JBK, Inc. v. City of Kansas City, Mo., 83-1326-CV-W-0.

Decision Date14 January 1986
Docket NumberNo. 83-1326-CV-W-0.,83-1326-CV-W-0.
Citation641 F. Supp. 893
PartiesJBK, INCORPORATED, et al., Plaintiffs, v. CITY OF KANSAS CITY, MISSOURI, et al., Defendants.
CourtU.S. District Court — Western District of Missouri



Claudia York, S.W. Longan, Kansas City, Mo., for plaintiffs.

William D. Geary, Asst. City Atty., Kansas City, Mo., for defendants.


ROSS T. ROBERTS, District Judge.

The dispute in this case centers upon an ordinance enacted in May, 1977, by the City of Kansas City, Missouri, regulating massage parlors and like enterprises.1 Plaintiffs assert the unconstitutionality of various portions of the ordinance, both facially and as applied. They also allege violations of Missouri's antitrust laws. The case reaches me on defendants' motion for summary judgment.


Case No. CV77-3493 was brought in the Circuit Court of Jackson County, Missouri, on October 24, 1977. The plaintiffs in that action were "J.B.K. Corporation, d/b/a Magic Touch Massage and Health Studio"; Joe B. King, who had been issued an occupational license under the ordinance; and Pamela Maund, who had been issued an apprentice permit under the ordinance but denied a license for failure to pass the required written examination. Plaintiffs later replaced Pamela Maund with one Susan Beer, a licensed masseuse who had acquired all the outstanding stock in J.B.K., Inc. from Joe B. King, and replaced defendant Marvin Van Kirk (Kansas City Police Chief) with his successor, Norman Caron. The other defendants were the City of Kansas City, Missouri; George Lueckenhoff, the Supervisor of the Liquor and Amusement Control Division of the City's Finance Department; and Lillian O'Brien, Marie Cassil and Agnes Mosley, the members of the since-eliminated Board of Massage Examiners.2 To better understand this case of characters, it should perhaps be noted that the Supervisor of the Liquor and Amusement Control Division is charged with administration of the ordinance, and the police chief with its enforcement.

An amended petition filed on September 29, 1978, alleged that the ordinance established arbitrary and irrational classifications as between massagists and massage establishments and other business persons and businesses, in violation of plaintiffs' due process and equal protection rights (federal and state) (Count II); that various provisions of the ordinance were arbitrary, irrational and unreasonable, and thus violative of plaintiffs' due process rights (federal and state) (Count III); that the ordinance constituted an unlawful delegation of the City's legislative power to the Board of Massage Examiners, placed unlimited, arbitrary and unfettered discretion in the hands of that Board, and provided the Board with unduly vague standards, all in violation of plaintiffs' due process rights (federal and state) (Count IV); that certain provisions of the ordinance constituted an invasion of plaintiffs' rights of privacy (and those of their customers), in violation of various federal constitutional provisions (Count V); that the establishment of a regulatory board composed of plaintiffs' competitors was a violation of plaintiffs' federal and state due process rights, which would restrict competition and "deny access to the profession" (Count VI); that the ordinance had been arbitrarily and discriminatorily enforced as to plaintiffs, in violation of their due process and equal protection rights (federal and state) (Count VII); that the ordinance subjected plaintiffs "to indicia of criminality" on no rational basis, in violation of their due process rights (federal and state) (Count VIII); and that the enactment of the ordinance was beyond the authority of the City Council (Count IX). In addition, there were scattered allegations that the ordinance did not provide for the publication of rules and regulations, as allegedly required by § 536.010, R.S.Mo. (¶ 15.); and that plaintiffs' business operations had been and would continue to be "severely interrupted and damaged" (¶ 17). The prayer requested a declaratory judgment, an injunction, damages and attorneys' fees, the latter two items being sought, presumably, in connection with Count I, which alleged violations of 42 U.S.C. § 1983.

On June 1, 1979, the parties filed a "stipulation" with the court, reciting that they had "resolved the issues in the captioned litigation to their satisfaction," save two: (a) the validity of the requirement relating to the hours of instruction required for an apprentice massagist (§ 8.20(c)); and (b), the validity of the hours of operation provision (§ 8.8(g)). That submission was followed, on a date I cannot determine precisely from the materials at hand, but apparently in February or March of 1980, by a second "stipulation" which recited that the parties had "resolved the issues in the captioned litigation to their satisfaction" except for three: the two mentioned above and the validity of § 8.19(b) and (c), concerning the examination required of massagist applicants.

This second stipulation was evidently filed in connection with plaintiffs' summary judgment motion, and was followed by the parties' briefs on the three issues mentioned. That motion was denied and the cause was thereafter submitted for a merits determination upon a stipulated set of facts.

On December 30, 1980, the state court entered its judgment in the matter, reciting, insofar as pertinent here, the following:

The Court finds the facts in accordance with the Stipulation of Facts and concludes that the ordinances of defendant City were constitutional and valid.
Wherefore, it is Adjudged, Decreed and Declared that Ordinances 44006 and 47656 the full ordinance in question in the present litigation are constitutional and valid.
It is further Adjudged and Decreed that plaintiffs take nothing by their petition and that defendants go hence without day together with their costs.

No appeal was taken.

* * * * * *

The present case was filed in this court on December 7, 1983. The plaintiffs are "JBK, Inc.;"3 LaDonna King, who had been issued an apprentice permit under the ordinance and twice failed the examination; Kathleen D. Fithen, who had been issued an apprentice permit but had not taken the examination; and J. Diane Byrne, who had received a license on March 15, 1974. Defendants are the City of Kansas City, Missouri; Mayor Richard D. Berkley; George Lueckenhoff; Jefferson S. Boone, Administrative Officer of the Liquor and Amusement Control Division; and Lillian O'Brien, sole member of the Board of Massage Examiners at the time suit was filed. All individual defendants are sued in their official capacities only.

The complaint invokes 42 U.S.C. § 1983, alleging that the ordinance is facially invalid and "overbroad," in violation of plaintiffs' First Amendment rights (Count I); that the enactment and enforcement of the ordinance constitutes a "taking" of plaintiffs' property without just compensation (Count II); that the various regulatory provisions of the ordinance are without real and substantial relationship to the objectives of the ordinance, and thus violate plaintiffs' federal due process rights (Count III); that the ordinance, as enacted, administered and enforced, deprives them of their right "to be free from discriminatory acts of government," in violation of their federal due process rights (Count IV); and that the enactment, administration and enforcement of the ordinance creates an "unequal discriminatory treatment" of plaintiffs, in violation of their federal equal protection rights (Count V). In addition, plaintiffs assert violations of the state antitrust laws, premised upon an alleged continuing conspiracy between the City, O'Brien "and others" to monopologize the "recreational" massage trade, and to restrain trade with respect to "recreational" massage shops and massagists by preventing plaintiffs from obtaining licenses and continuing in business, thus eliminating them as competitors (presumably of O'Brien and "others") (Count VI). The prayer requests a declaratory judgment, an injunction restraining enforcement of the existing ordinance as well as court-supervised preparation and implementation of a new ordinance, and damages.


JBK, Inc.

Title 28 U.S.C. § 1738 requires that federal courts give the same preclusive effect to a state court judgment that the judgment would receive from the courts of the rendering state. Kremer v. Chemical Construction Corp., 456 U.S. 461, 466, 102 S.Ct. 1883, 1889, 72 L.Ed.2d 262 (1982). Missouri courts recognize and apply both the "traditional" sort of res judicata —claim preclusion—and the type known as collateral estoppel—issue preclusion. Brown v. St. Louis Police Department, Etc., 691 F.2d 393, 395 (8th Cir.1982), cert. denied, 461 U.S. 908, 103 S.Ct. 1882, 76 L.Ed.2d 812 (1983). For reasons which will become apparent, only the former is involved as concerns JBK's claims.

JBK was of course a party plaintiff in the state court suit. The opposing parties in that suit were identical to those here, except that Richard S. Berkley and Jefferson S. Boone have now been added as defendants, and Marie Cassil and Agnes Mosley, former members of the now defunct Board of Massage Examiners, have been eliminated. It is clear that the addition of Berkley and Boone has and could have nothing to do with plaintiffs' facial invalidity claims; and it is likewise clear that the presence of additional parties in the earlier suit is an immaterial factor, even for "traditional" res judicata purposes, so long as the other requirements of the doctrine are met. Roach v. Teamsters Loc. U. No. 688, 455 F.Supp. 322, 324 (E.D. Mo.1978); In re Delany's Estate, 258 S.W.2d 613, 616 (Mo.1953); and see generally RESTATEMENT (SECOND) OF JUDGMENTS §§ 19, 34 (1982). Accordingly, at least with regard to the three specific matters identified in the parties' second...

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    ...649 F.Supp. 926, 938-943 (D.Hawaii, 1986); Ross v. City of Berkeley, 655 F.Supp. 820, 840-842 (N.D.Cal., 1987); JBK, Inc. v. Kansas City, 641 F.Supp. 893, 908-909 (W.D.Mo., 1986). Like the State of Tennessee in Williamson, the State of Michigan recognizes a cause of action for a de facto ta......
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    ...the circumstances forces ... [the conclusion] that they could not have been a goal of the legislature.' " JBK, Inc. v. City of Kansas City, Mo., 641 F.Supp. 893, 903 (W.D.Mo., 1986) (emphasis added), citing Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456, 463, n. 7; 101 S.Ct. 715, 723, ......
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    ...giving rise to a facial challenge, one court has concluded that at least the normal result would be a bar. J.B.K., Inc. v. City of Kansas City, 641 F.Supp. 893, 900 (W.D.Mo.1986). Assuming the correctness of that view, it may seem anomalous that a party litigating successive applications sh......
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