Snedeker v. Vernmar, Limited

• Decision Date: 04 April 1962
• Docket Number: No. 31412,31412
• Citation: 139 So.2d 682
• Parties: Agnes P. SNEDEKER, Alvin H. Drake, and Edith Dearborn, as and constituting the Florida Board of Massage, Appellants, v. VERNMAR, LTD., a limited partnership under the laws of the State of Florida, et al., Appellees.
• Court: Florida Supreme Court

Page 682

139 So.2d 682

Agnes P. SNEDEKER, Alvin H. Drake, and Edith Dearborn, as and constituting the Florida Board of Massage, Appellants, v. VERNMAR, LTD., a limited partnership under the laws of the State of Florida, et al., Appellees.

No. 31412.

Supreme Court of Florida.

April 4, 1962.

Richard W. Ervin, Atty. Gen., and David U. Tumin, Asst. Atty. Gen., for appellants.

Simmonite, Budd & Walsh and Garland M. Budd, Miami, for appellees.

O'CONNELL, Justice.

Plaintiffs in this cause all operate their businesses (for the avowed purpose of slenderizing the human body) under the franchises from the 'Stauffer System.' They filed their complaint in July 1958 for declaratory decree and injunctive relief, naming as defendant the Florida Board of Massage.

Plaintiffs alleged that none of them and none of their employees hold certificates of registration issued by the defendant board as prescribed in Chapter 480, Fla.Statutes, 1957, F.S.A., none held any diploma or credential issued by any recognized School of Massage, none can furnish proof of experience or education consisting of a continuous course of study as outlined by Sec. 480.09, and none qualify under the exemptions listed in Sec. 480.03.

It should be noted that the complaint was filed in July 1958 and thus the provisions of Chapter 480 as amended in 1957 were applicable. However, the complaint applies equally to Chapter 480 as amended in 1959 and in 1961, for such amendments are basically immaterial to the issue involved.

Plaintiffs alleged that they operate Stauffer tables, electrically operated mechanical tables, which provide their customers with a course of passive exercise by moving certain portions of the body in relation to other portions and also vibrate the body, being designed to produce muscle relaxation, stimulation of the blood circulation, posture improvement, and reduction of the fatty tissues of the body, all of which have a tendency to result in slenderizing of the body of the user.

Further, they alleged:

'* * * Plaintiffs say that when a customer comes to one of their places of business, the customer is assigned a certain period of 'use time' of the tables and equipment located in said place of business, under the franchise agreement and equipment-lease agreement between the respective Plaintiffs and Stauffer Reducing, Inc. That the time allocation is made by the business manager of the establishment and the customer is conducted to the first table and instructed in position by a technician, who, when the customer is in proper position on the table, activates the table by turning a switch and setting a time clock, and thereafter, the customer, in a like manner, is conducted from table to table until the allocated time schedules are completed. The customer does not disrobe at any time and no employee manually manipulates the customer's body. Plaintiffs say that by their franchise agreement they are required not to, and do not make any therapeutic claims whatsoever in behalf of the 'Stauffer System' of passive physical exercise, but do state that the mechanical passive exercises transmitted to the human body by the electrically operated mechanical tables tend to relax the muscles, stimulate blood circulation, improve posture, and reduce fatty tissue in the body. Plaintiffs say that the machines owned by them do not rub, stroke or knead the body, nor do the Plaintiffs, by machine or otherwise, administer oil rubs, salt glows, hot or cold packs, any kind of steam bath, cabinet bath, sitz bath, colon irrigation, nor any manual manipulation whatsoever, and all customers prior to being permitted to use any of the equipment of Plaintiffs, are questioned as to whether they are suffering from any pathological condition and if they are, Plaintiffs, as they are required so to do by their franchise, refuse to permit any such customer to use any of their said tables and equipment without first obtaining a doctor's examination and a statement that the use of such machinery will not be harmful.'

Plaintiffs asserted that they were not in the business of massage as it is generally known but by reason of the language of the statute, Sec. 480.01, F.S.A., the defendant board claims they fall within the classification of masseurs or masseuses and threatens to arrest them for operating as masseurs in violation of Chapter 480. Plaintiffs alleged the provisions of Chapter 480 have no reasonable relation to their business and the requirements thereby imposed are arbitrary, and if enforced against them would deprive them of their property and liberty without due process of law and deny to them the equal protection of the law, contrary to the provisions of the state and federal constitutions.

Plaintiffs' complaint concluded that unless the defendant was restrained from enforcing against them the provisions of Chapter 480 they would be compelled to either abandon their businesses or assume the risk of fine and imprisonment for violation of such provisions. They asked the court to determine the validity of the chapter, with particular attention to sections 480.01, 02, 03 and 09, as related to them, and to issue its injunction enjoining the defendant board from enforcing or attempting to enforce those provisions against them.

Hearings were held before the chancellor at which he heard the testimony of six different doctors and of an operator of a Stauffer salon. The medical testimony was conflicting as to whether or not the operation of the subject machines could be detrimental to the health of any user and as to whether or not it would be of benefit to the users of the machines if the operators thereof took the course of study prescribed for masseurs in Sec. 480.09.

Thereafter the chancellor entered his first decree and the appellant board took this appeal directly to this Court.

The first problem presented for decision involves our jurisdiction to entertain this appeal.

In his decree the chancellor recited that the appellees, as plaintiffs below, had asked for a construction of F.S. Chapter 480, F.S.A. and particularly Sections 480.01, 02, 03 and 09 and 'in particular, whether the above Statutes are constitutional.'

While the decree states that to require them to comply with F.S. Chapter 480, F.S.A. 'would deprive the plaintiffs of their constitutional rights of due process and equal protection of the laws, and deprive the plaintiffs of their property without due process of law, contrary to the Constitution of the State of Florida and the Constitution of the United States', the chancellor did not in specific words find any of the sections of said statute unconstitutional and invalid. Nor did the decree construe any controlling provision of either the state or federal constitution.

The question then arises as to whether the decree did in effect hold the subject act, or portions thereof, to be invalid or merely held them to be invalid as applied to the plaintiffs under the facts of this case.

The appellant board contends that the decree construed provisions of the constitutions, state and federal, and therefore this Court has jurisdiction of this appeal.

On the other hand the appellees state in their brief that they 'do not contend that the Chancellor's decree has such a broad scope.' They seem to be of the view that the decree merely held the act unconstitutional, as applied to them, rather than striking down the act, or portions thereof, because it was invalid.

If the decree merely held the statute unconstitutional as applied to the appellees-plaintiffs under the facts of this case rather than invalid per se, then we do not have jurisdiction of this appeal. See Stein v. Darby, Fla.1961, 134 So.2d 232.

Despite appellants' contention on the point we find no place in the decree in which it can be said that the chancellor undertook to 'explain, define or otherwise eliminate existing doubts arising from the language or terms' of any constitutional provision. See Armstrong v. City of Tampa, Fla., 1958, 106 So.2d 407, 409. If we have jurisdiction of this cause it can only be because the decree passed directly upon the validity of F.S. Chapter 480, F.S.A., or some section thereof.

However it is not clear that the effect of the decree is to merely hold the statute, or portions thereof, unconstitutional only as applied to the appellees-plaintiffs under the facts of this case.

The validity of Sections 480.01, 02, 03 and 09 was placed in issue and statements in the decree would indicate that the chancellor determined that portions thereof were invalid, yet he did not so state. The decretal part of the order under attack merely enjoined the appellant board from enforcing the penal provisions of Chapter 480 against these appellees-plaintiffs.

The matter is further complicated by the fact that at one place in the decree the chancellor stated that '* * * it is clear that the Legislature did not intend to include the use of electrical equipment here involved in its definition of a masseur or masseuse.' Such was the decision of this Court in Florida Board of Massage v. Underwood, Fla.1950, 45 So.2d 184, 17 A.L.R.2d 1181. However the statute as amended in 1957 clearly indicates that the legislature intended to subject the appellees-plaintiffs, and operators of similar devices, to the provisions of the statute.

Sec. 480.01(1), as amended in 1957, read:

'(a) For the purpose of this chapter the term masseur or masseuse shall be deemed to be a person who practices, administers or teaches all or any one or more of the following subjects and methods of treatments, viz: who administers or teaches treatments with any mechanical or electrical apparatus for the purpose of body slenderizing, body reducing or body contouring.

'(b) Further, a person who has studied the underlying principles of anatomy and physiology and administers or teaches all or any one or more of the following subjects and methods of treatments, viz: oil rubs, salt glows, hot or cold packs, all...