Petition — Colorado Springs Amusements, Ltd., Etc. v. Frank L. Rizzo, Mayor of Philadelphia

Supreme Court, 0. &, a

FILED

In The M JAN 14 1976

{

Supreme Court of the Binited Stutes DAK, JR., CLERK |

s

@-—

October Term, 1975

No. 75-999

COLORADO SPRINGS AMUSEMENTS, LTD., trading as

VELVET TOUCH, and LAUREL BEZNER, JACQUELINE

BELL, GERALDINE STEVENS, SANDRA C. ROWLAND.

et al.,

Petitioners,

vs.

MAYOR FRANK L. RiZZO, POLICE COMMISSIONER

JOSEPH F. O'NEILL, POLICE OFFICERS POWELL,

DE VECCHIO, and DE LOACH, et al.,

Respondents.

MAX RUBINSTEIN, trading as PHILADELPHIA HEALTH

CLUB, and NICOLE JONES, DELORES REMENTER,

JEANA NICHOLSON, LENORE SPENCE,

Petitioners,

VS.

MAYOR FRANK RIZZO OF THE CITY OF

PHILADELPHIA, F. EMMETT FITZPATRICK, DISTRICT

ATTORNEY OF THE CITY OF PHILADELPHIA, et al.,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE THIRD

CIRCUIT

MICHAEL BATTAGLINI

Attorney for Petitioners

702 Land Title Bidg.

Philadelphia. Pennsylvania 19110

(215) 563-8900

WILLIAM J. COTTRELL

Of Counsel

LUTZ APPELLATE PRINTERS, INC

Law and Financial Printing

South River, NJ New York. NY Philadelphia, Pa Washington. 1) ¢

(201) 257-6850 (212) S@4-2121 (218) S@3-S587 (202) 784-7 IKK

TABLE OF CONTENTS

Page

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TABLE OF CITATIONS

Cases Cited:

Brown v. Allen, 344 U.S. 443 (1953) ........ ee 4

Equitable Life Assurance Society v. Brown, 187 U.S. 308

Finehan v. Waterfront Commission, 347 U.S. 439 (1954)

Hicks v. Miranda. 43 L.W. 46387 ....cccccccucccccccccceee 4.9

Contents

Page

Hogge v. Johnson, 44 L.W. 2121 (4th Cir., Aug. 19, 1975)

engenséadtasahdweuns kee scons iebssasaaenneneess 9, 10

Kisley v. City of Falls Church, 409 U.S. 907 (1972) ........ 3, 10

Lancaster v. Municipai Court, 494 P.2d 681 (1972) ......... 1]

New State Ice Co. v. Liebmann, 285 U.S. 262 (1932) ....... 1]

Ohio ex rel. Eaton v. Price, 360 U.S. 246 (1959) ........... 8

Rubenstein v. Cherry Hill, 417 U.S. 963 (1974) ............ 3, 10

Smith v. Keator, 419 U.S. 1043 (1974) 2... cece eee eee eee 3, 10

State of Maryland v. Baltimore Radio Show, 338 U.S. 912

SPEED Shad 6 oc bc esdseneadnesanenes tenes ewoneven’ 9

Sugarman v. United States, 249 U.S. 182 ........ 00-0 ee eee 6

Tewan v. Rate, 299 U.S. SS CIDES) .nccccccccescccccceses 1]

United States v. Carver, 260 U.S. 482 (1923) .........0005- 9

United Tavern Owners v. Philadelphia School District,

Bw | PPP Teer eT TIT TTT rr eT ee 10

United Tavern Owners of Philadelphia v. School District of

Philadelphia, et al., 272 A.2d at 871 ......... cee eeeee 11

iti

Contents

| Page

Se V, CSU, Gee Ws SPO GUMEED ce cecécccevexesceseses 6

Statutes Cited:

eee wre i uvacecasen .

OI III ican xo nrc sap anenveseddeiveccceuns 2

Philadelphia Ordinance, Bill No. 2524, Philadelphia Code

9-610 and 9-611 oo... ccccccccccceccuececeeeeeeeeees 3

NT eo leadews 4

(EES ce 3, 12

United States Constitution Cited:

Rt Ree 4

PRN PUNE 0 sv cinsccnceccdevcsccctevscaccce i]

Rules Cited:

Rules of the Supreme Court:

GEESE een Pe eee a ee eS 6,7

I ee ee 7

iv

Contents

Other Authorities Cited:

Frankfurter and Landis. The Business of the Supreme Court

at October Term, 1929, 44 Harv. L. Rev. 1, 12-14 (1930)

Address of Chiet Justice Warren, American Law Institute

Annual Meeting, May 19, 1954 ......ccc ccccccccccens

APPENDIX

A Opinion of the United States Court of Appeals .......

B Opinion and Order of the United States District Court

®eeseeoeae ce eoeoeooseeoeseeaee ee eee eeg ee eeaee eee eee. eee eee ee

Cc Philadelphia Ordinance Bill No. 2524, Philadelphia

Code 9-610 and SOEl .. .ccccccvecsececeseee ene

Page

l3a

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1975

No.

COLORADO SPRINGS AMUSEMENTS, LTD., trading as

VELVET TOUCH, and LAUREL BEZNER, JACQUELINE

BELL, GERALDINE STEVENS, SANDRA C. ROWLAND.

et al.,

Petitioners,

vs.

MAYOR FRANK L. RIZZO, POLICE COMMISSIONER

JOSEPH F. O'NEILL, POLICE OFFICERS POWELL,

DE VECCHIO, and DE LOACH, et al.,

Respondents.

MAX RUBINSTEIN, trading as PHILADELPHIA HEALTH

CLUB, and NICOLE JONES, DELORES REMENTER,

JEANA NICHOLSON, LENORE SPENCE,

Petitioners,

VS.

MAYOR FRANK RIZZO OF THE CITY OF

PHILADELPHIA, F. EMMETT FITZPATRICK, DISTRICT

ATTORNEY OF THE CITY OF PHILADELPHIA, et al.,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE THIRD

CIRCUIT

2

To the Chief Justice and Associate Justices of the Supreme

Court of the United States:

The herein petitioners respectfully pray that a Writ of

Certiorari issue to review the final judgment of the United States

Court of Appeals for the Third Circuit, entered in the above

entitled matter on October 16, 1975.

OPINIONS BELOW

The opinion of the United States Court of Appeals for the

Third Circuit dated October 16, 1975, is officially reported at

524 F.2d 571 (1975), and is printed in the Appendix hereto (la).

The opinion of the United States District Court for the Eastern

District of Pennsylvania is officially reported at 387 F. Supp.

690. and is printed in the appendix hereto (13a).

JURISDICTION

The judgment of the United States Court of Appeals was

entered on October 16, 1975 and is printed in the Appendix

being the last line of the said Court’s opinion. The jurisdiction of

this Court is invoked under 28 U.S.C. §1254(1).

QUESTIONS PRESENTED

|. Was it not error for the court below to refuse to

consider on the merits whether or not the municipal ordinance

in question was constitutional in light of all the various

arguments presented by petitioners before the United States

District Court solely on the basis that the Supreme Court,

3

approximately two (2) years ago, had dismissed certain appeals

before it. i.e., Smith v. Keator, 419 U.S. 1043 (1974); Rubenstein

v. Cherry Hill, 417 U.S. 963 (1974); and four (4) years ago had

dismissed the appeal of Misley v. City of Falls Church, 409 U.S.

907 (1972) for lack of a substantial federal question?

2. Did the court below err both in its determination that

the herein ordinance was not preempted by the comprehensive

state legislation and therefore also not violative of due process?

3. Since the court below determined that the Philadelphia

Ordinance was facially constitutional, should said court have

found as a matter of record that the action of Max Rubenstein

et al. v. Rizzo et al. came within the ordinance’s exemption?

STATUTORY PROVISION INVOLVED

The statutory provision involved is Philadelphia Ordinance

Bill No. 2524, Philadelphia Code 9-610 and 9-611 and is printed

in the Appendix hereto (33a).

STATEMENT OF THE CASE

The City of Philadelphia had in effect at the time the herein

two (2) cases were instituted, a local ordinance which allegedly

provided for the licensing and regulating of massage salons.

Such ordinance absolutely precluded any of the employees of the

said massage salons from massaging persons of the opposite sex.

Said ordinance did provide certain exemptions set forth in §9-

610(5) (34a), one of which applied to D.C. Civil Action No. 74-

2174 inasmuch as the proprietor was a licensed physical

4

therapist. The two separate actions were consolidated by

agreement of counsel for the respective parties. Immediately

subsequent to said consolidation, it was stipulated by and

among counsel that any and all preliminary and/or

jurisdictional objections would be waived so that a speedy

resolution of the facial constitutionality of the said ordinance

could be determined by the United States District Court for the

Eastern District of Pennsylvania. Briefs were submitted by

counsel to the United States District Court.

On December 5, 1974, U.S. District Judge Donald Van

Artsdalen of the United States District Court for the Eastern

District of Pennsylvania handed down his Opinion and Order

(13a). Judge Van Artsdalen declared Philadelphia Code 9-

610(4), Prohibited Conduct, to be in violation of Section |,

Article 14 of the United States Constitution, ie., the Due

Process and Equal Protection Clauses. The findings of fact made

no mention of the number of employees yet did find that Max

Rubenstein was a licensed physical therapist (17a). The District

Court found the City Ordinances to be so reprehensible as to be

unconstitutional regardless of the standard applied, ‘e.,

compelling state interest or the rational basis standards after

consideration of all of the petitioners’ multifaceted arguments.

The City of Philadelphia appealed to the United States Court of

Appeals for the Third Circuit. Said Court of Appeals reversed

the United States District Court’s ruling solely, with exception

of the preemption doctrine and Civil Rights Acts issues, on the

basis that denia! of an appeal by the Supreme Court for lack of

a substantial federal question is a decision of the merits citing

Hicks v. Miranda, 43 L.W. 4857.

5

REASONS FOR GRANTING THE WRIT

There is no substantial dispute that theoretically, an

“appeal” to the United States Supreme Court confers obligatory

jurisdiction upon the Court, whereas when review can only be

sought by certiorari, jurisdiction is discretionary. However, as

former Chief Justice Warren stated as far back as 1954, the

difference between the two methods of obtaining review by the

highest court in the land may be de minimus:

“It is only accurate to a degree to say that our

jurisdiction in cases on appeal is obligatory as

distinguished from discretionary on certiorari. As

regards appeals from state courts our jurisdiction

is limited to those cases which present substantial

federal questions. In the absence of what we

consider substantiality in the light of prior

decisions, the appeal will be dismissed without

opportunity for oral argument. The stated

purpose of the Jurisdictional Statement, which

came into being in 1928, was to weed out

frivolous appeals before they got to the argument

Stage.

Very few appeals from federal district courts are

subject to dismissal for want of jurisdiction but

many do not present a question sufficiently

substantial to warrant the expense of printing the

record and briefs, and the expenditure of the time

6 7

argument ...” shall be permitted by the Court (Rules 15(1)(e)

and (f), pp. I!-12 of the Rules of the Supreme Court of the

of counsel and the Court in oral argument. In

such cases, the judgment will be affirmed.”

(Address of Chief Justice Warren, American Law

Institute Annual Meeting, May 19, 1954.)

The refusal of the Supreme Court to review cases on the

merits which theoretically invoked the Court's obligatory

jurisdiction, i.e., appeal, is not a novel or recent occurrence. In

Zucht v. King, 260 U.S. 174 (1922), the Court dismissed a case

brought to it by appeal saying:

“Although the validity of a law was formally

drawn is question, it is our duty to decline

jurisdiction whenever it appears that the

Constitutional question presented is

not... substantial in character” (at 176). (Also

see Equitable Life Assurance Society v. Brown,

187 U.S. 308; Sugarman v. United States, 249

U.S. 182.)

In accordance with the above, Rule !2 was adopted in 1928,

(see 275 U.S. 603-604, October Term, 1927 Revised Rules),

which was extended to embody the principle previously referred

to in Zucht v. King, whereby the Court could “.. . decline

jurisdiction . . .” if the question presented was not found to be

substantial. This requirement of Rule 12 was explicitly set forth

when Rule 12 was amended in 1936 by the Court (297 U.S. 733,

October Term, 1935). The present Rules of the Supreme Court

of the United States categoricallyset forth in a detailed manner

what is meant by the requirement that a substantial federal

question be present before

“

...briefs on the merits and oral

a emt ne ll eS a, A eR es I i ec ai

United States, Adopted June 15, 1970, Effective July 1, 1970).

The viable differences between obligatory jurisdiction, i.e.,

by writ of certiorari, have been subject to further illumination by

both Justice Frankfurter, before his tenure on the Court and

Justice Douglas. As Professor Frankfurter said in 1930:

“Plainly, the criterion of substantiality is

neither rigid nor narrow. The play of discretion is

inevitable, and wherever discretion is operative in

the work of the Court the pressure of its docket is

bound to sway its exercise. To the extent that

there are reasonable differences of opinion as to

the solidity of a question presented for decision

or the conclusiveness of prior rulings, the

administration of Rule 12 operates to subject the

obligatory jurisdiction of the Court to

discretionary considerations not unlike those

governing certiorari.” (Frankfurter and Landis,

The Business of the Supreme Court at October

Term, 1929, 44 Harv. L. Rev. 1, 12-14 (1930).)

Mr. Justice Douglas, in Finehan vy. Waterfront

Commission, 347 U.S. 439 (1954), clearly recognized the

merging of jurisdictional considerations regardless of the mode

in which a case comes before the Court when he stated:

“This case illustrates what I fear is a growing

practice of diluting the Act of Congress which

8 9

gives us jurisdiction of appeals. 28 U.S.C. §1253 denia! of certiorari, as we have often said,

et al. The Congress carved out a group of cases, expresses no intimation as to the merits of a

of which this is one, that comes here of right and case.” 360 U.S. at 247, footnote |.

is not dependent, as are petitions for certiorari, !

on a vote of four Justices out of nine for an | Notwithstanding, Hicks v. Miranda, 43 L.W. 4857 (1975),

adjudication by the Court on the merits of the can the precedential weight given to appeals from state courts be

controversy. In recent years the Court has more so drastically superior to that accorded petitions for certiorari

and more dismissed or affirmed appeals, with no when the method of analysis and time accorded are so similar? A

opportunity of counsel to make oral argument former Supreme Court Justice, Mr. Justice Clarke, stated, in

and without any opinion by the Court.” | Hogge v. Johnson, 44 L.W. 2121 (4th Cir., August 19, 1975):

As further evidence of Mr. Justice Douglas’ recognition that “The Supreme Court's statements in Hicks v.

discretionary jurisdiction includes those cases that reach the | Miranda . . . to the effect that such dismissals are

Court by appeal as well as by certiorari, the Court’s procedure decisions on the merits, seem to me to fly in the

for determining whether it will invoke its jurisdiction is face of the long-established practice of the Court

essentially identical. Ohio ex rel. Eaton v. Price, 360 U.S. at 246 at least during the eighteen terms in which I sat.

(1959). This is so even to the extent that the Court’s “rule of During that time, appeals from state court

four” is used for both appeals and certiorari cases that come decisions received treatment similar to that

before the Court, if four Justices vote to list the case for accorded petitions for certiorari and were given

argument and briefs on the merits. However, those four Justices about the same precedential weight. An

are in no way bound by their preliminary determinations. unquestioning application of the Hicks rule can

lead to nothing but mischief and place an

Yet, Justice Brennan categorically states: unnecessary restraining hand on the progress of

federal constitutional adjudications.”

“Votes to affirm summarily, and to dismiss

for want of a substantial federal question, it

a o.0y Or vO Rieder

There is no dispute whatsoever, Justice Brennan noted,

hardly needs comment, are votes on the merits of supra, that denial of a writ of certiorari casts not even the

a case... . 360 U.S. at 247. Yet the U.S. District slightest shadow upon the merits of a particular case. (State of

Court involved herein, while noting that Kisley Maryland vy. Baltimore Radio Show, 338 U.S. 912, 919 (1950):

and Rubenstein were dismissed for lack of a Brown vy. Allen, 344 U.S. 443, 492 (1953); United States v.

substantial federal question, gave no precedential Carver, 260 U.S. 482, 490 (1923).) Therefore to rely upon

weight to them whatsoever!...the grant or

10

previous dismissals of appeals for lack of a substantial federal

question especially regarding dismissals that were ruled upon

over two (2) and four (4) years ago (10a), in and of itself presents

a substantial federal question. The precedential value of such

dismissals is further diluted when several members of the United

States Court of Appeals for the Fourth Circuit, Hogge v.

Johnson, supra, including a former Justice of the Supreme

Court of the United States are of the opinion that “. . .there was

a substantial federal question presented... ”

The herein matter presented all of the federal questions raised

by the Kis/ey case, as well as every federal question raised by the

other two cases, i.e., Smith and Rubenstein, supra, plus two

others. One would be hard put to refute that these are not

federal questions and it is respectfully submitted that the

substantiality and outcome of these federal questions should be

determined by the implementation of this Court’s plenary

jurisdiction as evidenced by the United States District Court's

determination that the question involved herein raise substantial

federal questions (13a-32a) and further by the lapse of time of

the Ais/ey decision.

The court below reites on United Tavern Owners v.

Philadelphia School District, 441 Pa. 274 (1971) in ruling that

the local ordinance has not entered an area of legislation which

has been totally occupied by the Pennsylvania penal code. It

then concludes that since the local ordinance is valid under the

standard of preemption enunciated in the above-mentioned case,

there can be no violation of due process. As to the issue of

preemption, the court below fails to distinguish between local

legislation that merely “supplements” state legislation as

opposed to local legislation that actually transcends the scope of

the state legislation and in reality, effectuates a substantial

prohibition in the business area which it is allegediy only

regulating! Local legislation which effectuates a substantial

prohibition under the guise of business regulation certainly

conflicts with pervasive state legislation as was recognized in an

identical factual setting. Lancaster v. Municipal Court, 494 P.2d

681 (1972). This concept was fully recognized and cited with

approval in the same case relied upon by the court below,

United Tavern Owners of Philadelphia v. School District of

Philadelphia et al., 272 A.2d at 871, in an analogous factual

setting. Judge Vn Artsdalen, in declaring unconstitutional the

herein local ordinance, recognized that this ordinance created a

“blanket prohibition” (31a) regarding bisexual massage on the

basis of a conclusive presumption that all would engage in illicit

sex “.. . without affording any opportunity for one to establish

that he or she would engage only in legal and legitimate massage

practices...” (3la). Therefore, said ordinance is preventing

individuals their “fundamental right” under the Fourteenth

Amendment (New State Ice Co. v. Liebmann, 285 U.S. 262

(1932); Truax v. Raich, 239 U.S. 33 (1915)) from engaging in a

lawful business without due process of law. It is respectfully

averred that a substantial federal question is presented especially

when considering that this ordinance is allegedly regulating the

fundamental right one has to earn a livelihood in total disregard

for due process of law. Can the respondents possibly contend

that there are no alternative means by which the City's ends

cannot be attained? Furthermore, the respondents alleged

supplementing of state legislation goes so far as to qualitatively

alter the scope, purpose, and intent of the state legislation.

12

Ill.

It is a matter of record that the United States District Court

in the herein matter ruled of fact that Max Rubenstein is a

licensed physical therapist. It was further determined that he

operated a place of business, as a licensed physical therapist,

known as the Philadelphia Health Club at 101 North [5th

Street. Philadelphia, Pennsylvania. These findings of fact

comprised part of Judge Van Artsdalen’s Opinion and Order in

which he ruled the ordinance in issue herein facially invalid and

unconstitutional. The United States Court of Appeals had the

entire record before it when it reversed the judgment of the

district court. Therefore, it was incumbent upon the United

States Court of Appeals that it accept the district court's

findings of fact and rule that District Court Civil Action No. 74-

2174 come within the exemption explicitly enumerated in §9-

610(5) and find for the petitioners in said action, or in the

alternative direct the United States District Court to determine

such issue under the presumption that said establishment was

exempted from the prohibition.

CONCLUSION

For all the foregoing reasons, it is respectfully submitted

that this petition for a writ of certiorari should be granted.

Respectfully submitted,

s/ Michael Battaglini

Attorney for Petitioners

William J. Cottrell

Of Counsel

OF SO Re ee RRNO gE ene

ia

APPENDIX A

OPINION OF THE UNITED STATES COURT OF

APPEALS

UNITED STATES COURT OF APPEALS

For THE Turmp Cmev!t

Nos. 75-1107 and 75-1108

COLORADO SPRINGS AMUSEMENTS, LTD. t/a

VELVET TOUCH, 11 NORTH 13th STREET,

PHILADELPHIA, PENNSYLVANIA 19107 and

LAURAL BEZNER, JACQUELINE BELL, GER-

ALDINE STEVENS, SANDRA C. ROWLAND,

JACKIE SAVAGE, JOAN COOLEY, LINDA

HAMPTON, and NICOLE ADAMS, JOELLEN

STONE, SANDRA VIOLA, PENNY DAVIS, and

DENISE BARNES and NANCY DOLLAR

v.

MAYOR FRANK L. RIZZO OF THE CITY OF PHILA-

DELPHIA, JOSEPH F. O’NEILL, COMMIS-

SIONER OF POLICE, DOMENICK SABATINI,

COMMISSIONER OF LICENSES AND INSPEC-

TIONS, THOMAS ROSELLI, COMMANDING

OFFICER OF MORALS SQUAD, MARTIN WEIN-

BERG, CITY SOLICITOR, LEWIS W. POLK,

M.D., COMMISSIONER OF DEPARTMENT OF

HEALTH, CAPTAIN BRENTON, COMMANDING

OFFICER OF THE 6th DISTRICT, POLICE S@QT.

LYONS, POLICE SGT. SHAW, POLICE OFFICERS

POWELL, DeVECCHIO, DeLOACH, FORD, ENG-

LISH, FELDMAN: All are named in their individual

capacity as well as their official capacity

(D.C. Civil Action No. 74-955)

2a

Opinion of the United States Court of Appeals

MAX RUBENSTEIN t/a PHILADELPHIA HEALTH

CLUB, 101 N. 15th STREET, PHILADELPHIA,

PENNSYLVANIA 19102 and NICOLE JONES,

DOLORES REMENTER, JEANA NICHOLES, and

LENORE SPENCE

v.

MAYOR FRANK L, RIZZO OF THE CITY OF PHILA-

DELPHIA, EMMETT FITZPATRICK, DISTRICT

ATTORNEY OF THE CITY, JOSEPH F. O’NEILL,

COMMISSIONER OF POLICE, DOMENICK SABA-

TINI, COMMISSIONER OF LICENSES AND IN-

SPECTIONS, THOMAS ROSELLI, COMMANDING

OFFICER OF MORALS SQUAY, MARTIN WEIN-

BERG, CITY SOLICITOR, LEWIS W. POLK,

M.D., COMMISSIONER OF DEPARTMENT OF

HEALTH, CAPTAIN BRENTON, COMMANDING

OFFICER OF THE 6th DISTRICT, POLICEMAN

JOHN FORD; BOTH INDIVIDUALLY AND

STATUTORILY,

(D.C, Civil Action No, 74-2174)

Mayor Frank Rizzo, Police Commissioner Joseph

O'Neill, Police Officers Powell, DeVecchio and De-

Loach, defendants in D.C. Civil Action No. 74-955,

and Mayor Rizzo and District Attorney F. Emmett

Fitzpatrick, defendants in D.C, Civil Action No.

74-2174,

Appellants

On AppeaL From THE Unirep States Distrricr Court For

THe Eastern District or Pennsytvanu—D.C, Crvin

Acrion Nos. 74-955 anp 2174

Argued September 3, 1975

Before: Van Dusen, Apams and Hunrer, Circuit Judges.

3a

Opinion of the United States Court of Appeals

Louis F. Hinman, II Wrouuam J. Corrretu

Asst. City Solicitor Philadelphia, Pa. 19123

James M. Penny, JR., Heten H. Curner

Asst. City Solicitor Philadelphia, Pa. 19110

Raymonp Kirry,

Deputy City Solicitor Attorneys for Appellees

StreeHen ARINSON

Chief Deputy City Solicitor

Suevpon L. ALBERT,

City Solicitor

1560 Municipal Services Bldg.

Philadelphia, Pennsylvania 19107

Attorneys for Appellants

OPINION OF THE COURT

(Filed October 16, 1975)

Apams, Circuit Judge.

At issue in this appeal is the validity of an ordinance

which prohibits employees of massage parlors licensed by

a city from massaging anyone of the opposite sex.

I,

City Council of Philadelphia determined in 1963 that

illicit sexual activities often occurred in the massage

parlors located in the city." Its concern for the com-

munity’s health and morals led it to respond with an at-

tempt to regulate the massage parlor business. This was

done by enactment in 1963 vu. section 9-610 of the Phila-

delphia Code, followed by the enactment in 1967 of section

1. The City Council held hearings in 1963 at which testimon ;

about this matter. Defendants’ Memorandum Ser Motion Y- Summary ary —

ment at 3-5, filed in the district court during pendency of the action th ¢.

4a

Opinion of the United States Court of Appeals

9.611 of the Code. These sections establish a system of

mandatory licensing for both the parlors themselves and

those employees who work as masseurs or masseuses, sub-

ject to certain exceptions, combined with a system of

penalties for violation of the ordinance. Section 9-610(4),

which is challenged in this proceeding, provides:

Prohibited Conduct. No person employed or engaged

in the business of a masseur or masseuse shall treat a

person of the opposite sex.

Plaintiffs in these two consolidated actions are owners

of and masseuses at massage parlors licensed under section

9-610 of the Philadelphia Code. They filed complaints in

1974 against various city officials and police officers, assert-

ing that the prohibition in section 9-610(4) violates, on its

face, federal civil rights statutes, the equal protection and

due process clauses, and the ninth amendment. Declara-

tory and injunctive relief, as well as money damages, were

sought.

Upon plaintiffs’ motion for summary judgment, the

district court declared the ordinance’s prohibition of

heterosexual massages unconstitutional. The court rea-

soned that the ordinance fashioned a classification based

upon gender and that there was no rational relationship

between the prohibition and the object sought to be accom-

plished, thus making out an equa! protection violation. The

district court further concluded that the ordinance created

an irrebuttable presumption that heterosexual massages

would result in illicit sexual behavior, that this presump-

tion is not a reasonable one, and that the ordinance there-

fore also violates the due process clause. An injunction

was granted ageinst enforcement of the ordinance,? and

the defendants took this appeal. We reverse.

2 It was not necessary to convene a three-judge district court under 28

U.S.C. $228! in order to enjoin enforcement of the loca! ordinance, since the

Statute applies “only when a state statute of general and statewide application

is sought to be enjoined.” Moody v. Flowers, 387 U.S. 97, 101 /19¢7)

Sa

Opinion of the United States Court of Appeals

IL.

The city officials advance four basic arguments. First,

they point out that the district court was incorrect in find-

ing an equal protection violation, since the ordinance ap-

plies equally to both male and female massagists. Thus,

the classification created by section 9-610(4) is neutral on

its face, the city officials contend, and does not have a

gender-based discriminatory effect. ‘They then maintain

that because the ordinance treats males and females iden-

tically, by prohibiting both from massaging anyone of the

opposite sex, Supreme Court decisions such as Frontiero v.

Richerdson, 411 U.S. 677 (1973), and Reed v. Reed, 404

U.S. 71 (1971), which concern differential treatment of men

and women, are not applicable.

A second line of attack by the city officials is that the

Supreme Court has tacitly upheld the constitutionality of

ordinances whose provisions are the same as those of

section 9-610 in all material respects. This was accom-

plished by the Court’s dismissal for want of a substantial

federal question of four appeals from state court decisions

upholding similar ordinances against challenges identical

to those asserted here. The Supreme Court’s recent de-

cision in Hicks v. Miranda, 43 U.S.L.W. 4857, 4860 (U.S.

June 24, 1975), is proffered for the rule that these four

dismissals amount to adjudications on the merits.®

Also urged by the city officials is the contention that

the ordinance is a valid exercise of the municipality’s police

power, in that it protects the health, safety, and moral wel-

fare of the general public. In meeting this legitimate end,

the argument continues, the ordinance does not arbitrarily

deprive massage parlor owners of their property, but

merely regulates the massage business in an inoffensive

manner.

3. Although Hicks was not mentioned in their brief, the city officials cited

it during ora! argument. The plaintiffs were given an opportunity to submit

their views regarding Hicks to the Court following the argument, and they

filed a letter-brief.

6a

Opinion of the United States Court of Appeals

Finally, the city officials submit that the Civil Rights

Act of 1964 does not apply to the massage parlors here

because there has been no allegation or proof that they

have the requisite fifteen employees to bring them within

the prohibitions of the Act. 42 U.S.C. § 2000e(b) (Supp.

III, 1973).*

The massage parlor owners and employees present a

multi-faceted line of argument in support of their assertion

that the district court’s judgment should be affirmed. Con-

ceding that the ordinance on its face treats persons of both

sexes equally, they first claim that it is nonetheless uncon-

stitutional because legislation which treats members of

each sex in an equally reprehensible manner denies equal

protection of the laws to all. This contention has three

branches. The first is that the legislation fails to consider

individuals on the basis of their own capacities, and instead

unreasonably characterizes the group to which individuals

belong, in contravention of the rule set down in McLaughlin

v. Florida, 379 U.S. 184, 191 (1964). The second is that

section 9-610(4) establishes a constitutionally impermis-

sible presumption that illicit sexual conduct is apt to occur

when a customer is massaged by someone of the opposite

sex. The third branch is that the ordinance creates a sex-

based classification and invidiously discriminates on that

basis.

The plaintiffs also suggest that enforcement of section

9-610(4) would require them to violate section 703(a) of

the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a) (1970).

This assertion is based on the assumption that the mas-

sagists would be forced either to employ people of only one

gender if they had to comply with the ordinance, or to de-

prive individuals of employment opportunities because of

their sex. In either case, the owners claim, they would be

required to breach the duty set out in the Civil Rights Act.

4. The city officials’ brief does not address that portion of the district

court's opinion resting upon the irrebuttable presumption/due process doctrine;

ncr was this issue discussed at oral argument.

7a

Opinion of the United States Court of Appeals

Basing their third challenge upon the equal protection

clause, the massagists contend that City Council carved out

wholly irrational exceptions to the ordinance. Specifically,

they point out that section 9-610(5) exempts massage treat-

ments given under the direction of a medical practitioner.

The argument is that some individuals who massage per-

sons of the opposite sex will, concededly, engage in lewd

behavior; that such behavior does not depend upon the

presence or absence of a supervising physician; and that a

legislative body could not rationally determine that it does.

The argument continues that the exemption set forth in the

ordinance is thus not reasonably related to the legitimate

governmental interest im prohibiting illicit sexual activity,

and that, consequently, the ordinance must fall under the

equal protection ciause.

Plaintiffs’ fourth claim is that the ordinance abridges

the fundamental right to pursue a livelihood by disenabling

every licensed massagist from serving approximately fifty

per cent of the public. This challenge proceeds in the fol-

lowing manner: people have a constitutional right to pur-

sue a lawful livelihood, such as the massage business, with-

out being arbitrarily limited by any legislative body; strict

judicial scrutiny of any restrictive legislation is therefore

required ; the city has failed to sustain its burden of demon-

strating a compelling interest in the prohibition created by

section 9-610(4) ; and the presence of less restrictive means

of achieving the same goal attests to the fact that there is

no strong governmental! interest in the ordinance as it now

stands.

The fifth argument by the plaintiffs is that the ordi-

nance establishes an irrebuttable presumption that persons

massaging someone of the opposite sex are likely to engage

in illegal sexual acts. This is asserted to be an irrational

presumption, so that the ordinance consequently violates

due process.°

__ §. This contention is nearly identical with that which is noted above a..4

identified as the second branch of the massagists’ first major argument.

Ra

Opinion of the United States Court of Appeals

Finally, the plaintiffs claim that the ordinance en-

croaches upon an area—sex offenses—over which the Penn-

sylvania Legislature has intended to exert sole control.

And, they assert, the city’s attempt to legislate in this pre-

empted field thus violates due process and is necessarily

invalid,

UI.

The Supreme Court’s decision last term in Hicks v.

Miranda, 43 U.S.L.W. 4857 (U.S. June 24, 1975), is dis-

positive of most of the plaintiffs’ contentions in this case.

There is no longer any doubt that a dismissal of an

appeal by the Supreme Court for want of a substantial

federal question is an adjudication on the merits. Hicks,

which decided this issue, arrived in the Supreme Court in

a rather complicated procedural posture. After entry of

state court judgments that the film ‘‘Deep Throat’’ is ob-

scene under the California obscenity statute, Miranda and

others filed an action in the federal district court seeking

declaratory relief and an injunction against the statute’s

enforcement. A three-judge district court declared the

California statute unconstitutional and granted relief. The

defendant state officials subsequently moved for rehearing,

for amendment of the judgment, and for relief from the

judgment. In support they cited the order of the Supreme

Court in Miller v. California, 418 U.S. 915 (1974). The

Miller case was decided subsequent to entry of the three-

judge court’s judgment in Hicks. In Miller, the Supreme

Court dismissed for want of a substantial federal question

an appeal from a California court decision upholding the

constitutionality of the obscenity statute that the three-

judge court had just declared unconstitutional.* Upon

6. Appellants in Miller had taken an appeal under 28 U.S.C. §1257(2)

(1970), which provides:

Fina! judgments or decrees rendered by the highest court of a state in

which a decision could be had, may be reviewed by the Supreme Court

ooo ae eager’, where is drawn in question the validity of a statute of

any state on the ground of its being repugnant to the Constitution, treaties

or laws of the United States, and the decision is in favor of its validity.

9a

Opinion of the United States Court of Appeals

denial of their motions by the district court, the state

officials appealed to the Supreme Court.’

On appeal, the state officials argued that the Muler

dismissal was binding on the three-judge court and should

have led it to declare the California statute constitutional.

The Supreme Court agreed with them.* Justice White,

writing for the Court, held that Miller was properly within

the Supreme Court’s appellate jurisdiction under § 1257(2),

leaving no discretion for the Court to refuse to decide the

case on the merits. The Supreme Court had ruled that

Miller’s constitutional chai age to the California statute

was not a substantial one, and ‘‘the three-judge court was

not free to disregard [that] pronouncement.’’ ®

By parity of reasoning, we are not free to disregard

three dismissals by the Supreme Court, for want of a sub-

stantial federal question, of challenges to ordinances iden-

tical in all material respects to the one in question here.

7. The Supreme Court had jurisdiction over the appeal by virtue of 28

U.S.C. §1253 (1970).

8. The Supreme Court was required to decide the issue. If Miller was

binding on the three-judge court, as appellants asserted, the merits of the

claim would already have been decided, rendering the constitutional question

“wholly insubstantial” and obviating the need for a three-judge court, Bailey v.

Patterson, 369 U.S. 31, 33 (1962). This in turn would have eliminated the

Supreme Court’s § 1253 jurisdiction over that issue, Hagans v. Lavine, 415

U.S. 528, 543-45 (1974); Perez v. Ledesma, 401 U.S. 82, 86-87 (1971), leavin

the Supreme Court unable to hear that part of the case. The necessity o

ruling on the issue makes it clear that the Court's discussion of it was not dicta,

but a holding which we are obliged to follow.

The fact that the Supreme Court actually took § 1253 jurisdiction in Hicks

does not change this result. Jurisdiction was based upon an appeal from the

three-judge court’s decision on a separate challenge to the California search

warrant statutes, not addressed in Miller. 43 U.S.L.W. at 4861. The Supreme

Court could hear a § 1253 appeal on that basis.

Although Justice Stewart wrote that “[t}here are many aspects of the

Court's opinion that seem . . . open to serious challenge,” his dissent, joined

by three other Justices, was directed solely to a separate issue in the case.

43 U.S.L.W. at 4863. Thus, the Court was unanimous on the meaning of a

dismissal for want of a substantial federal question.

9. 43 U.S.L.W. at 4860. The Hicks holding was limited, as it had to be,

to situations in which the issues in a given case and those in the case previously

disposed of by dismissal for want of a substantial federal question “were suffi-

ciently the same that [the latter] was @ controlling precedent.” This r.

a determination of “what issues had been properly presented in [the latter

case] and declared by [the Supreme] Court to be without substance.” Jd. n.14,

10a

Opinion of the United States Court of Appeals

A reading of the appeal papers shows that the orders dis-

missing the appeals in Smith v. Keator,° Rubenstein v.

Cherry Hill” and Kisley v. City of Falls Church” are

precedent for rejecting all but two of the contentions raised

in opposition to section 9-610(4) of the Philadelphia Code.”

The dismissals by the Supreme Court in these three cases

dispose of the plaintiffs’ claims based upon equal, but

reprehensible, treatment of both sexes;** an invidiously

discriminatory sex-based classification; ** an irrational ex-

ception in the ordinance for massage treatments given

under the direction of a medical practitioner; ** unreason-

able abridgement of the right to pursue a legitimate liveli-

hood; '’ and the irrebuttable presumption doctrine.”* Our

10. 419 U.S. 1043, dismissing for want of a substantial federal question

285 N.C. 530, 206 S.E.2d 203 (1974).

11. 417 U.S. 963 (1974), dismissing for want of a substantial federal

question No, 10,027 (N.J. Sup. Ct., Jan. 29, 1974).

12. 409 U.S. 907, dismissing for want of a substantial federal question 212

Va. 693, 187 S.E.2d 168 (1972).

13. The appeals in Smith, Rubenstein, and Kisley were all brought under

§ 1257(2), see note 6 supra, as was the appeal in Miller, discussed in the Hicks

opinion.

Patterson v. City of Dallas, 372 U.S. 251 (1963), dismissing for want of

a substantial federal question 355 S.W.2d 838 (Tex. Civ. App. 1962), cited

in the city officials’ brief, is not apposite. Although it involved a challenge to

the application of an ordinance nearly identical to §9-610(4), the factual

record was a critical aspect of the case. It thus has no applicability to the

constitutionality, on its face, of §9-610(4).

14. Jurisdictional Statement at 3, 8, Rubenstein v. Cherry Hill, 417 U.S.

963 (1974).

15. Jurisdictional Statement at 10, Smith v. Keator, 419 U.S. 1043 (1974);

ae Statement at 3, 7, Rubenstein v. Cherry Hill, 417 U.S. 963

(1974).

16. Jurisdictiona! Statement at 3, 7, Kisley v. City of Falls Church, 409

U.S. 907 (1972). Kisley involved an exemption for massages given in beauty

parlors and barber shops. This 1s similar enough to the present exemption for

application of the Micks rule.

= 17. Jurisdictional! Statement at 2-3, 7, Kisley v. City of Falls Church, 409

U.S. 907 (1972). Counsel cited New State Ice Co. v. Liebmann, 285 U.S. 262

(1932), for this challenge to the ordinance. While the Kisley dismissa! dis-

poses of this issue, we note that New State Ice was handed down during the

era when the now long-discarced doctrine of substantive due process in the

economic. field was still in ascendance. It is thus of questionable relevance

today. Ferguson v. Skrupa, 372 U.S. 726, 730-32 (1963). See also Kahn v.

Shevir 416 U.S. 7 ~ n.l0 (1974); North Dakota State Board of Phar-

macy v. Snyder's Drug Stores, Inc., 414 U.S. 156, 164-67 (1973);

v. Williams, 397 U.S. 471, 484-88 (1970). anes SD

18. Jurisdictional Statement at 10, Rubenstein v. Che , oo

963 (1974). verry Hill, 417 U.S.

lla

Opinion of the United States Court of Appeals

reasoning in reaching this conclusion is supported by the

similar approach taken by the Fourth Circuit in its recent

decision in Hogge v. Jolnson.”*

Two contentions by the plaintiffs remain. The first is

the claim based on the Civil Rights Act of 1964. The own-

ers’ argument is that compliance with section 9-610(4) of

the ordinance would force them to breach section 703(a)

(1) *° and section 703 (a) (2) # of the Act, which respectively

prohibit refusal to hire and deprivation of employment

opportunities on the basis of sex. That claim must fail,

however, at least in this case. This is so because section

703(a) of the Civil Rights Act applies only to employment

practices by an ‘‘employer,’’ and section 701(b) ” defines

an employer as ‘‘a person... who has fifteen or more em-

ployees....’’ It is neither alleged nor in any way sug-

gested that any of the owners employ this number of per-

sons. There is thus no violation of the Civil Rights Act.

The plaintiffs also assert that the City’s power to

legislate in the area of sex offenses is preempted by state

legislation. See, e.g., 18 Pa. Stat. Ann. §§ 3121-27, 5901-04

(1973). They urge us to follow the ruling to that effect

delivered in an analogous situation by the California Su-

preme Court in Lancaster v. Municipal Court,?* and fur-

ther claim that the city’s enactment and enforcement of an

ordinance in this preempted area violates due process.

Under Pennsylvania law, a municipality is not pro-

hibited from legislating in a particular field of the law

‘‘unless the Commonwealth has explicitly claimed the au-

thority itself, or unless there is such actual, material con-

flict between the state and local powers that only by strik-

ing down the local power can the power of the wider

constituency be protected.’’** Although the city ordinance

19. No. 74-1656, 74-1657 (4th Cir., Aug. 19, 1975).

20. 42 U.S.C. § 2000e-2(a) (1) (1970).

21. 42 U.S.C. § 2000e-2(a) (2) (Supp. III, 1973).

22. 42 U.S.C. §2000e(b) (Supp. III, 1973).

23. 6 Cal.3d 805, 494 P.2d 681, 100 Cal. Rptr. 609 (1972).

24. United Tavern Owners v. Philadelphia Schoo! District, 441 P.. 274,

280, 272 A.2d 868, 871 (1971).

|2a

Opinion of the United States Court of Appeals

supplemets state legislation regarding sex offenses, we

cannot say that the ordinance must be struck down under

this standard. Since the local legislation is valid, its en-

forcement does not violate due process either.

The judgment of the district court will be reversed.”

_ 25. The district court did not have the benefit of the Supreme Court's

ruling in Hicks v. Miranda when it entered its judgment.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circust.

l3a

APPENDIX B

OPINION AND ORDER OF THE UNITED STATES

DISTRICT COURT

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

COLORADO SPRING AMUSEMENTS, LTD. ta VELVET

TOUCH and

LAUREL BEZNER, JACQUELINE BELL, GERALDINE

STEVENS, SANDRA C. ROWLAND, et al.

V.

MAYOR FRANK RIZZO, POLICE COMMISSIONER

JOSEPH F. O'NEILL, POLICE OFFICERS POWELL

DeVECCHIO and DeLOACH, et al.

CIVIL ACTION NO. 74-955

MAX RUBENSTEIN t'a PHILADELPHIA HEALTH CLUB

and

NICOLE JONES, DELORES REMENTER, JEANA

NICHOLS, AND LENORE SPENCE

V.

|4a

Opinion and Order of the United States District Court

MAYOR FRANK L. RIZZO OF THE CITY OF

PHILADELPHIA, EMMETT F. FITZPATRICK, DISTRICT

ATTORNEY OF THE CITY, et al.

CIVIL ACTION NO. 74-2174

OPINION AND ORDER

VanARTSDALEN, J. December 5, 1974

An ordinance of the City of Philadelphia providing for the

licensing and regulating of massage parlors, whereby employees

of massage parlors are completely prohibited from massaging

persons of the opposite sex has been challenged as being

unconstitutional in Civil Action 74-955 (Velvet Touch) and Civil

Action 74-2174 (Rubenstein). The challenged portion of the

ordinance provides: (Ordinance 9-610(4))

Prohibited Conduct. No person employed or

engaged in the business of masseur or masseuse

shall treat a person of the opposite sex.

The quoted portion of the ordinance, on its face, violates

both the “due process” and “equal protection” clauses of Section

1. Amendment 14 of the United States Constitution, irrespective

of whether the proper standard to be applied is a “compelling

governmentai interest” or a “rational basis.” Declaratory and

injunctive relief will be granted in both actions.

On April li, 1974 in Civil Action 74-955, plaintiffs,

Colorado Springs, Ltd.. t a Velvet Touch and Laurel Benzer, et

al.. employees of the Velvet Touch, filed a “Complaint for

1Sa

Opinion and Order of the United States District Court

Injunctive Relief, Declaratory Judgment and Money Damages”

against the Mayor, Police Commissioner, Police Officers,

Department of Health and Department of Licenses and

Inspections of the City of Philadelphia. The complaint charges

that Philadelphia Ordinance Bill No. 2524 (Nov. 1, 1962)

Philadelphia Code 9-610(4), is unconstitutional on its face and

as applied to plaintiffs.' On April 16, 1974, a hearing was held

on a motion for a temporary restraining order and preliminary

injunction. At that time an understanding between counsel was

reached; viz., the request for preliminary injunctive relief would

not be pressed in exchange for the non-enforcement of 9-610(4),

pending a determination of the constitutionality of the ordinance

by this court. Plaintiffs’ complaint was amended on April 23,

1974. A “Supplemental Complaint” was filed June 20, 1974

which charged defendants with enforcement of 9-610(4) against

the plaintiffs in violation of the agreement. Plaintiffs sought to

depose certain defendant police officers on July 10, 1974.

Defendants through their counsel refused on the grounds that a

criminal prosecution was pending against certain of the

plaintiffs. Plaintiffs filed a motion for sanctions for failure to

appear at a deposition. A conference was held on July 11, 1974

to resolve the disputes over continued enforcement of 9-610(4),

scheduling of depositions, discovery and sanctions. At that

conference all counsel agreed that the original stipulation of

April 16, 1974 would remain effective and that 9-610(4) would

not be enforced against the Velvet Touch, pending

|. Because a municipal ordinance is challenged, a district judge may decide the

constitutional question without convening a three-judge court under 28 U S.C §228!

Moody v. Flowers, 387 US. 97 (1967), Philadelphia Newspapers, Inc. v. Borough

Council of Swarthmore, 381 F. Supp. 228 (E.D. Pa. 1974)

l6a

Opinion and Order of the United States District Court

determination of the validity of the ordinance, and that a

decision on motions for discovery and sanctions would be

postponed until after the constitutionality of 9-610(4) had been

determined by the district court. Defendant through its counsel,

Murray C. Goldman, Esquire, conceded that the standard to be

used in assessing the constitutionality of 9-610(4) was

“compelling state interest.” Briefs were filed concerning the

facial validity of 9-610(4).° The essential facts are not in dispute.

On August 21, 1974 in Civil Action 74-2174, a “Complaint

for Declaratory Judgment, Injunctive Relief, and Money

Damages” was filed by Max Rubenstein, t/a Philadelphia

Health Club (Club) and Nicole Jones, et al., employees of the

Club, against the Mayor, District Attorney, Commissioner of

Police. Licenses and Inspections, and Health Departments of the

City of Philadeiphia as well as various police officers. The

substance of this complaint ts the same as in Velvet Touch with

additional allegations in Rubenstein that plaintiffs come within

the express exception to 9-610(4) because Max Rubenstein is a

licensed physical therapist. (Section 9-610(5)(a) of the

+

2 The precedural posture of this case 1s not entirely clear. In belvet Touch the

plaintiffs’ brief is in support of a motion for summary judgmen: while the defendants’

brief is tor declaratory judgment. The constitutional issue could be determined in either

manner There has been no briet filed on behalf of either side in Rubenstein. Because the

cases are consohdated as related. counsel for plaintiffs and defendants are the same in

both cases. and the determination of the issue can be made from the material before the

court with the same effect in both cases, it is neither necessary to have the parties retitle

their pleadings nor submit additional pleadings to include Rubenstein. See Fed. R. Civ

P |

ee

\7a

Opinion and Order of the United States District Court

Ordinance.)’ The cases were consolidated as related under Loca!

Rule 3(cX3). A hearing on a motion for a temporary restraining

order in Rubenstein was held on August 22, 1974 at which time

that motion was denied.

FINDINGS OF FACT

|. Bill Number 2524 was approved by the Mayor of the

City of Philadelphia on October |, 1963 and became effective on

November !, 1963 under Section 9-610 of the Philadelphia

Code.

2. Colorado Springs Amusements, Ltd., operates a massage

parlor, trading as Velvet Touch at i! North Thirteenth Street,

Philadelphia, Pennsylvania.

3. Plaintiffs Bezner, Bell Stevens, Rowland, Savage,

Cooley, Hampton, Adams, Stone, Viola, Davis, Barnes and

Dollar were employees of the Velvet Touch during March and

April, 1974.

4. Max Rubenstein is a licensed physical therapist with a

place of business known as the Philadelphia Health Club located

at 101 N. tSth Street, Philadelphia, Pennsylvania.

5. Plaintiffs Spence, Rementer, Jones and Nichols were

employees of the Philadelphia Health Club in April 1974.

3. §9-61005) Exemprons. The provisions of this ordinance shall not

apply to massage treatment given

(a) in the office of a heensed physician. osteopath.

chiropractor of physical therapist

lRa

Opinion and Order of the United States District Court

6. efendant Rizzo is Mayor of the City of Philadelphia.

Defendant Fitzpatrick is District Attorney of the City of

Philadelphia.

8. Detendant O'Neill is Police Commissioner of the City of

Philadelphia.

9. Defendant Sabatini is Commissioner of the Department

of Licenses and Inspections of the City of Philadelphia.

10. Defendant Weinberg was Solicitor of the City of

Philadelphia during the first nine months of 1974.

11. Defendant Polk is Health Commissioner of the City of

Philadelphia.

12. Defendants Roselli, Brenton, Powell, DeVecchio,

DeLoach, Feldman, Lyons, English and Ford are members of

the Philadelphia Police Department.

13. On March 15, 1974 plaintiffs Savage, Cooley, Hampton

and Adams were arrested by defendants DeVecchio and

DeLoach for violating 9-610(4).

14. Charges stemming from the March 15, 1974 arrest

against Savage, Cooley. Hampton and Adams were discharged.

15. On March 25, 1974 defendant Shaw entered the Velvet

Touch and arrested plaintiff Viola for violating 9-610(4).

ee

19a

Opinion and Order of the United States District Court

16. Plaintiff Viola was subsequently found guilty of

violating 9-610(4).

17. On April 8, 1974 defendant Lyons entered the Velvet

Touch and arrested plaintiff Stone for violating 9-610(4).

18. On April 8, 1974 defendant English entered the Velvet

Touch and arrested plaintiff Davis for violating 9-610(4).

19. On April 8, 1974, Philadelphia Police Officers entered

the Velvet Touch and arrested an employee, Barbara Smith,

a/k/a Marth Smith for violating 9-610(4).

20. Stone. Davis and Smith were subsequently found guilty

of violating 9-610(4). .

21. On April 9, 1974 defendant Ford entered the Velvet

Touch and arrested plaintiff Viola for violating 9-610(4).

22. Plaintiff Viola was subsequently found guilty.

23. On April 14, 1974, plaintiffs Spence and Rubenstein

were arrested at the Philadelphia Health Club by a Philadelphia

Police Officer for violating 9-610(4).

24. Charges against Spence and Rubenstein were

subsequently dismissed.

25. On or about May 16, 1974 defendant Ford entered the

Philadelphia Health Club and arrested plaintiffs Rementer,

Jones and Nichols for violating 9-610(4).

20a

Opinion and Order of the United States District Court

26. Plaintiffs Rementer and Nickols were arrested for

indecent assault, Pa. Stat. Ann. tit. 18, §3126 (1973), by

defendant Ford at the Philadelphia Health Club in connection

with massages administered by them to male customers of the

Philadelphia Health Club.

CONCLUSIONS OF LAW

|. The court has jurisdiction of the parties and the subject

matter.

ty

Plaintiffs have standing to sue.

ad

Philadelphia Code 9-610(4) violates Section |, Article 14

of the United States Constitution.

4. Plaintiffs are entitled to injunctive and declaratory relief.

DISCUSSION

Plaintiffs assert that the ordinance is unconstitutional

because it conflicts with Title VII of the Civil Rights Act of

1964, 42 U.S.C. 2000e-2(a), and the Fourteenth Amendment of

the United States Constitution both as to “due process” and

“equal protection of the laws.” A long settled doctrine dictates

that federal courts “ought not to pass on questions of

constitutionality ... unless such adjudication is unavoidable.”

Spector Motor Service, Inc. v. M« Laughlin, 323 U.S. 101, 105

(1944). accord, Rosenberg v. Fleuti, 374 U.S. 449, 451 (1963):

Hurd v. Hodge, 334 U.S. 24, 30 fn. 6 (1948). In this case the only

2la

Opinion and Order of the United States District Court

issue before the court involves contentions that the ordinance,

on its face. is unconstitutional. The facts are not in dispute. An

adjudication as to the constitutionality of the ordinance is thus

unavoidable to a determination of this litigation.

CIVIL RIGHTS ACT — TITLE VII

EQUAL EMPLOYMENT OPPORTUNITIES

(42 U.S.C. §2000¢e)

Plaintiffs assert that Section 9-610(4) conflicts with Section

703. Title VII of the Civil Rights Act of 1964, 42 U.S.C. §2000e-

2(a).4 The contention is that sexually discriminatory employment

practices will inevitably result from compliance with the

ordinance in direct conflict with §2000e-2. Plaintiffs contend

that the “supremacy clause” of Article 6 of the United States

Constitution thereby invalidates the ordinance, rendering it

inconstitutional. One recent federal district court case has

unequivocably so held. Cianciolo v. Members of City Council,

4 2000e-2 Unlawful employment practices Employer practices

a) It shall be an unlawful employment practice for an employer

(1) to fail or refuse to hire or to discharge any individual, or

otherwise to discriminate against any individual with respect to his

compensation, terms, conditions, of privileges of employment.

hecause of such individual's race. color. religion, s¢x, or national

origin, oF

(2) to limit, segregate. or classify his employees or applicants

for employment in any way which would deprive or tend to deprive

any individual of employment opportunities of otherwise adversely

affect his status as an employee. because of such individual's race

color, religion, sex, or national orgin

22a

Opinion and Order of the United States District Court

Knoxville, Tenn., 376 F. Supp. 719, 723 (E.D. Tenn. 1974).5 See

also Joseph y. House, 353 F. Supp. 367 (E.D. Va.), aff'd sub

nom. Joseph v. Blair, 482 F.2d 575 (4th Cir. 1973), where

enforcement of a similar ordinance was preliminarily enjoined.

On the present record, no determination can be made as to

whether the ordinance conflicts with Title VII of the Civil Rights

Act of 1964. Title VII appears to have been enacted under the

power granted Congress by Article 1, Section 8 of the United

States Constitution to regulate interstate commerce. In any

event, Title VII expressly defines an “employer” as “a person

engaged in an industry affecting commerce who has fifteen or

more employees... .” 42 U.S.C. §2000e(b). Because plaintiffs

have neither alleged nor presented any proof or facts to establish

that the plaintiffs, or any of them, were in any way engaged in

interstate commerce, or that either massage parlor ever

employed as many as fifteen persons,® I am unable to reach this

claim.

FOURTEENTH AMENDMENT

“Equal Protection of the Laws”

Ordinances similar to the one in question, which prohibit

persons engaged as massagers {10m administering massages to

s

5. Cranciolo, involving a Knoxville ordinance with provisions similar to the

challenged provisions in the present cases. also squarely ruled the ordinance

unconstitutional under the “equal protection clause” of the Fourteenth Amendment

6 The recent decision of the Superior Court of the District of Columbia in Geisha

House, Inc. vo Wilson, A 2d . CA, 6044-74, decided September 25. 1974, see 42

1. W. 2157. noted, under similar contentions, that Title VII of the Civil Rights Aci of

1964 would be inapplicable because Geisha House, Inc. did not employ as many as

fifteen persons !

Parent he om vetawn —iineaen eS

en re

Ah ne tl I I

Aare

23a

Opinion and Order of the United States District Court

persons of the opposite sex have been tested in repeated

litigation. The decisions are not unanimous in their result or

reasoning. As a broad generality, it may be observed that earlier

state court decisions tended to uphold the constitutionality of

such ordinances as being properly within the state’s police

power. The seminal case appears to be Ex Parte Maki, 56 Cal.

App.2d 635, 133 P.2d 64 (1943). The rationale of Maki was

premised upon the reasonable relationship between the

ordinance in question and the legitimate police power of

regulating illicit sexual activity.

The ordinance applies alike to both men and

women. If petitioner should receive only male

patrons and do his own work or employ only

masseurs, he would not violate the ordinance. If

he should receive only female patrons and em-

ploy only masseuses to do his work, there would

be no violation. The barrier erected by the

ordinances 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.

133 P.2d at 67. Various state courts followed the rationale of

Maki in upholding similar ordinances.’ Smith v. Keator," 29

7. Maki was overruled by the California Supreme Court in 1972 in the case of

Lancaster v. Municipal Court for Beverly Hills, 6 Cal.3d 805. 100 Cal. Rptr. 609, 494

P.2d 681 (1972), on the basis that the state penal statute prohibiting illicit sexual

behavior preempted the field. Thus the California Court did not reach the Federal

Constitutional claim

& Smith relied on Cheeck v. City of Charlotte, 273 N.C. 293, 160 S_E.2d 18 (1968).

in which the North Carolina Supreme Court agreed with the Maki rationale but found

the Charlotte ordinance unconstitutional because it exempted barber shops and

Y M.C.A’s, an exemption the Court found arbitrary

24a

Opinion and Order of the United States District Court

N.C. App. 162, 203 S.E. 2d 411 (1968); Rubenstein v. Township

of Cherry Hill, Unreported Affirmance, N.J. Super Ct.

Appellate Div., January 29, 1974, appeal dismissed for want of

substantial federal question, —--U.S.——, 41 L.Ed. 2d 1136

(1974); Kisley v. City of Falls Church,? 212 Va. 693, 187 S.E.2d

168, appeal dismissed for want of a substantial federal question,

409 U.S. 907 (1972); Patterson v. City of Dallas,'® 355 S.W.2d

838 (Tex. Civ. App. 1962). See the cases cited in 51 ALR 3d 936

(1973) and 17 ALR 2d 1183 (1951).

My research has disclosed only two cases currently effective

and neither overruled nor limited by later decisions which

uphold ordinances similar to 9-610(4). Both are state court

decisions Smith v. Keator, supra, and Rubenstein vy.

Township of Cherry Hill, supra. However a substantial line of

cases, presently effective, have held such _ ordinances

unconstitutional. J.S.K. Enterprises v. City of Lacey, 6 Wash.

App. 43, 492 P.2d 600, 607 (1971) rehearing, 6 Wash. App. 433,

493 P.2d 1015 (1972); Geisha House, Inc. v. Wilson, supra;

Cianciolo v. City of Knoxville, supra; Valley Health Systems,

Inc. v. City of Racine, 369 F. Supp. 97 (E.D. Wisc. 1973): Corey

v. City of Dallas, 352 F. Supp. 977 (N.D. Tex. 1972). Moreover.

| have failed to discover any decision by a federal court which

upholds the validity of such an ordinance.

9 The identical ordinance was later preliminarily enjoined in Joseph v. House.

supra, primarily on the ground of the supremacy of Title VII of the Civi! Rights Act of

1964

10. Patterson was tollowed in subsequent Texas decisions. City of Houston \

Shoher, 362 S.W 2d 886 (Tex. Civ. App. 1962); Cornell v. State, 371 S.W. 2d 45 (Tex

Crim. 1963). Gregg v. State. 376 S\W.2d 763 (Tex. Crim. 1964). However. these cases

were effectively overruled by Corey v. City of Dallas. 352 F. Supp. 977 (N_D. Tex. 1972),

shich held that a similar ordinance was unconstitutional!

25a

Opinion and Order of the United States District Court

Plaintiffs contend that the ordinance not only creates a

classification based on sex, but also deprives them of an

opportunity to engage in a legitimate occupation and therefore,

in the absence of a compelling governmental interest, the

ordinance is constitutionally invalid. The equal protection clause

does not prohibit a state or municipality from passing laws

which treat classes of people differently, but only from treating

classes differently when the basis of thediscrimination does not

bear a rational relationship to a legitimate statutory objective.

Jefferson v. Hackney, 406 U.S. 535 (1972); Eisenstadt v. Baird,

405 U.S. 438, 446-47 (1972); Reed v. Reed, 404 U.S. 71, 75-76

(1971). Therefore, the classification may not invidiously

discriminate between and among classes of persons. Schilb v.

Kuebel, 404 U.S. 357, 364 (1971). In Dunn v. Blumstein, 405

U.S. 330, 335 (1972), the Supreme Court suggested three factors

to be considered: (1) the character or basis of the discrimination,

(2) the interests of the individuals subject to the discrimination,

and (3) the governmental interest at stake. If the facts reveal that

either the basis of the classification is suspect, i.e., invidious

and/or the class of persons discriminated against is deprived of a

fundamental right, then a compelling state interest and not a

mere rational relationship between the legislation and a

legitimate objective must be established to make the legislation

constitutionally valid. Dunn v. Blumstein, supra at 335, Schilb v.

Kuebel, supra at 365.

It is important, however, in attempting to classify cases into

neat categories such as “rational basis” and “compelling

interest”, to be mindful that these categories are only heuristic

devices. These tests have somewhat uncertain standards. In Reed

26a

Opinion and Order of the United States District Court

v. Reed, supra at 76, in which the rational basis test was used,

the court stated that a classification based upon sex must be:

reasonable, not arbitrary, and must rest upon

some ground of difference having a fair and

substantial relation to the object of the

legislation, so that all persons similarly

circumstanced shall be treated alike. [citation

omitted ].

In a compelling state interest analysis the burden shifts to the

government to show an interest so compelling that it outweighs

the fact that the suspect class is discriminated against or there is

a deprivation of a fundamental right. Dunn v. Blumstein, supra

at 335. Applying the three factors of Dunn v. Blumstein to the

instant case, it is clear that the discrimination is based solely on

sex. The individuals subject to the discrimination are all persons

employed by massage parlors and their interest is in their right

to freely engage in a lawful business without arbitrary restraints.

The governmental interest appears to be to protect against illicit

and immoral sexual behavior between massagers and customers

of the opposite sex.

1 do not interpret any decision of the United States

Supreme Court or the Third Circuit Court of Appeals as

squarely holding that a legislative classification based on sex is

so inherently suspect and invidious as to mandate application of

the “compelling interest” test. However, both Frontiero vy.

Richardson, '' 411 U.S. 677 (1973), and Reed v. Reed. supra,

11 In Frontero four of the justices (Brennan, Douglas, White and Marshall)

reasoned that 4 sex-based classification was inherently suspect

4

Clie ——————

27a

Opinion and Order of the United States District Court

indicate that the courts will carefully scrutinize classifications

based on sex. See also, Kohr v. Weinberger, 378 F. Supp. 1299

(E.D. Pa. 1974) (3-Judge Court; Weisenfeld v. Secretary of

HEW, 367 F. Supp. 981, 988 (D. N.J. 1973) (3-Judge Court).

The right to engage in a lawful business or profession

without arbitrary restraints is a “fundamental right™ within the

protection of the Fourteenth Amendment. New State Ice Co. v.

Liebmann. 285 U.S. 262 (1932); Truax v. Raich, 239 US. 33

(1915). In Cianciolo v. Members of City Council, Knoxville,

Tenn., supra at 723, the, court stated “{ajs the commercial

enterprise of administering massages is, per se, a legitimate

occupation, the city in this instance must show a compelling

state interest before their ordinance can be upheld.” Corey v.

City of Dallas, supra, likewise held that the questioned

ordinance infringed on the basic right to earn a livelihood and,

therefore, had to be justified by a compelling governmental

interest.

Municipalities have a legitimate interest in attempting to

prohibit illicit sexual behavior. No case, so far as | am aware,

has ever suggested the contrary. The defendants in their brief

argue that this is a compelling interest, and attach excerpts of

testimony of police and public health officials'’ concerning

activities in massage parlors. Although these statements are not

properly part of the record as evidence, they may, for purposes

of this decision, be assumed to be factually correct. Nevertheless,

these facts still do not establish a compelling reason for totally

prohibiting all persons during the course of employment from

administering a massage to a person of the opposite sex.

1? This testimony was given before the Philadelphia City Council on August 14.

~-

1963 in conjunction with passage of 9-61014)

28a

Opinion and Order of the United States District Court

Even under the “rational basis” test, the ordinance is

constitutionally invalid. This test, requires as a minimum that

there be a rational, logical, reasonable relationship between the

prohibition and the object sought to be accomplished. The logic

applied is that because some massagers have, may or will

commit immoral or illicit sexual acts with customers of the

opposite sex, all massagers must be prohibited from massaging

customers of the opposite sex. To deny all the opportunity to

engage in their chosen occupation with both sexes because some

may use the practice as a subterfuge to perform illegal ects is

unreasonable and arbitrary. Corey v. City of Dallas, supra. The

logic behind 9-610(4) is analogous to the type of logic that

condemns one as guilty by association. As J.S.K. Enterprises v.

City of Lacey, supra at 607, observed, it is “stereotyping of the

worst kind.”

It is saying, in effect, that because some women

[or men] perform lewd acts in suana parlors that

all massagists can be judged to be lewd if given

the opportunity and therefore they cannot

massage members of the opposite sex.

By analogy, it would be as rational to prohibit all business

and professional associations between persons of the opposite

sex where the business or profession requires private

consultation such as lawyer-client, doctor-patient, nurse-patient,

clergyman-parishioner, tutor-student. That the percentage or

incidence of improper conduct on the part of one occupational

classification may vary from another makes prohibition no less

onerous to the honorable practitioner. By further analogy,

ett

Rialilline A ti AN te LOOK, naa aa ie titi, $k

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29a

Opinion and Order of the United States District Court

it might as logically be contended that to prevent illicit and

immoral sexual activities not only between persons of the

opposite sex but also between persons of the same sex, massage

parlors and the occupations of masseurs and masseuses

employed in massage parlors be totally prohibited.

Cases have suggested less restrictive or less onerous

methods of prohibiting and preventing the illicit and criminal

conduct sought to be outlawed. I do not deem it appropriate for

the court to advise City Council as to methods by which such

proper objectives may be achieved, but some cases have

suggested ways in which the questioned legislation could be

corrected to meet constitutional requirements. See Corey v. City

of Dallas, supra.

“DUE PROCESS OF LAW”

Under a due process analysis, Ordinance 9-610(4) is

similarly unconstitutional. The ordinance makes a conclusive

presumption that all who massage persons of the opposite sex

will engage in illicit sexual activity. For such a presumption to

be constitutionally valid, the presumption must in fact be

reasonable. Tot v. United States, 319 U.S. 463 (1943). Even

though there is a legitimate purpose for the legislation, such

legislation must fail if there is no reasonable factual basis for the

enactment. Cleveland Board of Education v. La Fleur, 414 US.

632. 645 (1974): U.S. Dept. of Agriculture v. Murry. 413 U.S.

508. 514 (1973); Viandis v. Kline, 412 U.S. 441 (1973); Stanley v.

Illinois, 405 U.S. 645, 655 (1972). There is no evidence on the

record from which a conclusion could be made that all persons

Wa

Opinion and Order of the United States District Court

who massage a person of the opposite sex will commit an illicit

sexual act. The above cited cases dealt with matters in which a

person in a particular class was conclusively presumed to lack

qualities essential for either engaging in a profession, receiving a

benefit or raising a child. The presumptions were struck down

because there was no reasonable factual basis for them. Rather

in each case, due process required that a hearing be held before

the individual be deprived of the right in question.

In a more apposite situation factually, Leary v. United

States, 395 U.S. 6 (1969), the Supreme Court held

unconstitutional legislation, 26 U.S.C. §176, which presumed

that a person in possession of marijuana brought it into the

country illegally, knew of the importation, and intended to

defraud the United States. Leary, supra at 37. Leary may be

analogized to the instant case because in both instances criminal!

activity is presumed. In Leary the standard enunciated was that

a criminal statutory presumption must be

regarded as “irrational” or “arbitrary”, and hence

unconstitutional, unless it can at least be said

with substantial assurance that the presumed fact

is more likely than not to flow from the proved

fact on which it is made to depend.

/d. at 36. Again there is no evidence on the record from which |

can conclude that illicit sexual activity will inevitably result if a

Masseur OF Masseuse Massages a person of the opposite sex. The

instant Case is even more compelling than Leary, since in that

case only a rebuttable presumption arose, while here there

appears to be a conclusive presumption.

_— ~ —

—

3la

Opinion and Order of the United States District Court

The ordinance precludes everyone, whether moral or

immoral, from administering for compensation massages to

persons of the opposite sex. The ordinance provides no

opportunity for anyone to conduct such business, even though if

properly conducted, such would be a legitimate business

enterprise. The ordinance makes this blanket prohibition

because the legislative body ascertained to its satisfaction that

some person utilized such business for immoral and illicit sexual

practices. In effect, therefore, to eradicate this evil, without

affording any opportunity for one to establish that he or she

would engage only in legal and legitimate massage practices, the

legislative body conclusively presumed that all would engage in

improper practices. This is prohibiting one from engaging in a

legitimate business without due process of law.

The defendants, or some of them, acting through the Police

Department of the City of Philadelphia have attempted to

enforce the ordinance through prosecution as to its penal

provisions. Even during the course of this litigation, there is

evidence that certain of the police attempted a continued

enforcement despite an agreement between counsel that none

would be attempted until the present issue was decided. This

may have been due to lack of communication or a

misunderstanding. Nevertheless, it is apparent that vigorous

enforcement may be attempted unless expressly prohibited by

injunctive relief. Because the ordinance violates the United

States Constitution, and enforcement would clearly cause

irreparable harm to all plaintiffs, none of whom have an

adequate remedy at law, injunctive relief is appropriate and will

be granted. All outstanding motions for sanctions will be

dismissed and denied.

32a

~t

Opinion and Order of the United States District Court

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

[Same Title]

ORDER

AND NOW, this Sth day of December, 1974, upon motion

for summary judgment and for declaratory and injunctive relief,

it is

ADJUDICATED, ORDERED AND DECREED that

Philadelphia Ordinance Bill No. 2524, Philadelphia Code 9-

610(4) which provides that “No person employed or engaged in

the business of a masseur or masseuse shall treat a person of the

opposite sex” violates Section |, Amendment XIV of the United

States Constitution and ts, therefore, unconstitutional, void and

unenforceable in its entirety as to the quoted portion of the

ordinance.

Plaintiffs’ motions for summary judgment are granted, and

judgment is entered in favor of plaintiffs and against defendants.

Defendants and all agents and employees of defendants are

permanently enjoined from enforcing or attempting to enforce,

by any means whatsoever, the quoted portion of said ordinance.

This order shall not affect the validity or enforceability of any

and all other portions of said ordinance.

All outstanding motions for sanctions are DENIED and

DISMISSED.

BY THE COURT:

S Donald W. VanArtsdalen

J.

Ya

APPENDIX C

PHILADELPHIA ORDINANCE BILL NO. 2524,

PHILADELPHIA CODE 9-610 and 9-611

AN ORDINANCE

amending Chapter 9 of the Philadelphia Code, relating to

regulation of businesses, trades and professions, by adding

section 9-610, pertaining to massage businesses and providing

penalties for violations.

The Council of the City of Philadelphia hereby ordains:

SECTION 1. Chapter 9 of the Philadelphia Code relating to

regulation of businesses, trades and professions is amended as

follows:

§ 9-610. Massage Businesses.

(1) Licenses.

(a) No person shall operate any premises used in the

massage business uniess he has obtained a premises license for

each establishment from the Department of Licenses and

Inspections.

(b) No person shall engage in the business of, or be

employed as, a Masseur or Masseuse unless he has obtained an

operator's license from the department.

(2) Information. Each applicant for a premises license or

an operator's license shall set forth on forms provided by the

department:

44a

Philadelphia Ordinance Bill No. 2524, Philadelphia Code 9-610

and 9-61]

(a) the name and address of the applicant and former

addresses for a period of three years:

(b) a physical description of the premises used in the

massage business if the applicant desires a premises license;

(c) a statement of past employers for three years if the

applicant desires an operator's license;

(d) such other information that the department may

require.

(3) Fee. The applicant for a licensed establishment shall

pay an annual license fee of $25.00. The applicant for an

operator's license shall pay an annual license fee of $10.00.

(4) Prohibited Conduct. No person employed or engaged

in the business of a masseur or masseuse shall treat a person of

the opposite sex.

(5S) Exemptions. The provisions of this ordinance shall not

apply to massage treatments given

(a) in the office of a licensed physician, osteopath,

chiropractor, or physical therapist’

(b) in a regularly established medical center, hospital,

or sanitarium:

(c) in a residence of a person under doctor's care by

the direction of the doctor;

3Sa

Philadelphia Ordinance Bill No, 2524, Philadelphia Code 9-610

and 9-6/1

(d) upon the order of a licensed physician, osteopath,

chiropractor or physical therapist.

(6) Penalties. In addition to any other sanctions or

penalties provided by law, the penalty for violation of the

provisions of this section shall be a fine of one hundred

($100.00) dollars for each offense together with imprisonment

not exceeing thirty (30) days, if the fine and cost is not paid

within five (5) days.

(7) This ordinance shall become effective thirty (30) days

after its approval.

Approved the Ist day of October, A.D. 1963.

AN ORDINANCE

amending Chapter 9 of the Philadelphia Code, relating to the

regulation of business, trade and professions, by providing for

regulations of masseurs and masseuses, under certain terms and

conditions, and providing penalties for violations.

The Council of the City of Philadelphia hereby ordains:

SECTION |. Chapter 9 of the Philadelphia Code, relating

to the regulation of business, trade and professions is amended

as follows:

§ 9-611. Masseurs and Masseuses.

36a

Philadelphia Ordinance Bill No. 2524, Philadelphia Code 9-610

and 9-611

(1) Definitions

(a) Masseur. A licensed male or female person engaged

in the business of, or employed as one massaging, manipulating,

stimulating, exercising or performing similar work upon the

human body with or without mechanical or electrical apparatus

or appliances or medicinal substances.

(b) Master. A masseur who has successfully completed

an examination administered by the Department of Health and

has fulfilled requirements of an apprentice.

(c) Apprentice. A registered person serving under the

direct supervision of a licensed master masseur.

(2) Requirements for License.

(a) No person shall engage in the business of, or be

employed as a masseur master or apprentice unless he files a

written application for registration with and on a form

prescribed by the Department of Licenses and Inspections

accompanied by a health certificate issued by a registered

physician of Pennsylvania together with a registration fee of ten

dollars ($10.00) and obtains a license from the Department of

Licenses and Inspections.

(b) No person may be licensed as a master or

apprentice masseur unless he has complied with the

examination, educational and _ practical requirements as

determined by the Department of Health.

ohne

Vie Se OF oe OE

37a

Philadelphia Ordinance Bill No. 2524, Philadelphia Code 9-610

and 9-6/1

(c) Any licensed master masseur may instruct

apprentices, provided that there shall be not more than one

apprentice for every licensed master operator. Apprentices shall

register with and supply the Department of Licenses and

Inspections the name and address of their master masseur and

information required in order to determine their fitness and

qualification as an apprentice. This shall become effective thirty

(30) days after the results of the administration of the first

examination for masters.

(d) One (1) year from the effective date of this

ordinance, any licensed masseur may file for the first

examination to be given by the Department of Health in order

to qualify as a master masseur in lieu of an apprenticeship and

other examinations may be given from time to time to masseurs

who fail to so qualify.

(e) The entire license fee shall be paid by the applicant

for the calendar year regardless of the date of issuance. The

license may be renewed annually and shall be accompanied by

the license fee and a certification from a registered licensed

physician of Pennsylvania stating that the applicant is free from

all contagious and infectious diseases.

(2) General Provisions:

(a) No licensed masseur, master or apprentice shall

operate or massage persons while suffering from an infectious or

contagious disease. Neither shall he serve any person afflicted

with such diseases.

Ra

Philadelphia Ordinance Bill No. 2524, Philadelphia Code 9-610

and 9-611

(b) All licensees shall conspicuously dispiay their

certificate of registration or license.

(c) At least one (1) licensed master shall be in

attendance at all times during the operation of a licensed

establishment. This shall become effective thirty (30) days after

the results of the administering of the first examination of

masters.

(4) Penalties. In addition to any other sanctions or

penalties provided by the law, the penalty for violation of any

provisions of this section shall be a fine of one hundred

($100.00) dollars for each offense, together with imprisonment

not exceeding thirty (30) days, if the fine and cost is not paid

within five (5) days.

Approved the twenty-first day of June, A.D. 1967.

JAMES H. J. TATE,

Mayor of Philadelphia