Active: Federal lawsuit challenges warrantless searches and seizures

Short stints in a salon and a chiropractor’s office are all it took for Theresa Vondra to discover her true passion: helping people achieve total body wellness through massage therapy.

She graduated from massage therapy school in 2006 and spent several years working for others before starting her own practice in Billings, Montana, where she was born and raised. Through hard work and learning on the fly, Theresa has grown her business to two locations and seven staff members.

Theresa is especially proud of the trust she’s built over the years with her patients. Massage therapy is a very sensitive line of work, serving a broad range of people including those suffering from physical and psychological injuries and trauma.

A new city ordinance, however, threatens the privacy Theresa has worked so hard to ensure for her clients, employees, and even her entire livelihood.

Now, all licensed massage therapy business owners in Billings, including home-practitioners, must agree to warrantless, unannounced searches and seizures as a condition of doing business. Refusal of even one such invasive search could result in fines, loss of license, or jail.

The city enacted the ordinance in a purported effort to crack down on illicit sex parlors, but it went too far by empowering code enforcers and armed law enforcement to trespass on, and search, the entire premises of any massage therapy business — whether legitimate or not — without a warrant, permission, or cause. They can open any containers or cupboards they please, including employee and client lockers, to look for evidence that anyone broke any law or regulation, civil or criminal. This includes client records, which often contain sensitive medical and insurance information that is normally protected under laws like the Health Insurance Portability and Accountability Act (HIPPA).

Forcing massage therapists to violate either the ordinance, or their clients’ trust, confidentiality, and privacy rights is bad enough. But conflating massage therapy and sex parlors treats legitimate businesses as presumptively criminal, when, in fact, the vast majority of massage therapists across the country are law-abiding and provide a valuable service to the public.

In the case of Donna Podolak, another plaintiff in the lawsuit, the government’s claimed search powers expose her home to indiscriminate and unannounced invasions by police and code enforcement. That’s because Donna is a home-practitioner, who provides massage therapy from a converted space in her private home apartment in a 55+ community. Most of Donna’s clients are victims of car accidents or suffer from workplace injuries and other maladies for which she bills insurance policies directly. Her clients’ privacy and that of her personal home are now at the whim of any law or code enforcement officer’s desire to enter and search her home. Insisting that they first get a warrant, under the law, risks arrest, criminal prosecution, and jail time.

The city’s ordinance insults and demeans hardworking individuals like Theresa, Donna, and others by treating them like criminals. But it isn’t just offensive. It is unconstitutional and unnecessary.

The Fourth Amendment protects the fundamental property right of all Americans to say “no” to surprise government invasions and inspections of their businesses, homes, and private records. It provides a specific blueprint for legal searches through warrants—a system that’s already in place and that works.

Governments cannot avoid the warrant process through a sham licensing scheme that extorts consent for arbitrary invasions of property just to make criminal investigations easier, especially when the businesses being searched pose no imminent threat to the rights of other community members the way that, for example, munitions factories, nuclear power plants, and strip-mining operations do.

Theresa, her patient Adam Poulos, and massage therapists Lynda Larvie and Donna Podolak are fighting back against Billings’ unlawful ordinance that forces them to give up their rights in order to continue operating their businesses and serving their clients.

Represented at no charge by Pacific Legal Foundation, their federal lawsuit aims to restore their rights and send a message that governments cannot pursue social goals like fighting crime through warrantless fishing expeditions at the expense of livelihoods and property rights.

What’s At Stake?

  • Owners of legitimate businesses should not have to surrender their constitutional rights in order to continue serving customers. No one should be forced to choose between their livelihood and their rights to property and privacy.
  • The Billings license ordinance targets and stigmatizes the entire occupation of massage therapy. This is the wrong way to pursue goals like fighting crime.

Case Timeline

June 07, 2024
Order on Parties Cross Motions for Summary Judgment
U.S. District Court for the District of Montana in Billings
November 28, 2023
Plaintiffs' Brief In Support of Summary Judgment
U.S. District Court for the District of Montana in Billings
April 06, 2022
U.S. District Court for the District of Montana in Billings