Gora v. City of Ferndale

576 N.W.2d 141 (1998) 456 Mich. 704

Hildegard GORA, The Loving Touch, Inc., Jacqueline Maxwell, Lea M. Perkins, Traci L. Lepro and Dawn L. Spangler, Plaintiffs-Appellees,
v.
CITY OF FERNDALE, a Municipal body corporate of the State of Michigan; and Valerie E. Kitchen in her official capacity as City Clerk for the City of Ferndale, Defendants-Appellants.

Docket No. 106783, Calendar No. 11.

Supreme Court of Michigan.

Argued December 10, 1997. Decided April 1, 1998.

Stephen M. Taylor, Farmington Hills, for Plaintiffs-Appellees.

Brian M. Smith & Associates, P.C. by Lawrence J. DeBrincat and Justin L. Smith, Troy, for Defendants-Appellants.

Opinion

TAYLOR, Justice.

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 searches and seizures.^[3] We granted leave to appeal^[4] and now reverse because we find that the ordinance is constitutionally valid in its entirety.

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.

Further, the ordinance provides for periodic inspections of massage parlor establishments at § 7-265, which states:

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 P.A. 104, which repealed those portions of the Occupational Code that formed the basis of 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 provisions at issue are unconstitutional. 217 Mich.App. 295, 551 N.W.2d 454 (1996). The panel concluded that § 7-266(a) violated the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution, as well as the equal protection guarantees provided by Michigan's Constitution. Const. 1963, art. 1, § 2. The opinion observed that classification schemes based on gender require application of the heightened scrutiny test, which requires that the classification serve an important governmental purpose and that it must be substantially related to achieving the government's objective. 217 Mich.App. at 303, 551 N.W.2d 454. In applying this test to the ordinance at issue, it stated:

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, 551 N.W.2d 454.]

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, 551 N.W.2d 454. It reached this conclusion on the basis of the reasoning that the administrative search exception to the warrant requirement is inapplicable because the State of Michigan does not pervasively regulate the massage parlor industry. Id. at 305, 551 N.W.2d 454. However, the panel reversed the circuit court's finding of constitutional violations with regard to other provisions of the ordinance relating to educational requirements, minimum age restrictions, and prohibitions regarding touching or exposure of body parts.^[7]

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 N.W.2d 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 N.W.2d 514 (1997). The rules governing the construction of statutes apply with equal force to the interpretation of municipal ordinances. Macenas v. Michiana, 433 Mich. 380, 396, 446 N.W.2d 102 (1989). Statutes and ordinances must be construed in a constitutional manner if possible. Detroit v. Qualls, 434 Mich. 340, 364, 454 N.W.2d 374 (1990). Because ordinances are presumed constitutional, the party challenging the validity of an ordinance has the burden of proving a violation. Rental Property Owners Ass'n, supra at 253, 566 N.W.2d 514.

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 N.W.2d 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 S.E.2d 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, 187 S.E.2d 168. 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...." Id. On appeal, the United States Supreme Court dismissed the matter for want of a substantial federal question. Kisley v. City of Falls Church, 409 U.S. 907, 93 S.Ct. 237, 34 L.Ed.2d 169 (1972). The meaning of such a dismissal is that all the issues properly presented to the Supreme Court have been considered on the merits and held to be "without substance"; for this reason, the adjudication is binding precedent under the doctrine of stare decisis with respect to those issues when raised in subsequent matters. In re Apportionment of State Legislature—1992, 439 Mich. 715, 729, 486 N.W.2d 639 (1992), citing Hicks v. Miranda, 422 U.S. 332, 95 S.Ct. 2281, 45 L.Ed.2d 223 (1975).

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 U.S. 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 N.E.2d 1298 (1978). The Court did the same in Smith v. Keator, 419 U.S. 1043, 95 S.Ct. 613, 42 L.Ed.2d 636 (1974), and in Rubenstein v. Cherry Hill Twp., 417 U.S. 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 said, then, that this issue has been conclusively decided with regard to the federal constitution, and this Court, in light of this authority and the merits of the arguments presented, also concludes that this ordinance restricting or prohibiting opposite sex massages does not violate federal equal protection guarantees. People v. Walker (On Rehearing), 374 Mich. 331, 336, 132 N.W.2d 87 (1965).^[9]

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, 487 N.W.2d 166. 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 Fourth Amendment's protection against searches conducted without warrants. The Court of Appeals determined that the administrative search exception to the warrant requirement is inapplicable under these circumstances because the massage parlor industry is not subject to pervasive regulation. We disagree.

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 U.S. 594, 602-603, 101 S.Ct. 2534, 2539-2540, 69 L.Ed.2d 262 (1981); United States v. Biswell, 406 U.S. 311, 92 S.Ct. 1593, 32 L.Ed.2d 87 (1972); Colonnade Catering Corp. v. United States, 397 U.S. 72, 90 S.Ct. 774, 25 L.Ed.2d 60 (1970). Whether the exemption applies is primarily determined by "``the pervasiveness and regularity of the ... regulation' and the effect of such regulation upon an owner's expectation of privacy." New York v. Burger, 482 U.S. 691, 701, 107 S.Ct. 2636, 2643, 96 L.Ed.2d 601 (1987).^[11] When a person chooses to engage in a "pervasively regulated business... he does so with the knowledge that his business ... will be subject to effective inspection." Biswell, supra at 316, 92 S.Ct. at 1596. In part, the justification for this is that, unlike under general inspection schemes, the person in the pervasively regulated business "is not left to wonder about the purposes of the inspector or the limits of his task" as long as the regulations provide notice of and implicitly restrict the scope of the inspection to those areas of the business that must be examined to enforce the regulations. Id.; see also Donovan, supra at 603-604, 101 S.Ct. at 2540-2541.

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 F.2d 1002, 1014 (C.A.5, 1978); Kim v. Dolch, 173 Cal.App.3d 736, 743, 219 Cal.Rptr. 248 (1985); see also anno., Regulation of masseurs, 17 A.L.R.2d 1183. In Indianapolis v. Wright, supra at 478, 371 N.E.2d 1298, the Indiana Supreme Court upheld a local massage parlor inspection ordinance similar to the one at issue in this case against a Fourth Amendment challenge.^[12] After discussing federal case law relating to administrative inspections conducted pursuant to a licensing program, the court concluded that this was a pervasively regulated enterprise and that the massage parlor inspection scheme authorized by the ordinance was reasonable and permissible under the administrative search exception to the warrant requirement. Id. When appealed, the United States Supreme Court dismissed the appeal sub nom, Wright v. Indianapolis, supra, for want of a substantial federal question. As noted in the preceding section, the Supreme Court's disposition of a case 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. In re Apportionment of State Legislature—1992, supra at 729, 486 N.W.2d 639; Hicks, supra at 344-345, 95 S.Ct. at 2289-2290. 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.^[13]

It is important to note that, while the Court of Appeals resolution of this issue turned solely on whether massage parlors are a pervasively regulated industry, the trial court found the inspection provision of the Ferndale ordinance constitutionally objectionable because, unlike the ordinance upheld in Wright, the Ferndale ordinance provides for criminal prosecution for refusing to permit inspections. Furthermore, the trial court held the ordinance to be constitutionally defective because it fails to expressly limit inspections to business hours or other reasonable times and does not expressly require that inspections be conducted in a reasonable manner. We shall address these distinctions in turn.

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 N.W.2d 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 refusing to allow an administrative inspection without a warrant or for any other violation of the underlying law. Burger, supra at 712, 107 S.Ct. at 2648; Biswell, supra at 315, 92 S.Ct. at 1596; see also Kim, supra at 747, 219 Cal.Rptr. 248. A business owner or employee's "decision to step aside and permit the inspection rather than face a criminal prosecution is analogous to a householder's acquiescence in a search pursuant to a warrant when the alternative is a possible criminal prosecution for refusing entry...." Biswell, supra at 315, 92 S.Ct. at 1596. In Burger, supra at 712, 107 S.Ct. at 2648, the Supreme Court expressly recognized that social problems may be addressed "both by way of an administrative scheme and through penal sanctions." Plaintiffs have cited no case holding that the imposition of criminal penalties, by itself, is sufficient to invalidate an otherwise constitutional ordinance providing for administrative inspections of commercial property conducted pursuant to a comprehensive licensing program. Thus, the ordinance cannot be adjudged unconstitutional solely on the basis that criminal penalties are provided for its violation.

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 N.W.2d 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 N.W. 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 U.S. (1 Cranch) 137, 179-180, 2 L.Ed. 60 (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 U.S. 267, 270, 24 S.Ct. 638, 639, 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, 566 N.W.2d 514. 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 N.W.2d 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 U.S. 266, 271, 93 S.Ct. 2535, 2538, 37 L.Ed.2d 596 (1973); Biswell, supra at 316, 92 S.Ct. at 1596; Wright, supra at 478, 371 N.E.2d 1298. 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 Tallman, supra at 629, 365 N.W.2d 724, we stated unequivocally that no one "can be required to surrender ... constitutionally protected rights in exchange for the privilege of doing business." Thus, because we must assume that the city council acted reasonably and constitutionally, with awareness of the existing law, it can only be concluded on this basis also that only reasonable inspections are authorized by § 7-265.

Finally, plaintiffs' claim that the ordinance is facially invalid as violative of the Fourth and Fourteenth Amendments of the federal constitution and art. 1, §§ 11 and 17 of the Michigan Constitution is meritless. 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. United States v. Salerno, 481 U.S. 739, 745, 107 S.Ct. 2095, 2100, 95 L.Ed.2d 697 (1987).^[15] The trial court misunderstood this test by finding that, if circumstances could be conceived under which the ordinance would be unconstitutionally applied, then the ordinance must fall. This turns the test on its head. "The cardinal principle of statutory construction is to save and not to destroy." NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 30, 57 S.Ct. 615, 621, 81 L.Ed. 893 (1937). 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.^[16] 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 provisions upheld by the Supreme Court do not warrant finding a constitutional violation. Because we must construe the ordinance in a constitutional manner if possible, we read the ordinance as permitting periodic inspections that are conducted without warrants in a reasonable fashion solely for the purposes of determining compliance with the requirements of the ordinance. Consequently, the Court of Appeals decision is reversed.

MALLETT, C.J., and BRICKLEY, BOYLE, and WEAVER, JJ., concurred with TAYLOR, J.

MICHAEL F. CAVANAGH, Justice (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 U.S. 913, 96 S.Ct. 3228, 49 L.Ed.2d 1222 (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 U.S. 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 MARILYN J. KELLY.

MARILYN J. KELLY, Justice (dissenting ).

Today, without acknowledging the test adopted by this Court in Tallman v. DNR,^[1] and more importantly, without recognizing the independence of the state and its citizens and their ability to enact a constitution that gives them greater protection than the federal constitution, the Court abdicates its constitutional responsibility to undertake an independent analysis of its own state's constitution. The majority holds for the first time that United States Supreme Court precedent construing the Fourth Amendment is binding on this Court's interpretation of the Michigan Constitution, Const.1963, art. 1, § 11.

Part III of the majority's opinion states that our Equal Protection Clause provides no greater protection than its federal counterpart. Slip op. at 146. 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. Slip op. at 146-147.

In Part IV of the opinion, the majority extends this analysis to Const. 1963, art. 1, § 11, and the Fourth Amendment of the federal constitution:

As noted in the preceding section, the Supreme Court's disposition of [Wright v. Indianapolis^[2]] 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. [Slip op. at 148 (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 art. 1, § 11 of the state constitution.

The citizens of this state are protected from unreasonable searches and seizures by Const. 1963, art. 1, § 11, which provides:

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 art. 1, § 11 in Tallman. There, we fashioned a seven-part test to determine whether a provision for searches without warrants satisfies the requirements of the Michigan Constitution.^[3]

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. at 608-613,365 N.W.2d 724.

Nor did the Tallman Court end its inquiry after turning to the regulations in several of our sister states and examining decisions holding administrative searches permissible under their constitutions. Id. at 613-616, 365 N.W.2d 724. Neither the federal precedent nor the decisions of our sister states commanded an identical result under our constitution.^[5] Instead, the Court went on to examine both the history and scope of commercial fishing regulations within this state. At length, it decided that commercial fishing is a pervasively regulated industry in Michigan. Id. at 619-626, 365 N.W.2d 724.

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 art. 1, § 11. Id. at 618, 619-630, 365 N.W.2d 724. In the years since, our state courts have used these seven factors to determine whether statutes and ordinances providing for searches without warrants satisfy the minimum requirements of the Michigan Constitution.^[7]

In Dep't of State Police v. Sitz,^[8] this Court held that the protection of art. 1, § 11 is not limited to that provided by the federal constitution. The Court recognized that the expansion of art. 1, § 11 should occur only when there are compelling reasons for it. However, we noted that

"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, 506 N.W.2d 209.]

A "searching examination" of art. 1, § 11 is conspicuously absent from the majority opinion. Instead, it merely holds that federal precedent compels its conclusion, an approach Sitz v. Dep't of State Police explicitly rejected. It is not obvious to me that compelling reasons exist to expand the section's coverage in this area. However, I am certain that the Court errs when it fails to undertake an independent analysis of the state's own constitutional provisions.

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

[1] 217 Mich.App. 295, 551 N.W.2d 454 (1996).

[2] U.S. Const., Am. XIV, § 1; Const. 1963, art. 1, § 2.

[3] U.S. Const., Am. IV, made applicable to the states through the Due Process Clause of the Fourteenth Amendment. Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961). See also Const. 1963, art. 1, §§ 11, 17.

[4] 456 Mich. 851, 568 N.W.2d 88 (1997).

[5] 210 Mich.App. 622, 533 N.W.2d 840 (1995).

[6] 451 Mich. 875, 549 N.W.2d 567 (1996).

[7] Plaintiffs have not appealed from this portion of the Court of Appeals decision.

[8] Accord Song v. Elyria, Ohio, 985 F.2d 840, 843 (C.A.6, 1993), Oriental Health Spa v. Fort Wayne, 864 F.2d 486, 490 (C.A.7, 1988), Mini Spas v. South Salt Lake City, 810 F.2d 939 (C.A.10, 1987), Pollard v. Cockrell, 578 F.2d 1002, 1010-1011 (C.A.5, 1978), Tomlinson v. Savannah, 543 F.2d 570, 571 (C.A.5, 1976), Colorado Springs Amusements, Ltd. v. Rizzo, 524 F.2d 571, 576 (C.A.3, 1975), cert den 428 U.S. 913, 96 S.Ct. 3228, 49 L.Ed.2d 1222 (1976), Clampitt v. Fort Wayne, 682 F.Supp. 401 (N.D.Ind., 1988), Wigginess, Inc. v. Fruchtman, 482 F.Supp. 681, 687-689 (S.D.N.Y., 1979), aff'd. 628 F.2d 1346 (C.A.2, 1980), cert den 449 U.S. 842, 101 S.Ct. 122, 66 L.Ed.2d 50 (1980), Techtow v. City Council of North Las Vegas, 105 Nev. 330, 333-334, 775 P.2d 227 (1989), and Redwood Gym v. Salt Lake Comm., 624 P.2d 1138, 1146 (Utah, 1981) ("It has been established to a certainty ... that an ordinance such as the one in question here does no violence to federal guarantees of equal protection"). We find the reasoning in the sole case cited by plaintiffs, JSK Enterprises, Inc. v. City of Lacey, 6 Wash.App. 43, 54-55, 492 P.2d 600 (1971), to be unpersuasive because the case was decided before the United States Supreme Court decision in Kisley.

[9] There exists no legal basis for the Court of Appeals finding that the restrictions on opposite sex massage are "far too broad to be considered substantially related" to the government's interest in controlling prostitution. The United States Supreme Court has never "recognized an ``overbreadth' doctrine outside the limited context of the First Amendment." United States v. Salerno, 481 U.S. 739, 745, 107 S.Ct. 2095, 2100, 95 L.Ed.2d 697 (1987).

[10] As the dissent notes, this Court adopted the "pervasively regulated industry" exception to the warrant requirement of art. 1, § 11 in Tallman v. Dep't of Natural Resources, 421 Mich. 585, 365 N.W.2d 724 (1984). In Tallman, this Court noted that the seven factors in the test it announced "differ only slightly from the five factors applied in the federal courts." Id. at 618, 365 N.W.2d 724. To be understood is that these two tests are essentially identical, although organized differently, i.e., there are seven factors in the Michigan version and five factors in the federal version. Thus, Michigan has adopted a "pervasively regulated industry" exception to art. 1, § 11's warrant requirement that is essentially the same as the federal exception. Further, this Court has stated that "the Michigan Constitution should not be construed to provide greater remedy for search and seizure violations than the federal constitution unless there is a compelling reason to do so." People v. Champion, 452 Mich. 92, 97-98, n. 3, 549 N.W.2d 849 (1996). Neither the parties nor the dissent offer any compelling reason why the Michigan Constitution should be construed differently than the federal constitution regarding the "pervasively regulated industry" exception to the warrant requirement. Accordingly, the United States Supreme Court authority, discussed below, regarding the precise issue before us—a local massage parlor inspection ordinance—conclusively resolves the issue here.

[11] We are unpersuaded by plaintiffs' contention that there can be no finding that the massage parlor trade is a pervasively regulated industry in the absence of a history of regulation by the City of Ferndale. The United States Supreme Court expressly rejected an approach that relied exclusively

on historical factors in Donovan v. Dewey, supra at 606, 101 S.Ct. at 2542, stating that "if the length of regulation were the only criterion, absurd results would occur." Rather, "it is the pervasiveness and regularity of the ... regulation that ultimately determines whether a warrant is necessary to render an inspection program reasonable under the Fourth Amendment." Id.; see also New York v. Burger, supra at 720, 107 S.Ct. at 2652; Tallman v. Dep't of Natural Resources, n. 10, supra at 607, 365 N.W.2d 724. Moreover, the goal of the ordinance is primarily to prevent massage establishments from being used as a front for prostitution, which, as "the oldest profession," historically has been subject to pervasive regulation for perhaps longer than any other industry.

[12] The ordinance in that case provided that massage parlors and similar businesses "shall be open for inspection during all business hours and at other reasonable times by police officers, health and fire inspectors ... upon the showing of proper credentials by such person." Id.

[13] In addition to conclusively resolving the question whether the massage parlor business is a "pervasively regulated industry," the Supreme Court's disposition of Wright also illustrates the error in the Court of Appeals assumption that the industry must be regulated at the state level. Just as in the instant case, in Indianapolis v. Wright, supra at 475, 371 N.E.2d 1298, there was no state statute regulating massage parlors.

[14] The United States Supreme Court has repeatedly upheld inspection provisions conferring substantial discretion on inspectors in situations where, as in the instant case, "unannounced, even frequent, inspections are essential" to effective enforcement of a comprehensive and well-defined regulatory scheme. Biswell, supra at 316, 92 S.Ct. at 1596; see also Donovan, supra at 603, 101 S.Ct. at 2540; Burger, supra at 710-711, 107 S.Ct. at 2648.

[15] Similarly, in People v. McQuillan, 392 Mich. 511, 536-537, 221 N.W.2d 569 (1974), we held that it is the court's duty to construe a statute "as constitutional unless the contrary clearly appears." In that case, a due process challenge was raised to a statute requiring that the defendants found not guilty by reason of insanity "be committed immediately." Id. This Court determined that the statute did not, on its face, violate due process because a hearing requirement could be inferred from the provision. Id.

[16] Moreover, plaintiffs cannot assert that the inspection provision of the ordinance is unconstitutional as applied. There is no evidence whatsoever in the record from which to conclude that the ordinance has been applied in an unconstitutional manner.

[1] 421 Mich. 585, 365 N.W.2d 724 (1984).

[2] 439 U.S. 804, 99 S.Ct. 60, 58 L.Ed.2d 97 (1978).

[3] Id. at 617-618, 365 N.W.2d 724. The Court explained:

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.

[4] M.C.L. § 308.1b(2)(e); M.S.A. § 13.1491(2)(e).

[5] "[F]ederal and state cases provide guidance and persuasive authority for our adoption of the ``pervasively regulated industry' doctrine as the law of this state." Id. at 616-617, 365 N.W.2d at 738.

[6] 421 Mich. at 618, 365 N.W.2d 724. "These seven factors differ only slightly from the five factors applied in the federal courts." Id.

[7] See, for example, People v. Pashigian, 150 Mich.App. 97, 388 N.W.2d 259 (1986), and People v. Barnes, 146 Mich.App. 37, 379 N.W.2d 464 (1985).

[8] 443 Mich. 744, 506 N.W.2d 209 (1993).

[9] Michigan Dep't of State Police v. Sitz, 496 U.S. 444, 110 S.Ct. 2481, 110 L.Ed.2d 412 (1990).

[10] People v. Nash, 418 Mich. 196, 341 N.W.2d 439 (1983).