Jads, Inc. v. Detroit
This text of 200 N.W.2d 715 (Jads, Inc. v. Detroit) is published on Counsel Stack Legal Research, covering Michigan Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinions
In these consolidated cases we hold that "topless go-go dancing” does not violate City of Detroit ordinances.
On May 14, 1969, defendant LaRue was performing her final dance of the night. She stripped off [695]*695the two "pasties” (each was one-half of a flesh-colored bandaid) which had covered the nipple areas of her breasts, and danced totally nude above the waist. She was clad in black leotard tights below the waist.
A police officer, who was present during the entire performance, issued a ticket to LaRue when she removed her bandaids. She was charged, in the terms of the ordinance, with "indecent exposure of * * * her person in the streets, lanes, alleys, markets or public places of the city”.1 Defendant Manolakas, too, received a ticket — in his case for "permitting] any immoral, vulgar, suggestive, improper or freak dancing” in his establishment.2
Both defendants appeared in traffic court, where they were found guilty by a jury’s verdict. Their convictions were affirmed by the circuit court.
Following the convictions of LaRue and Manolakas, plaintiff Jads brought an action for a declaratory judgment alleging that it operates an establishment featuring "topless go-go dancing”, and that if such entertainment is prohibited its business will suffer serious economic injury. Jads seeks a judgment declaring that the ordinances relied on by the city do not apply to "topless go-go dancing” or that they are unconstitutional. The circuit judge held against Jads’ claims.
A number of constitutional infirmities in the ordinances are urged upon us. We are told that our decision will have important ramifications on [696]*696the right of free expression.3 Our disposition of this appeal makes it unnecessary, however, for us to reach the constitutional questions.
LaRue was convicted of indecently exposing herself "in the streets, lanes, alleys, markets or public places of the city”. The Sip 'n Chat Bar is not a "public place” within the meaning of the ordinance. Two principles are applicable:
—The first is that penal statutes are to be strictly construed in favor of the defendant;4 legislation declaring behavior criminal ought to be so "plain and unambiguous that 'he who runs’ may read, and understand whether his conduct is in violation of its provisions”. People v Ellis, 204 Mich 157, 161 (1918).
—The second is the doctrine of ejusdem generis. "Literally, that phrase means 'of the same kind or species.’ It is a well known maxim of construction, sometimes called Lord Tenterden’s Rule, to aid in ascertaining the meaning of a statute or other written instrument, and, under the maxim, where an enumeration of specific things is followed by a more general word or phrase, such general word or phrase is held to refer to things of the same kind, or things that fall within the classification of the specific terms.”5
[697]*697Without in any way attempting to define the exact limits of the term "public places” we simply conclude that a cabaret does not fit within the class of specific examples in this ordinance: streets, lanes, alleys and markets.6
The city’s argument is based on language employed by the Michigan Supreme Court in People v Kratz, 230 Mich 334, 339 (1925). The statute in that case prohibited "open, indecent or obscene exposure” of the person. The issue before the Supreme Court was the meaning of the word "open”. Indeed, the Court specifically noted: "The statute makes no reference to place, either public or private”. This precedent is not instructive on the issue now presented.
Defendant Manolakas was convicted of violating the city ordinance (see fn 2) providing that no operator of a cabaret shall permit "any immoral, vulgar, suggestive, improper or freak dancing”. The inapplicability of this ordinance becomes apparent upon an examination of the entire article dealing with cabarets.7
Cabarets are defined as:
"Any place wherein food and any type of alcoholic beverage is sold or given away on the premises and the operator thereof holds a yearly license from the state to sell such beverages by the glass and where the patrons are provided with entertainment or space for dancing. ” (Emphasis supplied.) Detroit City Code, § 5-4-1.
[698]*698The emphasized words highlight a distinction followed throughout the cabaret article — the distinction between entertainment and dancing.8 As used in this article, the word "dancing” refers to the conduct of patrons, and the word "entertainment” refers to the conduct of employees.
Apart from consistency of language, a contrary holding would lead to an incongruous result. We are persuaded that the Detroit Common Council did not single out dancing from all other forms of [699]*699entertainment for special treatment. Topless songs, monologues, or juggling are lawful, we are told, but, if the entertainer’s feet break into a dance, the operator of the cabaret is subject to prosecution. We avoid chimerical constructions.
We intimate no opinion on the questions whether LaRue could have been properly charged under the state indecent-exposure statute, which contains no "public place” limitation,9 or whether the Detroit Common Council might constitutionally adopt an ordinance regulating or prohibiting "topless go-go dancing”.
The convictions of LaRue and Manolakas are reversed. On remand a declaratory judgment shall be entered granting Jads a judgment'declaring that the ordinances in question do not prohibit topless go-go dancing.
Reversed; and remanded as to Jads for further proceedings consistent with this opinion.
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Cite This Page — Counsel Stack
200 N.W.2d 715, 41 Mich. App. 693, 1972 Mich. App. LEXIS 1368, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jads-inc-v-detroit-michctapp-1972.