Killgore v. City of S. El Monte

Decision Date08 July 2021
Docket NumberNo. 20-55666,20-55666
Citation3 F.4th 1186
Parties Phillip KILLGORE, dba Lavender Massage, Plaintiff-Appellant, v. CITY OF SOUTH EL MONTE; County of Los Angeles, a municipal corporation; G. Furuyama; C. Sciacca; M. Olmedo; C. Preston; D. Fender; M. Vega; M. Van Dine; R. Catano; N. Tario ; B. Comparan; T. Harris; V. Pena; O. Garcia; A. Torres ; J. Martinez; K. Tao; R. Williams; M. Quezada; V. Vargas ; K. Rivas; Does, 1–10 inclusive; B. Hall; G. Lukehart, Defendants-Appellees.
CourtU.S. Court of Appeals — Ninth Circuit

Frank A. Weiser (argued), Los Angeles, California, for Plaintiff-Appellant.

D. Dennis La (argued), Aleshire & Wynder LLP, El Segundo, California; Stephen R. Onstot, and Jamie L. Traxler, Aleshire & Wynder LLP, Riverside, California; for Defendants-Appellees.

Before: John B. Owens, Ryan D. Nelson, and Bridget S. Bade, Circuit Judges.

OWENS, Circuit Judge:

In his federal lawsuit, Phillip Killgore alleged that the City of South El Monte ("City") violated his Fourth Amendment rights when authorities, without a warrant, searched his massage business.1 The district court dismissed his complaint for failure to state a claim. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.2

I. BACKGROUND
A. Lavender Massage, California's Regulatory System, and the Conditional Use Permit

Since 2013, Killgore owned and operated the Lavender Massage Center. While he initially ran the business under a series of City licenses, in July 2017, the City approved a conditional use permit ("CUP") for his massage establishment. The CUP set out a series of extensive conditions, including the hours of operation, the qualifications of employees, limits on altering the interior of the building, and provided that Killgore "must allow 2 inspections a year ... to ensure compliance of all conditions of approval."

The CUP also referenced California's Massage Therapy Act ("Act"), a comprehensive certification and regulatory scheme adopted in 2014 that sets forth several requirements and authorizes local governments to establish their own regulations. Cal. Bus. & Prof. Code §§ 4600–21. The Act, which builds upon a more than 40-year-old licensing system in California, vests local governments with the power to "manage [massage] establishments in the best interests of the individual community." Id. § 4600.5(b).

In 2015, under the powers granted by the Act, the City enacted Ordinance No. 1195 (the "Ordinance") governing massage establishments. Its purpose was "to better control illicit operations and protect and promote the public health, safety and welfare by imposing stricter requirements on massage practitioners, therapists, and establishments." The Ordinance also mandated CUPs for massage establishments, which led to the CUP at issue in this case.

B. The Investigation of Lavender Massage

In August 2017, law enforcement officers began investigating Lavender Massage for prostitution and sent in an undercover officer as a patron. The officer claimed that he was propositioned for sex, and a search warrant was executed on the business.

According to Killgore, in February 2018, City officials entered Lavender Massage on three separate occasions without consent or a court order and searched non-public areas for violations of the CUP. Although no criminal charges were filed, the City eventually revoked Killgore's CUP for multiple violations of the Act and Ordinance.

C. The District Court's Dismissal of Killgore's Complaint

In January 2019, Killgore filed the instant 42 U.S.C. § 1983 action alleging that the City and several employees executed warrantless searches in violation of the Fourth Amendment. After permitting Killgore multiple amendments to his complaint, the district court dismissed the action in a well-reasoned order.

Reviewing California's extensive regulation of the massage industry, and citing cases including New York v. Burger , 482 U.S. 691, 107 S.Ct. 2636, 96 L.Ed.2d 601 (1987), and United States v. 4,432 Mastercases of Cigarettes, More or Less , 448 F.3d 1168 (9th Cir. 2006), the district court concluded that the massage industry in California qualified as a "closely regulated" industry, meaning that the Fourth Amendment's warrantless search exception for administrative searches of businesses applied. The district court rejected Killgore's argument that the Supreme Court's decision in City of Los Angeles v. Patel , 576 U.S. 409, 135 S.Ct. 2443, 192 L.Ed.2d 435 (2015), which refused to extend the "closely regulated" industry doctrine to hotels, fundamentally altered this long-established line of cases. Killgore then appealed.

II. DISCUSSION
A. Standard of Review

We review de novo a district court's dismissal for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). Brown v. Stored Value Cards, Inc. , 953 F.3d 567, 572 (9th Cir. 2020).

B. The Fourth Amendment Permitted the Warrantless Searches of Lavender Massage
1. The Law of Closely Regulated Industries

The Fourth Amendment's general prohibition against warrantless searches extends to commercial businesses. 4,432 Mastercases of Cigarettes , 448 F.3d at 1176. "The United States Supreme Court, however, has carved out a limited number of contexts within which a warrant is not required," such as administrative searches of " ‘closely regulated’ industries." Id.

To determine whether an industry is "closely regulated," we look to "the pervasiveness and regularity of the ... regulation and the effect of such regulation upon an owner's expectation of privacy." Id. (citation omitted). "We do not require a warrant in such situations because the ... regulatory presence is sufficiently comprehensive and defined that the owner of the commercial property cannot help but be aware that his property will be subject to periodic inspections undertaken for specific purposes." Id. (internal quotation marks and citation omitted); see also Marshall v. Barlow's, Inc. , 436 U.S. 307, 313, 98 S.Ct. 1816, 56 L.Ed.2d 305 (1978) ("Certain industries have such a history of government oversight that no reasonable expectation of privacy ... could exist for a proprietor over the stock of such an enterprise." (internal citation omitted)).

The Supreme Court has held liquor distribution, the sale of sporting weapons, stone quarrying and mining, and automobile junkyards to be "closely regulated" industries.3 We also have held that salmon fishing, commercial fishing, family day care homes, transportation of hazardous materials, veterinary drugs, foreign trade zones, and commercial trucking are "closely regulated" industries.4

We are not the first court to examine whether the California massage industry falls within this exception. Over 30 years ago, a California state appellate court held that the massage industry is pervasively regulated and that an ordinance permitting warrantless inspections of massage parlors did not violate the Fourth Amendment. Kim v. Dolch , 173 Cal.App.3d 736, 219 Cal. Rptr. 248, 251 (1985). Concluding "that the expectation of privacy that the owner of commercial property enjoys ... differs significantly from the sanctity accorded an individual's home, and that this privacy interest may, in certain circumstances, be adequately protected by regulatory schemes authorizing warrantless inspections," the court upheld the "comprehensive" ordinance as reasonable. Id. at 250–51.

With the adoption of the Massage Therapy Act in 2014, which "created additional certification requirements for new massage professional applicants and impos[ed] greater statewide regulations on all certified massage therapists and practitioners," regulation of the massage industry in California now exceeds its 1985 level. The Act "completely regulate[s] the environment in which [massages are] provided" through detailed certification requirements, see Rush , 756 F.2d at 720, and is thus a textbook application of the "closely regulated" industry doctrine.5

In addition to the Act's comprehensive requirements, Killgore's business was further regulated by the City's Ordinance and the CUP conditions, both of which illustrate the City's heavy regulation of this industry and the diminished expectation of privacy of massage establishment owners. The Ordinance mirrored several of the Act's provisions, authorized reasonable inspections, and required Killgore to obtain a CUP, which the City could suspend or revoke for specific violations.6 And under the CUP, which required compliance with the Massage Therapy Act and other state and local laws, Killgore was subject to 16 conditions that governed the hours of operation, appearance, and cleanliness of the massage establishment, and included strict reporting, hygiene, and advertising requirements. "These numerous and specific regulations [in the Act, Ordinance, and CUP] should have provided sufficient notice to [Killgore] that [his] property ... will from time to time be inspected by government officials." See 4,432 Mastercases of Cigarettes , 448 F.3d at 1177–78 (internal quotation marks and citation omitted).

Finally, a long history of government regulation is not necessary, but duration is an "important factor." Burger , 482 U.S. at 701, 107 S.Ct. 2636 (citation omitted). "In Burger , the Supreme Court held that a regulatory scheme far less comprehensive and enacted more recently [(less than five years old)] nonetheless rendered automobile junkyards ‘closely regulated.’ " 4,432 Mastercases of Cigarettes , 448 F.3d at 1178. Here, the California massage industry has been regulated for over 30 years. See Kim , 219 Cal. Rptr. at 251. And, as noted in the Ordinance, the state imposed additional certification requirements and regulations on massage therapists and allowed local governments greater authority to regulate massage establishments. Killgore, as the owner of a business with "such a history of government oversight," had "no reasonable expectation of privacy." Barlow's, Inc. , 436 U.S. at 313, 98 S.Ct. 1816. Other appellate...

To continue reading

Request your trial
5 cases
  • Cal. Ass'n for the Pres. of Gamefowl v. Stanislaus Cnty.
    • United States
    • U.S. District Court — Eastern District of California
    • 9 February 2023
    ...Monte, No. 219CV00442SVWJEM, 2020 WL 4258584, at *5 (C.D. Cal. Apr. 24, 2020), affd, 860 Fed.Appx. 521 (9th Cir. 2021), and affd, 3 F.4th 1186 (9th Cir. 2021). The found the third amended complaint sufficiently did so when it added factual allegations that the plaintiff had “sustained sever......
  • Verdun v. City of San Diego
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • 26 October 2022
    ...at 606, 101 S.Ct. 2534. Examples from our case law include administrative searches of massage parlors, see Killgore v. City of S. El Monte , 3 F.4th 1186, 1192–93 (9th Cir. 2021) ; day care centers, see Rush v. Obledo , 756 F.2d 713, 714 (9th Cir. 1985) ; and vessels in a salmon fishery, se......
  • Mexican Gulf Fishing Co. v. U.S. Dep't of Commerce
    • United States
    • U.S. District Court — Eastern District of Louisiana
    • 28 February 2022
    ...a lack of history of warrantless searches, and the high expectation of privacy in medical records.405 Killgore v. City of South El Monte , 3 F.4th 1186, 1189-92 (9th Cir. 2021).406 See id.407 United States v. Hamad , 809 F.3d 898, 905-06 (7th Cir. 2016).408 See id.409 Goethel , 2016 WL 4076......
  • Verdun v. City of San Diego
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • 26 October 2022
    ... ... Donovan , 452 U.S. at 606. Examples from our case law ... include administrative searches of massage parlors, see ... Killgore v. City of S. El Monte , 3 F.4th 1186, 1192-93 ... (9th Cir. 2021); day care centers, see Rush v ... Obledo , 756 F.2d 713, 714 (9th ... ...
  • Request a trial to view additional results
2 books & journal articles
  • Chapter 5 - §3. Exceptions to warrant requirement
    • United States
    • Full Court Press California Guide to Criminal Evidence Chapter 5 Exclusion of Evidence on Constitutional Grounds
    • Invalid date
    ...substitute for a warrant." City of L.A., 576 U.S. at 426; Burger, 482 U.S. at 702-03; Killgore v. City of S. El Monte (9th Cir.2021) 3 F.4th 1186, 1192; De La Cruz, 80 Cal.App.4th at 781; Pinney, 230 Cal.App.3d at 1582-83; see Killgore, 3 F.4th at 1192-93 (applying the Burger test to a mass......
  • Table of Cases null
    • United States
    • Full Court Press California Guide to Criminal Evidence Table of Cases
    • Invalid date
    ...6, §2.1 Key v. Tyler, 34 Cal. App. 5th 505, 246 Cal. Rptr. 3d 224 (2d Dist. 2019)—Ch. 2, §13.1.2(5) Killgore v. City of S. El Monte, 3 F.4th 1186 (9th Cir. 2021)—Ch. 5-A, §3.3.7(2)(d)[1][b] Kilroy v. State of California, 119 Cal. App. 4th 140, 14 Cal. Rptr. 3d 109 (3d Dist. 2004)—Ch. 3-B, §......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT