Smith v. Keator

203 S.E.2d 411 (1974) 21 N.C. App. 102

Gary P. SMITH, d/b/a Holiday Health Club, et al.
v.
Hervey KEATOR, Acting Chief of Police of the City of Fayetteville, North Carolina, et al.

No. 7412SC147.

Court of Appeals of North Carolina.

March 20, 1974. Certiorari Denied April 2, 1974.

Butler, High & Baer, by L. Sneed High, Fayetteville, for plaintiff appellees.

Nance, Collier, Singleton, Kirkman & Herndon, by Rudolph G. Singleton, Jr., and Clark, Clark, Shaw & Clark, by Heman R. Clark, Fayetteville, for defendant appellants.

Certiorari Denied by Supreme Court April 2, 1974.

BALEY, Judge.

The superior court held that the Fayetteville massage parlor ordinance was invalid on two grounds: first, because it was in conflict with state law; and second, because it violated the due process and equal protection clauses of the United States Constitution.

A city has no power to adopt an ordinance which is in conflict with state law. An ordinance is inconsistent with state law when it "makes unlawful an act, omission or condition which is expressly made lawful by State . . . law." G. S. § 160A-174(b)(2); see Tastee-Freez, Inc. v. Raleigh, 256 N.C. 208, 123 S.E.2d 632. Plaintiffs contend that the operation of massage parlors is expressly made lawful by G.S. § 105-41(a) and (h), and therefore cannot be restricted by a city ordinance.

G.S. § 105-41(a) provides as follows:

"[A]ny person practicing any professional art of healing for a fee or reward. . . shall apply for and obtain from the Commissioner of Revenue a statewide license for the privilege of engaging in such business or profession. . . ."

G.S. § 105-41(h) provides:

"[T]he statewide license herein provided for shall privilege the licensee to engage in such business or profession in every county, city or town in this State."

In determining whether plaintiffs' contention is a valid one, it is necessary to consider whether or not massagists are within the scope of G.S. § 105-41(a). If massagists are not required to obtain a privilege license under G.S. § 105-41(a), then G.S. § 105-41(h) does not give them the right to operate throughout the state, and the city of Fayetteville is free to regulate them.

We are of the opinion that masseurs are not persons "practicing any professional art of healing . . . "within the meaning of G.S. § 105-41(a). The term is used in the statute in conjunction with physician, veterinary, surgeon, dentist, and others which require long periods of specialized education and training and a degree of specialized knowledge of an intellectual as well as physical nature. It seems clear that the legislature intended to use the word "professional" as implying a specialized knowledge and skill beyond manual dexterity. In this sense a "professional" art is one requiring "knowledge of advanced type in a given field of science or learning gained by a prolonged course of specialized instruction and study." Paterson v. University of the State of New York, 14 N.Y.2d 432, 437, 252 N.Y.S.2d 452, 455, 201 N.E.2d 27, 30 (1964); see Reich v. Reading, 3 Pa.Cmwlth. 511, 518, 284 A.2d 315, 319 (1971). "A ``professional' act or service is one arising out of a vocation, calling, occupation, or employment involving specialized knowledge, labor or skill, and the labor or skill involved is predominantly mental or intellectual, rather than physical or manual." Marx v. Hartford Accident & Indem. Co., 183 Neb. 12, 14, 157 N.W.2d 870, 872 (1968). Administering a massage requires manual skill and dexterity, but it does not require mental or intellectual skill, advanced knowledge, or specialized instruction and study. An uneducated person can give a massage as well as an educated person.

In addition, massage is not an "art of healing." The word "healing" is ordinarily understood to mean the curing of diseases or injuries. A person may receive a massage for relaxation, to relieve sore muscles, or for other purposes, but ordinarily massage is not used as a means of curing diseases. Certainly there is no evidence in the record that plaintiffs claim the ability to cure diseases.

It is true that the Commissioner of Revenue has interpreted G.S. § 105-41(a) as applying to massagists. His interpretation of the statute, however, cannot be binding on the courts. It is entirely proper for the Commissioner to issue rulings setting forth his interpretation of the revenue statutes, in order to co-ordinate Revenue Department policy and make it uniform; but the power to construe statutes authoritatively belongs to the courts and not to any administrative official. Estate of Sanford v. Commissioner, 308 U.S. 39, 60 S. Ct. 51, 84 L. Ed. 20 (1939); Pipeline Co. v. Clayton, Comr. of Revenue, 275 N.C. 215, 166 S.E.2d 671.

Since massage is not a professional art of healing, it is not within the scope of G. S. § 105-41. Massagists are not required to obtain a privilege license from the state, and they are subject to regulation by local governments. The Fayetteville massage parlor ordinance does not conflict with state law.

Plaintiffs next assert that the massage parlor ordinance violates the due process clause of the Fourteenth Amendment by permitting the city council to act arbitrarily in denying or revoking massage licenses. They argue that subsections (e) and (j) give the council unlimited discretion to deny any application for a license or revoke any license already issued. Under the due process clause, a city may not deny or revoke an occupational license arbitrarily, or without notice and a hearing. Willner v. Committee on Character & Fitness, 373 U.S. 96, 102-103, 83 S. Ct. 1175, 10 L. Ed. 2d 224 (1963); Schware v. Board of Bar Examiners, 353 U.S. 232, 238-239, 77 S. Ct. 752, 1 L. Ed. 2d 796 (1957); Goldsmith v. United States Board of Tax Appeals, 270 U.S. 117, 123, 46 S. Ct. 215, 70 L. Ed. 494 (1926); 1 Davis, Administrative Law, §§ 7.18-.19 (1958, Supp.1970); 9 McQuillin, Municipal Corporations § 26.75. But the wording of the massage parlor ordinance is not incompatible with this principle. The ordinance can be construed so as to avoid constitutional deficiencies. See Education Assistance Authority v. Bank, 276 N.C. 576, 174 S.E.2d 551; Milk Commission v. Food Stores, 270 N.C. 323, 154 S.E.2d 548. Subsection (j) should be construed to allow a licensee to appear before the city council and present his case before his license can be revoked. The subsection expressly provides that a licensee must be notified by registered mail whenever there is a proposal to revoke his license, and this notice procedure would be of no use if the licensee were not allowed to come before the council for a hearing. Subsection (e), likewise, should be interpreted in a manner that will satisfy the requirements of the due process clause; the city council should not be permitted to deny an application for a massage license except upon reasonable grounds, and after notice and a hearing. When interpreted in this way, the licensing provisions of the ordinance are entirely constitutional.

Finally plaintiffs contend that subsection (1) of the massage parlor ordinance discriminates against women in violation of the equal protection clause of the Fourteenth Amendment. In Cheek v. City of Charlotte, 273 N.C. 293, 160 S.E.2d 18, the North Carolina Supreme Court upheld a similar city ordinance forbidding massagists to treat persons of the opposite sex. It quoted with approval from Ex parte Maki, 56 Cal. App. 2d 635, 133 P.2d 64 (1943):

"The ordinance applies alike to both men and women. . . . The barrier erected by the ordinance against immoral acts likely to result from too intimate familiarity of the sexes is no more than a reasonable regulation imposed by the city council in the fair exercise of police powers.

* * * * * *

"There is nothing in the ordinance that denies the equal protection guaranteed by the Fourteenth Amendment. It applies to all alike who give massages for hire and who are not licensed to practice one of the arts of healing."

Ordinarily, a statute will not be held to violate the equal protection clause unless it lacks any rational basis. Dandridge v. Williams, 397 U.S. 471, 90 S. Ct. 1153, 25 L. Ed. 2d 491 (1970); Williamson v. Lee Optical, Inc., 348 U.S. 483, 75 S. Ct. 461, 99 L. Ed. 563 (1955); Goesaert v. Cleary, 335 U.S. 464, 69 S. Ct. 198, 93 L. Ed. 163 (1948); Developments in the Law— Equal Protection, 82 Harv.L.Rev. 1065, 1077-87. But when a statute classifies persons on the basis of a suspect criterion, it will not be judged by this lenient standard; instead, the courts will subject it to strict scrutiny. Frontiero v. Richardson, 411 U.S. 677, 682-688, 93 S. Ct. 1764, 36 L. Ed. 2d 583 (1973), (opinion of Brennan, J.); Loving v. Virginia, 388 U.S. 1, 11, 87 S. Ct. 1817, 18 L. Ed. 2d 1010 (1967); Bolling v. Sharpe, 347 U.S. 497, 499, 74 S. Ct. 693, 98 L. Ed. 884 (1954); Developments in the Law, supra at 1087-1120, 1124-27. Among the suspect criteria are race, alienage and national origin. Frontiero v. Richardson, supra at 682 of 411 U.S., 93 S. Ct. 1764 (opinion of Brennan, J.); Developments in the Law, supra at 1124. A classification which infringes upon a constitutional right will also be viewed with strict scrutiny. Dunn v. Blumstein, 405 U.S. 330, 337-342, 92 S. Ct. 995, 31 L. Ed. 2d 274 (1972); Shapiro v. Thompson, 394 U.S. 618, 634, 89 S. Ct. 1322, 22 L. Ed. 2d 600 (1969); Developments in the Law, supra at 1120-23, 1127-31. When a statute is subjected to strict scrutiny, it will be held constitutional only if it is shown to be "necessary to promote a compelling governmental interest." Dunn v. Blumstein, supra at 342 of 405 U.S., at 1003 of 92 S.Ct.; Shapiro v. Thompson, supra at 634, of 394 U.S., 89 S. Ct. 1322. Such a statute will not be upheld merely because it serves the purpose of administrative convenience. Frontiero v. Richardson, supra at 688-690 of 411 U.S., 93 S. Ct. 1764 (opinion of Brennan, J.); Stanley v. Illinois, 405 U.S. 645, 656, 92 S. Ct. 1208, 31 L. Ed. 2d 551 (1972); Shapiro v. Thompson, supra at 631 of 394 U.S., 89 S. Ct. 1322.

For many years the United States Supreme Court has held that sex was not a suspect criterion. Statutes applying differently to the different sexes were held constitutional if they had a rational basis. Hoyt v. Florida, 368 U.S. 57, 82 S. Ct. 159, 7 L. Ed. 2d 118 (1961); Goessert v. Cleary, supra; West Coast Hotel Co. v. Parrish, 300 U.S. 379, 400, 57 S. Ct. 578, 81 L. Ed. 703 (1937); Brown, Emerson, Falk & Freedman, The Equal Rights Amendment: A Constitutional Basis for Equal Rights for Women, 80 Yale L.J. 871, 875-82. Two recent decisions, however, Reed v. Reed, 404 U.S. 71, 92 S. Ct. 251, 30 L. Ed. 2d 225 (1971), and Frontiero v. Richardson, supra (1973), have cast some doubt on the court's view of the rational basis standard. In Reed v. Reed, supra, the Court struck down an Idaho statute which provided that when two persons of opposite sex were equally qualified to serve as administrator of a decedent's estate, the man must always be chosen. In Frontiero v. Richardson, supra, a federal statute provided that a serviceman could claim his wife as a dependent (for purposes of obtaining increased medical and dental benefits and quarters allowance) regardless of whether she was in fact financially dependent on him, whereas a woman could not claim her husband unless he was actually dependent upon her. The Court held that this statute violated the equal protection clause. In neither of these cases did the court explicitly state that sex was a suspect criterion. While these cases give a more liberal construction to the equal protection clause of the Fourteenth Amendment in its application to sex, we do not interpret them as directly applicable to an ordinance regulating massage parlors. Absent a direct holding of the United States Supreme Court which would have the effect of overruling the Cheek case, it continues to be the law of this state and is here controlling.

Even if subsection (1) should be held unconstitutional because it discriminates against women, this would not mean that the entire ordinance is void. "The unconstitutionality of a part of an Act does not necessarily defeat or affect the validity of its remaining provisions. Unless it is evident that the legislature would not have enacted those provisions which are within its power, independently of that which is not, the invalid part may be dropped if what is left is fully operative as a law." Champlin Ref. Co. v. Corporation Comm'n, 286 U.S. 210, 234, 52 S. Ct. 559, 565, 76 L. Ed. 1062 (1932); accord State v. Waddell, 282 N.C. 431, 194 S.E.2d 19; Jackson v. Board of Adjustment, 275 N.C. 155, 166 S.E.2d 78. Subsection (1) is only one part of a detailed regulatory scheme, and its absence would not impair the effectiveness of the other provisions of the ordinance. It should be emphasized that the equal protection clause does not deprive a city of the power to regulate massage parlors. It is entirely proper for the city of Fayetteville to license massage parlors and to deny licenses to those applicants who cannot provide proof of good moral character, who are unable to furnish the required health certificate, or who otherwise fail to meet any reasonable qualifications.

We hold Section 17-14.1 and Section 17-12 of the Fayetteville Code of Ordinances to be constitutional and valid.

The judgment of the Superior Court is

Reversed.

CAMPBELL and HEDRICK, JJ., concur.