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Tuesday, August 20, 2019

Panel upholds massage business commissioner's license revocations of Downers Grove spas based on prostitution charges

By Andrew Thomason | Jun 19, 2014

The massage business commissioner for Downers Grove did not abuse his discretion in revoking the operating licenses of two massage parlors after employees of both were charged with prostitution, an Illinois appeals panel ruled.

The Second District Appellate Court in a June 11 order upheld the Village of Downers Grove's revocation of the operating licenses of King’s Health Spa Inc. and Ace Spa Inc.  after both places had employees charged with prostitution while working for them.

Justice Kathryn Zenoff wrote the ruling and Justices Ann B. Jorgensen and Joseph E. Birkett concurred.

King's and Ace filed separate cases, but their appeals were consolidated.

David Fieldman was the massage business commissioner for the village in 2011, when he revoked both King's and Ace's licenses based on the prostitution charges.

Fieldman acted under the authority of the village's massage business ordinance, which allows for the revocation or suspension of a license if "any massage therapist practicing at the licensed premises has committed a felony, specified criminal act, or specified sexual activities on the licensed premises."

Both King and Ace filed writs of certiorari with the DuPage County Circuit Court regarding Fieldman's decisions, asking that their license revocations be reversed.

King's writ of certiorari was rejected, spurring it to appeal, but the trial court agreed to hear Ace's case, and agreed with the spa that Fieldman did not use proper discretion in its case.

The trial court pointed to the fact that until that specific employee was charged with prostitution, Ace had a spotless record. Kim Chong, the owner of Ace, testified at the original hearing with Fieldman as such. Chong also claimed that the employee convicted of prostitution was fired shortly after he learned of the offense.

The trial court remanded the case and ordered Fieldman to hear more evidence.

Fieldman again revoked Ace's operating license after the additional hearing and Ace once again appealed to the trial court. The trial court again sided with Ace, vacated Fieldman's decision and ordered a lesser punishment be invoked.

Fieldman issued an order suspending Ace's license for one year. Still unsatisfield with the punishment, the massage parlor went to the trial court, which once again vacated Fieldman's punishment. The court declared that the 72 days of the year-long suspension of Ace’s operating license was enough punishment. The village appealed that decision.

The appeals panel sided with the village and allowed Fieldman’s original ruling revoking Ace’s operating license to stand. It also declined to grant King's writ of certiorari, leaving Fieldman's revocation of its operating permit in place.

In both appeals, the plaintiffs did not make arguments over their employees' prostitution convictions of the village's power to revoke or suspend their operating licenses. Instead, the spas claimed Fieldman abused his discretion when he revoked their license since neither had prior incidences with prostitution.

The plaintiffs pointed to case law in which a Chicago bar with dancers was stripped of its liquor license after an incident of prostitution by a dancer. The court ruled in that case that because the incident was the first for the establishment, the revocation of its liquor license by Chicago was an abuse of discretion.

Massage parlors, however, are different from bars or lounges, Zenoff wrote for the panel.

“The occurrence of acts of prostitution in a massage establishment is inherently difficult to regulate and prevent … The private nature of the provision of massage services highlights the need for strict regulation,” Zenoff explained.

What's more, Zenoff states, is that King's lack of mitigation evidence and Ace's irrelevant mitigation evidence played in the ruling.

“We emphasize that King’s presented no mitigation evidence whatsoever at the hearing before the Commissioner. We also emphasize that, while Ace presented some mitigation evidence in the form of Kim’s testimony, the Commissioner gave that evidence little weight … We cannot say that it was error to give this evidence little weight, as none of it had any relation to the prevention of prostitution in the massage spa,” Zenoff wrote.

In upholding Fieldman's original revocations of both spas' licenses, the panel affirmed the rulings of the trial court and Fieldman in King's case and reversed the decisions of the court and Fieldman in Ace's case on the first and second remands.

The panel, in lieu of remanding Ace's case to the trial court, denied the spa's original petition for writ of certiorari and reinstated Fieldman's initial revocation decision.

DuPage County Associate Judge Robert G. Gibson presided over King's case and DuPage County Associate Judge Terence M. Sheen presided over Ace's case.

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