Kisley v. City of Falls Church

• Decision Date: 06 March 1972
• Court: Virginia Supreme Court
• Parties: , 51 A.L.R.3d 929, 4 Empl. Prac. Dec. P 7755 Robert KISLEY, trading and doing business as The Falls Church Health Center and The Three Sisters Health Studio v. The CITY OF FALLS CHURCH, etc., et al.

Page 168

187 S.E.2d 168

212 Va. 693, 51 A.L.R.3d 929, 4 Empl. Prac. Dec. P 7755

Robert KISLEY, trading and doing business as The Falls Church Health Center and The Three Sisters Health Studio v. The CITY OF FALLS CHURCH, etc., et al.

Supreme Court of Virginia.

March 6, 1972.

Robert A. McGinnis, Falls Church (Louis Koutoulakos, Arlington, on the brief), for appellants.

LaRue Van Meter, Falls Church, for appellees.

Before SNEAD, C.J., and I'ANSON, CARRICO, GORDON, HARRISON, COCHRAN and HARMAN, JJ.

I'ANSON, Justice.

Complainant, Robert Kisley, trading as The Falls Church Health Center, filed a bill of complaint against the City of Falls Church, praying that the city be restrained from enforcing its ordinance No. 512, which makes it unlawful to operate a massage salon, bath parlor, or any similar type business, where the service rendered to a customer is by a person of the opposite sex, and that the ordinance be declared void; and further, that the city's ordinance No. 510, regulating the operation of health clubs, massage salons, bath parlors and similar establishments, also be invalidated. A temporary injunction was granted restraining the city from enforcing ordinance No. 512, and thereafter The Three Sisters Health Studio was joined as an additional party complainant.

After an Ore tenus hearing, the chancellor held (1) that ordinance No. 512 is a legitimate exercise of the police power of the city and that it is not invalid as a denial of equal protection of the law under the Federal and State Constitutions; and (2) that a section of ordinance No. 510, restricting the issuance of permits to operate or manage health clubs to a limited class of persons, is unreasonably restrictive, but the section is severable and the remainder of the ordinance is valid.

Complainants contend on appeal that the ordinances are invalid (1) because they are inconsistent with State statutes; (2) they deprive them of property rights without due process of law and deny them and their employees equal protection of the law; and (3) they are discriminatory in that barber shops are excluded from their operation.

For the stated purpose of securing and promoting the health, safety and general welfare of the people of the City of Falls Church, the city enacted ordinance No. 510, regulating the operation of 'health clubs, massage salons, bath parlors and similar establishments.' The ordinance provides for licensing, standards for sanitation and hygiene, qualifications of masseurs and masseuses, and it prohibits lewd and lascivious conduct on the part of the employees of such establishments. A 'health club' is defined as any establishment which offers service in the form of massages, baths, exercises, or similar services, to club members or to the public for a charge. Excluded from the definition of health clubs are '(1) hospitals, nursing homes, medical clinics, or the offices or quarters of a physician, a surgeon or an osteopath; * * * (2) exercise clubs exclusively for members or clientele of one sex alone where the services, without massage in any form, are performed by persons of the same sex as members or clientele; * * * (3) barber shops and beauty parlors.' The terms 'masseur' (male) and 'masseuse' (female) are defined as persons who practice any one or more of the arts of body massage, either by hand or by mechanical apparatus.

Ordinance No. 512 provides that 'It shall be unlawful for any establishment, regardless of whether it is a public or private facility, to operate as a massage salon, bath parlor, or any similar type business, where any physical contact with the recipient of such services is provided by a person of the opposite sex,' and imposes penalties for its violation.

A narrative statement of the facts shows that complainants own and operate massage salons in the City of Falls Church. All of the employees of both establishments are female (masseuses) and all the patrons are male. Kisley admitted that the masseuses massage 'every part of the (male patrons') body, and that includes every part of the body,' and that he would have no business without the female massagists.

Complainants argue that the ordinances are invalid because they are inconsistent with §§ 54--273 and 54--276.4, Code of 1950, as amended, 1967 Repl.Vol., and that under the provisions of Code § 1--13.17 a city is prohibited from enacting ordinances inconsistent with State law.

Sections 54--273 and 54--276.4 are found within Chapter 12 of the Code, which contains those State statutes regulating 'Medicine and Other Healing Arts.' Code § 54--273 is the definitional section of the chapter and does no more than exclude health club massages from the definition of the 'Practice of physical therapy,' (subsection 9). Section 54--276.4 provides that nothing in the chapter shall apply to masseurs, among others, who publicly represent themselves as such, within the scope of their usual professional activities.

It appears from those statutes that it was the legislative intent to free masseurs and masseuses from those regulations established in Chapter 12 of the Code. Hence there is no State statute regulating the occupation of massagists and the business of 'health clubs, massage salons, bath parlors and similar establishments.'

A local legislative body, in the exercise of its police powers, may forbid the doing of an act where State legislation is silent on the subject, and there can be no conflict between a statute and an ordinance where there is no statute dealing with the same subject matter. King v. County of Arlington, 195 Va. 1084, 1091, 81 S.E.2d 587, 592 (1954). Moreover, Falls Church is empowered by its charter, § 2.03, to adopt ordinances to preserve 'the safety, health, peace, good order, comfort, convenience, morals, and welfare of its inhabitants,' and to prevent 'lewd and disorderly conduct or exhibitions.' Thus, vested with the authority to act, and not doing so inconsistently with State law, the city did not violate Code § 1--13.17 in adopting the ordinances.

We do not agree with complainants' arguments that the ordinances deprive them of property rights without due process of law and deny them and their employees equal protection of the law.

The general right to regulate the occupation of massagists and the business of massage salons and similar establishments in the interest of public health, safety or morals has been recognized in several...