MRM, Inc. v. City of Davenport

• Decision Date: 19 March 1980
• Docket Number: No. 62886,62886
• Citation: 290 N.W.2d 338
• Parties: MRM, INC. d/b/a New Paris Massage; Bobby James Walker d/b/a Pleasure Palace Massage; James Touet d/b/a Cheri's Bath and Massage; William Cagle d/b/a K's Bath and Massage; Dilar Investments, Inc. d/b/a Gentle Touch, Lady Fingers Massage and Soft Touch; William Cagle and Becky Mayers, Appellants, v. CITY OF DAVENPORT, Iowa, Appellee.
• Court: Iowa Supreme Court

Page 338

290 N.W.2d 338

MRM, INC. d/b/a New Paris Massage; Bobby James Walker d/b/a Pleasure Palace Massage; James Touet d/b/a Cheri's Bath and Massage; William Cagle d/b/a K's Bath and Massage; Dilar Investments, Inc. d/b/a Gentle Touch, Lady Fingers Massage and Soft Touch; William Cagle and Becky Mayers, Appellants, v.CITY OF DAVENPORT, Iowa, Appellee.

No. 62886.

Supreme Court of Iowa.

March 19, 1980.

Doren Shifley and Thomas M. Kelly, Jr., of Shifley & Kelly, Davenport, for appellants.

Earl A. Payson and E. Scott Hartsook, Asst. Corp.Counsel, Davenport, for appellee.

Considered en banc.

REYNOLDSON, Chief Justice.

Plaintiffs by declaratory judgment action sought to establish the unconstitutionality of a new Davenport ordinance which extensively regulates massage parlors and persons engaging in that activity.From an adverse judgment plaintiffs appeal and we affirm.

June 15, 1977, defendantCity of Davenport enacted ordinance 18.05, entitled "Massage Establishments and Massage Services."This seventeen-page regulation specified detailed requirements for massage parlors including physical facilities and operating procedures.It imposed conditions for licensure, and provided for inspections and revocation of licenses, together with penalties for noncompliance.Ordinance 18.05 also required that persons giving massages be licensed under conditions which included physical examinations, restrictions against nudity, and 750 hours of instruction from a defined "accredited school."

July 20, 1977, the Davenport council amended ordinance 18.05, changed one section to conform to another, and provided the amended ordinance would become effective August 27, 1977.Before that date the plaintiffs, who were operators and employees of various Davenport massage parlors, filed action for declaratory judgment.They obtained a temporary injunction against enforcement of the regulation pending trial court's determination of the constitutional issues raised.William Cagle withdrew as plaintiff before the case was tried in district court.

Except for one provision not in issue here, trial court's December 15, 1978, judgment held that ordinance 18.05 was not violative of plaintiffs' right to privacy and exercise of free speech, was not a denial of equal protection, and was not so impermissibly vague and indefinite as to deny plaintiffs due process.We restructure and address plaintiffs' various propositions relied upon for reversal in divisions II through IV.

I.Standard of judicial scrutiny.

A threshold issue is the appropriate standard of judicial scrutiny to be applied in analyzing plaintiffs' claims of due process and equal protection violations.Plaintiffs assert defendant city should be required to defend its regulation by showing a "compelling state interest," or at least a "substantial" rational relation to an "articulated" state purpose.Defendant contends the constitutionality of the ordinance should be examined under the "rational basis" test because neither a "fundamental right" nor a "suspect classification" is involved.

Plaintiffs' claim that defendant must show a "compelling state interest" is posited on Cianciolo v. Members of the City Council, City of Knoxville, 376 F.Supp. 719, 723(E.D.Tenn.1974), andCorey v. City of Dallas, 352 F.Supp. 977, 981(N.D.Tex.1972), rev'd, 492 F.2d 496(5th Cir.1974)(reversed on standing).But both of those decisions were centered on regulations prohibiting any person from administering a massage to a person of the opposite sex obviously a classification based on sex and potentially suspect.They have been criticized otherwise as a return to the discredited substantive due process concept developed in "an era when the Court thought the Fourteenth Amendment gave it the power to strike down laws 'because they may be unwise, improvident or out of harmony with a particular school of thought.'Dandridge v. Williams, 397 U.S. (471,) 484, 90 S.Ct. (1153,) 1161(, 25 L.Ed.2d 491, 501(1970))."Pollard v. Cockrell, 578 F.2d 1002, 1012-13(5th Cir.1978).SeeAndrus v. Allard, --- U.S. ----, ---- n.25, 100 S.Ct. 318, 328, 62 L.Ed.2d 210, 224(1979).No suspect classification is involved in Davenport ordinance 18.05.Under its provisions a licensed masseur or masseuse may administer a massage to a patron of either sex.

In any event, more recent cases have called into question the continued vitality of the Cianciolo and Corey holdings.As noted in Tomlinson v. Mayor of Savannah, 543 F.2d 570, 571(5th Cir.1976):

In Smith v. Keater (sic, Keator ), 419 U.S. 1043, 95 S.Ct. 613, 42 L.Ed.2d 636(1974), dismissing for want of a substantial federal question, 285 N.C. 530, 206 S.E.2d 203((1974));Rubenstein v. (Township of ) Cherry Hill, 417 U.S. 963, 94 S.Ct. 3165, 41 L.Ed.2d 1136(1974), dismissing for want of a substantial federal question, No. 10,027 (N.J.Sup.Ct. Jan. 29, 1974)((unreported));andKisley v. City of Falls Church, 409 U.S. 907, 93 S.Ct. 237, 34 L.Ed.2d 169(1972), dismissing for want of a substantial federal question, 212 Va. 693, 187 S.E.2d 168(1972), the Supreme Court dismissed appeals from state court decisions upholding the constitutionality of ordinances prohibiting heterosexual massages.Appellants in those three cases contended in the Supreme Court that the ordinances established invidiously discriminatory sex-based classifications in violation of the equal protection clause, worked an unreasonable abridgement of the right to pursue a legitimate livelihood; and created an unconstitutional irrebuttable presumption that all massages lead to illicit sexual behavior.The Supreme Court ruled that these challenges did not raise a substantial constitutional question.

Based upon the Supreme Court's discussion of the precedential effect of a dismissal for want of a substantial federal question in Hicks v. Miranda, 422 U.S. 332, 344-45, 95 S.Ct. 2281, 2289, 45 L.Ed.2d 223, 236(1975), the Tomlinson court held the dismissals of the Smith, Rubenstein, and Kisley appeals foreclosed reconsideration of identical constitutional challenges.Accord, Hogge v. Johnson, 526 F.2d 833, 835(4th Cir.1975), cert. denied, 428 U.S. 913, 96 S.Ct. 3228, 49 L.Ed.2d 1221(1976);Colorado Springs Amusements, Ltd. v. Rizzo, 524 F.2d 571, 575-77(3d Cir.1975), cert. denied, 428 U.S. 913, 96 S.Ct. 3228, 49 L.Ed.2d 1222(1976);Cullinane v. Geisha House, Inc., 354 A.2d 515(D.C.), cert. denied, 428 U.S. 923, 96 S.Ct. 3234, 49 L.Ed.2d 1226(1976);City of Indianapolis v. Wright, 267 Ind. 471, 476-77, 371 N.E.2d 1298, 1301, appeal dismissed for want of a substantial federal question, 439 U.S. 804, 99 S.Ct. 60, 58 L.Ed.2d 97(1978);State v. Black, Ind.App., 380 N.E.2d 1261, 1266-67(1978).See alsoPollard v. Cockrell, 578 F.2d at 1010-11.

In Black, Ind.App., 380 N.E.2d at 1268, the Indiana court observed, "(B) ecause Cianciolo was previous to (Kisley ) . . . and numerous other cases . . . we must assume that Cianciolo, which invalidated a similar massage parlor ordinance, is now overruled."Accord, Wright, 267 Ind. at 477 n.1, 371 N.E.2d at 1301.

As noted in United Health Clubs of America, Inc. v. Strom, 423 F.Supp. 761, 765(D.S.C.1976), "the constitutionality of state statutes which regulate professions or trades invested with a strong public interest have (more recently) been measured against the more lenient rational relationship standard"(citingSchware v. Board of Bar Examiners, 353 U.S. 232, 239, 77 S.Ct. 752, 756, 1 L.Ed.2d 796, 801-02(1957);Williamson v. Lee Optical of Oklahoma, Inc., 348 U.S. 483, 489, 75 S.Ct. 461, 465, 99 L.Ed. 563, 573(1955);andKotch v. Board of River Port Pilot Commissioners, 330 U.S. 552, 556, 67 S.Ct. 910, 912, 91 L.Ed. 1093, 1097(1947)).In Green v. Shama, 217 N.W.2d 547, 554(Iowa1974), we applied the reasonable relationship test in examining the constitutionality of statutes regulating barbers and cosmetologists.We applied the same test in exploring the constitutionality of a statute barring nudity in liquor-serving establishments.Three K.C. v. Richter, 279 N.W.2d 268, 275(Iowa1979).

We find no sufficient reason to impose the "compelling state interest" test in examining the constitutionality of ordinance 18.05.

The alternate review standard advanced by plaintiffs would require Davenport to show a substantial rational relation to an articulated state purpose.Here plaintiffs rely on Reed v. Reed, 404 U.S. 71, 92 S.Ct. 251, 30 L.Ed.2d 225(1971)(in which plaintiffs apparently equate substantiality with rationality), and McGinnis v. Royster, 410 U.S. 263, 270, 93 S.Ct. 1055, 1059, 35 L.Ed.2d 282, 289(1973)(articulation).Reed addressed a gender-based preference in estate administration.McGinnis merely equated "articulated" with "legitimate and nonillusory" rather than "primary" in applying the traditional rationality test to prisoners accumulating good-time credit toward parole eligibility.410 U.S. at 276, 93 S.Ct. at 1062-63, 35 L.Ed.2d at 292.Plaintiffs cite no precedent for harnessing these two concepts in tandem as a standard for review.

On the other hand, many courts routinely have applied the traditional "rational relationship" test to statutes and ordinances regulating massage parlors, their operators and employees.See, e. g., Tomlinson v. Mayor of Savannah, 543 F.2d at 571;Harper v. Lindsay, 454 F.Supp. 597, 601(S.D.Tex.1978);United Health Clubs of America, Inc. v. Strom, 423 F.Supp. at 765;Rogers v. Miller, 401 F.Supp. 826, 829(E.D.Va.1975)(1000 hours training requirement held reasonable);Brown v. Brannon, 399 F.Supp. 133, 148(M.D.N.C.1975), aff'd mem., 535 F.2d 1249(4th Cir.1976);Ex parte Maki, 56 Cal.App.2d 635, 644, 133 P.2d 64, 69(1943);City & County of Denver v. Nielson, 194 Colo. 407, 410, 572 P.2d 484, 486(1977)(ordinance prohibiting heterosexual massage held not "reasonable" under Colorado Constitution);Clevenger v. City of East Moline, 44 Ill.App.3d 168, 357 N.E.2d 719, 2 Ill.Dec. 552(1976);...