GORA v CITY OF FERNDALE
Docket No. 106783
Supreme Court of Michigan
Argued December 10, 1997. Decided April 1, 1998.
456 Mich 704
In an opinion by Justice TAYLOR, joined by Chief Justice MALLETT, and Justices BRICKLEY, BOYLE, and WEAVER, the Supreme Court held:
The Ferndale massage parlor ordinance is constitutional in its entirety. Provisions restricting or prohibiting opposite sex massages do not offend the Equal Protection Clause of the federal constitution, and the Michigan Constitution provides no greater protection than does its federal counterpart. The administrative search exception to the warrant requirement is applicable in this
- The enactment and enforcement of ordinances related to municipal concerns is a valid exercise of municipal police powers as long as the ordinance does not conflict with the constitution or general laws. Because ordinances are presumed constitutional, the party challenging the validity of an ordinance has the burden of proving a violation. The Court of Appeals decision is contrary to numerous United States Supreme Court decisions allowing such ordinances to stand on the ground that no federal question implicating equal protection guarantees was raised by the measures. Further, the ordinance does not run afoul of the Michigan Constitution because its equal protection guarantees provide no greater protection than that conferred by the federal.
- While it is well established that the Fourth Amendment‘s prohibition of unreasonable searches and seizures applies to administrative inspections of private commercial property, an exemption from the search warrant requirement exists for administrative inspections of closely regulated industries. Although regulation of massage parlors has not been as extensive as that of some other enterprises, nonetheless it has been held to be a pervasively regulated industry. Thus, inspections of massage parlors, conducted without warrants pursuant to a comprehensive licensing and regulation ordinance, are permissible under the administrative search exception to the warrant requirement of the Fourth Amendment.
- The ordinance cannot be adjudged unconstitutional solely on the basis that criminal penalties are provided for its violation. The penalties imposed are not the equivalent of a criminal prosecution under Michigan law. Even if they were, the United States Supreme Court has repeatedly held that an administrative regulatory scheme is not rendered constitutionally unreasonable because it imposes criminal penalties for refusing to allow an administrative inspection conducted without a warrant or for any other violation of the underlying law. By itself, imposition of criminal penalties, is insufficient to invalidate an otherwise constitutional ordinance providing for administrative inspections of commercial property conducted pursuant to a comprehensive licensing program.
- While it is true that ordinance § 7-265 does not state that inspections must be conducted in a reasonable manner or at a reasonable time, the trial court erred in its assumption that the city council intended to authorize unreasonable inspections. Legislative enactments enjoy a presumption of constitutionality, and an
assumption that city council members intended to violate their civic trust impermissibly shifts the burden of proof to the municipality. The ordinance provides that inspections may be conducted only for the purpose of determining full compliance with its provisions, i.e., that they are to be conducted reasonably. It is well established that administrative searches conducted without warrants are permissible in closely regulated industries because the licensee in such an industry is held to have impliedly consented to periodic inspections by applying for and obtaining a license. An unreasonable inspection, as a matter of law, could not be one to which the licensee could be held to have consented. - A legislative enactment can be held to be facially invalid only if there are no factual circumstances under which the provision could be constitutionally implemented. Because there are circumstances under which the ordinance would be valid, namely, inspections conducted in a reasonable manner consistent with plaintiffs’ Fourth Amendment rights, the test is met and the facial challenge to constitutionality fails.
Justice CAVANAGH, concurring in part and dissenting in part, stated that review of the equal protection issue is precluded until the United States Supreme Court affords the issue plenary review. This Court should be able to review the merits of the equal protection argument, however. The merit of the plaintiffs’ argument is at the least colorable after JEB v Alabama ex rel TB, 511 US 127 (1994), recognized an equal protection violation even though members of both sexes were excluded from participating in the jury process on the basis of their gender.
Reversed.
Justice KELLY, dissenting, stated that the majority errs in failing to undertake an independent analysis of Michigan‘s Equal Protection Clause,
217 Mich App 295; 551 NW2d 454 (1996) reversed.
Stephen M. Taylor for the plaintiff.
Brian M. Smith & Associates, P.C. (by Lawrence J. DeBrincat and Justin L. Smith), for the defendant-appellant.
OPINION OF THE COURT
TAYLOR, J. Plaintiffs, former operators and employees of massage parlor establishments in the city of Ferndale, brought suit challenging the constitutionality of Ferndale Ordinance No. 832, as amended by Ordinance No. 836. The ordinance is a comprehensive scheme of regulations governing the operation of massage parlors within the city of Ferndale. In a published opinion on remand, the Court of Appeals affirmed the circuit court‘s finding that two sections of the city‘s ordinance were violative of the state and federal constitutions.1 The panel determined that § 7-266(a) of the ordinance, which prohibits opposite sex massage in massage parlor establishments except on a written order from a licensed health care practitioner, impermissibly discriminates on the basis of gender in violation of the state and federal Equal Protection Clauses.2 It further held that § 7-265, which provides for periodic inspections without warrants of massage parlors by the police or other authorized city inspectors, violates constitutional protections against
I
In November 1990, the city of Ferndale enacted a comprehensive ordinance regulating massage parlors. Among other things, Ordinance No. 832, as amended by Ordinance No. 836, sets forth procedures and educational requirements for obtaining a city license or permit to own, operate, or work in a massage parlor, and prescribes necessary facilities, hours of operation, and employee conduct and dress. The ordinance also restricts opposite sex massages in § 7-266(a). That section provides:
Treatment of persons of opposite sex restricted. It shall be unlawful for any person holding a permit under this section and working in a massage establishment to treat a person of the opposite sex, except upon the signed order of a licensed physician, osteopath, chiropractor, or registered physical therapist, which order shall be dated and shall specifically state the number of treatments, not to exceed ten (10). The date and hour of each treatment given and the name of the operator shall be entered on such order by the establishment where such treatments are given and shall be subject to inspection by the police pursuant to this article. The requirements of this subsection shall not apply to treatments given in the residence of a patient, the office of a licensed physician, osteopath or registered physical therapist, chiropractor, or in a regularly established and licensed hospital or sanitarium.
The chief of police or other authorized inspectors from the City of Ferndale shall from time to time make inspection of each massage business establishment for the purposes of determining that the provisions of this article are fully complied with. It shall be unlawful for any licensee to fail to allow such inspection officer access to the premises or hinder such officer in any manner.
Under § 2-270, violation of any provision of the ordinance is a misdemeanor punishable by a fine of up to $500 or ninety days in jail.
Plaintiffs filed suit in Oakland Circuit Court, challenging the constitutionality of the ordinance. Initially, the circuit court found that several sections of the ordinance were violative of the state and federal constitutions. In reviewing this decision, however, the Court of Appeals held that the entire ordinance was preempted by provisions of the Occupational Code regulating myomassologists and did not address plaintiffs’ constitutional claims.5 In lieu of granting leave to appeal, this Court issued an order vacating that decision and remanding the case for reconsideration in light of 1995 PA 104, which repealed those portions of the Occupational Code that formed the basis for the panel‘s finding of preemption.6 In addition, we directed the Court of Appeals to consider the constitutional issues that were left unaddressed.
On June 21, 1996, the Court of Appeals issued a second opinion on remand, holding that the two pro-
Section 7-266(a) of defendant‘s ordinance is directed at an important public purpose, mainly the prevention of prostitution at massage parlors. Defendant‘s brief does not explain how the means of prohibiting mixed-gender massage is substantially related toward this end. Although prohibiting massage performed upon persons of the opposite gender would certainly prevent any sort of heterosexual contact between female masseuses and male customers, it would also cut the available number of plaintiff‘s [sic] prospective customers in half, significantly affecting their business. Although defendant‘s goal is legitimate, the prohibition applied to accomplish that goal is far too broad to be considered substantially related under the heightened-scrutiny test. [Id. at 303-304.]
With regard to the section of the ordinance dealing with inspections, § 7-265, the Court of Appeals affirmed the circuit court‘s determination that the provision violated the Fourth Amendment‘s constitutional protections against conducting searches and seizures without warrants. Id. at 304. It reached this conclusion on the basis of the reasoning that the administrative search exception to the warrant
II
Before beginning our analysis, we note that an individual‘s right to engage in business is subject to the state‘s authority, pursuant to its historic police powers, to enact laws protecting the public health, safety, welfare, and morals. Grocers Dairy Co v Dep‘t of Agriculture Director, 377 Mich 71, 75; 138 NW2d 767 (1966). “The enactment and enforcement of ordinances related to municipal concerns is a valid exercise of municipal police powers as long as the ordinance does not conflict with the constitution or general laws.” Rental Property Owners Ass‘n of Kent Co v Grand Rapids, 455 Mich 246, 253; 566 NW2d 514 (1997). The rules governing the construction of statutes apply with equal force to the interpretation of municipal ordinances. Macenas v Village of Michiana, 433 Mich 380, 396; 446 NW2d 102 (1989). Statutes and ordinances must be construed in a constitutional manner if possible. Detroit v Qualls, 434 Mich 340, 364; 454 NW2d 374 (1990). Because ordinances are presumed constitutional, the party challenging the validity of an ordinance has the burden of proving a
III
The city argues that the Court of Appeals erred when it concluded that § 7-266(a), prohibiting opposite sex massages, was unconstitutional as a violation of the Fourteenth Amendment. We agree. The Court of Appeals decision is contrary to numerous United States Supreme Court decisions allowing such ordinances to stand on the basis of its conclusion that no federal question implicating equal protection guarantees was raised by the measures. Further, the ordinance does not run afoul of our state constitution. In Doe v Dep‘t of Social Services, 439 Mich 650, 672; 487 NW2d 166 (1992), we stated:
[W]e do not find in the wording used, nor in its arrangement, any evidence of purpose on the part of the drafters to provide broader protection in the Equal Protection Clause of the state constitution than is found in its federal counterpart. Rather, the pattern suggests a deliberate effort to duplicate the protection secured by the federal clause.
The United States Supreme Court has repeatedly ruled that ordinances prohibiting opposite sex massage do not present a substantial federal question.
In the first of these cases, Kisley v City of Falls Church, 212 Va 693; 187 SE2d 168 (1972), the Virginia Supreme Court held that an ordinance restricting opposite sex massages did not violate constitutional due process or equal protection guarantees. Id. at 696. The court concluded that, because the ordinance applied equally to both men and women, “[t]here is nothing in the ordinance that denies the equal protection guaranteed by the Fourteenth Amendment....”
Not surprisingly, in subsequent cases before the Supreme Court raising the identical issue, the Court has consistently rejected constitutional challenges. See, e.g., Wright v Indianapolis, 439 US 804; 99 S Ct 60; 58 L Ed 2d 97 (1978), where, again, the Court dismissed for want of a substantial federal question Indianapolis v Wright, 267 Ind 471; 371 NE2d 1298 (1978). The Court did the same in Smith v Keator, 419 US 1043; 95 S Ct 613; 42 L Ed 2d 636 (1974), and in Rubenstein v Cherry Hill Twp, 417 US 963; 94 S Ct 3165; 41 L Ed 2d 1136 (1974). The federal circuit and district courts have followed this authority, as have the state courts that have considered it.8 It can be
Further, as noted above, the scope of the equal protection guarantee afforded by our state constitution is coextensive with its federal counterpart. Doe, supra at 672. Therefore, the United States Supreme Court dismissals cited above compel our conclusion that the ordinance is not violative of plaintiffs’ rights to equal protection of the law under art 1, § 2 of Michigan‘s Constitution.
IV
Having decided that plaintiffs’ equal protection claims are unavailing, we now move on to consider the plaintiffs’ constitutional challenge to the inspection provision of the ordinance as violative of the
While it is well established that the Fourth Amendment‘s prohibition of unreasonable searches and seizures applies to administrative inspections of private commercial property, an exemption from the search warrant requirement exists for administrative inspections of closely regulated industries.10 Donovan v Dewey, 452 US 594, 602-603; 101 S Ct 2534; 69 L Ed 2d 262 (1981); United States v Biswell, 406 US 311; 92 S Ct 1593; 32 L Ed 2d 87 (1972); Colonnade Catering Corp v United States, 397 US 72; 90 S Ct 774; 25 L Ed 2d 60 (1970). Whether the exemption applies is primarily determined by “the pervasiveness and regular-
While regulation of massage parlors has not been as extensive as that of some other enterprises, such as the liquor or firearms industries, it has nonetheless been held to be a pervasively regulated industry. Pollard v Cockrell, 578 F2d 1002, 1014 (CA 5, 1978); Kim v Dolch, 173 Cal App 3d 736, 743; 219 Cal Rptr 248 (1985); see also anno: Regulation of masseurs, 17
As a prelude to our discussion of the trial court‘s first ground for finding the ordinance constitutionally objectionable, namely, that it imposes criminal penalties, we note that the penalties imposed are not equivalent to a criminal prosecution under Michigan law. As we recently stated in Huron Twp v City Disposal Systems, Inc, 448 Mich 362, 365; 531 NW2d 153 (1995), “[t]his Court has long recognized that prosecutions for violations of ordinances are in a sense criminal, but that such violations are not criminal cases within the meaning of the statutes and rules for review by this Court.”
However, even if the penalties imposed are considered criminal in nature, the United States Supreme Court has repeatedly held that an administrative regulatory scheme is not rendered constitutionally unreasonable because it imposes criminal penalties for
We now turn to the second constitutional infirmity identified by the trial court, the absence of an express reasonableness requirement. While it is true that ordinance § 7-265 does not state that inspections must be conducted in a reasonable manner or at a reasonable time, the trial court erred in its assumption that the city council intended to authorize unreasonable inspections. It is one of the oldest and most well-established tenets of our jurisprudence that legislative enactments enjoy a presumption of constitutionality. As this Court stated in Brown v Shelby Twp, 360 Mich 299, 309; 103 NW2d 612 (1960):
“The generally accepted rule is that a presumption prevails in favor of the reasonableness and validity in all particulars of a municipal ordinance unless the contrary is shown by competent evidence, or appears on the face of the enactment.” [Quoting Harrigan & Reid Co v Burton, 224 Mich 564, 569; 195 NW 60 (1923).]
One of the reasons underlying this presumption is that persons holding legislative office, such as members of the city council, are duty-bound to act in conformity with their oaths to support the Michigan and federal constitutions, just as are members of the judiciary. Marbury v Madison, 5 US (1 Cranch) 137, 179-180 (1803). As Justice Holmes put it, “it must be remembered that legislatures are ultimate guardians of the liberties and welfare of the people in quite as great a degree as the courts.” Missouri, Kansas & Texas R Co v May, 194 US 267, 270; 24 S Ct 638; 48 L Ed 971 (1904). Therefore, it cannot be assumed that the city council members intended to violate their civic trust; such an assumption impermissibly shifts the burden of proof to the municipality. Rental Property Owners Ass‘n, supra at 253. Moreover, the oath to uphold the constitution would be rendered meaningless if legislators were required at every turn to prove that they acted in conformance with it.
In addition to disregarding the presumption of constitutionality, reading § 7-265 to authorize unreasonable inspections is also inconsistent with the understanding that the words of the ordinance should trigger. The ordinance says that inspections may only be conducted “for the purposes of determining that the provisions of this article are fully complied with.” This means, as interpreted in Michigan, that they are to be done reasonably. In Tallman v Dep‘t of Natural Resources, 421 Mich 585, 626-627; 365 NW2d 724 (1984), we found that the inspection statute at issue, which authorized inspections of fishing vessels “at any time,” did not offend either the state or federal constitution because it was sufficiently limited by language stating that the inspections “must be deemed ‘necessary’ to carry out the provisions of the act.” These limitations on the acceptable scope of an inspection assure the requirement that the action be reasonable. The same result obtains here, and we find that the inspection ordinance is, in like fashion, implicitly limited by its language restricting the scope of inspections to that necessary to determine compliance with the other provisions of the ordinance.14
A further reason this ordinance should be read as only permitting reasonable inspections is that an unreasonable inspection could not, as a matter of law, be one to which the licensee could be held to have consented. It is well established that administrative searches conducted without warrants are permissible in closely regulated industries because a licensee in such an industry is held to have impliedly consented to periodic inspections by applying for and obtaining a license. Almeida-Sanchez v United States, 413 US 266, 271; 93 S Ct 2535; 37 L Ed 2d 596 (1973); Biswell, supra at 316; Wright, supra at 478. However, the scope of the consent given extends only to reasonable inspections that are limited to that necessary to ensure compliance with the regulatory scheme. In
Finally, plaintiffs’ claim that the ordinance is facially invalid as violative of the Fourth and Fourteenth Amendments of the federal constitution and
Therefore, because § 7-265 may be construed, consistent with constitutional protections, to permit periodic reasonable inspections for the purpose of determining compliance with the ordinance, we reverse the Court of Appeals decision finding the provision violative of the Fourth Amendment of the United States Constitution.
V
In conclusion, we hold that the Ferndale massage parlor ordinance is constitutional in its entirety. As we have explained, the United States Supreme Court has repeatedly held that provisions restricting or prohibiting opposite sex massages do not offend the Equal Protection Clause of the federal constitution. Further, under these circumstances, the Michigan Constitution provides no greater protection than does its federal counterpart. Thus, the Court of Appeals erred in finding that the ordinance violated plaintiffs’ equal protection rights.
We find that the administrative search exception to the warrant requirement is applicable in this case because the United States Supreme Court implicitly held that the massage parlor industry is subject to pervasive regulation in its dismissal of the appeal in Wright, supra, for want of a substantial federal question. The slight differences between the language of Ferndale Ordinance § 7-265 and similar inspection
MALLETT, C.J., and BRICKLEY, BOYLE, and WEAVER, JJ., concurred with TAYLOR, J.
CAVANAGH, J. (concurring in part and dissenting in part). I concur only in the result of the majority with respect to the equal protection issue. Current and future plenary review of this issue is precluded until the United States Supreme Court affords the issue plenary review. However, I agree with Justice Brennan‘s dissent in Colorado Springs Amusements, Ltd v Rizzo, 428 US 913; 96 S Ct 3228; 49 L Ed 2d 1221 (1976), that this Court should be able to review the merits of the equal protection argument. The merit of plaintiffs’ argument is at the very least colorable after the United States Supreme Court decision in JEB v Alabama ex rel TB, 511 US 127; 114 S Ct 1419; 128 L Ed 2d 89 (1994), which recognized an equal protection violation even though members of both sexes were excluded from participating in the jury process on the basis of their gender.
As to the issue of search without a warrant, I concur with the reasoning and result of Justice KELLY.
Part III of the majority‘s opinion states that our Equal Protection Clause provides no greater protection than its federal counterpart. Ante at 714. Under that reasoning, United States Supreme Court precedent holding that a statute does not violate federal equal protection means that the statute is constitutional under the equal protection provision in our state constitution, as well. Id.
In part IV of the opinion, the majority extends this analysis to
As noted in the preceding section, the Supreme Court‘s disposition of [Wright v Indianapolis2] in this manner is a decision on the merits that is stare decisis with regard to the issues presented, including, of course, the question of pervasive regulation. Thus, we conclude that the United States Supreme Court has determined that the massage parlor industry is a pervasively regulated business and that inspections of massage parlors conducted without warrants
pursuant to a comprehensive licensing and regulation ordinance are permissible under the administrative search exception to the warrant requirement of the Fourth Amendment. [Ante at 717 (citations omitted).]
The United States Supreme Court dismissed Wright v Indianapolis for lack of a substantial federal question. It is error for this Court to hold that the dismissal in Wright prevents us from undertaking an independent analysis of the issues presented here under our own constitution. A finding that the massage parlor industry is pervasively regulated in Indiana does not dictate that regulation is pervasive in Michigan, or in any other state. It does not follow from the mere finding that an industry is pervasively regulated that warrantless searches of commercial premises used in that industry are constitutional under Michigan law. Finally, and most importantly, the Supreme Court‘s dismissal of Wright does not mean that § 7-265 of the Ferndale ordinance is permissible under
The citizens of this state are protected from unreasonable searches and seizures by
The person, houses, papers and possessions of every person shall be secure from unreasonable searches and seizures. No warrant to search any place or to seize any person or things shall issue without describing them, nor without probable cause, supported by oath or affirmation.
This Court adopted the “pervasively regulated industry” exception to the warrant requirement of
In Tallman, this Court made clear that, when examining a statute alleged to fit under the exception for searches without warrants, it will undertake an independent analysis. At issue there was a fish and game statute that provided for warrantless searches of commercial fishing vessels.4
In adopting the exception and applying it under the state constitution, the Tallman Court did not simply follow federal precedent. It undertook its own analysis, engaging in an extensive analysis of federal regulation of fishing and fisheries. The fact that several federal circuits had held that fishing was a pervasively regulated industry did not end the Court‘s inquiry. 421 Mich 608-613.
In addition, merely finding the industry to be pervasively regulated did not end the Court‘s constitutional inquiry. In Tallman, the Court adopted a seven-factor test, only one of whose factors dealt with pervasive regulation. See note 3. The Court expressly noted that its test was different from the federal test.6 But only after examining all seven factors did it conclude that the statute was constitutional under
In Sitz v Dep‘t of State Police, 443 Mich 744; 506 NW2d 209 (1993), this Court held that the protection of
“compelling reason” should not be understood as establishing a conclusive presumption artificially linking state constitutional interpretation to federal law. As illustrated by the question presented today, a literal application of the term would force us to ignore the jurisprudential history of this Court in favor of the analysis of the United States Supreme Court announced in Sitz.[9] Properly understood, the Nash[10] [compelling reason] rule compels neither the acceptance of federal interpretation nor its rejection. In each instance, what is required of this Court is a searching examination to discover what law “the people have made.” [Id. at 758-759.]
A “searching examination” of
I would vacate the Court of Appeals opinion on this issue and remand to the trial court for application of the seven-factor test adopted in Tallman.
Notes
We conclude that conflicts arising under art 1, § 11 of the Michigan Constitution between the enforcement needs of governmental agencies and the privacy interests of regulated commercial actors should be resolved by balancing the following factors:
(1) the existence of express statutory authorization for search or seizure;
(2) the importance of the governmental interest at stake;
(3) the pervasiveness and longevity of industry regulation;
(4) the inclusion of reasonable limitations on searches in statutes and regulations;
(5) the government‘s need for flexibility in the time, scope, and frequency of inspections in order to achieve reasonable levels of compliance;
(6) the degree of intrusion occasioned by a particular regulatory search; and
(7) the degree to which a business person may be said to have impliedly consented to warrantless searches as a condition of doing business, so that the search does not infringe upon reasonable expectations of privacy.