Massage Parlors, Inc. v. Mayor and City Council of Baltimore

• Decision Date: 23 February 1979
• Docket Number: No. 19,19
• Citation: 284 Md. 490,398 A.2d 52
• Parties: MASSAGE PARLORS, INC. v. MAYOR AND CITY COUNCIL OF BALTIMORE et al.
• Court: Maryland Court of Appeals

Page 490

284 Md. 490

398 A.2d 52

MASSAGE PARLORS, INC. v. MAYOR AND CITY COUNCIL OF BALTIMORE et al.

No. 19.

Court of Appeals of Maryland.

Feb. 23, 1979.

P. Paul Cocoros, Baltimore (Gerald A. Kroop, Ronald I. Kurland and Howard Margulies, Baltimore, on brief), for appellant.

Richard M. Hartman, Chief City Sol., Baltimore (Benjamin L. Brown, City Sol., Baltimore, on brief), for appellees.

Argued before MURPHY, C. J., and SMITH, DIGGES, LEVINE, ^* ELDRIDGE, ORTH and COLE, JJ.

COLE, Judge.

At issue in this appeal is the validity of Baltimore City Ordinance No. 159 (the ordinance), commonly known as The Massage Parlors Act.

On August 27, 1976, the Mayor and City Council of Baltimore (the City) declared its purpose and intent "to protect and preserve the health, safety and welfare of the inhabitants of the City (by providing) a program for regulating massage establishments so as to eliminate the social difficulties existing in many massage establishments and to promote higher standards of health, sanitation and professional competence therein." In furtherance of this purpose, the City enacted Ordinance No. 159 which added new sections 106-121 inclusive to Article 15 of the Baltimore City Code, entitled "License", to come under the new subtitle "Massage Establishments", effective immediately. After defining in § 106 massage, massage establishment and massagist, ¹ the ordinance sets forth certain exemptions in § 107, requires a massage establishment to be licensed in § 108, mandates the registration of all massagists in § 109, creates a Board of Licenses for Massage Establishments empowered to promulgate rules and regulations to carry out the purpose of the ordinance in § 110 and prohibits certain unlawful acts, providing penalties therefor in § 116.

Pursuant to this ordinance, on August 30, 1976 the Board of Licenses for Massage Establishments (the Board) promulgated regulations which contained provisions governing the issuance of licenses for and the periodic inspection of such establishments, minimum training requirements of 500 hours for each massagist and stating a prohibition against heterosexual massages on the licensed premises. With this legislative setting, we turn to the facts giving rise to this controversy.

Massage Parlors, Inc., (appellant) had operated a massage parlor in the City of Baltimore for several months prior to August 27, 1976. Thereafter, pursuant to the ordinance, appellant was issued a temporary permit. However, on January 11, 1977, the permit was revoked on the ground that appellant's establishment was engaging in heterosexual massages. Appellant instituted suit against the City and the Board, claiming that the ordinance was unconstitutional and seeking injunctive relief. The City countered with a petition for an injunction to prevent the appellant from operating a massage parlor without the license required by the ordinance.

The matter was docketed in the Circuit Court No. 2 of Baltimore City where the parties waived oral arguments and proceeded by memoranda of law and a stipulation of facts. The chancellor upheld the licensing scheme as a valid exercise of the City's police power and enjoined appellant from operating as a massage establishment until it obtained a license in compliance with the ordinance. Appeal was taken to the Court of Special Appeals. We granted certiorari prior to that court's consideration of the issue. We shall affirm and state our reasons.

Appellant first challenges the validity of the ordinance, contending that it is unconstitutional on its face because § 116(a)(2) prohibits massages between members of the opposite sex and thus promotes sex discrimination in violation of the equal protection clause of the fourteenth amendment to the Constitution ² of the United States and Article 46 of the Maryland Declaration of Rights. ³ Section 116(a)(2) says: "(a) It is unlawful . . . to (2) Provide treatment at the same time to persons of the opposite sex in the same room or quarters." The obvious purpose of the legislation seems to be to prevent customers of the opposite sex from being placed in direct contact with or proximity to one another during the period of treatment. The ordinance says nothing concerning the sex of the massagist. Inferentially, the same room may be used at separate times for treatment of persons irrespective of the sex of the customer or the massagist.

We have said on numerous occasions that when a legislative enactment presents no ambiguity, it should be read according to its plain meaning. Judge Orth stated the principle succinctly for the Court in Wheeler v. State, 281 Md. 593, 596, 380 A.2d 1052, 1054 (1977), Cert. denied, 435 U.S. 997, 98 S.Ct. 1650, 56 L.Ed.2d 86:

The cardinal rule of statutory construction is to ascertain and carry out the real legislative intention. Balto. Gas & Elect. Co. v. Board, 278 Md. 26, 31, 358 A.2d 241 (1976). A statute should be construed according to the ordinary and natural import of the language used without resorting to subtle or forced interpretations for the purpose of limiting or extending its operation. Burch v. State, 278 Md. 426, 429, 365 A.2d 577 (1976); Cearfoss v. State, 42 Md. 403, 407 (1875). That is, we must confine ourselves to the statute as written, and may not attempt, under the guise of construction, to supply omissions or remedy possible defects in the statute. In Re Appeals Nos. 1022 & 1081, 278 Md. 174, 178, 359 A.2d 556 (1976). Thus, if there is no ambiguity or obscurity in the language of a statute, there is usually no need to look elsewhere to ascertain the intent of the Legislature. Maryland Auto Ins. Fund v. Stith, 277 Md. 595, 597, 356 A.2d 272 (1976). As we said in Purifoy v. Merc.-Safe Dept. & Trust, 273 Md. 58, 66, 327 A.2d 483 (1974), "where statutory language is plain and free from ambiguity and expresses a definite and sensible meaning, courts are not at liberty to disregard the natural import of words with a view toward making the statute express an intention which is different from its plain meaning."

See also Schweitzer v. Brewer, 280 Md. 430, 374 A.2d 347 (1977); Mazor v. State, Dep't of Correction, 279 Md. 355, 369 A.2d 82 (1977); Howell v. State, 278 Md. 389, 364 A.2d 797 (1976); District Land v. Wash. S. S. C., 266 Md. 301, 292 A.2d 695 (1972). As we read the ordinance, it aims to prohibit Simultaneous treatment of persons of both sexes in the same room; it does not establish any sexual distinction as to who may administer a massage to persons of either sex.

The appellant retorts that the ordinance is still invalid because the regulation promulgated pursuant to the ordinance prohibits heterosexual massages. Regulation 10 issued by the Board of Licenses for Massage Establishments states:

The Board hereby interprets Section 116(a)(2) of Ordinance No. 159 as prohibiting heterosexual massages and all inspections of massage establishment(s) shall include a review of any such activities.

As we see it, the validity of the regulation purporting to prohibit heterosexual massages cannot be determined in the context of the constitutional argument presented here because appellant's argument focuses exclusively on the ordinance. Moreover, even assuming that the regulation is properly before the Court, its validity derives, by its own terms, from the validity of the ordinance. That is, the regulation prohibiting heterosexual massages can be justified only if the ordinance itself prohibits heterosexual massages. It is well settled that where the language of a statute is clear and unambiguous, an administrative interpretation must be reasonable and consistent with the letter and policy of the statute under which the agency acts. Baltimore v. William E. Koons, Inc., 270 Md. 231, 237, 310 A.2d 813 (1973); Farber's, Inc. v. Comptroller, 266 Md. 44, 50-51, 291 A.2d 658 (1972); Bene. Fin. Co. v. Adm'r, Loan Laws, 260 Md. 430, 442, 272 A.2d 649 (1971); Atlantic, Gulf v. Dep't of Assess. & T., 252 Md. 173, 183, 249 A.2d 180 (1969). In the instant case, the language of the ordinance is clear, and it therefore becomes unnecessary to decide whether the ordinance is constitutionally deficient on the basis of sex discrimination because the ordinance on its face does not prohibit heterosexual massages and because the authority ascribed to the ordinance to support the regulation does not exist.

Appellant next levels a broadside attack against the ordinance claiming it violates the equal protection clause of the fourteenth amendment in that it provides for invidious class legislation. As a threshold proposition, we note that the equal protection clause guarantees that similar persons will be treated in a similar manner by the state. However, it does not deny to a state or local government the power to treat different classes of persons differently, provided those classifications are based upon permissible criteria and are not arbitrarily used to burden a group of individuals. If the governmental classification relates to a legitimate governmental purpose the classification will be permitted. Reed v. Reed, 404 U.S. 71, 92 S.Ct. 251, 30 L.Ed.2d 225 (1971); McDonald v. Board of Election Comm'rs., 394 U.S. 802, 89 S.Ct. 1404, 22 L.Ed.2d 739 (1969); Attorney General v. Johnson, 282 Md. 274, 385 A.2d 57 (1975); Wheeler v. State, supra.

The Supreme Court and this Court have applied different tests when evaluating a classification challenged as violating the equal protection clause. When the statute or ordinance restricts a fundamental right, (such as the right to privacy, right to vote, or the right to marry) or creates an inherently suspect classification (such as race, nationality or alienage), courts employ the strict scrutiny test requiring the state to establish that the classification is necessary to promote a compelling state interest. Otherwise courts ordinarily apply the rational basis test (sometimes labelled the fair and substantial relationship test) which requires that a...