You Probably Wouldn't Think There Was Any Connection Between Foot-Massage Services and Real Estate Law ...

You might think that having practiced real estate law for 50 years now, I would have "seen it all" in terms of legal disputes related to property. What keeps my practice endlessly fascinating, however, is the fact that I still encounter aspects of the law that have never come up in previous cases. I think one such instance in particular is worth sharing in detail.

I recently learned that there's a California law codified in Penal Code Sections 11225-11235 that dates back over 100 years - known as the "Red Light Abatement Law," it was passed in 1913 in an attempt to curtail prostitution. After most brothels were eradicated, this law was largely forgotten in California. It's still on the books, however, and the San Jose Police Department recently began enforcing it through its resurrected Vice Unit. Other jurisdictions have followed SJPD's lead.

You might ask how, and why, an attorney dealing with disputes over easements, property purchase issues, and the like could end up having to research this obscure penal code section. Well, I took on a case recently, and my client was a shopping center owner. One of the tenants operated a foot-massage establishment, and, unbeknownst to the owner of the center, one of the women working for the tenant was arrested for prostitution. My client wanted legal advice after being notified by the Vice Unit that he should terminate the tenant's lease.

Prior to starting my research, I wasn't sure that anyone could justify evicting a tenant because one of his employees was engaging in illegal behavior while employed by that tenant's business.

But I hit the books after the client put me in touch with Sergeant Rick Galea of the SJPD, who is on the Special Investigations/Vice Unit. He advised me to take a look at the Red Light Abatement Law and the case law supporting it. After initial meetings with Sergeant Galea, we undertook further research and reviewed the San Jose ordinance regarding massage parlors. The SJPD, through Sergeant Galea, has developed a successful business model of working together with the community to prevent red light crimes from occurring in the future. Thanks to this case, I learned that there have been many arrests in a surprising variety of businesses where employees have actually touched the customers, including foot-massage establishments, nail salons, massage parlors, and the like.

The actual Red Light Abatement Law provides that the owner of the property who leases space to a tenant who is operating an illegal establishment may be responsible for removing a public nuisance. The removal costs, which may be considerable, are charged to the owner. Although the property owner will not be responsible for pecuniary loss damages, the costs and fees of removal, along with the costs and fees for closing and keeping a building closed, can be significant.

Property owners who leasing space to commercial or retail tenants should also be aware of the San Jose Local Ordinance. As contained in Section 6.44.060, 6.44.130 et seq., the Ordinance requires that any person who has ownership in a massage business or who manages such a business must first obtain an owner management license from the Chief of Police. Furthermore, anyone working in a massage service accepting any consideration for such services (whether they be an employee, an independent contractor, or otherwise) must also be a certified massage servicer. The Ordinance even specifies that the hours of operation shall be from 7:00 a.m. to 10:00 p.m. and prohibits locks on any door, cubicle room, booth, or treatment room. It also tracks with the Red Light Abatement Law in that it provides that it shall be a public nuisance for a massage business to be conducted in violation of an Ordinance. It gives the City the discretion under municipal codes, state, and/or federal law various methods of enforcement.

The San Jose Police Department continues to work with building owners, landlords, to locate and eliminate these types of illegal operations.

An amusing footnote to this story - it turns out there's an underground website that directs potential customers to illegal operations. Unwittingly, the creators of that site have given law enforcement what amounts to a roadmap, making it easier for the Vice Unit to enforce this law.