City of Baton Rouge v. DiVincenti

697 So. 2d 1, 96 La.App. 1 Cir. 2662, 1997 La. App. LEXIS 1717, 1997 WL 349001
CourtLouisiana Court of Appeal
DecidedJune 20, 1997
DocketNo. 96 CA 2662
StatusPublished

This text of 697 So. 2d 1 (City of Baton Rouge v. DiVincenti) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
City of Baton Rouge v. DiVincenti, 697 So. 2d 1, 96 La.App. 1 Cir. 2662, 1997 La. App. LEXIS 1717, 1997 WL 349001 (La. Ct. App. 1997).

Opinion

|2FOGG, Judge.

By this appeal, the defendant in an action for the abatement of a public nuisance appeals an adverse judgment, contending that the statute is unconstitutionally vague and, alternatively, that the plaintiff failed to adequately comply with the statute.

On March 7,1996, the City of Baton Rouge and the Parish of East Baton Rouge (hereinafter collectively referred to as “the City”) brought this action for the abatement of a public nuisance pursuant to LSA-R.S. 13:4712, against Joseph S. DiVincenti, Sr., the owner of the properties having street addresses 167,169,187,189,191,193 and 219 South 16th Street in the City of Baton Rouge. The City asserted that the residences located at those street addresses supported the' maintenance of a nuisance as defined in LSA-R.S. 13:4711 et seq.

On March 11, 1996, the court ordered the defendant to show cause on April 8, 1996(1) why a preliminary injunction should not be issued; (2) why the above listed premises should not be declared a nuisance in violation of LSA-R.S. 13:4711; (3) why a permanent injunction should not issue ordering that the premises be closed for a period of five years; and (4) why a permanent injunction should not issue prohibiting the proprietary parties from maintaining a nuisance at any location within the 19th Judicial District.

On April 8, 1996, the matter was heard. At the hearing, Mr. DiVincenti appeared in proper person. Then, on April 22, 1996, the [2]*2defendant, through counsel, filed a motion for a second hearing. Therein, the defendant asserted that LSA-R.S. 13:4713 requires the City to have two hearings set, one for a preliminary injunction and one for a permanent injunction. He argued that because only one hearing had been held, he was entitled to a second hearing prior to the entry of any final judgment granting the relief sought by the City. On April 26, 1996, the defendant filed a peremptory exception raising the objection of no cause of faction, asserting that LSA-R.S. 13:4711 et seq. is unconstitutionally vague.

On May 2, 1996, the trial court denied the motion for a second hearing as moot and set the hearing on the defendant’s exception of no cause of action for June 17,1996.

On June 24, 1996, the trial court rendered judgment denying the defendant’s exception of no cause of action. That day the court also rendered judgment, granting a permanent injunction and issuing an order of abatement.

On appeal, Mr. DiVincenti asserts the trial court erred in denying his exception of no cause of action as LSA-R.S. 13:4711 et seq. is unconstitutionally void for vagueness. Prior to July 20, 1977, LSA-R.S. 13:4711 provided as follows:

§ 4711. Maintenance of nuisance defined; right to enjoin or abate.
Maintenance of a nuisance is to carry on, to conduct or to knowingly permit to exist, without instituting and proceeding with the legal action necessary to enjoin, prostitution, assignation or obscenity as now defined, or as hereafter defined, by the criminal laws of this state.
Maintenance of a nuisance in or upon any building, structure, land, watercraft or movable, or any part thereof, by the owner, lessee, sublessee or occupant thereof, his officers, agents, representatives, employees or any other person or persons in active concert of participation with him or them, may be enjoined as provided in R.S. 13:4711 through R.S. 13:4714.
Maintenance of the same nuisance at any other location within the state by the adverse party, his officers, agents, representatives, employees or any other person or persons in active concert or participation with him or them may also be enjoined in such action.
An order of abatement directing effectual closing of the building, structure, land or other place may be entered as a part of the judgment in the case as provided in R.S. 13:4715. Abatement shall not be an authorized remedy in cases involving obscenity.

The Louisiana Supreme Court, in the case of Connick v. Lucky Pierre’s, 331 So.2d 431 (La.1976), found the language “legal action necessary to enjoin,” contained in the above statute, to be unconstitutionally void for vagueness. The court stated “we conclude that the phrase “without instituting and proceeding with |4the legal action necessary to enjoin ...’ is so vague and indefinite that it does not give adequate notice of what action must be taken in order to avoid the issuance of an injunction or an order of abatement, or, once issued, of how to avoid being held in contempt for violation of the injunction. For this reason, La.R.S. 13:4711 et seq. violates the due process clauses of the United States and Louisiana Constitutions and is void for vagueness.” Connick v. Lucky Pierre’s, 331 So.2d at 435.

LSA-R.S. 13:4711 was subsequently amended and provides today as follows:

A. For the purposes of this Subpart, the following terms shall have the following definitions:
(1) “Drug-related criminal activity” means the illegal manufacture, sale, or distribution of, or possession with intent to manufacture, sell, or distribute, a controlled dangerous substance, as defined by R.S. 40:961 or of drug paraphernalia as defined by R.S. 40:1031.
(2) “Maintenance of a nuisance” means to conduct, carry on, or knowingly permit to exist on one’s premises a prohibited activity as defined in this Subsection.
(3) “Premises” means any building, structure, land, watercraft, or movable owned or occupied by any proprietary party or representative thereof.
(4) “Prohibited activity” means prostitution, as defined in this Subsection, obsceni[3]*3ty, as now or hereafter defined by the criminal laws of this state, or a pattern of drug-related criminal activity as defined in this Subsection.
(5) “Proprietary party” means an owner, lessee, sublessee, or occupant of any premises covered by this Subpart.
(6) “Prostitution” means the practice by a person of indiscriminate sexual intercourse with another for compensation, or the solicitation by one person of another with the intent to engage in indiscriminate sexual intercourse with the latter for compensation.
(7) “Representative” means an officer, agent, employee, or other representative of a proprietary party.
B. Maintenance of a nuisance in or upon any premises by a proprietary party, his representative, or any person acting in active concert with him or them may be enjoined as provided in this Subpart. Maintenance of the same nuisance at any other location within the jurisdictional area of the court issuing the injunction by,such individuals may be enjoined in such action.
ftC. An order of abatement directing the effectual closing of the premises in question may be entered as part of the judgment in the ease as provided in R.S. 13:4715.

The appellant contends that the legislative amendments to the statute did not cure the vagueness recognized by the supreme court in the Connick ease. The appellant contends that the statute continues to fail “to explain what ... [is] required of a person to avoid an injunction or contempt citation. Simply put, nothing ... [in the statute explains] how an owner can avoid ‘permitting’ the nuisance to exist.”

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Bluebook (online)
697 So. 2d 1, 96 La.App. 1 Cir. 2662, 1997 La. App. LEXIS 1717, 1997 WL 349001, Counsel Stack Legal Research, https://law.counselstack.com/opinion/city-of-baton-rouge-v-divincenti-lactapp-1997.