reasonableness' of sex discrimination as the basis of legitimate public policy. ² Several state courts had decided that such classification was not in fact permissible. Ritchie v. People, 155 Ill. 98, 40 N.E. 454 (1895); Paterson Tavern & Grill Owners Ass'n v. Borough of Hawthorne, 57 N.J....