Appeal by defendant from Stevens, Judge. Judgment entered 12 December 1978 in Superior Court, Onslow County. Heard in the Court of Appeals 11 June 1979.
Morris, Chief Judge. Judges Parker and Martin (Harry C.) concur.
Defendant challenges the rulings of the trial court and the applicable ordinance on two grounds. First, defendant contends Jacksonville's massage business licensing laws are unconstitutionally vague because two different ordinances purport to cover the same conduct. Defendant does not argue that the statute under which he is charged is vague in itself, but he argues that having two ordinances in effect, neither of which has been repealed or expressly superseded, violates due process by failing to provide fair warning of the prohibited acts and leaving impermissible discretion to law enforcement officers. See generally Papachristou v. City of Jacksonville, 405 U.S. 156, 92 S. Ct. 839, 31 L. Ed. 2d 110 (1972).
The ordinance under consideration operates in the field of business regulation, although it is in some respects a penal act. The courts recognize greater leeway in the sweep of statutory language in the regulation of business. Id. Furthermore, since the statute does not involve First Amendment freedoms, the ordinance will be considered in light of the specific facts of this case, and the specificity of the ordinance will be less strictly scrutinized. See Buckley v. Valeo, 424 U.S. 1, 96 S. Ct. 612, 46 L. Ed. 2d 659 (1976); United States v. National Dairy Products Corp., 372 U.S. 29, 83 S. Ct. 594, 9 L. Ed. 2d 561 (1963), reh. denied, 372 U.S. 961, 83 S. Ct. 1011, 10 L. Ed. 2d 13 (1963). Therefore, we consider the fundamental due process question whether the ordinance "fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute." United States v. Harriss, 347 U.S. 612, 617, 74 S. Ct. 808, 98 L. Ed. 989, 996 (1954); see also Lanzetta v. New Jersey, 306 U.S. 451, 59 S. Ct. 618, 83 L. Ed. 888 (1939).
In our opinion, the ordinance under which defendant was convicted provided defendant with abundant fair notice that operating a massage business without a privilege license was prohibited. The applicable provisions of the "new" statute quoted
above clearly requires a privilege license. Similarly, the "old" ordinance, even if it also were applicable, requires that:
"Section 1-2. Application for License.
Any person desiring to engage in the business, trade or profession of masseur or masseuse or the operation or carrying on of any of the businesses, trades, professions, occupations or callings mentioned in Section 1-1 shall, before engaging in such business, trade, profession, occupation or calling, file an application for a license addressed to the City Council of the City of Jacksonville. Such application shall be in writing and shall set forth the following.
(a) Name and address of applicant. If such applicant be a corporation, the address or addresses of such corporation.
(b) Qualifications must be plainly stated and must be submitted together with required exhibits annexed to said application."
The fact that there were two ordinances which might apply did not deny this defendant notice that a privilege license was required. Under either ordinance, defendant knew that he must have a license and that he should apply to the City Council for it. This he did not do, in violation of both ordinances.
Defendant also argues that the ordinance is so vague as to permit arbitrary enforcement. We need not address the question concerning whether the standards for granting the privilege license are sufficient and whether the procedures satisfy procedural due process requirements. There is no indication that this defendant has ever applied for a license. The only infirmity of which this defendant may complain is that concerning whether the ordinance ...