AGO 98-02.

• Case Date: March 03, 1998
• Court: Hawaii

Hawaii Attorney General Opinions 1998. AGO 98-02. Opinion No. 98-02March 3, 1998The Honorable Bertha C. Kawakami Representative, Fourteenth District The Nineteenth LegislatureState Capitol, Room 434Honolulu, Hawaii 96813 Dear Representative Kawakami:Re: Advertisements by Licensed Massage TherapistsThis opinion is in response to your request as to whether there are constitutional problems with section 452-23(a)(4), Hawaii Revised Statutes (HRS),(1) pertaining to advertisements by licensed massage therapists. Your request arises from an inquiry to your office by a massage therapist who was cited for violating section 452-23(a)(4) by the prosecuting agency of the licensing authority. The massage therapist questioned whether this statute was overly restrictive and unconstitutional. In this instance, based upon our review of United States Supreme Court rulings, we conclude that portions of the statute are overly broad and infringe upon the constitutionally protected commercial speech rights of people advertising massage services. While the statute attempts to advance the legislature's substantial interest in separating the legitimate profession of massage therapy from illegal activities, portions of the statute exceed the allowable limits for regulation of commercial speech and are, therefore, constitutionally infirm. Although you set forth specific questions pertaining to section 452-23(a)(4), including its applicability to the regulation of trademarks, we have taken the liberty of addressing the broader constitutional issues raised rather than limiting our inquiry to the questions as stated in your request. The United States Supreme Court rulings reviewed in this opinion govern federal and state law, and prescribe the parameters for regulating all types of commercial speech. Similar constitutional principles govern regulation of commercial speech whether the speech appears in the form of a trademark, or an advertisement, or both. Therefore, we believe our conclusions set forth below are responsive to your concerns. Discussion Section 452-23(a) states: §452-23 Advertising. (a) It is a misdemeanor for any person, including a person who is exempt by section 452-2 1 from this chapter, to advertise with or without any limiting qualifications as a massage therapist unless the person holds a valid license under this chapter. Further, it shall be a violation of this chapter for any person to advertise: (1) As a massage therapist or a massage therapy establishment unless the person holds a valid license under this chapter in the classification so advertised; (2) By combining advertising for a licensed massage therapy service with escort or dating services; (3) As performing massage in a form in which the person has not received training, or of a type which is not licensed or otherwise recognized by statute or administrative rule;(2) (4) By using in any mass distribution, print advertisements such as newspaper advertisements, or telephone directory listings, pictures depicting the human form other than hands, wrists, and forearms; (5) By using any term other than therapeutic massage or massage therapy to refer to the service; or (6) By referring to any personal physical qualities of the practitioner. "Advertise" as used in this section includes, but is not limited to, the issuance of any card, sign, or device to any person; the causing, permitting, or allowing of any sign or marking on or in any building, vehicle or structure; advertising in any newspaper or magazine; any listing or advertising in any directory under a classification or heading that includes the word "massage therapist" or "massage therapy establishment"; or commercials broadcast by airwave transmission. (Emphasis added.) Generally, statutes are presumed constitutional. The Supreme Court of Hawaii has consistently held that an enactment of the legislature is presumptively constitutional, and a party challenging the statute has the burden of showing the unconstitutionality beyond a reasonable doubt. "[T]he constitutional defect must be 'clear, manifest and unmistakable.'" Sifagaloa v. Board of Trustees of the Employees' Retirement Sys., 74 Haw. 181, 191, 840 P.2d 367, 371 (1992) (citing Blair v. Cayetano, 73 Haw. 536, 542, 836 P.2d 1066, 1069 (1992)); Schwab v. Ariyoshi, 58 Haw. 25, 31, 564 P.2d 135, 139 (1977). 1. Legislative History of Section 452-23(a) Although your opinion request focuses only upon section 452-23(a)(4), we also find paragraphs (5) and(6) troublesome. Essentially, these provisions prohibit massage therapy advertising that: (1) depicts the human form other than hands, wrists, and forearms; (2) uses any term other than therapeutic massage or massage therapy; or (3) refers to any personal physical qualities of the practitioner. The legislative history reflects that massage therapists supported these restrictions because they wanted to "promote a more professional image" and wanted to "disassociate themselves from escort or dating services which are associated with illegal activity." H. Stand. Comm. Rep. No. 1080-90, Haw. H.J. 1261, 1262 (1990). In addition, the prohibition on depictions of human forms was in response to advertisements at that time which the massage therapists found "objectionable" and which did "not portray the type of service massage therapists perform." Id. The House Committees on Consumer Protection and Commerce and on Judiciary concluded that: Although commercial speech is protected by the first amendment, commercial speech may be restricted if the state has a substantial interest which cannot be achieved by a more carefully designed restriction. Your Committees believe that the governmental interest to be served in not deceiving or misleading the public into believing that all massage therapists are fronts for illegal activity is strong; the proposed regulation advances that interest; and the regulation proposed is not more extensive than necessary since other avenues of relief have not been successful. Id. (emphasis added). Such restrictions were believed necessary in advertising "to ensure honesty in representations of services offered and to prohibit advertising practices which would mislead the public or which would imply special techniques or services which are not actually available or are not permitted by state law or rule." S. Conf. Comm. Rep. No. 122, Haw. S.J. 818 (1990); H. Conf. Comm. Rep. No. 122, Haw. H.J. 817 (1990). The conference committee found that: [A]lthough massage is a skilled profession with a long and honorable tradition in Hawaii and throughout the world, it remains susceptible to abuse or misunderstanding when advertised in...