Regency Services Corp. v. Board of County Com'rs of Adams County
| Decision Date | 12 November 1991 |
| Docket Number | No. 91SA125,91SA125 |
| Citation | 819 P.2d 1049 |
| Parties | REGENCY SERVICES CORPORATION, Plaintiff-Appellant, v. BOARD OF COUNTY COMMISSIONERS OF ADAMS COUNTY, Edward Camp, Sheriff of Adams County, and James F. Smith, District Attorney for Adams County, Defendants-Appellees. |
| Court | Colorado Supreme Court |
Elrod, Katz, Preeo, Look, Moison & Silverman, P.C., Eldon E. Silverman, Douglas J. Friednash, Denver, for plaintiff-appellant.
James F. Smith, Adams County Dist. Atty., Steven L. Bernard, Chief Trial Deputy, Brighton, for defendant-appellee James F. Smith.
Robert J. Lowe, Adams County Atty., Rita M. Harrell, Asst. Co. Atty., Brighton, for defendants-appellees Bd. of County Com'rs for Adams County and Edward Camp, Sheriff of Adams County.
The question in this case is whether the Colorado Massage Parlor Code, §§ 12-48.5-101 to -119, 5B C.R.S. (1991), and Adams County Ordinance No. 2, entitled Ordinance Establishing Massage Parlor Regulations, both of which regulate commercially operated massage parlors but exempt certain types of massage procedures from governmental control, are unconstitutionally vague in violation of due process of law, violate equal protection of the laws, or suffer from unconstitutional overbreadth. The district court denied the request of Regency Services Corporation (Regency) for declaratory and injunctive relief against the enforcement of the regulatory scheme. We uphold the constitutionality of the state statute and county ordinance and accordingly affirm the judgment of the district court.
In 1977 the General Assembly enacted the Colorado Massage Parlor Code. §§ 12-48.5-101 to -119, 5B C.R.S. (1991). This statutory scheme was enacted as an exercise of the state's police powers "for the protection of the economic and social welfare and the health, welfare, and safety of the people of this state." § 12-48.5-102(1). The statute declares that the "licensing and regulation of massage parlors are matters of statewide concern," § 12-48.5-102(2), but that "[n]othing in this article shall prohibit a local government from enacting an ordinance or resolution providing more stringent standards for such licensing" so long as the ordinance meets "the minimum standards established by this article." § 12-48.5-118. The statute makes it unlawful for any person to operate a massage parlor without holding a validly issued local license. § 12-48.5-110(1)(a).
The Massage Parlor Code defines the term "massage" as "a method of treating the body for remedial or hygienic purposes, including but not limited to rubbing, stroking, kneading, or tapping with the hand or an instrument or both." § 12-48.5-103(5). A "massage parlor" is defined as:
[A]n establishment providing massage, but does not include training rooms of public and private schools accredited by the state board of education or approved by the division charged with the responsibility of approving private occupational schools, training rooms of recognized professional or amateur athletic teams, and licensed health care facilities. A facility which is operated for the purpose of massage therapy performed by a massage therapist is not a massage parlor. For purposes of this subsection (6), "massage therapist" means a person who has graduated from a massage therapy school accredited by the state educational board or division charged with the responsibility of approving private occupational schools, or from a school with comparable approval or accreditation from another state with transcripts indicating completion of at least five hundred hours of training in massage therapy. For the purposes of this subsection (6), a massage therapy school may include an equivalency program approved by the state educational board or division charged with responsibility of approving private occupational schools.
§ 12-48.5-103(6), 5B C.R.S. (1991). 1
Except where the state statute specifically provides otherwise, a local licensing authority, before granting a massage-parlor license, is required to consider "the reasonable requirements of the neighborhood, the desires of the inhabitants as evidenced by petitions, remonstrances, or otherwise, and all other reasonable restrictions which are or may be placed on the neighborhood by the local licensing authority." § 12-48.5-104(4). A local licensing authority is authorized to conduct a pre-licensing inspection of the proposed facility and to investigate an applicant's fitness to conduct the business. § 12-48.5-105(2)(a). 2 Any license issued by a local authority is subject to revocation or suspension for any violations of the Massage Parlor Code or other regulations promulgated pursuant to the statute. § 12-48.5-107. Violations of the state statute are criminal misdemeanors, punishable by a fine of not more than $5,000 or imprisonment for one year, or by both fine and imprisonment. § 12-48.5-111(1).
In 1989, pursuant to the statutory authorization delegated to local governments by the Massage Parlor Code, the Adams County Board of County Commissioners enacted County Ordinance No. 2 to regulate massage parlors within the county. In enacting the ordinance, the board specifically determined that the unregulated operation of massage parlors within unincorporated Adams County may adversely affect the health, safety, and welfare of residents of those areas, and specifically found, in pertinent part, as follows: that in the absence of regulation "sexual conduct or the intimation of sexual conduct, rather than the massage of the body, has or may become the business of many massage parlors"; that "the keeping of records by massage parlors will deter prostitution, obscenity, public indecency[,] further inhibit minors from frequenting such premises[,] and assist public health officials to restrain the spread of disease"; that absent the right of entry by an agent or employee of the sheriff's department or the board, the enforcement of the ordinance would be frustrated; and that "the unregulated operation of massage parlors would hinder the protection of the citizens ... from lewd and immoral acts taking place in massage parlors." Adams County Ordinance No. 2, Preface.
The county ordinance defines the term "massage" in a manner identical to the Massage Parlor Code. The term "massage parlor" is defined as follows: "an establishment providing massage, but it does not include training rooms of public and private schools accredited by the state board of education or approved by the state board for community colleges and occupational education, training rooms of recognized professional or amateur athletic teams, and licensed health care facilities." Adams County Ordinance No. 2, § A(6). The county ordinance imposes requirements on the operation of a massage parlor over and above those required by the state statute. For example, the ordinance prohibits controlled substances or alcoholic beverages on licensed premises, locks on doors on the rooms where massages are given, the exposure or touching of the genitals during the massage treatment, and the viewing by a customer of the exposed breasts or buttocks of any female while on the licensed premises. Adams County Ordinance No. 2, § H(1)(i), (j), (k) & (m). Moreover, the ordinance prohibits the employment of anyone under eighteen years of age and requires massage parlors to close between the hours of 2:00 a.m. and 6:00 a.m. Adams County Ordinance No. 2, § H(1)(l ) & (r). 3
Any person administering a massage to a customer of a massage parlor must obtain an identification card from the county sheriff and is required to carry the identification card at all times while in and upon the licensed premises. Adams County Ordinance No. 2, § D(3). The ordinance states that any person applying for an identification card must have obtained a certificate or diploma from "a recognized school which has provided the applicant classroom instruction for the purpose of teaching the theory, method, profession or work of massage, and which includes the study of the principles of anatomy and physiology." Adams County Ordinance No. 2, § D(3). 4 In contrast to the state statute, which does not contain a recordkeeping requirement, the ordinance requires every licensed massage parlor to keep a record of the date and hour of each massage, and the name, age, and address of the patron, as well as the name of the individual administering the massage. Adams County Ordinance No. 2, § S. Such records must be maintained "in a confidential manner by the licensee" and furnished solely to the Adams County Sheriff's Department or, upon subpoena, to the Board of County Commissioners. Id.
Regency has operated a facility known as Regency Health Spas within unincorporated Adams County for several years. In 1990 Regency was charged with a criminal misdemeanor for operating its massage parlor without a valid license and for failure to comply with several provisions of the county ordinance. Regency thereafter filed a civil complaint for declaratory and injunctive relief against the Adams County Board of County Commissioners, the Adams County Sheriff's Office, and the Adams County District Attorney. Regency sought a declaration that the state statute and county ordinance violated equal protection of the laws and due process of law under the United States and Colorado Constitutions, and also sought a preliminary injunction against the enforcement of the statute against its health spa operations.
The district court conducted an evidentiary hearing on Regency's request for a preliminary injunction. The evidence at the hearing established that Regency's massage parlor offers private rooms with hot tubs, jacuzzis, and suntanning equipment. Patrons can rent the rooms in half-hour blocks and can also purchase time with a topless woman, called a hostess, at the rate of $60 or $70 per hour, or with two hostesses at the rate of $100 per hour, either for conversation or for...
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