FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

PHILLIP KILLGORE, DBA Lavender 

Massage,

Plaintiff-Appellant,

v.

CITY OF SOUTH EL MONTE; COUNTY 

OF LOS ANGELES, a municipal 

corporation; G. FURUYAMA; C.

SCIACCA; M. OLMEDO; C. PRESTON;

D. FENDER; M. VEGA; M. VAN DINE;

R. CATANO; N. TARIO; B.

COMPARAN; T. HARRIS; V. PENA; O.

GARCIA; A. TORRES; J. MARTINEZ;

K. TAO; R. WILLIAMS; M. QUEZADA;

V. VARGAS; K. RIVAS; DOES, 1–10

inclusive; B. HALL; G. LUKEHART,

Defendants-Appellees.

No. 20-55666

D.C. No.

2:19-cv-00442-

SVW-JEM

OPINION

Appeal from the United States District Court

for the Central District of California

Stephen V. Wilson, District Judge, Presiding

Argued and Submitted May 11, 2021

Pasadena, California

Filed July 8, 2021
2 KILLGORE V. CITY OF SOUTH EL MONTE

Before: John B. Owens, Ryan D. Nelson, and

Bridget S. Bade, Circuit Judges.

Opinion by Judge Owens

SUMMARY*

Civil Rights

The panel affirmed the district court’s dismissal, for 

failure to state a claim, of an action brought pursuant to 

42 U.S.C. § 1983 alleging that the City of South El Monte 

violated plaintiff’s Fourth Amendment rights when 

authorities, without a warrant, searched his massage 

business.

The panel first held that the California massage industry 

is a closely regulated industry and accordingly the Fourth 

Amendment’s warrantless search exception for 

administrative searches of businesses applied. Applying the 

factors articulated in New York v. Burger, 482 U.S. 691 

(1987), the panel next held that the warrantless inspections 

were reasonable under the Fourth Amendment because 

(1) there was no question that curtailing prostitution and 

human trafficking were substantial government interests; 

(2) the warrant exception was necessary to further the 

regulatory scheme considering the potential ease of 

concealing violations; and (3) the City ordinance governing 

massage establishments and the conditional use permit 

* This summary constitutes no part of the opinion of the court. It 

has been prepared by court staff for the convenience of the reader.
KILLGORE V. CITY OF SOUTH EL MONTE 3

sufficiently restrained the City in both the time and purpose 

of each inspection.

COUNSEL

Frank A. Weiser (argued), Los Angeles, California, for 

Plaintiff-Appellant.

D. Dennis La (argued), Aleshire & Wynder LLP, El 

Segundo, California; Stephen R. Onstot, and Jamie L. 

Traxler, Aleshire & Wynder LLP, Riverside, California; for 

Defendants-Appellees.

OPINION

OWENS, Circuit Judge:

In his federal lawsuit, Phillip Killgore alleged that the 

City of South El Monte (“City”) violated his Fourth 

Amendment rights when authorities, without a warrant, 

searched his massage business.1 The district court dismissed 

his complaint for failure to state a claim. We have 

jurisdiction under 28 U.S.C. § 1291, and we affirm.2

1 This opinion only concerns California businesses that qualify as a 

“massage establishment” under California Business and Professions

Code section 4601(f). We render no opinion on businesses outside 

California or that do not qualify as a massage establishment under 

section 4601(f).

2 This opinion only addresses the Fourth Amendment issue. A 

concurrently filed memorandum disposition resolves the remaining 

issues on appeal.
4 KILLGORE V. CITY OF SOUTH EL MONTE

I. BACKGROUND

A. Lavender Massage, California’s Regulatory 

System, and the Conditional Use Permit

Since 2013, Killgore owned and operated the Lavender 

Massage Center. While he initially ran the business under a 

series of City licenses, in July 2017, the City approved a 

conditional use permit (“CUP”) for his massage 

establishment. The CUP set out a series of extensive 

conditions, including the hours of operation, the 

qualifications of employees, limits on altering the interior of 

the building, and provided that Killgore “must allow 

2 inspections a year . . . to ensure compliance of all 

conditions of approval.”

The CUP also referenced California’s Massage Therapy 

Act (“Act”), a comprehensive certification and regulatory 

scheme adopted in 2014 that sets forth several requirements 

and authorizes local governments to establish their own 

regulations. Cal. Bus. & Prof. Code §§ 4600–21. The Act, 

which builds upon a more than 40-year-old licensing system 

in California, vests local governments with the power to 

“manage [massage] establishments in the best interests of the 

individual community.” Id. § 4600.5(b).

In 2015, under the powers granted by the Act, the City 

enacted Ordinance No. 1195 (the “Ordinance”) governing 

massage establishments. Its purpose was “to better control 

illicit operations and protect and promote the public health, 

safety and welfare by imposing stricter requirements on 

massage practitioners, therapists, and establishments.” The 

Ordinance also mandated CUPs for massage establishments, 

which led to the CUP at issue in this case.
KILLGORE V. CITY OF SOUTH EL MONTE 5

B. The Investigation of Lavender Massage

In August 2017, law enforcement officers began 

investigating Lavender Massage for prostitution and sent in 

an undercover officer as a patron. The officer claimed that 

he was propositioned for sex, and a search warrant was 

executed on the business.

According to Killgore, in February 2018, City officials 

entered Lavender Massage on three separate occasions 

without consent or a court order and searched non-public 

areas for violations of the CUP. Although no criminal 

charges were filed, the City eventually revoked Killgore’s 

CUP for multiple violations of the Act and Ordinance.

C. The District Court’s Dismissal of Killgore’s 

Complaint

In January 2019, Killgore filed the instant 42 U.S.C. 

§ 1983 action alleging that the City and several employees 

executed warrantless searches in violation of the Fourth 

Amendment. After permitting Killgore multiple 

amendments to his complaint, the district court dismissed the 

action in a well-reasoned order.

Reviewing California’s extensive regulation of the 

massage industry, and citing cases including New York v. 

Burger, 482 U.S. 691 (1987), and United States v. 4,432 

Mastercases of Cigarettes, More or Less, 448 F.3d 1168 (9th 

Cir. 2006), the district court concluded that the massage 

industry in California qualified as a “closely regulated”

industry, meaning that the Fourth Amendment’s warrantless 

search exception for administrative searches of businesses 

applied. The district court rejected Killgore’s argument that 

the Supreme Court’s decision in City of Los Angeles v. Patel, 

576 U.S. 409 (2015), which refused to extend the “closely 
6 KILLGORE V. CITY OF SOUTH EL MONTE

regulated” industry doctrine to hotels, fundamentally altered 

this long-established line of cases. Killgore then appealed.

II. DISCUSSION

A. Standard of Review

We review de novo a district court’s dismissal for failure 

to state a claim under Federal Rule of Civil Procedure 

12(b)(6). Brown v. Stored Value Cards, Inc., 953 F.3d 567, 

572 (9th Cir. 2020).

B. The Fourth Amendment Permitted the 

Warrantless Searches of Lavender Massage

1. The Law of Closely Regulated Industries

The Fourth Amendment’s general prohibition against 

warrantless searches extends to commercial businesses. 

4,432 Mastercases of Cigarettes, 448 F.3d at 1176. “The 

United States Supreme Court, however, has carved out a 

limited number of contexts within which a warrant is not 

required,” such as administrative searches of “‘closely 

regulated’ industries.” Id.

To determine whether an industry is “closely regulated,” 

we look to “the pervasiveness and regularity of the . . .

regulation and the effect of such regulation upon an owner’s 

expectation of privacy.” Id. (citation omitted). “We do not 

require a warrant in such situations because the . . .

regulatory presence is sufficiently comprehensive and

defined that the owner of the commercial property cannot 

help but be aware that his property will be subject to periodic 

inspections undertaken for specific purposes.” Id. (internal 

quotation marks and citation omitted); see also Marshall v. 

Barlow’s, Inc., 436 U.S. 307, 313 (1978) (“Certain industries 
KILLGORE V. CITY OF SOUTH EL MONTE 7

have such a history of government oversight that no 

reasonable expectation of privacy . . . could exist for a 

proprietor over the stock of such an enterprise.” (internal 

citation omitted)).

The Supreme Court has held liquor distribution, the sale 

of sporting weapons, stone quarrying and mining, and 

automobile junkyards to be “closely regulated” industries.3

 

We also have held that salmon fishing, commercial fishing, 

family day care homes, transportation of hazardous 

materials, veterinary drugs, foreign trade zones, and 

commercial trucking are “closely regulated” industries.4

We are not the first court to examine whether the 

California massage industry falls within this exception. 

Over 30 years ago, a California state appellate court held that 

the massage industry is pervasively regulated and that an 

ordinance permitting warrantless inspections of massage 

parlors did not violate the Fourth Amendment. Kim v. 

Dolch, 219 Cal. Rptr. 248, 251 (Ct. App. 1985). Concluding 

“that the expectation of privacy that the owner of 

3 See Colonnade Catering Corp. v. United States, 397 U.S. 72, 74 

(1970) (liquor distribution); United States v. Biswell, 406 U.S. 311, 316 

(1972) (sale of sporting weapons); Donovan v. Dewey, 452 U.S. 594, 

600–02 (1981) (stone quarrying and mining); Burger, 482 U.S. at 703–

04 (automobile junkyards).

4 See United States v. Raub, 637 F.2d 1205, 1209–11 (9th Cir. 1980) 

(salmon fishing); Balelo v. Baldrige, 724 F.2d 753, 765 (9th Cir. 1984) 

(commercial fishing); Rush v. Obledo, 756 F.2d 713, 714 (9th Cir. 1985) 

(family day care homes); United States v. V-1 Oil Co., 63 F.3d 909, 911 

(9th Cir. 1995) (transportation of hazardous materials); United States v. 

Argent Chem. Lab’ys, Inc., 93 F.3d 572, 575 (9th Cir. 1996) (veterinary 

drugs); 4,432 Mastercases of Cigarettes, 448 F.3d at 1176 (foreign trade 

zones); United States v. Delgado, 545 F.3d 1195, 1202 (9th Cir. 2008) 

(commercial trucking).
8 KILLGORE V. CITY OF SOUTH EL MONTE

commercial property enjoys . . . differs significantly from 

the sanctity accorded an individual’s home, and that this 

privacy interest may, in certain circumstances, be adequately 

protected by regulatory schemes authorizing warrantless 

inspections,” the court upheld the “comprehensive” 

ordinance as reasonable. Id. at 250–51.

With the adoption of the Massage Therapy Act in 2014, 

which “created additional certification requirements for new 

massage professional applicants and impos[ed] greater 

statewide regulations on all certified massage therapists and 

practitioners,” regulation of the massage industry in 

California now exceeds its 1985 level. The Act “completely 

regulate[s] the environment in which [massages are] 

provided” through detailed certification requirements, see 

Rush, 756 F.2d at 720, and is thus a textbook application of 

the “closely regulated” industry doctrine.5

In addition to the Act’s comprehensive requirements, 

Killgore’s business was further regulated by the City’s 

Ordinance and the CUP conditions, both of which illustrate 

the City’s heavy regulation of this industry and the 

diminished expectation of privacy of massage establishment 

owners. The Ordinance mirrored several of the Act’s 

provisions, authorized reasonable inspections, and required 

Killgore to obtain a CUP, which the City could suspend or 

5 The Act provides for certification and regulation of massage 

therapists and practitioners and provides for the regulation of massage 

establishments that hire certified massage practitioners. Cal. Bus. & 

Prof. Code §§ 4600–21. It further provides that the “owner[s] or 

operator[s]” of certified massage establishments may be disciplined “for 

the conduct of all individuals providing massage for compensation on 

the business premises,” id. § 4607, and regulates massage practitioners 

by, among other things, limiting the areas of the body that they may 

massage and their attire, id. § 4609.
KILLGORE V. CITY OF SOUTH EL MONTE 9

revoke for specific violations.6 And under the CUP, which 

required compliance with the Massage Therapy Act and 

other state and local laws, Killgore was subject to 

16 conditions that governed the hours of operation, 

appearance, and cleanliness of the massage establishment, 

and included strict reporting, hygiene, and advertising 

requirements. “These numerous and specific regulations [in 

the Act, Ordinance, and CUP] should have provided 

sufficient notice to [Killgore] that [his] property . . . will 

from time to time be inspected by government officials.” 

See 4,432 Mastercases of Cigarettes, 448 F.3d at 1177–78 

(internal quotation marks and citation omitted).

Finally, a long history of government regulation is not 

necessary, but duration is an “important factor.” Burger, 

482 U.S. at 701 (citation omitted). “In Burger, the Supreme 

Court held that a regulatory scheme far less comprehensive 

and enacted more recently [(less than five years old)] 

nonetheless rendered automobile junkyards ‘closely 

regulated.’” 4,432 Mastercases of Cigarettes, 448 F.3d at 

1178. Here, the California massage industry has been 

6 Specifically, the Ordinance requires a massage establishment to 

operate with a City business license and a “massage establishment 

permit.” The Ordinance further provides that “owners and operators of 

. . . massage establishment[s] are jointly and severally responsible for . . . 

the conduct of anyone providing massage on the premises,” must provide 

notice when new massage practitioners are hired or terminated, and “may 

not record or allow recording of any massage services for 

compensation.” Persons performing massages must have a “current, 

unrevoked and unsuspended CAMTC [California Massage Therapy 

Council] certificate.” The Ordinance also regulates the environment in 

which massages are performed, including the appearance of glass 

windows or doors at the entrance, circumstances under which exterior 

doors may be locked, ventilation and minimum lighting requirements, 

and numerous other requirements related to massage rooms and 

equipment.
10 KILLGORE V. CITY OF SOUTH EL MONTE

regulated for over 30 years. See Kim, 219 Cal. Rptr. at 251. 

And, as noted in the Ordinance, the state imposed additional 

certification requirements and regulations on massage 

therapists and allowed local governments greater authority 

to regulate massage establishments. Killgore, as the owner 

of a business with “such a history of government oversight,” 

had “no reasonable expectation of privacy.” Barlow’s, Inc., 

436 U.S. at 313. Other appellate decisions are in accord. 

See, e.g., Pollard v. Cockrell, 578 F.2d 1002, 1014 (5th Cir. 

1978) (upholding a massage parlor administrative search 

provision because massage establishments have “a history of 

regulation” (citation omitted)); see also City of Indianapolis 

v. Wright, 371 N.E.2d 1298, 1302 (Ind. 1978) (upholding an 

ordinance regulating massage establishments in part because 

the industry “has a history of regulation”); Gora v. City of 

Ferndale, 576 N.W.2d 141, 147–48 (Mich. 1998) (holding 

the massage industry is pervasively regulated).

According to Killgore, the Supreme Court’s refusal to 

apply the “closely regulated” industry doctrine in Patel 

prohibits its application here.7

 Yet Patel dealt with a very 

different business – the hotel industry – one that the Supreme 

Court has repeatedly recognized enjoys core Fourth 

Amendment protections. See, e.g., Minnesota v. Olson, 

495 U.S. 91, 99 (1990) (including guest in a “hotel room” as 

someone with a reasonable expectation of privacy); Katz v. 

United States, 389 U.S. 347, 359 (1967) (listing a “hotel 

7 Killgore also argues that like in Patel, the Ordinance here should 

fail because it does not afford massage establishments an opportunity for 

precompliance review. But the Patel Court analyzed the ordinance in 

that case under the general administrative search exception to the warrant 

requirement after holding hotels are not “closely regulated.” Patel, 

576 U.S. at 424–26. Because we conclude massage establishments in 

California are “closely regulated,” we apply the Burger factors, which 

do not require precompliance review. See id.
KILLGORE V. CITY OF SOUTH EL MONTE 11

room” as a place where a person is entitled to be “free from 

unreasonable searches and seizures”); Stoner v. California, 

376 U.S. 483, 490 (1964) (“[A] guest in a hotel room is 

entitled to constitutional protection against unreasonable 

searches and seizures.”); United States v. Jeffers, 342 U.S. 

48, 51–52 (1951) (extending Fourth Amendment protection 

to hotel rooms). Killgore does not cite any authority 

suggesting that Patel detonated the long line of cases 

applying the “closely regulated” industry doctrine to 

additional businesses. Indeed, other courts of appeals have 

continued to categorize industries as “closely regulated” 

after Patel. See, e.g., Calzone v. Olson, 931 F.3d 722, 726 

(8th Cir. 2019) (dump trucks); Liberty Coins, LLC v. 

Goodman, 880 F.3d 274, 282 (6th Cir. 2018) (precious 

metals); Owner-Operator Indep. Drivers Ass’n, Inc. v. U.S. 

Dep’t of Transp., 840 F.3d 879, 894–95 (7th Cir. 2016) 

(commercial trucking); Rivera-Corraliza v. Morales, 

794 F.3d 208, 219 (1st Cir. 2015) (adult entertainment 

games used for gambling); see also Cotropia v. Chapman, 

978 F.3d 282, 287 (5th Cir. 2020) (assuming pain 

management clinics are closely regulated). As the Sixth 

Circuit explained when rejecting the argument that Patel

somehow limited this doctrine, “[w]hile Patel undoubtedly 

clarified the application of Burger, we do not read Patel as 

narrowly as plaintiff[] suggest[s].” Liberty Coins, 880 F.3d 

at 284.

For these reasons, we hold that the California massage 

industry is “closely regulated” and effectively reaffirm what 

has been the law in California for over 30 years.8 See Kim, 

219 Cal. Rptr. at 251.

8 Killgore’s reliance on See v. City of Seattle, 387 U.S. 541, 546 

(1967), Michigan v. Tyler, 436 U.S. 499, 504–05 (1978), Camara v. 
12 KILLGORE V. CITY OF SOUTH EL MONTE

2. The Three February 2018 Searches Did Not 

Violate the Fourth Amendment

Under Burger, a warrantless inspection of a commercial 

business in a “closely regulated” industry is reasonable 

under the Fourth Amendment provided three conditions are 

met: (1) “there must be a substantial government interest that 

informs the regulatory scheme pursuant to which the 

inspection is made”; (2) “the warrantless inspections must 

be necessary to further [the] regulatory scheme”; and 

(3) “the statute’s inspection program, in terms of the 

certainty and regularity of its application, [must] provid[e] a 

constitutionally adequate substitute for a warrant.” 482 U.S. 

at 702–03 (alterations in original) (internal quotation marks 

and citations omitted).

The district court here properly concluded that all three 

Burger requirements were met. First, there is no question 

that curtailing prostitution and human trafficking is a 

substantial government interest. Second, the warrant 

exception is necessary to further the regulatory scheme 

considering the potential ease of concealing violations. The 

Act, Ordinance, and CUP conditions contain a variety of 

internal facility requirements, including a prohibition on 

unlicensed massage therapists, signage requirements, 

hygiene standards, a prohibition on sexual activities on the 

premises, and restrictions on permissible attire. These sorts 

of violations could go easily undetected, and a warrant 

requirement would only frustrate the government’s ability to 

Municipal Court of the City & County of San Francisco, 387 U.S. 523, 

538–39 (1967), Connor v. City of Santa Ana, 897 F.2d 1487, 1490–91 

(9th Cir. 1990), and Patel v. City of Montclair, 798 F.3d 895, 899–900 

(9th Cir. 2015), is misplaced because these cases do not involve “closely 

regulated” industries.
KILLGORE V. CITY OF SOUTH EL MONTE 13

discover them. See 4,432 Mastercases of Cigarettes, 

448 F.3d at 1179 (noting that “advance notice of inspections 

could permit those violating [the regulations] ‘to temporarily 

correct violations and frustrate enforcement efforts’” 

(citation omitted)); Argent Chem. Lab’ys, Inc., 93 F.3d 

at 576 (“[F]orcing inspectors to obtain a warrant before 

inspection might frustrate the purpose of the Act by alerting 

owners to inspections.”).

As to the third Burger requirement, Killgore argues it is 

not met because the Ordinance “fails sufficiently to constrain 

[the City officers’] discretion as to which [massage 

establishments] to search,” “under what circumstances,” and 

“how many times.” But the Ordinance does not give the City 

unfettered discretion. The City may “conduct reasonable 

inspections of any massage establishment during regular 

business hours to ensure compliance with the Massage 

Therapy Act, [the Ordinance], and other applicable fire, 

health and safety requirements.” The City is further 

constrained by the CUP, which limits the hours of operation 

(10:00 am – 10:00 pm seven days a week), and specifies that 

the “business owner must allow 2 inspections a year by the 

Community Development Department to ensure compliance 

of all conditions of approval.” Although the City here 

conducted more than two inspections of Lavender Massage, 

there is nothing in the Ordinance or CUP that forbids the 

City from conducting necessary investigations to ensure 

compliance with the law. In other words, two inspections 

are the minimum, not maximum, that Killgore must allow. 

The City was sufficiently restrained in both the time and 

purpose of each inspection. The Ordinance and CUP 

therefore reasonably restrict the City and we hold the third 

Burger requirement is met.
14 KILLGORE V. CITY OF SOUTH EL MONTE

Accordingly, the district court properly dismissed 

Killgore’s Fourth Amendment claim.9

AFFIRMED.

9 The district court also properly determined Killgore failed to allege 

with sufficient facts that the searches were conducted for a criminal 

purpose. And because the search falls under the “closely regulated” 

industry exception to the warrant requirement, the district court properly 

dismissed as irrelevant Killgore’s argument that he did not consent to the 

search. See Barlow’s, Inc., 436 U.S. at 313 (“The businessman in a 

regulated industry in effect consents to the restrictions placed upon him.” 

(citation omitted)).