IN THE MATTER OF PROPERTY SEIZED FROM BO (BRIAN) LI, NA TIAN, and WEI TIAN. STATE OF IOWA, Appellant.
from the Iowa District Court for Dubuque County, Michael J.
appeals judgment dismissing civil in rem forfeiture action
against spa advertising massages. AFFIRMED.
J. Miller, Attorney General, Louis S. Sloven, Assistant
Attorney General, Ralph Potter, County Attorney, and Brigit
Barnes, Assistant County Attorney, for appellant.
Christopher M. Soppe of Pioneer Law Office, Dubuque, for
appeal presents a question of statutory interpretation:
whether practicing massage therapy without a license
constitutes a serious misdemeanor. Police, responding to
complaints by neighbors suspecting prostitution, conducted
surveillance on a spa in Dubuque advertising massage
services. Police raided the business and seized cash, cell
phones, and other property. The State filed a civil in rem
forfeiture action alleging the cash was the proceeds of an
unlicensed massage business or prostitution. Following a
bench trial, the district court found the State failed to
meet its burden to prove prostitution and ruled that
practicing massage therapy without a license was not a crime
and therefore could not support forfeiture. The district
court dismissed the forfeiture action and ordered the cash
returned to the claimants. The district court, however,
denied the claimants' application for return of the other
property and allowed the State to retain that property
pursuant to its ongoing criminal investigation. The State
appealed, and we retained the case. The claimants did not
reasons explained below, we hold that practicing massage
therapy without a license is not a serious misdemeanor. We
affirm the district court's ruling finding that the State
failed to prove prostitution and affirm the district
court's judgment returning the cash to the claimants.
Because the claimants failed to file a cross-appeal, we do
not review the district court's ruling allowing the State
to retain the remaining property while it completes its
Background Facts and Proceedings.
claimants, Bo Li, Wei Tian, and Na Tian all live together in
Dubuque. Wei Tian and Na Tian are sisters, and Wei Tian is
dating Bo Li. Li owns Therapeutic Spa, located in Dubuque.
Li, Wei Tian, and Na Tian all work at Therapeutic Spa, which
provides massages and accupressure to its clients. None of
them have a massage therapy license. When Li purchased the
business from Hong Zhou in September 2016, he kept the name
because he thought it "promote[d] health" and
because he could save money by retaining the signage. Wei
Tian and Na Tian sell dresses online to make additional
money. They planned to open a dress store in Dubuque.
summer of 2016, months before Li purchased Therapeutic Spa,
police began investigating the business after neighbors
complained of hearing "sexual-type noises" inside.
The police found Therapeutic Spa listed on Craigslist and on
"Rubmaps, " a website which reviews businesses that
offer sex services. Claimants learned that the business was
listed on Rubmaps when they applied for a credit card
machine. They wrote and emailed Rubmaps requesting that the
business information be removed from that website.
Dubuque police officers conducted surveillance of the
business over several weeks. The daily surveillance varied
from several hours to the entire day. The police saw only
male customers entering the business, though Wei Tian later
testified that the spa kept a list of customers and
identified names of female customers.
night, the police observed two females remove a trash bag
from the spa, ignore the dumpster behind the business, and
dispose of the garbage at the claimants' shared
residence. The police seized the trash bag and found strips
of toilet paper that appeared to be soiled with semen and
fecal matter. They sent the toilet paper to the Iowa Division
of Criminal Investigation (DCI) Criminalists Laboratory for
analysis. Criminalists at the DCI laboratory confirmed the
presence of semen but did not run a DNA test.
Claimants testified that they threw away the trash at their
personal residence because the hair salon next door paid for
the dumpster behind the building and did not allow them to
use it. One officer testified that he never saw the women use
the dumpster behind the building. Additionally, Wei Tian
claimed that she and Li engaged in sexual relations at the
business, so the semen on the toilet paper would have come
February 2017, Dubuque police officers obtained and executed
a search warrant for the business and the claimants'
apartment. During the search, officers seized $16, 278 from
Li, $4341 from Na Tian, and $858 from Wei Tian. They also
seized electronic devices (including phones and an
iPad'), several prepaid cards, and paper records.
State filed in rem forfeiture complaints against Li, Wei
Tian, and Na Tian pursuant to Iowa Code sections 809A.13 and
809A.8(1)(a)(2) (2017), seeking to forfeit the
seized cash. In each complaint, the State alleged that the
"[p]roperty was acquired from or is proceeds of a
crime." Li, Wei Tian, and Na Tian each filed an answer
to the in rem forfeiture complaints, claiming that
"[t]he money was not the proceeds from any criminal
activity." The claimants also filed applications for
return of the other property that had been seized.
April, an undercover officer conducted a sting operation that
resulted in the arrest of a woman who solicited the officer
for sex at a hotel in Dubuque. Upon their search of the
woman's hotel room, officers found a business card for
Therapeutic Spa in the woman's purse.
9, the district court held a civil forfeiture hearing, as
well as a hearing on the claimants' applications for
return of seized property, and granted the parties additional
time to file briefs. The State claimed the cash was
forfeitable as proceeds of either prostitution or the
unlicensed practice of massage therapy. The State argued that
practicing massage therapy without a license is a serious
misdemeanor and therefore could serve as the predicate
offense to forfeiture. The claimants argued that the
unlicensed practice of massage therapy was not a forfeitable
offense. They also contended that the State failed to prove
the cash was proceeds from prostitution.
district court entered its ruling on July 28. The court
determined that practicing massage therapy without a license
is not a serious misdemeanor and therefore cannot support
forfeiture. The court reached that decision by determining
that Iowa Code section 152C.4 provides a specific penalty-a
civil fine-for practicing massage therapy without a license.
As a result, section 147.86, which provides that any
violation of a provision of that subtitle constitutes a
serious misdemeanor unless a specific penalty is otherwise
provided, does not apply.
district court also found that the State had not proved by a
preponderance of the evidence that the seized funds were the
proceeds of prostitution, so the money could not be forfeited
on that ground. The court acknowledged it was suspicious of
the claimants' actions. But the court explained that
"forfeiture is a significant exercise of the State's
power[, ] and it requires ...