ARTICLES

First Gays, and Now Hookers...

San Francisco Moves to Legalize Prostitution

BY CHRISTOPHER ZEHNDER

When I was young, "massage parlor" meant a place of ill repute. Only later did I learn of that professional massage that has to do with health rather than hedonism. But given the association of massage with the oldest trade on earth, it is not surprising that the law has held both "therapeutic" massage and the massage done for "adult entertainment" under the same scrutiny. Until this year, the city of San Francisco regulated valid massage establishments through the police department. The intent was obvious: to keep the massage business from being a front for prostitution.

But on July 1, a new city ordinance took effect that, critics say, effectively legalizes massage parlor prostitution. The San Francisco board of supervisors last year passed the new massage ordinance, sponsored by Supervisor Chris Daly, with only one dissenting vote -- that of seventh district supervisor Tony Hall. Mayor Willie Brown signed the ordinance on December 5, 2003, and it went into effect on July 1, 2004. What the new ordinance does is remove police department oversight of both genuine practitioners of "therapeutic" massage and massage parlors that have long been a cover for "adult entertainment." Under the new ordinance, this authority is transferred to the health department.

Former Supervisor Hall (he now runs the city's Treasure Island Authority) told me in September that he opposed the ordinance "because there is no way the health department could monitor the activities of those establishments." Massage businesses, both the valid and the shady, "should continue to be regulated by the police department," said Hall. "The health department neither has the help nor the resources nor the authority to monitor that type of business."

The new law differs from the old law in significant ways. According to a 2003 legislative analysis of the ordinance prepared for the board of supervisors, the new law recognizes two classes of massage practitioners: general practitioners (with 100 hours of training) and advanced practitioners (with 200 hours of training). But according to the July 4 Massage Today, the distinction is merely a euphemism. According to the magazine, the new law creates a "permit system that recognizes 'therapeutic massage practitioners' on the one hand, and 'adult entertainment massage practitioners' on the other." And, since the law removes direct supervision of massage from the police, it makes it more difficult for them to enforce laws against prostitution.

Indeed, according to the supervisors' legislative analysis, under the old law the police department included the following as grounds for removal of a massage practitioner's permit: "keeping a house of ill-fame," "keeping a disorderly house," or "prevailing upon a person to visit a place for prostitution or gambling." Under the health department, however, a permit may be revoked or suspended if, according to the legislative analysis, "the Chief of Police finds after a public hearing that: the practitioner has willfully violated any provision of the Article, provided materially false documents or testimony, had any license or permit related to the practice of massage revoked within the past 5 years, or violated a rule or regulation adopted by the Director of Public Health." The operation of a bawdy house is not considered grounds for a revocation.

Nor is the location of the massage business. While, under the police code, says the legislative analysis, the chief of police "may deny a permit 'if it shall appear that the character of the business is not a proper or suitable place in which to conduct or maintain such business or calling or the applicant requesting such permit does not warrant the issuance thereof,'" under the health code only public health and safety is considered and the coercion of employees to engage in illegal conduct. Thus "adult entertainment" massage parlors could open in any neighborhood where zoning permits. The new law also removes the following police code provisions: the prohibition of suggestive advertising for massage establishments, of providing massage services in any permitted establishment that has a locking door, and the insistence on a notification to a hotel manager by a massage practitioner visiting a client in a hotel room.

The new law requires some collaboration between the health and police departments. They are to work together on "issues of common concern affecting the massage industry, such as protections against violence in massage establishments, crimes against massage practitioners, forced labor, or [sex] trafficking." Prior criminal convictions, especially regarding sexual crimes, would disqualify applicants from receiving a permit -- though, here, exceptions can be made if the director "found that the offense was not violent, the conviction occurred at least 5 years ago, and the applicant had not been convicted since then of such an offense."

Tony Hall was skeptical that the health department would work with police on "issues of common concern." "You know what that's like, with modern bureaucracy," he said. "That means they might, or may, or could. Well, the fact of the matter is, they won't."

But, under the new ordinance, are the police prohibited from busting owners of brothels masquerading as massage establishments? "I suppose there are still some laws on the books that if they are not attached to some establishment, the police can move on it," said Hall. "But if they're attached to some establishment that now gives the health department the authority of monitoring that business, the police are not going to bother with it."

Dewayne Tully, a spokesman for the San Francisco Police Department, however, said that with new ordinance, "we still investigate complaints just as we usually did. Our procedure is basically the same; the applicant is fingerprinted, there is a background check." This seemed to contradict David Palmer, the co-chair of the San Francisco Coalition of Therapeutic Massage and Bodywork Practitioners, which pressed for the new ordinance. In a June 6 e-mail message to coalition members, Palmer said that under the new ordinance the department of health would require background checks of applicants, though it would not require fingerprinting. But in an FAQ on his website, Palmer notes that the department of health "is currently presuming that all practitioner applicants will be screened for the required criminal background check through fingerprinting." Presuming, of course, is not the same as requiring. But a call to the department of health confirmed that fingerprinting is still required for massage permit applicants, though, presumably, through the police department.

Tully, however, did say that under the department of health, "there is no police public notification to hear complaints" about prostitution connected with massage parlors. "We used to do that to allow the public to voice any complaint or concern. But that is not a provision under the department of public health." Also, said Tully, "when massage parlors were under the police department jurisdiction, if the person was convicted of prostitution, that person was not eligible to get a permit. I believe under DPH, a person with a prostitution conviction can still get a permit." Tully probably was referring to the provision in the law for those convicted of non-violent sex crimes.

It seems that the health department will be little interested in the character of massage applicants. David Palmer on his website said, "Dr. Jeff Klausner, the head of STD Prevention and Control for DPH [department of health], made it very clear that Dr. Mitch Katz, Director of DPH, believes that the least regulation of massage is the best regulation."

Some therapeutic massage practitioners welcomed the new ordinance. The San Francisco Coalition noted that "moving the permitting process from the police department to the Department of Public health helps remove the negative onus associated with massage in general and therapeutic massage in particular." Critics of the new ordinance, however, say the intent of the new ordinance is not to boost the self-esteem of therapeutic massage practitioners but to legalize prostitution.

Did Hall agree with this assessment? "Absolutely," he said. "It was an amateur move by Daly to deregulate a business that is very questionable. That's all it is. It gives him the publicity he seeks while he's in office."

And, as far as a negative onus attaching to valid practitioners, Hall said, under the old ordinance, "therapeutic massage parlors had nothing to worry about. They had a good working relationship with the police department. Why even bring it up? It's just another making a problem out of something that didn't exist and moving the monitoring of that problem to an agency that is not equipped to do that."

David Palmer, on his website, admits that the new ordinance is historically rooted in attempts to legalize prostitution in San Francisco. According to Palmer, in 1994, the board of supervisors, in a resolution by then-Supervisor (now district attorney) Terrence Hallinan, established the Task Force on Prostitution. In its final report, issued March 1996, the task force noted that "prostitution is not a monolithic institution ... it encompasses people of all genders working in the pornographic media industry, live theater, massage parlors, bordellos and through print advertising, as well as the street workers most commonly envisioned when the word 'prostitution' is mentioned." All these forms of prostitution are not illegal. In fact, "complaints leveled against prostitution really apply only to a fraction of the total industry" and "those legitimate concerns are not being met by efficient and effective solutions. Yet not only are current responses ineffective, they are also harmful. They marginalize and victimize prostitutes, making it more difficult for those who want out to get out of the industry and more difficult for those who remain in prostitution to claim their civil and human rights."

Thus, the task force recommended "that the City departments stop enforcing and prosecuting prostitution crimes;" that "the departments instead focus on the quality of life infractions about which neighborhoods complain and redirect funds from prosecution, public defense, court time, legal system overhead and incarceration towards services and alternatives for needy constituencies."

The difficulty was, and is, that most laws against prostitution are state laws, which San Francisco cannot unilaterally change. Realizing this, the task force recommended various interim measures to decriminalize prostitution. Among these is the recommendation to "remove authority for the licensing of massage parlors, masseuses and masseurs and escort services from the Vice Crime Division's jurisdiction and place it with agencies already qualified to grant other standard business licenses."

It is interesting to note that that the legalization of prostitution in general has long been part of the homosexual agenda. At its first convention in Chicago in 1972, the National Coalition of Gay Organizations drew up a Gay Rights Platform. The platform's "state level" planks included a call for the repeal of "all state laws prohibiting solicitation for private voluntary sexual liaisons; and laws prohibiting prostitution, both male and female."

According to Palmer, the current ordinance was drafted by Supervisor Ammiano in 1998 and introduced to the board of supervisors the following year. It was never voted on. In 2000 elections brought in a new board, which shelved the proposed ordinance until early 2003, when it was reintroduced by Supervisor Daly and finally passed by the board.

TOP