The opinion of the court was delivered by: VANARTSDALEN
VanARTSDALEN, District Judge.
An ordinance of the City of Philadelphia providing for the licensing and regulating of massage parlors, whereby employees of massage parlors are completely prohibited from massaging persons of the opposite sex has been challenged as being unconstitutional in Civil Action 74-955 (Velvet Touch) and Civil Action 74-2174 (Rubenstein). The challenged portion of the ordinance provides: -- (Ordinance 9-610(4))
Prohibited Conduct. No person employed or engaged in the business of masseur or masseuse shall treat a person of the opposite sex.
The quoted portion of the ordinance, on its face, violates both the "due process" and "equal protection" clauses of Section 1, Amendment 14 of the United States Constitution, irrespective of whether the proper standard to be applied is a "compelling governmental interest" or a "rational basis." Declaratory and injunctive relief will be granted in both actions.
On April 11, 1974 in Civil Action 74-955, plaintiffs, Colorado Springs, Ltd., t/a Velvet Touch and Laurel Benzer, et al., employees of the Velvet Touch, filed a "Complaint for Injunctive Relief, Declaratory Judgment and Money Damages" against the Mayor, Police Commissioner, Police Officers, Department of Health and Department of Licenses and Inspections of the City of Philadelphia. The complaint charges that Philadelphia Ordinance Bill No. 2524 (Nov. 1, 1963), Philadelphia Code 9-610(4), is unconstitutional on its face and as applied to plaintiffs.
On April 16, 1974, a hearing was held on a motion for a temporary restraining order and preliminary injunction. At that time an understanding between counsel was reached; viz., the request for preliminary injunctive relief would not be pressed in exchange for the non-enforcement of 9-610(4), pending a determination of the constitutionality of the ordinance by this court. Plaintiffs' complaint was amended on April 23, 1974. A "Supplemental Complaint" was filed June 20, 1974 which charged defendants with enforcement of 9-610(4) against the plaintiffs in violation of the agreement. Plaintiffs sought to depose certain defendant police officers on July 10, 1974. Defendants through their counsel refused on the grounds that a criminal prosecution was pending against certain of the plaintiffs. Plaintiffs filed a motion for sanctions for failure to appear at a deposition. A conference was held on July 11, 1974 to resolve the disputes over continued enforcement of 9-610(4), scheduling of depositions, discovery and sanctions. At that conference all counsel agreed that the original stipulation of April 16, 1974 would remain effective and that 9-610(4) would not be enforced against the Velvet Touch, pending determination of the validity of the ordinance, and that a decision on motions for discovery and sanctions would be postponed until after the constitutionality of 9-610(4) had been determined by the district court. Defendant through its counsel, Murray C. Goldman, Esquire, conceded that the standard to be used in assessing the constitutionality of 9-610(4) was "compelling state interest." Briefs were filed concerning the facial validity of 9-610(4).
The essential facts are not in dispute.
On August 21, 1974 in Civil Action 74-2174, a "Complaint for Declaratory Judgment, Injunctive Relief, and Money Damages" was filed by Max Rubenstein, t/a Philadelphia Health Club (Club) and Nicole Jones, et al., employees of the Club, against the Mayor, District Attorney, Commissioner of Police, Licenses and Inspections, and Health Departments of the City of Philadelphia as well as various police officers. The substance of this complaint is the same as in Velvet Touch with additional allegations in Rubenstein that plaintiffs come within the express exception to 9-610(4) because Max Rubenstein is a licensed physical therapist. (Section 9-610(5) (a) of the Ordinance.)
The cases were consolidated as related under Local Rule 3(c) (3). A hearing on a motion for a temporary restraining order in Rubenstein was held on August 22, 1974 at which time that motion was denied.
1. Bill Number 2524 was approved by the Mayor of the City of Philadelphia on October 1, 1963 and became effective on November 1, 1963 under Section 9-610 of the Philadelphia Code.
2. Colorado Springs Amusements, Ltd., operates a massage parlor, trading as Velvet Touch at 11 North Thirteenth Street, Philadelphia, Pennsylvania.
3. Plaintiffs Bezner, Bell Stevens, Rowland, Savage, Cooley, Hampton, Adams, Stone, Viola, Davis, Barnes and Dollar were employees of the Velvet Touch during March and April, 1974.
4. Max Rubenstein is a licensed physical therapist with a place of business known as the Philadelphia Health Club located at 101 N. 15th Street, Philadelphia, Pennsylvania.
5. Plaintiffs Spence, Rementer, Jones and Nichols were employees of the Philadelphia Health Club in April 1974.
6. Defendant Rizzo is Mayor of the City of Philadelphia.
7. Defendant Fitzpatrick is District Attorney of the City of Philadelphia.
9. Defendant Sabatini is Commissioner of the Department of Licenses and Inspections of the City of Philadelphia.
10. Defendant Weinberg was Solicitor of the City of Philadelphia during the first nine months of 1974.
11. Defendant Polk is Health Commissioner of the City of Philadelphia.
12. Defendants Roselli, Brenton, Powell, DeVecchio, DeLoach, Feldman, Lyons, English and Ford are members of the Philadelphia Police Department.
13. On March 15, 1974 plaintiffs Savage, Cooley, Hampton and Adams were arrested by defendants DeVecchio and DeLoach for violating 9-610(4).
14. Charges stemming from the March 15, 1974 arrest against Savage, Cooley, Hampton and ...