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Wes Ward Enterprises v. Andrews





APPEAL from the Circuit Court of Peoria County; the Hon. CHARLES IBEN, Judge, presiding.


The city of Peoria enacted an ordinance licensing and regulating massage establishments and persons who engage in the practice of massage. Two corporations who operate massage parlors and Cheryl Block, who is employed as a masseuse, brought an action to enjoin enforcement of the ordinance and to have it declared invalid and unconstitutional, naming as defendants the city superintendent of police and other officials with authority to enforce the ordinance. The Circuit Court of Peoria County upheld the validity of the ordinance in general, but ruled certain provisions void as unreasonable. Plaintiffs appeal from that judgment, and defendants cross-appeal from those portions of the judgment order invalidating particular provisions of the ordinance.


Peoria, a home rule municipality, enacted a massage ordinance on September 10, 1974. The ordinance requires every massage establishment within the city to be licensed and to pay an annual fee of $100. Also, every person who gives massages for consideration is required to obtain a masseur or masseuse permit annually and to pay a $25 fee for an original application and $10 for a renewal application. The superintendent of police is the official authorized to issue, suspend and revoke licenses.

The ordinance requires licensees to be at least 18 years of age and to furnish specified personal data. Applicants seeking a masseur or masseuse permit are required to undergo an annual physical examination and to furnish a medical certificate relating to contagious diseases. Persons convicted of a felony or a sex-related offense cannot obtain a license, with an important exception which will be discussed in detail below. Licenses will be suspended or revoked for violations of the ordinance.

Before a license is issued to an establishment, the premises must be inspected by the department of inspection, fire department, board of health and city planning department. A license will be denied if the superintendent of police finds that the proposed operation would not comply with all applicable laws, including building, health, planning, housing, zoning, and fire codes of the city. Semi-annual inspections by the health department are also required. Another provision authorizes denial of a license to an applicant who refuses to appear for examination under oath regarding the application.

Minimum requirements for the physical facilities of a massage establishment are set out, particularly as to toilet and bathing facilities, storage of linens and towels, and sanitation. A certification by the city health officer that the premises sought to be licensed comply with these requirements must be furnished to the superintendent of police before a license will be issued.

The section governing operating requirements includes provisions relating to sanitation and specifies that all employees must "wear clean, non-transparent outer garments, covering the sexual and genital areas." Four subparagraphs of section 16-164 of the ordinance are of particular concern and must be quoted in full:

"5. The sexual or genital area of patrons must be covered by towels, cloths or undergarments when in the presence of an employee, masseur or masseuse;

6. It shall be unlawful for any person, knowingly, in a massage establishment, to place his or her hand upon, to touch with any part of his or her body, to fondle in any manner, or to massage, a sexual or genital area of any other person;

7. No masseur or masseuse, employee or operator shall perform, offer or agree to perform any act which would require the touching of the patron's genital area;

11. No masseur or masseuse shall administer a massage to a patron exhibiting any skin fungus, skin infection, skin inflammation, or skin eruption; unless a physician duly licensed by the State of Illinois certifies in writing that such persons may be safely massaged prescribing the conditions thereof."

The term "sexual or genital area" is defined as including "the genitals, pubic area, buttocks, anus, or perineum of any person, or the vulva or breasts of a female."

Other regulations govern advertising, "out call massage service," identification cards, and transfer and display of permits. Section 16-175 provides:

"This Ordinance shall not apply to hospitals, nursing homes, sanitaria or persons holding an unrevoked certificate to practice the healing arts under the laws of the State of Illinois, or persons working under the direction of any such persons nor in any such establishments nor shall this Ordinance apply to barbers or cosmetologists lawfully carrying out their particular profession or business and holding a valid, unrevoked license or certificate of registration issued by the State of Illinois."

The penalty for a violation is a fine not to exceed $500 or imprisonment not to exceed six months, or both.

Before suspension or revocation of licenses, the licensee is entitled to ten days written notice of the charges and a public hearing before the superintendent of police. An amendment to the ordinance provides for review by the city manager of any denial, suspension or revocation of a license.

At trial on the declaratory judgment action, plaintiffs presented testimony that their establishments offered various types of massages, including "locals" which involve massaging a patron's genitals, and that acts of sexual intercourse are not permitted on the premises.

The trial court held the ordinance to be constitutional and denied injunctive relief, noting that the city had voluntarily refrained from enforcing the ordinance while suit was pending. The court, however, ruled that five specific provisions were arbitrary and unreasonable.

On appeal from the judgment of the trial court, plaintiffs attack the ordinance on a broad front.


Plaintiffs first argue that the entire ordinance is violative of due process as an unconstitutional infringement upon the fundamental right to work guaranteed by the fourteenth amendment to the Constitution of the United States. Plaintiffs contend that the city has the burden of showing a "compelling governmental interest" because its ordinance restricts plaintiffs' fundamental right to engage in a lawful ...

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