Civil injunctions

The Montgomery County Attorney’s Office, working with the county sheriff’s office and the fire marshal, successfully closed down a massage parlor fronting for prostitution. The investigation and eventual closing of the parlor demonstrated how a coordinated and cooperative law enforcement effort can produce results that might elude a more typical application of law enforcement assets.

The investigation of KM Massage Center began as many criminal investigations do, with a complaint from a local citizen. This person contacted a deputy sheriff and complained that an employee of KM Massage Center had offered to perform a sexual act in return for money. The deputy sheriff referred the information to the sheriff’s special investigations unit (SIU), which is composed of municipal and county peace officers under the sheriff’s supervision and investigates a wide variety of criminal matters that often require undercover investigative techniques. An investigation of alleged organized prostitution activities seemed to be right up the SIU’s alley.

KM Massage Center was located on Sawdust Road in a strip center in one of the busiest parts of Montgomery County, near the southern entrance to The Woodlands and just west of Interstate 45. Fast food restaurants, grocery stores, and a wide variety of other businesses are crowded together along Sawdust Road. Traffic is almost always congested. It was a bit unusual to find an organized prostitution activity in such a location. Montgomery County is adjacent to Houston and Harris County, and though it is a rapidly growing suburban area, sexually oriented businesses (either legal or illegal) have, to date, not found their way into the county. For the past 45 years, sheriffs have exhibited a conservative brand of leadership in law enforcement that, at least in part, has discouraged sexually oriented business here. Current sheriff Tommy Gage continues that tradition.

The investigation

An investigator with the SIU began his investigation in August 2004. Coincidentally, this was within 30 days of the establishment’s licensure by the Texas Department of State Health Services as a purportedly legitimate massage therapy business. The SIU collected evidence at KM Massage Center in September 2004 by sending an undercover officer into the premises. The undercover operation resulted in the arrest of a female attendant, Lihua Zhao, on September 22, 2004, who was charged with prostitution (§43.02, Texas Penal Code) and with violating Chapter 455 of the Texas Occupations Code, the regulatory statute for massage therapy establishments. Ms. Zhao had offered to perform oral sex on the undercover officer for $80. The attendant’s arrest was referred to the Montgomery County District Attorney’s Office, and for the balance of 2004 and the first half of 2005, members of the sheriff’s department continued to monitor KM Massage Center and await the results of the attendant’s prosecution. Lihua Zhao subsequently pled guilty to prostitution (Class B), was placed on deferred adjudication for nine months, and was assessed a $500 fine.

The Montgomery County Sheriff’s Office continued to receive complaints about KM Massage Center during the summer of 2005. The SIU increased its surveillance of the premises and gathered additional intelligence. Additional SIU officers were detailed to document the amount of customer traffic in and out of the parlor, and license plates were run to determine ownership of patrons’ vehicles. Additionally, the Montgomery County Fire Marshal, Jimmy Williams, was asked to aid in the investigation by inspecting the premises pursuant to his authority under §455.104(b) of the Texas Occupations Code. Fire inspections occurred that November, and a variety of violations were discovered, resulting in the arrest of two attendants, Lihua Zhao and Ling Hui Ho, and the owner of the business, Kit Ming Chen. One attendant, Lihua Zhao, of course, was the same woman who had been arrested for prostitution the previous year. These arrests were also referred to the district attorney for prosecution. Ling Hui Ho was subsequently found guilty of failing to post a massage license, a Class B misdemeanor, and was assessed a fine of $350. Kit Ming Chen was found guilty of failing to post a massage license and was assessed a $750 fine. Ms. Ho and Mr. Chen were each convicted under §§455.352 and 455.204 of the Occupations Code. (The Occupations Code offense against Lihua Zhao was dismissed when she pled to the prostitution charge.)

By January 2006, KM Massage Center had been the subject of a continuing investigation for approximately 18 months. The arrests of two employees and the owner had not closed down the parlor. KM Massage Center continued its operations amid continued suspicions that its real enterprise was prostitution. Sheriff’s officers and the fire marshal began to consider an alternative means to force KM Massage to shut its doors permanently. They contacted my office to discuss filing an application for an injunction under §455.351 of the Texas Occupations Code. Our senior investigator, Jimmy Wiggins, joined the investigation with the SIU and fire marshal, and the three agencies began collecting information of repetitive violations of the Occupations Code and Title 25 of the Texas Administrative Code (General Ethical Requirements for Massage Therapists). The agencies’ plan at this point was to develop enough information to demonstrate to a district judge that KM Massage Center was flagrantly violating the licensing provisions for a massage establishment and that imposition of a permanent injunction closing the business was warranted.

A series of inspections of the parlor began in the late summer and fall of 2006. We gathered evidence that showed KM Massage Center was in daily violation of a host of licensing provisions of Chapter 455, Texas Occupations Code, and that the attendants were in frequent violation of the ethical requirements for massage therapists in the Texas Administrative Code. Some violations of Chapter 455 of the Occupations Code and of 25 Texas Administrative Code §141.5 were that KM Massage Center failed to keep accurate records of the dates and types of massage therapy provided. There were no records of initial consultations with therapy clients or billing records for therapy sessions. Massage therapist licenses were not displayed, and there was no evidence that therapy clients had been advised how to contact the Department of State Health Services if they had a complaint. It became apparent to attorneys in our office that a substantial body of information was available to plead in an application for an injunction, and we started work on an original petition. We anticipated a well-funded defense to the application for injunction, so we carefully planned for arguments and defenses that might be raised on the parlor’s behalf. Though we did not know how the defendant might respond to our petition, we did not want the court to let the parlor stay open while they “corrected” their violations.

Injuction petition

The original petition was brought against KM Massage Center, Inc., and was filed in the 221st District Court in November 2006; it sought injunctive relief and the application of statutory civil penalties. Specifically, the petition requested that after a hearing, the massage parlor be closed until the defendant, Kit Ming Chen, after notice to the county and a hearing, demonstrated his ability to operate his business in full compliance with applicable regulatory statutes. Because the defendant had never demonstrated an ability to operate his business legally, our plan was to present enough evidence to convince the court to close the business presently and not allow it to reopen until the defendant could specifically show the court that he could operate legally in the future. Given the evidence we had accumulated, we did not think the massage parlor had much chance to stay open.

Kit Ming Chen was successfully served, and a hearing was set for December 21, 2006. State witnesses included representatives from the sheriff’s office, fire marshal, county attorney’s office, and an investigator from the Department of State Health Services, all of whom told of their observations and evidence they collected during surveillance of the parlor. The petition for injunction was listed near the end of a lengthy ancillary docket, and the long wait apparently provided the defendant and his attorney an opportunity to consider the details of the State’s allegations and to attempt to reach an agreement in lieu of proceeding with a contested hearing. Because the petition listed daily violations spanning almost two years, the defendant’s request to negotiate a settlement was not surprising. The defendant suggested that he be allowed to remain open for two months during which he’d try to sell the business, a totally unacceptable suggestion. We demanded the premises close immediately because our evidence showed that Chen had completely failed to follow the licensing statute. An agreement was reached, and Judge Suzanne Stovall in fact entered a temporary injunction that day. The order provided for the immediate closing of the massage parlor and scheduled a compliance hearing for March 22, 2007. Subsequent to issuing the temporary injunction, the sheriff’s department continued to monitor the premises to insure compliance, and there has been no further activity.

Our use of injunctive relief to shut down an apparent organized prostitution operation went over well with the local media. The Houston Chronicle newspaper covered the story, and The Courier of Montgomery County ran a couple of stories and a full-length editorial. It seems to me that our success merely reflected an effective application of available legal tools to address criminal activity in our community. Local law enforcement officials have expressed for years that certain features of “life in the big city” will not be tolerated in Montgomery County, and those “adult” activities that may be constitutionally protected and therefore demand our tolerance will be carefully and vigorously regulated. That conservative approach played a part in how we developed evidence of prostitution behind closed doors; the sheriff’s office was understandably concerned with how far the undercover officers might have to go to secure evidence of an offer of prostitution. Professional law enforcement officials obviously have a duty to use the most effective investigative techniques available; however, any technique, though legal, must yet be employed within a framework of acceptable community social standards and due regard for the appearance of propriety. Our use of injunctive relief for repetitive violations of the Occupations Code solved our dilemma in an agreeable fashion.

Conclusion

Our success in closing down KM Massage Center, Inc., was the result of a coordinated, careful, and patient application of law enforcement resources, using available statutory provisions, which, thankfully, had enough teeth to enable us to protect our community. Our success prepares us to repeat our efforts, if need be, in the future. Montgomery County, though far from perfect, is a great place to live. I would like for it to stay that way.