Massage restrictions challenged 2 parlors file lawsuit, saying crackdown is unconstitutional

Worker training required

Owners fail in bid to bar enforcement while case is pending

June 10, 1998|By Caitlin Francke | Caitlin Francke,SUN STAFF

Two Howard County massage parlors have filed a federal lawsuit alleging that a county law designed to crack down on massage parlors is unconstitutional and will drive them out of business.

The suit is the first legal challenge to the law enacted in 1997 to halt illegal sex activity in the 13 parlors in the county. The outcome of the case could affect a similar law in Anne Arundel.

If the law is declared unconstitutional, then "the statute is unenforceable," said F. Todd Taylor, a senior assistant Howard County solicitor.

Rainbow Spa Inc. in Jessup and Lily Inc. in Laurel filed the lawsuit Monday in federal District Court in Baltimore. The suit alleges, among other things, that the law deprives them of the right to practice business and violates their protection from illegal government searches.

At the heart of the suit is a Howard County law that makes it illegal to massage a member of the opposite sex unless the masseuse has received at least 500 hours of training from an approved school and national certification. Medical professionals such as chiropractors are exempt from the law.

At a hearing Monday in federal court, attorneys for the parlors lost a bid to prohibit the county from enforcing the law while the suit is pending.

Taylor said the county law is constitutional.

"This guy decided to file a lawsuit rather than have [employees] get the required certification," Taylor said.

Attorneys for the plaintiffs could not be reached for comment. The lawsuit names as defendants Howard County, County Executive Charles I. Ecker, the five County Council members and Howard police Chief G. Wayne Livesay.

The owners of the two spas employ Korean women for whom English is a second language. The owners say they have researched massage schools and found that none offered classes in Korean. The owners also say the national exam is not offered in Korean.

Because most of their clientele are men and all of their employees are women, the spas cannot comply with the law, the lawsuit says.

The law "would terminate my livelihood and that of my five employees," Sam Sun Shin, owner of Rainbow Spa Inc., wrote in a sworn affidavit.

The suit also alleges that the law's provision for warrantless searches of massage parlors is unconstitutional. The law allows representatives from several county agencies, including the .

police, to inspect the parlors at any time. No doors to massage rooms may be locked. Officials may enter a room after knocking once and identifying themselves.

"The Fourth Amendment would be reduced to a 'form of words' if the court were to countenance this administrative search ordinance which makes no pretense of compliance with probable cause, warrants and neutral magistrate requirements of the Fourth Amendment," the lawsuit says.

David Bogen, associate dean for academic affairs at the University of Maryland School of Law, said Howard's law appears to discriminate against gender. By prohibiting cross-gender massages, the county appears to be saying that massage is something so private that it warrants sexual segregation -- like bathrooms.

But the county undercuts its argument, he said, by granting an exemption to a masseuse who receives 500 hours of training and certification.

"It's pretty hard to say that 'if you can allow female A to do this, why don't you allow person B to do this?' " Bogen said. "It doesn't seem the amount of training" is a justifiable distinction.

Several area jurisdictions have laws regulating massage parlors because of the perceived link between the parlors and prostitution. Howard County police carried out a widespread -- and ultimately humiliating -- sting operation in 1995 that turned up evidence of illegal acts but fell apart in court amid charges that the police had engaged in unnecessary sex acts.

Baltimore County has charged 60 people in alleged violations of its massage law, said Deputy State's Attorney Howard Merker. A number of them have pleaded guilty, he said. Thirty cases are pending.

Laws regulating massage differ from county to county. In Baltimore County, for example, there is no prohibition on cross-gender massage. It is unlawful for unlicensed employees to administer massages. Erogenous zones cannot be massaged exposed by the employee or the client.

However, massage therapists with a certain amount of training are exempt from the laws -- like in Howard -- and prosecutors are trying to remove that exemption as evidence appears that some trained therapists are giving "topless" massages, Merker said.

Pub Date: 6/10/98

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