Smith v. Keator

• Decision Date: 01 July 1974
• Docket Number: No. 82,82
• Citation: 206 S.E.2d 203,285 N.C. 530
• Court: North Carolina Supreme Court
• Parties: , 10 Fair Empl.Prac.Cas. (BNA) 1209, 8 Empl. Prac. Dec. P 9686 Gary P. SMITH d/b/a Holiday Health Club, et al. v. Hervey KEATOR, Acting Chief of Police of the City of Fayetteville, NorthCarolina, et al.

Page 203

206 S.E.2d 203

285 N.C. 530, 10 Fair Empl.Prac.Cas. (BNA) 1209,

8 Empl. Prac. Dec. P 9686

Gary P. SMITH d/b/a Holiday Health Club, et al. v. Hervey KEATOR, Acting Chief of Police of the City of

Fayetteville, NorthCarolina, et al.

No. 82.

Supreme Court of North Carolina.

July 1, 1974.

Butler, High & Baer, Fayetteville, Christine Y. Denson, Raleigh, for plaintiffs-appellants.

Nance, Collier, Singleton, Kirkman & Herndon by Rudolph G. Singleton, Jr., and Ocie F. Murray, Jr., Clark, Clark, Shaw & Clark by Heman R. Clark, Fayetteville, for defendants-appellees.

MOORE, Justice.

The only question before us on this appeal is the constitutionality of the ordinance in question. Plaintiffs contend that the ordinance is invalid because it violates the due process and equal protection clauses of the United States Constitution.

Plaintiffs first assert that the ordinance violates the due process clause of the Fourteenth Amendment by permitting the city council to act arbitrarily in denying or revoking massage parlor licenses. Plaintiffs have not applied for a license, so the question of a denial or revocation has not been before the city council. Instead, plaintiffs seek a judgment declaring Section 17--14.1 of the City Code of Fayetteville unconstitutional.

The following statutes are pertinent to the authority which cities have to regulate and license occupations, trades, professions, and businesses.

G.S. § 160A--194 in part provides:

'A city may by ordinance, subject to the general law of the State, regulate and license occupations, businesses, trades, professions, and forms of amusement or entertainment and prohibit those that may be inimical to the public health, welfare, safety, order, or convenience. . . .'

G.S. § 160A--174 in part provides:

'(a) A city may by ordinance define, prohibit, regulate, or abate acts, omissions, or conditions, detrimental to the health, safety, or welfare of its citizens and the peace and dignity of the city, and may define and abate nuisances.'

G.S. § 160A--4 provides that in construing ordinances:

'It is the policy of the General Assembly that the cities of this State should have adequate authority to execute the powers, duties, privileges, and immunities conferred upon them by law. To this end, the provisions of this Chapter and of city charters shall be broadly construed and grants of power shall be construed to include any additional and supplementary powers that are reasonably necessary or expedient to carry them into execution and effect. . . .'

At the threshold of our consideration of the questions here presented we note the well-recognized rule that where a statute or ordinance is susceptible to two interpretations--one constitutional and one unconstitutional--the Court should adopt the interpretation resulting in a finding of constitutionality. State v. Frinks, 284 N.C. 472, 201 S.E.2d 858 (1974); Randleman v. Hinshaw, 267 N.C. 136, 147 S.E.2d 902 (1966); Finance Co. v. Leonard, 263 N.C. 167, 139 S.E.2d 356 (1964). And when the legislative body undertakes to regulate a business, trade, or profession, courts assume it acted within its powers until the contrary clearly appears. Mitchell v. Financing Authority, 273 N.C. 137, 159 S.E.2d 745 (1968); Roller v. Allen, 245 N.C. 516, 96 S.E.2d 851 (1957).

In Cheek v. City of Charlotte, 273 N.C. 293, 160 S.E.2d 18 (1968), this Court held that a city could regulate the operation of massage parlors. Justice Sharp, speaking for the Court, stated: 'We hold that the occupation of a massagist and the business of massage parlors and similar establishments are proper subjects for regulation under the police power of the City of Charlotte.' The Charlotte ordinance had the same provisions as those of the Fayetteville ordinance, except the Charlotte ordinance contained a provision exempting barbershops, beauty shops, and the health club activities of the YMCA and YWCA from its application. This Court held that there was no reasonable ground for those exemptions, and for that reason the ordinance was invalid. This unconstitutional feature is not found in the Fayetteville ordinance.

Plaintiffs contend, however, that subsections (e) and (j) give the city council unlimited discretion to deny any application for a license or revoke any license already issued without a hearing. Under the due process clause a city may not deny or revoke an occupational license arbitrarily or without notice and a hearing. As was stated in State v. Parrish, 254 N.C. 301, 118 S.E.2d 786 (1961):

'A license to engage in business or practice a profession is a property right that cannot be taken away without due process of law. The granting of such license is a right conferred by administrative act, but the deprivation of the right is a judicial act requiring due process. Boyce v. Gastonia, 227 N.C. 139, 41 S.E.2d 355; In re Carter, 89 U.S.App.D.C. 310, 192 F.2d 15 (1951), cert. den. 342 U.S. 862, 72 S.Ct. 89, 96 L.Ed. 648; In re Carter, 85 U.S.App.D.C. 229, 177 F.2d 75 (1949), cert. den. Laws v. Carter, 338 U.S. 900, 70 S.Ct. 250, 94 L.Ed. 554; Laisne v. Board of Optometry, 101 P.2d 787 (Cal.1940); In re Greene, 130 A.2d 593 (D.C.1957).'

Under Article I, Section 19, of the North Carolina Constitution, no person can be deprived of his property except by his own consent or the law of the land. The law of the land and due process of law are interchangeable terms and both import notice and an opportunity to be heard or defend in a regular proceeding before a competent tribunal. Hagins v. Redevelopment Comm., 275 N.C. 90, 165 S.E.2d 490 (1969); Eason v. Spence, 232 N.C. 579, 61 S.E.2d 717 (1950); Willner v. Committee on Character & Fitness, 373 U.S. 96, 83 S.Ct. 1175, 10 L.Ed.2d 224 (1963).

Justice Branch in State v. Frinks, supra, 284 N.C. at 484, 201 S.E.2d at 866, stated:

'. . . (I)t should be borne in mind that in construing this ordinance we may draw reasonable inferences and consider proper implications to the end that the ordinance may be declared valid.

In so doing, we are guided by the rule that when a duty is imposed upon a public agency there arises, of necessity, an implication that adequate power is bestowed upon the agency to perform the duty in accord with the federal and state constitutions. Hill v. Lenoir County, 176 N.C. 572, 97 S.E. 498; Lowery v. School Trustees, 140 N.C. 33, 52 S.E. 267.'

See Cox v. New Hampshire, 312 U.S. 569, 61 S.Ct. 762, 10 L.Ed. 1049 (1941).

We approve and adopt the construction of the Fayetteville ordinance stated by our Court of Appeals as follows:

'. . . The ordinance can be construed so as to avoid constitutional deficiencies. See Education Assistance Authority v. Bank, 276 N.C. 576, 174 S.E.2d 551; Milk Commission v. Food Stores, 270 N.C. 323, 154 S.E.2d 548. Subsection (j) should be construed to allow a licensee to appear before the city council and present his case before his license can be revoked. The subsection expressly provides that a licensee must be notified by registered mail whenever there is a proposal to revoke his license, and this notice procedure would be of no use if the licensee were not allowed to come before the council for a hearing. Subsection (e), likewise, should be interpreted in a manner that will satisfy the requirements of the due process clause; the city council should not be permitted to deny an application for a massage license except upon reasonable grounds, and after notice and a hearing. When interpreted in this way, the licensing provisions of the ordinance are entirely constitutional.'

We consider it proper to infer, as did our Court of Appeals, that after a complaint is filed by the chief of police or other interested citizen, and after notice, the licensee would be entitled to a hearing before the city council, and that the council would not be permitted to deny the application for a massage license or to revoke the same after issuance except upon reasonable grounds.

Plaintiffs' second contention is that subsection (l) of the massage parlor ordinance creates 'an inviduous and irrational classification based on sex.' In Cheek v. City of Charlotte, supra, this Court upheld that part of a similar city ordinance forbidding massagists to treat persons of the opposite sex, and quoted with approval from Ex parte Maki, 56 Cal.App.2d 635, 133 P.2d 64 (1943), as follows:

'The ordinance applies alike to both men and women. . . . The barrier erected by the ordinance against immoral acts likely to result from too intimate familiarity of the sexes is no more than a reasonable regulation imposed by the city council in the fair exercise of police powers. . . .

* * *

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'There is nothing in the ordinance that denies the equal protection guaranteed by the Fourteenth Amendment. It applies to all alike who give massages for hire and who are not licensed to practice one of the arts of healing. . . .'

See Tussman and tenBroek, The Equal Protection of the Laws, 37 Calif.L.Rev. 341, 343--47 (1949).

In Patterson v. City of Dallas, 355 S.W.2d 838 (Tex.Civ.App.1962), the Texas Court, after noting that the California case of Ex parte Maki, supra, was so well decided that it was decisive of the appeal before them, held that a city ordinance declaring that it was unlawful to administer a massage to any person of the opposite sex was a fair exercise of the police power of the city that did not violate any constitutional rights of the licensees of the massage establishment. The Court stated that the ordinance bore a reasonable relation to the objects sought to be obtained, and that the ordinance was valid and constitutional. This case was appealed to the Supreme Court of the United States. That Court in a Per curiam opinion dismissed the appeal stating, 'The motion to dismiss is granted and the appeal is dismissed for want of a substantial federal question.' 372 U.S. 251, 83 S.Ct. 873, 9 L.Ed.2d 732 (1963).

Relying on and quoting extensively with approval from Ex Parte Maki, supra, the...