[00:00:00] Speaker 04: Good morning, may it please the court, counsel? [00:00:04] Speaker 04: I'd like to reserve three minutes for rebuttal. [00:00:06] Speaker 04: Billings claims the extraordinary power to search every part of Miss Larvie, Miss Vondra, and Miss Podolak's property, every room, cabinet, and storage area, as frequently as its officers may desire, for compliance with any law and without a warrant. [00:00:22] Speaker 02: And you persuaded the judge with respect to the solar practitioner for a fair amount of that. [00:00:27] Speaker 02: I'm sorry, I couldn't hear your question. [00:00:28] Speaker 02: And you persuaded the district judge with respect to the solar practitioner as to a fair amount of that. [00:00:34] Speaker 04: I'm sorry, I didn't catch your question, Your Honor. [00:00:38] Speaker 02: I'm only saying that what you got out of the district judge was striking down the ordinance with respect to the solar practitioner for a fair amount of that. [00:00:47] Speaker 02: So you succeeded to some degree already. [00:00:49] Speaker 04: Yes. [00:00:51] Speaker 04: And, you know, of course, this appeal concerns the part that we didn't. [00:00:54] Speaker 02: Exactly. [00:00:55] Speaker 04: The application to non-solar practitioners. [00:00:59] Speaker 04: And so the Fourth Amendment presumes the sweeping grant of power unreasonable, but Billings claims the benefit of what the Supreme Court has repeatedly characterized as a narrow exception. [00:01:11] Speaker 04: And Billings has not met its burden of showing the narrow, heavy, or closely regulated industry exception of flies. [00:01:17] Speaker 03: Mr. Oh, go ahead. [00:01:18] Speaker 02: Sorry. [00:01:19] Speaker 03: Please. [00:01:19] Speaker 03: Can you start with Kilgore and explain to me why Kilgore doesn't control? [00:01:24] Speaker 04: Yeah, Kilgore doesn't control because it itself, its own text says that the holding is limited to California. [00:01:34] Speaker 03: It's pretty close, don't you think? [00:01:37] Speaker 04: Well, it certainly concerns massage therapy, but massage therapy practitioners in Montana [00:01:46] Speaker 04: I don't have the same expectations of privacy as massage practitioners in California do. [00:01:52] Speaker 04: Kilgore itself acknowledged this when it said this holding applies to the practice of massage therapy in California. [00:01:59] Speaker 04: The regulatory scheme in California, much more detailed. [00:02:04] Speaker 04: And also, I mean, there's, at the time Kilgore was decided, there's 30 years, 30 years earlier, a California Supreme Court, or perhaps not the Supreme Court, a state court had held [00:02:15] Speaker 04: that it is a closely regulated industry in Montana or in California. [00:02:20] Speaker 04: And so we don't have that history in Montana. [00:02:23] Speaker 04: So it's not dispositive of this case. [00:02:28] Speaker 04: The district court didn't treat it as such. [00:02:30] Speaker 04: And so I'll make three points, though. [00:02:36] Speaker 04: And this first one, special need in Kilgore, [00:02:41] Speaker 04: The court didn't consider special need. [00:02:43] Speaker 04: It wasn't raised by the parties. [00:02:45] Speaker 04: And so in this case, we bring a challenge to the programmatic purpose of these ordinances, which was lacking in Kilgore. [00:02:52] Speaker 04: And the special needs analysis fails here. [00:02:55] Speaker 04: This is a crime control measure. [00:02:57] Speaker 04: The second point I'll make is that massage therapy is not a closely regulated industry in Montana. [00:03:03] Speaker 04: And lastly, even if it were, the searches authorized by the Billings Ordinance fail burger prong [00:03:10] Speaker 04: three scrutiny because they're practically unlimited in time scope and frequency so burger can consider special needs I'm sorry did burger consider special needs burger yeah burger did it [00:03:27] Speaker 04: The special need in Berger was the returning stolen car parts to their owners. [00:03:34] Speaker 04: And so there's a close connection between searching a junkyard, which may incidentally and without fault of the owner deal in such stolen parts. [00:03:44] Speaker 04: With respect to the massage therapy ordinance in Billings, the Billings ordinance, it's not searching for things that belong in massage parlors. [00:03:56] Speaker 04: It's searching for evidence of a crime. [00:03:58] Speaker 04: And we can just simply take the city at its word on this point. [00:04:02] Speaker 04: The police chief said at the adoption of this ordinance, this would be a great tool for law enforcement. [00:04:08] Speaker 04: It'll help us, quote, identify and arrest as many people as we can. [00:04:11] Speaker 04: and that they've assigned a detective to follow up on any necessary follow-up after inspections under the ordinance. [00:04:18] Speaker 04: The city attorney likewise said this will save law enforcement resources because these types of cases take a lot of resources to investigate and probable cause for a warrant is hard to obtain. [00:04:29] Speaker 04: The city administrator said it'd be easier enforcing this ordinance than getting someone on money trafficking, money laundering or trafficking. [00:04:35] Speaker 04: And the code enforcement manager [00:04:37] Speaker 04: When asked at deposition, what are your inspectors looking for during these searches? [00:04:44] Speaker 04: She says they're looking for things that don't belong in a massage parlor. [00:04:47] Speaker 04: Things like sex toys, lubricants, evidence of overnight accommodations. [00:04:50] Speaker 04: This is all evidence of a crime. [00:04:54] Speaker 00: Council, with respect to that, is there any sort of chain of custody control if they find these things? [00:04:59] Speaker 00: What are they to do with them? [00:05:01] Speaker 00: Let's say your inspector that's not a police officer finds them. [00:05:06] Speaker 00: Are they working directly with the police? [00:05:08] Speaker 00: How does this play out? [00:05:10] Speaker 04: Well, I'll just point out that the ordinance itself authorizes law enforcement officials or code inspectors to conduct the inspection. [00:05:17] Speaker 04: And so there's no explicit policy on it under the Billings Ordinance. [00:05:21] Speaker 04: But I think we can assume that a law enforcement official conducting these inspections pursuant to the ordinance, which the ordinance by its own text allows, is probably going to follow his own department's procedures about [00:05:32] Speaker 04: the obtaining and collection of evidence, and there's nothing in the ordinance precluding them from doing that. [00:05:37] Speaker 00: Of course, but I'm asking when it's not a police officer or a law enforcement professional. [00:05:42] Speaker 04: No, it doesn't spell out, you know, how exactly a code enforcement officer could turn this into a criminal case. [00:05:51] Speaker 00: And that makes it different from the drug testing program in Ferguson, doesn't it? [00:05:55] Speaker 04: Well, it's got less than Ferguson as far as chain of custody, how to turn this into a criminal case, but the test is asking what the immediate objective of the search program is and whether that immediate objective is a purpose that is distinguishable from crime control. [00:06:15] Speaker 00: What is the immediate objective? [00:06:17] Speaker 04: the Billings ordinance yes to discover sex trafficking human trafficking and sex crimes That's that's what the city at its own word. [00:06:27] Speaker 04: That's what they say it's for and What about protecting public health and safety? [00:06:33] Speaker 04: Yeah, it's for that too. [00:06:34] Speaker 04: I mean it That's not it's not criminal Yeah, it's not protecting public health and safety is not criminal, but the way the ordinance goes about it has to be [00:06:47] Speaker 04: distinguishable from a criminal purpose. [00:06:49] Speaker 04: And that's what the case law holds. [00:06:50] Speaker 04: So because it's not enough. [00:06:52] Speaker 04: I mean, you know, just in Ferguson, for example, the searching of pregnant mothers for drug use. [00:06:59] Speaker 04: I mean, what a serious thing. [00:07:01] Speaker 04: Obviously, that's a you know, it'd be great to protect the public health and safety by this measure. [00:07:06] Speaker 04: But it wasn't it wasn't a special need. [00:07:08] Speaker 04: It's because it was too indistinguishable from the government's general interest in crime control. [00:07:12] Speaker 04: And so with the Billings Ordinance, we have the same thing. [00:07:16] Speaker 04: The predominant purpose of the program is to discover evidence of criminal violations. [00:07:20] Speaker 04: That's what everybody says about it. [00:07:22] Speaker 04: And it's what's revealed by the text of the ordinance, too. [00:07:26] Speaker 04: Section one of the ordinance says that its purpose is to regulate businesses that purport to be massage therapy businesses. [00:07:39] Speaker 04: It's not even [00:07:40] Speaker 04: aimed at the actual practice of massage. [00:07:44] Speaker 04: And so I'll move on to our second point, closely regulated industry. [00:07:50] Speaker 04: There are three factors that are relevant to the closely regulated industry analysis, pervasiveness, duration or history and danger. [00:08:00] Speaker 04: And the key point of this analysis is what effect the regulatory scheme [00:08:05] Speaker 04: has on the proprietor's expectations of privacy. [00:08:08] Speaker 04: And so merely being subject to myriad regulation isn't enough. [00:08:12] Speaker 04: In the city of Los Angeles versus Patel, a case that managed the Supreme Court 10 years ago, we were dealing with the in-keeping industry. [00:08:20] Speaker 04: And we know the in-keeping industry as lawyers has been subject to special laws, special duties under the law for centuries. [00:08:28] Speaker 04: and certainly in California, subject to extensive regulation. [00:08:32] Speaker 04: Well, in Patel, the Supreme Court said that industry is not closely regulated. [00:08:35] Speaker 04: And they said that because there was no history of warrantless searches of the industry. [00:08:40] Speaker 04: And so it's not enough to just point to a bunch of regulations. [00:08:44] Speaker 04: And in Montana, we have, unlike California, in Kilgore, with Kim versus Dolch, that 30-year-old decision concerning a warrantless search, in Montana, we have a complete lack of history of warrantless searches. [00:08:59] Speaker 04: The only thing Billings can point to is a 2019 state law authorizing a license check, so authorizing somebody to come in and see that the license for the massage therapist is conspicuously displayed. [00:09:11] Speaker 02: I think the case law says for you to prevail, you've got to show, and I'm just reading from one of our cases, that the search has as its primary purpose [00:09:25] Speaker 02: the uncovering of evidence of criminal wrongdoing. [00:09:31] Speaker 02: So it may well have the side effect, and it may have the beneficial side effect. [00:09:37] Speaker 02: Can you show that this administrative search has as its primary purpose the uncovering of evidence of criminal behavior? [00:09:46] Speaker 04: Yeah, I think that is the test. [00:09:49] Speaker 04: Well, I would clarify, though, that the city is the one claiming the benefit of this exception. [00:09:56] Speaker 04: And the Supreme Court said in Patel that the city has the burden of showing the exception applies. [00:10:01] Speaker 02: But whoever has the burden, I think that's the test. [00:10:05] Speaker 04: Is that correct? [00:10:08] Speaker 04: That the primary purpose of the search program has to be to uncover evidence of wrongdoing. [00:10:13] Speaker 04: It has to not be that to be a special need. [00:10:15] Speaker 02: So in order for you to prevail, you've got to show that the primary purpose of this is to uncover evidence of wrongdoing, correct? [00:10:24] Speaker 04: Well, I hope it's not semantical. [00:10:26] Speaker 04: I think Billings has to show that the primary purpose is not. [00:10:28] Speaker 02: Is the other way around, okay. [00:10:29] Speaker 02: But whoever has the burden of proof, that's the dividing line, whether or not it's the primary purpose. [00:10:35] Speaker 02: Yes. [00:10:38] Speaker 03: I want to move you to the solos for a second. [00:10:40] Speaker 03: How could the solos face unconstitutional conditions when they got exemptions, when they never had to agree to the searches of their homes? [00:10:53] Speaker 04: The solos are covered under the ordinance. [00:11:00] Speaker 04: The ordinance says [00:11:02] Speaker 04: that a massage, that an inspector can enter a massage therapy business. [00:11:06] Speaker 03: But your clients got exemptions. [00:11:09] Speaker 03: And so I'm trying to understand what the effect of the exemptions are and how would they face an unconstitutional condition if they got the exemption. [00:11:19] Speaker 04: And you're just asking about the solo practitioner in the home. [00:11:22] Speaker 04: that's what I'm trying to understand. [00:11:38] Speaker 04: All that billing's explaining what the effect of the exemption is. [00:11:40] Speaker 04: It wasn't to remove this obligation of Ms. [00:11:42] Speaker 04: Podolak, and that's why the district court gave her relief. [00:11:45] Speaker 04: It granted her summary judgment completely on her claim. [00:11:50] Speaker 02: Okay. [00:11:51] Speaker 02: I think I have the same question, but I ask in a different way. [00:11:53] Speaker 02: Are you asking for Ms. [00:11:55] Speaker 02: Podolak, the solo, for anything more than what she got already from the district court? [00:12:01] Speaker 02: No. [00:12:02] Speaker 02: Oh, so with respect to her, she's got what she wants. [00:12:06] Speaker 02: Yeah, she got complete relief. [00:12:09] Speaker 02: So the plaintiffs that you're still worried about are the non-solos? [00:12:15] Speaker 02: Yes. [00:12:16] Speaker 02: OK, so the potilocks off the table for our purposes of the appeal? [00:12:20] Speaker 02: Yes. [00:12:20] Speaker 02: OK. [00:12:22] Speaker 04: And so in discussing, I guess I just want to go back to your honor's question about the exemption. [00:12:33] Speaker 04: Billings is saying that because solar practitioners are not a massage or spa facility under the ordinance, that they're not subject to the search provision. [00:12:43] Speaker 04: But the search provision provides that a massage therapy business has to permit the searches. [00:12:48] Speaker 04: And so a solar practitioner practicing the home is a massage therapy business, even if it's not a massage and spa facility. [00:12:53] Speaker 04: And the language of the inspection provision says massage therapy business. [00:12:57] Speaker 03: Unless you read it as a business or facility, unless you read those terms as interchangeable, I guess. [00:13:03] Speaker 04: In the ordinance yeah, I guess I just read the text of the ordinance, but anyway. [00:13:08] Speaker 04: I didn't want to evade your honors question But going back to closely regulated industry So really the key here is what what effect of these does this regulatory scheme have on the proprietors expectation of privacy and and There's nothing in Montana history showing a history of warrantless inspection of massage therapy businesses so Council would you like to reserve your time? [00:13:35] Speaker 00: Yes. [00:13:35] Speaker 00: Okay. [00:13:39] Speaker 00: Thank you. [00:13:39] Speaker 00: Thank you. [00:13:44] Speaker 00: Mr. Fagan. [00:13:46] Speaker 01: Hello, Judge. [00:13:46] Speaker 00: Good morning. [00:13:47] Speaker 01: Good morning. [00:13:48] Speaker 01: May it please the court. [00:13:49] Speaker 01: I am Gary Fagan. [00:13:50] Speaker 01: I'm a Billings, Montana lawyer and I am defending the city of Billings in the Vonder case. [00:13:56] Speaker 01: I thought I would try to touch on the three main issues that I think that's before the court, the special needs issue, the closely regulated issue, and then the application that the district court found to the solo practitioners. [00:14:09] Speaker 01: First, on special needs, I think it's very clear in the case law that the special needs exception is satisfied here by the city. [00:14:19] Speaker 01: Down below, just to be clear, the city did argue about whether special needs was even applicable to the closely regulated exception. [00:14:26] Speaker 01: I think for purposes of appeal, we don't need to worry about that because I think it's not a dispositive issue for the plaintiffs. [00:14:33] Speaker 01: There clearly is a special needs and it clearly is valid. [00:14:36] Speaker 01: The special need for the ordinance is to identify and eradicate illicit sex businesses. [00:14:44] Speaker 01: And I think it's important to note, and we do have some facts in the record, [00:14:48] Speaker 01: below that show that this ordinance has been very successful in getting rid of those businesses. [00:14:55] Speaker 01: And that was the purpose of the ordinance, find and eradicate those businesses so they don't apply because they know they're going to be subject to inspections. [00:15:03] Speaker 01: And it's been successful in that. [00:15:05] Speaker 01: And the case law does specify that there can be an overlap between the ordinance's purpose and some criminal applications, as I'm sure the court knows. [00:15:14] Speaker 01: Just because there's a criminal aspect to the inspections or to the regulatory scheme doesn't make it unconstitutional. [00:15:24] Speaker 01: The Ferguson case shows you when there's the improper purpose that will not justify special needs. [00:15:33] Speaker 01: And that's far, far different than our case. [00:15:36] Speaker 01: I think counsel had said that he agreed that there was less than Ferguson that exists in the city ordinance on chain of custody. [00:15:45] Speaker 01: In fact, there's no chain of custody in our ordinance. [00:15:48] Speaker 01: It's not just less than, it's completely gone. [00:15:51] Speaker 01: There's no chain of custody, there's no evidence requirements, there's no discussion of charges by the police department. [00:15:58] Speaker 01: The only real application in the ordinance for the police department is they can be one of the inspectors that go in. [00:16:04] Speaker 01: They haven't to date, but they are available to do that. [00:16:08] Speaker 01: But when you look at the Ferguson case, and compare it to our case, it's a very, very different thing. [00:16:14] Speaker 01: And it's clear that this does not have an improper crime control purpose. [00:16:19] Speaker 01: I think it's important to note, too, that in Berger, the court did address special needs in that case. [00:16:25] Speaker 01: And the Berger plaintiff actually was arrested and I think charged with five counts of receiving stolen property because of the inspection, the warrantless inspection that was done pursuant to that scheme. [00:16:37] Speaker 01: That was still constitutionally valid. [00:16:39] Speaker 01: Master cases, which is a Ninth Circuit Court opinion, in Verdun also addressed those issues. [00:16:45] Speaker 01: In Verdun, I believe tickets were being issued. [00:16:48] Speaker 01: because of the chalking scheme that was applicable in that case, that was all found to be constitutionally valid. [00:16:54] Speaker 01: So I think it's very clear that there's not an improper crime control purpose on this statute. [00:17:00] Speaker 01: It's just to identify and eradicate illicit sex businesses. [00:17:06] Speaker 01: The second issue that I want to talk about, and I think it's the most important one, is whether massage therapy is closely regulated in Montana. [00:17:16] Speaker 01: And I do think that Kilgore analysis controls. [00:17:19] Speaker 01: Yes, Kilgore had some different facts from the city's issues, but the analysis is the same. [00:17:26] Speaker 01: And I think that it's important to see what the Kilgore court actually concentrated on in deciding whether it was closely regulated or not. [00:17:36] Speaker 01: Because I think that when you do that, you realize that the [00:17:40] Speaker 01: The Kilgore, the scheme that the Kilgore court looked at and the scheme that's involved in the Vonder case are very similar in the things that Kilgore concentrated on. [00:17:50] Speaker 01: And if you look at footnote number five in the Kilgore opinion, that's where the court specifies the things that it was considering to decide whether massage therapy was closely regulated in Montana. [00:18:04] Speaker 01: They look at things such as whether there are certifications, regulations for therapists, and regulation of the massage establishments, whether there is disciplinary issues or requirements that address the conduct of all individuals providing massage, and whether there were regulations on the practitioners themselves limiting the, or looking for such things as does it limit the area of the bodies, the body they may massage and their attire. [00:18:34] Speaker 01: And so when you look at what the Kilgore court was looking at and compare that to what's available in the Montana scheme, they're very, very similar. [00:18:43] Speaker 01: In California, when Kilgore looked at it, there were licensing and certification requirements, there was a state board to govern the massage therapist, there were disciplinary procedures in place, there was a list of prohibited acts, and there were continuing education requirements. [00:18:59] Speaker 01: In Montana, there's the same, both between the Montana code, Montana administrative regulations, and the ordinances. [00:19:06] Speaker 01: There's licensing requirements, there's a state board that governs the therapists, there's disciplinary requirements, there's prohibited acts, there's continuing education, and there's standards of practice. [00:19:17] Speaker 01: And the standards of practice are specified in administrative regulation, which is an addendum to our initial briefing on appeal. [00:19:25] Speaker 01: That's Administrative Reg 24.155.902. [00:19:29] Speaker 01: There's five pages of professional requirements there that I think are very important to look at. [00:19:38] Speaker 01: The Kilgore Court, in addition to looking at the statewide regulations, also considered the ordinance at the issue to see if that also helped to make it pervasively regulated. [00:19:49] Speaker 01: Kilgore looked at, you know, there's requirements in hours operation, there was prohibited conduct, there was cleanliness standards, advertising requirements, locking of doors, and the appearance of windows requirements. [00:20:02] Speaker 01: The city's ordinance has very much the same type of things. [00:20:06] Speaker 01: It has hours of operation requirements, prohibited conduct, that prohibits at least 12 different types of conduct. [00:20:14] Speaker 01: There's advertising prohibitions, there's locking of doors, there's locking of windows. [00:20:18] Speaker 01: They have to maintain an employee list on site. [00:20:21] Speaker 01: They must maintain a treatment logbook so that can be reviewed to make sure that treatments are really being provided for actual massage therapy services. [00:20:30] Speaker 01: There has to be a list of services and prices, and they must maintain business records and financial records on site. [00:20:38] Speaker 01: All those things are what the Kilgore court looked at. [00:20:43] Speaker 01: They were present in Kilgore and they're present in our case. [00:20:46] Speaker 01: And that makes it, in my mind, an easy call on it that it is pervasively regulated in Montana. [00:20:53] Speaker 01: And I think the district court got that right. [00:20:55] Speaker 00: Talk to me, counsel, a little bit about the difference in time duration. [00:21:00] Speaker 00: So Kilgore, we're looking at 30 plus years. [00:21:03] Speaker 00: Here, we're looking at 12 years in Montana. [00:21:05] Speaker 00: Does it matter? [00:21:06] Speaker 00: Is it just one factor to consider? [00:21:09] Speaker 00: How much weight should we put on that? [00:21:11] Speaker 01: I think that's correct. [00:21:12] Speaker 01: I think it's one factor to consider. [00:21:15] Speaker 01: It's not a dispositive issue. [00:21:16] Speaker 01: I think Burger, if I recall right, I think the Burger court called it [00:21:23] Speaker 01: important, or it has some relevancy, duration. [00:21:28] Speaker 01: So I think it is a factor that should be considered. [00:21:31] Speaker 01: But there's not a bright line rule on how many years you need to have. [00:21:35] Speaker 01: And it's not a dispositive rule. [00:21:37] Speaker 01: I know of no case that actually ruled industry was not closely regulated just based on duration alone. [00:21:44] Speaker 01: It's just a factor, but I think it's a smaller factor, certainly, than what the regulations entail. [00:21:53] Speaker 00: Was there anything that happened in 2019 that triggered this? [00:21:56] Speaker 00: I mean, there had been regulations, and then there was a big gap of time. [00:22:00] Speaker 00: I'm just factually curious. [00:22:01] Speaker 00: Did anything happen in the city of Billings that prompted this? [00:22:05] Speaker 01: Well, let me go back, Judge. [00:22:07] Speaker 01: So the states had statewide regulations on massage therapists. [00:22:12] Speaker 01: I think for 29 of the past 55 years, there was a few breaks. [00:22:17] Speaker 01: Those are mostly licensing, certification, continuing education, disciplinary issues, all of which are things that the Kilgore Court concentrate on. [00:22:26] Speaker 01: And then in 2009, they adopted a stronger code and added more administrative regulations that addressed the massage therapist. [00:22:34] Speaker 01: Those have been in place since 2009. [00:22:36] Speaker 01: Those have been strengthened over time. [00:22:39] Speaker 01: and up to 2019 and 2020. [00:22:41] Speaker 01: 2019, the state also adopted a statewide warrantless inspection for massage therapy businesses that allows an inspector to go into the building to look for licenses of all the therapists on site. [00:22:58] Speaker 00: And now is that, by its very nature, limited then? [00:23:01] Speaker 00: Because you want the licenses to be conspicuous. [00:23:05] Speaker 00: You want them to be out in front. [00:23:07] Speaker 00: So does that limit where an inspector can go search? [00:23:10] Speaker 01: It is limited and to the extent that it's only to make sure that all the therapists on site have a license On hand so they can enter the building to look for that they can't look for other things But the important part on that is even though it's limited it is a warrantless inspection And it does lessen expectation a business owner will have on the privacy in their in their massage therapy business [00:23:34] Speaker 00: Walk me through this. [00:23:35] Speaker 00: So I go in, I'm an inspector. [00:23:37] Speaker 00: I don't see a license hanging on a wall. [00:23:40] Speaker 00: Can I start looking through drawers? [00:23:42] Speaker 01: The code doesn't specify that. [00:23:45] Speaker 01: It just specifies that they're allowed to enter to ensure compliance and requires that all therapists have a license conspicuously displayed somewhere in the facility. [00:23:57] Speaker 00: But by its very definition then, right? [00:23:58] Speaker 00: If it's in a drawer, it's not conspicuously displayed, correct? [00:24:03] Speaker 01: That's correct. [00:24:04] Speaker 00: And so that's why I'm asking, could I look through the drawers, or does that already put me outside of what the warrant allows, or the warrantless search, I'm sorry, allows? [00:24:13] Speaker 01: I think you'd be allowed to search for the license if the license is conspicuous displayed and you have a therapist who's there providing services. [00:24:22] Speaker 01: That's the purpose of it is to find whoever's on site as a therapist and make sure they have a license. [00:24:31] Speaker 01: Because that, again, is an idea. [00:24:32] Speaker 01: They're looking for the illicit sex businesses. [00:24:35] Speaker 01: So if it's not conspicuously displayed and you have somebody who's providing services, I think they're allowed to continue to search for that license. [00:24:44] Speaker 01: And that's a statewide regulation. [00:24:46] Speaker 01: That's not a city ordinance. [00:24:48] Speaker 02: Why would they be allowed to continue to search once they've determined that it's not conspicuously displayed? [00:24:55] Speaker 02: That is to say, there's already a violation. [00:24:58] Speaker 02: Whether or not it exists in a drawer, that's not conspicuously. [00:25:02] Speaker 02: So why can they continue to search? [00:25:05] Speaker 01: That's probably correct, Judge. [00:25:07] Speaker 01: It's not something, to my knowledge, that's come up that has been an issue. [00:25:12] Speaker 01: And the code does not specify. [00:25:13] Speaker 02: But the question then is really, of course, [00:25:15] Speaker 02: What kinds of searches preceded the ordinance that we now have? [00:25:19] Speaker 02: It sounds as though they were a little narrower. [00:25:22] Speaker 01: I agree with that. [00:25:23] Speaker 01: Yes, that's true. [00:25:24] Speaker 01: And then, Judge, you'd asked about what led to this in 2019, 2020. [00:25:30] Speaker 01: Just what led to the city adopting the ordinance was that Billings has had a long history of illicit sex businesses operating in massage therapy businesses. [00:25:42] Speaker 01: this was a decision to try to Stop that to try to identify them and eradicate it so it was just because of I think history and Experience and they they'd realized it's very hard to eradicate with general law enforcement techniques because generally requires like [00:26:04] Speaker 01: you know, undercover officers going in and that's an inherent problem and it causes a lot of enforcement problems. [00:26:13] Speaker 01: This was a decision to try to eradicate those businesses in a different way. [00:26:19] Speaker 01: And it's entirely proper under a special needs test to do that because its primary purpose isn't to arrest somebody, it's to get rid of these businesses. [00:26:28] Speaker 03: Do you want to address any of the issues where the district court went against you? [00:26:32] Speaker 01: Yeah, I think I should and I'm running out of time, so I apologize. [00:26:35] Speaker 01: Just on duration, if I can real quick, I just note that, you know, Berger, I think the regulations were in place three years when the plaintiff was arrested. [00:26:45] Speaker 01: I think they were adopted in 79. [00:26:46] Speaker 01: He was inspecting 82 and he had five charges. [00:26:50] Speaker 01: Kilgore, they were in place three years too. [00:26:53] Speaker 01: California had had a previous statewide regime, but in 2014 they adopted the Massage Therapy Act, 2015 the city passed the ordinance, and then the search was done in 2018. [00:27:07] Speaker 01: So those are very similar to timeframes that we're working with, although Montana's been regulating it for at least, you know, strongly since at least 2009 or 2010. [00:27:16] Speaker 01: And before I forget, I do think it is extremely important for the court to look at the regulations, the administrative regulations. [00:27:28] Speaker 01: It's nine, and I won't have time to go through it. [00:27:32] Speaker 01: It's .902. [00:27:34] Speaker 01: There's five pages of prohibited standards of practice in professional conduct and code of ethics things. [00:27:41] Speaker 01: These are statewide regulations. [00:27:43] Speaker 01: These are very pervasive. [00:27:46] Speaker 01: They even address the necessary financial records. [00:27:49] Speaker 01: They address that you have to have generally accepted accounting principles and a long list of things that they can or can't do as a massage therapist. [00:27:57] Speaker 01: And just to briefly address the issue with the solo practitioners, I think that the district court overall made a good decision, but the district court erred on the solo practitioners because the district court was misreading or misinterpreting the definitions at issue. [00:28:17] Speaker 01: And even the district court even said that she only found that it impliedly or ostensibly [00:28:27] Speaker 01: seem to apply to solo practitioners. [00:28:29] Speaker 01: So even the district court, I don't think, was firmly convinced that its analysis was correct. [00:28:35] Speaker 01: And the reason it was incorrect is because it was interpreting the difference between massage facility and massage business to be different. [00:28:45] Speaker 01: And they're not. [00:28:46] Speaker 01: The reason is there's a massage and spa facility definition that also exempts solo practitioners from that definition. [00:28:56] Speaker 01: And then the code also has the inspection requirement that applies to massage businesses rather than facilities. [00:29:06] Speaker 03: I don't think there's any difference. [00:29:07] Speaker 03: Is there any textual support for importing the 7 1912 section to 7 1910 and 1911 for solos, which you were arguing [00:29:26] Speaker 03: There are search provisions in 10 and 11 that shouldn't apply to solos based on the provision in 12, and I'm just wondering what support you would have for that. [00:29:40] Speaker 01: But I think solos are exempted from all inspection requirements under the ordinance based on the massage or spa facility definition. [00:29:50] Speaker 01: And where I think the court erred down below is finding a difference between the word facility and business. [00:29:57] Speaker 01: And facility actually uses the word business. [00:30:00] Speaker 01: It says massage or spa facility means any business providing spa services. [00:30:06] Speaker 02: Now, I'm a little confused. [00:30:07] Speaker 02: You're talking about error by the district court. [00:30:09] Speaker 02: Are you appealing? [00:30:11] Speaker 01: We've cross-appealed. [00:30:12] Speaker 02: Oh, I missed the cross-appeal. [00:30:14] Speaker 01: We cross-appealed just to the extent that the court found that the inspection requirements as a solo practitioner were overbroad. [00:30:24] Speaker 02: I'm sorry. [00:30:24] Speaker 02: I missed the cross-appeal. [00:30:26] Speaker 01: There's a lot of moving parts in this. [00:30:28] Speaker 01: So I think if you look at the definition of massage facility, it says it means any business offering massage services. [00:30:37] Speaker 01: And that's exactly what a solo practitioner is doing. [00:30:40] Speaker 01: And so the next section in that facility exempts solo practitioners from that definition, meaning they're not subject to the inspections in 1912, because that applies to massage businesses. [00:30:54] Speaker 00: OK. [00:30:54] Speaker 00: Thank you, counsel, for your overtime. [00:30:56] Speaker 01: I apologize for going over the link. [00:30:57] Speaker 00: It's OK. [00:30:57] Speaker 00: Thank you. [00:31:06] Speaker 04: Your Honor, I asked if the license check provision would allow a search beyond the conspicuous, somewhere where a license is conspicuously displayed, and it wouldn't. [00:31:17] Speaker 04: An officer who entered one of these businesses, just like the public can, he's not doing a search. [00:31:24] Speaker 04: Florida versus Jardines, Marshall's versus Barlow's, these cases hold that inspectors can walk in, just like the public, to a building without affecting a search. [00:31:33] Speaker 04: Well, if the license isn't conspicuously displayed, [00:31:36] Speaker 04: When he does that, he has probable cause for a violation, and it wouldn't be grounds for a further search without a warrant. [00:31:48] Speaker 04: There's also a question about the significance of the duration here, and whether 12 years in Montana is different than the many in California. [00:32:00] Speaker 04: And I'd just like to sharpen that question a little bit. [00:32:03] Speaker 04: 12 years ago, Montana began licensing massage therapy as a business, as a profession. [00:32:11] Speaker 04: Kilgore itself ignores that the mere licensing of an occupation doesn't mean that the industry is closely regulated. [00:32:18] Speaker 04: And so the real question on duration is, what is the history of warrantless inspection of massage therapy businesses in Montana? [00:32:27] Speaker 04: And there's no history. [00:32:29] Speaker 04: And, you know, Berger, my opposing counsel points out that Berger only had three years. [00:32:35] Speaker 04: Well, the court in Berger looked at the centuries-long history of searching of pawn shops and junk dealers. [00:32:41] Speaker 04: We don't have that analog here. [00:32:44] Speaker 04: And so it's something the court has to take these factors together. [00:32:50] Speaker 04: And also Billings has said that the ordinance has been very successful. [00:32:52] Speaker 04: Well, they haven't conducted a single post-licensure inspection. [00:32:55] Speaker 04: And we don't challenge the inspections at the issuance of licensure. [00:32:59] Speaker 04: And so the ordinance is working without the constitutional violation. [00:33:04] Speaker 00: You are overtime counsel. [00:33:06] Speaker 00: Thank you, Your Honors. [00:33:07] Speaker 00: Okay. [00:33:07] Speaker 00: Thank you. [00:33:09] Speaker 00: I'd like to thank both counsel on this matter. [00:33:11] Speaker 00: This matter is now submitted and this concludes our arguments for this morning. [00:33:15] Speaker 00: Thank you again to all counsel and our court staff. [00:33:18] Speaker 00: The court will now stand in recess.