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Court of Appeal, Second District, Division 1, California.

Devere Joseph LANCASTER and Alice K. Nygard, Petitioners and Respondents, v. MUNICIPAL COURT OF BEVERLY HILLS JUDICIAL DISTRICT, COUNTY OF LOS ANGELES, State of California, Respondent. PEOPLE of the State of California, Real Party in Interest and Appellant.

Civ. 37866.

Decided: July 26, 1971

Joseph P. Busch, Jr., Dist. Atty., Harry Wood, Head, Appellate Div., and Robert Lederman, Deputy Dist. Atty., for appellant. Kolostian & Evarone and Richard G. Kolostian, Los Angeles, for petitioners-respondents. John D. Maharg, County Counsel, and Edward H. Gaylord, Asst. County Counsel, amici curiae for respondent, Municipal Court.

Petitioners were arrested on a charge of violating section 592, Los Angeles County Ordinance No. 5860, which makes it a misdemeanor for a person to commit the acts therein proscribed.1 The municipal court overruled demurrers challenging its jurisdiction to proceed on the ground that certain sections of the ordinance, including section 592, have been preempted by designated sections of the Business and Professions Code found in the Physical Therapy Practice Act (§ 2600 et seq.), and on the further ground that the criticized portions of the ordinance attempt to legislate sexual conduct, an area of law preempted by the Penal Code. Petitioners then sought from the superior court a writ of prohibition restraining further prosecution of each criminal action. The real party in interest (the People) appeals from the judgment granting the writ of prohibition.

It appears that similar proscriptions were originally enacted by the city (27.03.1, Los Angeles Municipal Code) which later withstood constitutional challenge. (In re Maki, 56 Cal.App.2d 635, 133 P.2d 64.) In a brief memorandum opinion ordering issuance of the writ, the superior court noted that the ordinance in suit was enacted in 1940, antedating by many years the decision in In re Lane (1962), 58 Cal.2d 99, 22 Cal.Rptr. 857, 372 P.2d 897, which held that the state had fully occupied the field pertaining to criminal sexual activity. The court also took note of the minutes (petitioners' exhibit 1) of the legislative meeting when the ordinance was passed; specifically, as indicated by letters from the chief administrative officer as well as the sheriff, many massage parlors were springing up in unincorporated sections of the county as a result of a recent city ordinance (presumably that referred to above) regulating such operations; in the sheriff's opinion most of these parlors were practically houses of prostitution, and he accordingly requested the adoption of a county ordinance prohibiting massage treatments to members of the opposite sex. The ordinance herein was thereupon adopted. Under the above circumstances, it was the court's conclusion, the ordinance had for its legislative purpose the curtailment of criminal sexual activities, an area of legislation no longer available to the county since In re Lane, suprai.

The basis of the court's determination of invalidity was limited to that set forth in the opinion. Spitcauer v. County of Los Angeles, 227 Cal.App.2d 376, 38 Cal.Rptr. 710, is likewise cited in the court's memorandum for the rule that an ordinance must be stricken down which, contrary to Lane, supra, attempts to provide an additional proscription in the area of criminal sexual activities already preempted by the general laws. In Spitcauer the ordinance expressly set forth the purpose behind its enactment, namely, ‘to control pornography, perversion and prostitution,’ but here there is no such express affirmation disclosing the objectives to be achieved. In our view the trial court merely assumed, and, therefore, erroneously concluded that the purpose of the instant legislation was solely determinable from the minutes' reference to the receipt of correspondence from the sheriff's office recommending the passage of the appropriate ordinance. While the supervisors may have agreed that the massage of persons by the opposite sex should be prohibited, it does not necessarily follow that they agreed with the reasons set forth in the communications received.

Neither the minutes nor any other portion of the record discloses that the supervisors voted to adopt the ordinance in order to prevent prostitution or otherwise regulate sexual conduct. Hence, we cannot consider any speculative motives which might have led to the enactment of the instant legislation, such motives being ‘immaterial to the question of its validity.’ (Robins v. County of Los Angeles, 248 Cal.App.2d 1, 8, 56 Cal.Rptr. 853, 858.)2 To the contrary, as further declared in Robins: “[W]hen the right to enact a law depends upon the existence of a fact the passage of the act implies, and the conclusive presumption is, that * * * the legislature * * * performed [its] duty, and ascertained the existence of the fact before enacting or approving the law—a decision which the Courts have no right to question or review.” [Citations.]' (Supra, p. 6, 56 Cal.Rptr. p. 857.)

In the present case the supervisors could well have recognized the distinction between regulations which may further the public welfare and those which deal solely with the criminal aspects of sexual activity. In Maki, supra (56 Cal.App.2d 635, 133 P.2d 64), after noting that ‘The city council is presumed to have considered facts presented by officials * * * upon the evils [there brought to its attention],’ (p. 642, 133 P.2d p. 68) the court declared: ‘The reasonable exercise of the police power in regulating any occupation in order to maintain the moral welfare does not arbitrarily deprive a person so engaged of his property. The language of the ordinance and the evils intended thereby to be prevented make it clear that the intent of the city council was solely to serve the public welfare and not to oppress any class.’ (P. 643, 133 P.2d 68.) Too, it would be in the further interest of public and moral welfare to legislate against nude exposure among members of the opposite sex, a possible source of licentiousness short of prostitution or the criminal aspects of sexual activity: ‘The likelihood that licentiousness may result from the intimate contact of members of opposite sexes in the secrecy of the treatment chamber is a necessary factor in considering whether the ordinance is an intelligent and serious effort to regulate the operation of maintaining a massage parlor.’ (In re Maki, supra, p. 643, 133 P.2d p. 69.) More recently, in Cristmat, Inc. v. County of Los Angeles, 15 Cal.App.3d 590, 599, 93 Cal.Rptr. 325, 331, it was pointed out that the existence of female nudity (a studio model) in the presence of one or more males, all such persons being congregated in a private room, under certain circumstances would “provide greater opportunity for lewd conduct thereby adversely affecting the general welfare.' [Citations.]' Cristmat involved the constitutionality of an ordinance licensing model studios and specifying conditions under which they should operate; as here, implied preemption by state law was urged and rejected.

Absent any reported decision overruling Maki,3 and in light of the Legislature's failure to enact any bills expressly preempting the field or otherwise opposed to the objectives of the ordinance herein, it must be concluded that the Legislature has demonstrated an intention to leave the rule of Maki unchanged. (Alter v. Michael, 64 Cal.2d 480, 483, 50 Cal.Rptr. 553, 413 P.2d 153.) Only in In re Steinke, 2 Cal.App.3d 569, 82 Cal.Rptr. 789, cited by petitioners is there found any situation remotely analogous to that at bar. It is not in point, however, since the propriety of massaging a person of the opposite sex was neither at issue nor discussed.

Although the trial court confined its ruling to the ground heretofore discussed, on appeal petitioners renew other contentions raised below. It is argued that the county, by the enactment of section 593 (fn. 1, supra) has attempted to avoid the preemption issue, which section ‘gives the allusion that the county will not interfer [sic] with those licensed in the healing arts.’ They urge in this connection that the interpretation by a deputy sheriff as to what constitutes ‘good faith treatment’ leaves the section wide open for abuse—the question of ‘good faith’ being one for the medical board, not a deputy sheriff and, later, the criminal courts. Such contentions lack merit. In People v. Nunn, 46 Cal.2d 460, 467–468, 296 P.2d 813, it was held that the phrase ‘good faith’ has a well defined and generally understood meaning and that its use in a statute (relating to narcotics prescriptions) is not too vague to form the basis of a criminal prosecution—defendant Nunn was an osteopathic physician. Petitioners also contend that the ordinance attempts to regulate what the state has already licensed, namely, the ministrations of the healing professions must be in good faith. The absurdity of such claim presupposes an applicable statute authorizing the practice of bad faith by the licensee. Too, the same contention was disposed of in Maki (supra, p. 642, 133 P.2d 64). Likewise decided in Maki was the further point, urged here by petitioners, that the ordinance discriminates between doctors and other state licensees and those not so licensed: ‘Since the physician is licensed by the state, the city is powerless to prohibit or to regulate his practice. But this does not deprive a municipality of regulating the conduct of those not licensed under the general laws.’ (Supra, p. 642, 133 P.2d 68.)

The judgment is reversed.


1.  ‘Sec. 592. Opposite Sex. An individual shall not, for hire or reward, administer to any individual of the opposite sex, any massage, alcohol rub, or similar treatment, fomentation, bath, or electric, or magnetic treatment. A person shall neither cause nor permit in or about his place of business, or in connection with his business, any agent, employee, servant, or other individual to administer any such treatment to any individual of the opposite sex.’ (An exception is provided by section 593, making the above proscriptions inapplicable to ‘any treatment administered in good faith in the course of the practice of any healing art by any person licensed to practice any such art or profession * * *.’)

2.  This is in accord with decisions of the United States Supreme Court, the most recent of which was filed June 14, 1971: ‘* * * no case in this Court has held that a legislative act may violate equal protection solely because of the motivations of the men who voted for it.’ (Palmer v. Thompson, 403 U.S. 217, 91 S.Ct. 1940, 29 L.Ed.2d 438.)

3.  Real party in interest cites several unreported decisions of the appellate department, all since Lane, said to uphold similar ordinances; one. People v. Spinelli, No. CRA 9370 (July 22, 1970) held valid section 12–1, Glendale Municipal Code, prohibiting the massage of persons of the opposite sex.

LILLIE, Associate Justice.

WOOD, P. J., and THOMPSON, J., concur.