State v. Bales, 48981
| Decision Date | 03 February 1977 |
| Docket Number | No. 48981,48981 |
| Citation | 343 So.2d 9 |
| Parties | STATE of Florida, Appellant, v. Linda Carol BALES and Stephen Peter Cataldo, Appellees. |
| Court | Florida Supreme Court |
Robert L. Shevin, Atty. Gen., and Basil S. Diamond, Asst. Atty. Gen., for appellant.
David A. Demers, of the Law Offices of Robert W. Pope, St. Petersburg, for appellees.
This cause is here on appeal from the County Court in and for Orange County. Appellees were allowed to file cross-assignments of error to challenge a portion of the trial court order which is interlocutory in nature. We have assumed jurisdiction of both the appeal and the cross-appeal under Article V, Sections 3(b)(1) and (3), Florida Constitution.
On November 19, 1975, appellee Linda Carol Bales was employed in a massage parlor called 'Garden of Paradise' located in Orlando, Florida. On that day appellee Bales allegedly offered for monetary consideration to fondle or masturbate the sexual organs of a male person who was not her spouse and who was, in fact, an Orange County deputy sheriff. She was charged by information with violating Section 796.07, Florida Statutes:
'(1)(b) The term 'lewdness' shall be construed to include any indecent or obscene act.'
'(3) It shall further be unlawful in the state:
(a) To offer to commit, or to commit, or to engage in, prostitution, lewdness, or assignation.'
In a second count, Ms. Bales was accused of violating Section 480.02(1), Florida Statutes:
'(1) It shall be unlawful for any person or persons to engage in the practice or attempt to practice massage for a fee, or for a gratuity, or to conduct or teach in a school of massage without a certificate of registration issued pursuant to the provisions of this chapter.'
Furthermore, Stephen Peter Cataldo, allegedly the owner or operator of the 'Garden of Paradise,' was charged in the same two-count information with aiding and abetting the commission of both offenses.
Appellees filed separate but identical motions to dismiss the information alleging, inter alia, that Section 796.07 is unconstitutionally vague and that Chapter 480 is unconstitutionally vague, overly broad and that there is no reasonable relationship between the requirements of the latter statute and the public safety and welfare. The trial court denied appellees' motion as to Section 796.07 but granted as to Chapter 480, ruling that 'the definitions of masseur are vague, overbroad and an inordinate use of the police powers of the State of Florida.'
The State appeals from this ruling, while appellees Bales and Cataldo cross-appeal their unsuccessful challenge to Section 796.07, Florida Statutes.
For appellees' argument to be accepted, this Court must find the challenged statutes to be unconstitutional on their face. In determining this issue, we must bear in mind that any legislative enactment carries a strong presumption of constitutionality, including a rebuttable presumption of the existence of necessary factual support in its provisions. Borden's Farm Products Co. v. Baldwin, 293 U.S. 194, 209, 210, 55 S.Ct. 187, 79 L.Ed. 281 (1934). If any state of facts, known or to be assumed, justify the law, the court's power of inquiry ends. United States v. Carolene Products Co., 304 U.S. 144, 154, 58 S.Ct. 778, 82 L.Ed. 1234 (1938). Questions as to wisdom, need or appropriateness are for the Legislature. Olsen v. State of Nebraska, ex rel. Western Reference & Bond Ass'n, 313 U.S. 236, 246, 61 S.Ct. 862, 85 L.Ed. 1305 (1941). Furthermore, since no fundamental right or suspect classification is at issue here, all we need find is the existence of a rational basis for this attempted legislative exercise of the State's police power.
Keeping the foregoing standards in mind, we are unable to agree that Section 480.02(1), either by itself or as part of the larger regulatory scheme of Chapter 480, fails to give due notice of the conduct which is proscribed. Limited as it is to regulating those who perform or attempt to perform massage for financial consideration, Section 480.02(1) hardly gives rise to the parade of horribles advanced in appellees' brief. 1 For example, it is argued that the statute trespasses upon the enjoyment of sexual relations between married couples, that it seeks to regulate a simple handshake or a slap on the back. Some of the difficulty stems from erroneous interpretation of the phrase 'for a gratuity' in Section 480.02(1), Supra; it should be clear that 'gratuity' means 'tip' and that the phrase does not mean 'for free.' This construction should put at rest any confusion which might develop on that score.
A complex and multi-faceted regulatory statute must be read as a whole before a determination of its constitutionality can be wisely made. The phrase 'to practice massage,' found in Section 480.02(1), is defined at Section 480.01(4):
'Massage.--For the purpose of this chapter, the term 'massage' shall be deemed and held to include all or any one or more of the above named subjects or methods of treatments as defined in paragraph (b) of subsection (1); the practice of massage, however, shall include paragraphs (a) and (b) of subsection (1).'
One must then turn to the indicated paragraphs from Subsection 480.01(1):
'Masseur and masseuse.--
(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, including the theory of massage, its indications and contraindications, and administers or teaches all or any one or more of the following subjects and methods of treatments, viz: Oil rubs salt glows, not or coldpacks, all kinds of baths including steamrooms, cabinet baths, sitz baths, colon irrigations, body massage either by hand or by any mechanical or electrical apparatus or device, excluding fever therapy, applying such movements as stroking, friction, rolling, vibration, kneading, cupping, petrissage, rubbing, effleurage, tapotement.'
So read, the careful definitional scheme enacted by the Legislature is understood.
Vagueness and overbreadth are related but different concepts. See generally Note, The Void-for-Vagueness Doctrine in the Supreme Court, 109 U.Pa.L.Rev. 67 (1960). That which is vague obviously cannot also be specific, and it is difficult to imagine a more specific cataloging of prohibited activity than Section 480.01(1)(b). We reject the argument that the challenged statute is unconstitutionally vague.
Appellees' overbreadth challenge is more troublesome. A statute is overly broad when its proscriptive reach includes constitutionally protected activity. See Locklin v. Pridgeon, 158 Fla. 737, 30 So.2d 102 (1947). Common words such as 'stroking, friction, rolling', which appear in the statute under consideration superficially support appellees' assertion. However, such words may properly be interpreted in the context of the more technical terms with which they appear; indeed an attempt to construe statutory language without regard to context would frequently lead to absurd results. The language at issue does not proscribe casual back scratches or back rubs. What is prohibited, inter alia, is the performance of a 'body massage' for financial consideration by an unlicensed person 'either by hand or by any mechanical or electrical apparatus or device.' We believe that the qualifying examples of the 'movements' which constitute the practice of massage is sufficient notice to those who, like appellee Bales, hold themselves out before the public as massagists, of the kind of conduct which can be undertaken only after procurement of...
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