*1 TECHTOW, COUNCIL OF CITY S. Petitioner, PAUL GOYNES, VEGAS; MARY and THERON NORTH LAS ROBINSON, KINCAID, and WILLIAM PAUL MAY FOR THE CITY OF AS COUNCILMEN THEIR CAPACITY JAMES SEA Vegas, Nevada; Las North STRAND, AS MAYOR OF THE CITY OF IN HIS CAPACITY Respondents. Vegas, Nevada, North Las No. 16498 P.2d 227 June Goodman, Quintana, & for Petitioner. Terry, Vegas, Stein Marren, Terrance P. Roy Woofter, City Attorney, Dep- A. uty City Attorney, Vegas, Respondents. North Las *2 OPINION Court, Steffen,
theBy J.: This appeal primarily challenges declaratory judgment con- stitutionally the validating entirety City of a of North Las Vegas We regulating massage parlors. hold that all but two of the in the ordinance are constitutional. We thus affirm and reverse in part part the district court’s ruling. Council
Respondent City (Council) of North Las Vegas licensed Paul Techtow to appellant operate a massage parlor. The 811, 3.60, Council enacted Ordinance No. Chapter of the North (the Vegas ordinance), Las Code Municipal which regulated The massage parlors. district court determined that the ordinance is constitutional. This appeal followed.
Techtow initially attacks the ordinance as a bill of attainder.
ordinance,
which
applies
“any person” and “every per
son”
to conduct or
desiring
conducting a massage parlor busi
ness,
single
does not
out Techtow or purport to punish
him
without
and is
judicial process
therefore not a bill of attainder.
Lovell,
111,
Oueilhe v.
(1977).
93 Nev.
Generally,
overbreadth
challenge
validity of a statute
or ordinance
application only
has
if First
Amendment
are
Glusman,
412, 422,
639,
implicated. State v.
Nev.
651 P.2d
dismissed,
(1982),
Here,
appeal
(1983).
qualification Amendment freedoms. Techtow’s First none of by the statute or unimpinged freedoms are If First Amendment ordinance, only succeed if the vagueness may challenge Id. at 98 Nev. applications. in all of its vague enactment is has not us that the persuaded 645. Techtow 651 P.2d him or as to others. applied either as to vague ordinance is advertising on is unrea- that the restriction argues Techtow also within the decidedly police power disagree. We sonable. that licensed massage to assure Vegas of North purview that are within advertise services parlors operation seeks to Manifestly, permit the ordinance law. to exclude opera- services and non-sexual legitimate, to sexual interests. In other overtly covertly that pander tions words, who qualify practice those supports the ordinance and outlaws those who would use massage, art of healing The ordi- for illicit sexual activities. as a front massage parlor the former and accurately reflects advertising nance permits seeking would attract customers advertising that MRM, N.W.2d 338 City Davenport, latter. See *3 1980). (Iowa court was correct in we conclude that the district
Additionally, 3.60.110, the limitation of hours of opera- that section finding tion, to right equal protection. violation of Techtow’s was not in Hill, 70, (Cal.Ct.App. 201 74 Signal Cal.Rptr. v. of Owens P.2d 40-42 1984); Anchorage, v. of 611 Municipality Hilbers (5th 1980); F.2d 855 Cir. (Alaska Lindsay, v. 616 Harper Pentco, F.Supp. 1984); Moodys, cf. for the (S.D. 1978). restricting There are valid reasons Ohio of optimum periods policing to coincide with operation hours of the to divert public unreasonable to availability. compel massage to parlor operations law enforcement resources limited more serious concerns else- critically needed for they when are where. in the ordinance requiring that the provision
Techtow contends
massage
in which a
or bath is or
any
in a door of
room
a window
3.60.080(11)) violates the
(section
may be provided
The ordinance
agree.
constrained to
We are
privacy.
locked, a
which serves
being
prohibition
doors
capable
interior
in discouraging prostitution
interest
government’s
protect
ease of
See
by permitting
inspection.
illicit conduct
or other
Comm’rs,
In
a similar window
the court in
invalidating
requirement,
Comm’rs,
Myrick
County
supra,
v. Board of Pierce
[sjuch a condition would . . . have a devastating impact society’s legitimate and upon ever-increasing quest phys- ical the operation legitimate fitness and upon businesses. New if would be to have persons, any, willing an audience a full however during body massage, innocent and reasonable, legitimate. Were we to find this requirement there would no imposition exist barrier to the of similar studios, wholly innocent exercise requirements family centers, traditionally fitness motel rooms or other private places.
We . . . note that privacy secrecy, “exists—like security, virtue of habits of life tranquility by appropriate to its — habitually existence Persons have sought [citations omitted]. massages private settings. Any regulation which is so broad in as to view of a scope require public massage would have a efiect individual This would chilling upon privacy. not only infringe upon legitimate massagists to a chosen but would pursue occupation, [citation omitted] also threat to those pose impermissible persons seeking such services [citations omitted]. next contends that the
Techtow
of one sex from
prohibiting
person
massaging person
(sections 3.60.230(b)
3.60.294(2))
sex
constitute a
agree.
denial of
We do not
it
now
equal protection.
Although may
be
whether
interest in
*4
questioned
society’s
protecting
general
welfare
illicit sexual activities and diseases is better
against
same-sex
at the
by facilitating
massages
served
exclusion of
sex,
within
members of the
it is not
our
massages by
ordinance,
thereof,
to invalidate an
prerogatives
part
simply
necessity
because we
the wisdom or
of the
might question
provi-
scrutiny.
Supreme
sion under
As observed
the Utah
Court in
Comm’n,
v.
Lake
P.2d
Gym
City
Redwood
Salt
624
1146
(1981),
certainty
“it has been established to a
.
.
. that an
the one in
here
mas-
question
[opposite-sex
ordinance such as
guarantees
equal protec-
does no violence to federal
sages]
See,
Maki,
e.g.,
tion.”
Ex Parte
206 S.E.2d
appeal
(1974);
The Tomlinson and Hogge cases merely relied on stare decisis in upholding constitutional validity of ordinances banning sex, massages by members of the opposite citing the precedential effect of dismissals of appeals by the United States Supreme fact, Court. Dismissal in an adjudication of the merits. Hicks Miranda, (1975). U.S. 332
Our holding with respect prohibition against performing massage on members of the opposite sex also disposes of the challenge to the requirement that apprentice massage technicians obtain letters of sponsorship certified technicians (sections 3.60.224(A) (B)). same sex argues
Techtow also that the that requirement massage parlors records of keep names and other information concerning services rendered to patrons make such records available for (section 3.60.090) inspection is unconstitutional. We agree the record keeping requirement impermissibly invades the right of privacy and freedom of Myrick association. v. Board of Pierce Comm’rs, County 144-45; Pentco, supra, 677 P.2d at Moody, supra, (record at 1001 F.Supp keeping requirement stated, violated equal protection). Myrick court in in invali- a similar dating requirement:
Because this requirement entirely innocent would persons be reticent to patronize establishments which uniformly sup- ply records of visits for police inspection. . . . This deter- Alabama, rence was found to be to NAACP v. contrary (1958). U.S. 499 ... It is one thing persons willingly businesses; names supply and addresses to it is another quite for a governing body require disclosure. . . .
Appellants’ of freedom of association is in no way diminished because the issue arises in an economic matter. The United States Supreme Court has “recognized the vital relationship between freedom to associate and privacy one’s associations.” Because of the [Citations omitted.] importance of these tightly intertwined that Court has refused to draw a line excluding those “engaged business *5 activities” from the reach of the First Amendment. Thomas Collins, 323 U.S. 531. . . . We likewise refuse to do so and hold that compulsory disclosure of the names of persons frequenting these commercial establishments would constitute an impermissible abridgment of such rights.
Id. at 144-45. The record keeping requirement a presents strong prospect of law deterring abiding individuals from receiving balance, On we massages. conclude the regulation too infringes far on the privacy and association.
Section five of the ordinance that if provides any provision of invalid, the ordinance is held the invalidity shall in no way affect remaining provisions ordinance. Consequently, we hold invalid, the two sections specified above without disturbing remaining provisions of the ordinance.
Techtow’s other contentions are without merit. Accordingly, the judgment of the district court is reversed with respect the two provisions specified and.discussed above. In all other respects, judgment is affirmed. J., J., C.
Young, concur. Mowbray, J., dissenting: Springer,
I do not think that it is constitutionally permissible for a municipality prohibit a male massagist a massaging female client or to a female prohibit massagist from massaging a male client.
I can understand why city wishes to illicit prevent sexual acts from being performed under the guise of but “massage”; legitimate this does not purpose justify a blanket prohibition of all inter-gender massage. Certainly male prostitution is not the con- here, cern and the reason apparent for the inclusion in the ordinance of a prohibition against males’ massaging females is to give the ordinance the appearance gender equality by including the acts of both sexes. There is that I nothing can see that would support ordinance which men from massaging women, and it does not seem reasonable to me that a man choosing engage in this occupation should be restricted to massaging clients of his own sex. obvious from quite this record that the real underlying of the ordinance
purpose is to control female prostitution under course, the guise of This “massage.” legitimate legisla- stated, tive As I purpose. object only to means which this attempts carry out this a total purpose, by prohibi- inter-gender tion of massage. women,
As in the case of the prohibition of men massaging
I
see no justification for a blanket prohibition
prevents
woman from
to a man.
giving massage
As commented in J.S.K.
Lacey,
(Wash.App.
Enterprises, of therapy. of the oldest forms When 1971), “[m]assage is one case, it can be one of appropriate administered in an properly *6 . . . Not is this discrimination forms of therapy. most useful who need deny people but it would massagists to both sexes of as select the best massa- qualified this opportunity their services P.2d at 607. to them.” 492 available gist their practice profession all deny massagists To utilize a sauna sexes because some individuals both upon lewd acts for subterfuge perform as a massage parlor of the kind. worst require stereotyping would compensation effect, women perform that because some saying, be massagists judged that all can parlors lewd acts in sauna they and therefore cannot lewd if given opportunity to be sex. opposite members of the massage Id. at 607. of to me to one sex prohibit person
It makes no sense The assumption to a of the sex. massage person giving morals danger public who are a give massages that women City Lacey, of the worst kind” “stereotyping as stated women who have chosen by be taken as an insult and could as their massage profession. could achieve Vegas to me that the of North
It seems an ordinance that does not inter- by enacting purpose its desired Without the legitimate massagists. the livelihood of fere with massage public would against inter-gender blanket prohibition in the ordinance which by present protected still be massagists. of all Other background and checks licensing require in this regulatory are afforded permissible protections kinds of regulated, dress are employee Hours of operation ordinance. is Licenses body prohibited. of sexual areas of the Because total revoked for violation of these provisions. can be unnecessary is accom- inter-gender massage prohibition the ordi- the ordinance and because plishment purpose who take up massage undue restrictions those upon nance places livelihood, portion I would strike their chosen means of as the other. of one sex the ordinance which